United States District Court, D. New Jersey
MEMORANDUM OPINION & ORDER
WILLIAM J. MARTINI, U.S.D.J.
matter comes before the Court on Plaintiff Keishawn
Brown's motion for appointment of pro bono
counsel under 28 U.S.C. § 1915(e)(1). For the reasons
stated below, the Court will GRANT the
brings civil rights claims pro se pursuant to 42
U.S.C. § 1983, alleging that prison officers breached
their duty to protect him from an assault. (See Amended
Compl. (“Am. Compl.”) 2-3, ECF No. 30.) On August
12, 2012, while incarcerated in Essex County Correctional
Facility Unit 4-E-1, approximately thirty other inmates
attacked Brown. See Id. Brown sought help from the
defendant officers, but they allegedly did not take steps to
stop the attack. See Id. at 2. As a result of this
attack, Brown alleges that he was hospitalized and placed in
a medically induced coma, suffering internal bleeding and a
fractured jaw. Id. at 4. Brown brought the instant
action seeking to recover damages due to the injuries he
suffered as a result of the officers failure to stop the
assault. Two prior applications for pro bono
appointment were denied by the Court. See Jan. 3,
2015 Opinion & Order, ECF No. 11; June 14 Opinion &
Order, ECF No. 33. Brown once again brings an application for
pro bono counsel.
no constitutional right to an attorney exists in civil cases,
Section 1915(e)(1) provides that a “court may request
an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). District courts
have “broad discretion” to decide whether
requesting counsel is appropriate, and may request counsel
sua sponte at any point in the litigation.
Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.
2002) (citing Tabron v. Grace, 6 F.3d 147, 153 (3d
Cir. 1993)). In exercising its discretion to appoint counsel,
the Court must first assess whether a given case or defense
has merit. Tabron, 6 F.3d. at 155. If the case has
merit, the Court must next weigh specific factors, including
(1) the litigant's ability to present his or her own
case; (2) the difficulty of the particular legal issues; (3)
the degree to which factual investigation will be necessary
and the ability of the litigant to pursue that investigation;
(4) the litigant's capacity to retain counsel on his or
her own behalf; (5) the extent to which a case is likely to
turn on credibility determinations; and (6) whether the case
will require testimony from expert witnesses. Id. at
155-57. The list is non-exhaustive, and the Court may
consider other facts or factors it determines are important
or helpful. Montgomery, 294 F.3d at 499.
Court will appoint pro bono counsel. As an initial
matter, it appears that Plaintiff's claim has “some
merit in fact and law” and is not “frivolous or
malicious.” Tabron, 5 F.3d at 155. Moving to
the Tabron factors, the Court first notes that
Plaintiff cannot afford to obtain counsel on his own behalf.
He has no legal training and is currently incarcerated, which
will make it difficult for him to prepare and present his
case at trial. Parham v. Johnson, 126 F.3d 454, 459
(3d Cir. 1997). Although he has demonstrated a capacity to
communicate with the Court, his efforts to conduct discovery
have been largely thwarted. See Id. at 459 (holding
that even where no complex issues of law exist “courts
must still look to proof going towards the ultimate issue and
the discovery issues involved.”). Further, this case is
likely to turn on credibility determinations, in that it is
largely based on the word of the Plaintiff against the word
of Defendants. See Id. at 460; Shadli v. Jeffrey
S. Ween & Assocs., No. 13-cv-802 (ES)(MAH), 2016 WL
111419, at *2 (D.N.J. Jan. 11, 2016). And although funding
for counsel may be in limited supply, that concern is
mitigated where “the administration of  litigation .
. . [would] greatly benefit from the efficient and clarity .
. . of an experienced trial attorney familiar with federal
practice.” Role v. Local 3 P.M. & S.E.
Union, 08-cv-6011, 2011 WL 52524, at *2 (D.N.J. Jan. 6,
decision in no way contradicts the Court's denial of
Plaintiff's first and second applications to appoint
pro bono counsel. The first application was denied
because it was premature, as Defendants had yet to file an
answer to the original complaint. ECF No. 11, 2. In contrast,
Defendants filed an answer to Plaintiff's amended
complaint three months before Plaintiff filed the instant
motion. See Answer to Amended Complaint, ECF No. 56.
The Court denied Plaintiff's second motion for pro
bono counsel because Plaintiff had successfully obtained
incident reports and conducted factual investigation as to
the identify the appropriate defendants. See ECF 33,
3. However, Plaintiff has since encountered obstacles to
securing Defendants' compliance with discovery requests;
he is no longer in possession of the aforementioned incident
reports as a result of his being transferred to a new
facility, and has been unable to obtain video surveillance
that may be crucial to his case. See ECF Nos. 59,
61. An attorney will be able to resolve any discovery
disputes far more efficiently than Plaintiff himself.
above reasons and for good cause shown; IT
IS on this 24th day of August 2017, hereby,
ORDERED that Plaintiff's ...