United States District Court, D. New Jersey
H. GOODMAN, UNITED STATES MAGISTRATE JUDGE
matter has been opened to the Court upon requests filed by
pro se Plaintiff Brian Bragg
(“Plaintiff”) seeking: (1) appointment of pro
bono counsel pursuant to 28 U.S.C. § 1915(e)(1)
[Docket Entry Nos. 33 and 46; (2) permission to retain a
psychiatrist to determine Plaintiff's competency pursuant
to Fed.R.Civ.P. 17 [Docket Entry Nos. 49 and 53]; and (3) a
stay of the proceedings pending appointment of pro
bono counsel [Docket Entry No. 51]. Defendants have not
opposed Plaintiff's requests. The Court has reviewed and
considered the Plaintiff's submissions without oral
argument in accordance with Fed.R.Civ.P. 78.
is incarcerated and proceeding in forma pauperis. At
the outset of this case, Plaintiff filed three Complaints in
rapid succession. [Docket Entry Nos. 1-3]. The Honorable
Freda L. Wolfson, U.S.D.J., screened those Complaints under
28 U.S.C. § 1915. Memorandum and Order entered June 29,
2016 [Docket Entry No. 8]. As construed by the Court at that
time, Plaintiff's operative claims allege pursuant to 28
U.S.C. § 1983 that certain staff and officials at the
Mercer County Correctional Facility violated Plaintiff's
constitutional rights by subjecting him to excessive force,
failing to make him safe, and filing false disciplinary
pro bono application, Plaintiff asserts that he has
no legal skills or training and he has only a limited
knowledge of the law. [ECF No. 33 at 2]. He also asserts that
Southern State Correctional Facility has limited resources and
that he is permitted only limited time at the library.
Id. According to Plaintiff, he has only a
sixth-grade education and “takes several psychotropic
medications for several mental health issues such as
bipolar.” Id. at 3. Plaintiff also argues that
“his case will raise credibility issues and will
require a great deal of investigation.” Id.
Moreover, his case will require a great deal of discovery,
much of which he believes Defendants will claim is
privileged. Plaintiff requests the appointment of the same
pro bono counsel who represented him in a previous
case. Id. at 3-4.
second submission, entitled “Motion to Reconsider
Denial of Motion to Appoint Pro Bono Counsel,
” shifts the emphasis of his request for counsel.
[Docket Entry No. 46]. Therein, Plaintiff asserts that he
suffers from a series of mental illnesses and that these
illnesses are preventing him from presenting his claims.
Id. at 2-3. Under the circumstances, he argues, the
Court should either appoint pro bono counsel or
order a psychiatric evaluation to assess Plaintiff's
competency to proceed without appointed counsel. Id.
third submission, entitled “Motion to Request
Permission to Retain a Psychiatrist to Determine
Plaintiff's Competency Pursuant to Rule 17 Fed. R. Civ.
P., ” reiterates his prior request for the Court to
order a competency assessment. [Docket Entry No. 49].
Plaintiff provides the Court with a copy of a relevant
decision from the Third Circuit Court of Appeals. Plaintiff
also cites an unrelated suit brought by Plaintiff in this
district in which the Court ordered that he be
psychologically examined. Id. at 1-2 (citing
Bragg v. Agarwal, et al., Civ. No. 09-4331, and
consolidated cases). Based upon his long history of mental
illness, contends Plaintiff, the Court should again retain a
psychologist or psychiatrist to evaluate him. Id. at
fourth submission, entitled “Motion to Stay
Proceedings, ” seeks a stay of the case pending the
Court decision as to granting pro bono counsel and a
psychological evaluation. [Docket Entry No. 51]. Plaintiff
again asserts that he continues to suffer from a series of
mental health issues, which, in combination with the
medications he is taking for them, are inhibiting his ability
to concentrate and to reason. Id. at 1-2.
final submission, entitled “Letter Motion to Supplement
Record, ” attaches two documents for the Court to
consider as part of the preceding applications: a copy of a
letter to the Court seeking pre-approval for a psychologist
to evaluate him that was sent by Plaintiff's appointed
pro bono counsel in Bragg v. Agarwal, et
al.; and a letter from the Court in that case
acknowledging that it had received the psychologist's
written report in camera. [Docket Entry No. 53].
Plaintiff's Request for a Psychiatric Evaluation
face, Plaintiff's claim that his mental illnesses are
preventing him from effectively representing himself appears
to repeat the events of one of his prior cases, Bragg v.
Agarwal, et al., Civ. No. 09-4331. This request, and
Plaintiff's same arguments, were recently addressed in
another of Plaintiff's cases, Bragg v. Tuccillo, et
al., Civ. No. 16-8628, (D.N.J. November 20, 2017)
(“Tuccillo”). In that matter, Plaintiff
also sought a psychiatric evaluation in reliance on
Agarwal. By way of background, the Court in
Tuccillo recounted the procedural history of
Bragg filed the Agarwal matter in August 2009.
(Docket No. 09-4331 at ECF No. 1.) Judge Brown granted a
request for appointed counsel in Agarwal in November
2009. (Docket No. 09-4331 at ECF No. 32-33.) Bragg, however,
was immediately unhappy with appointed counsel and requested
different counsel be appointed. (Docket No. 09-4331 at ECF
No. 40.) In February 2010, the Court appointed Robert Goodman
to represent Bragg. (ECF No. 46.) Mr. Goodman continued to
represent him through March 2012, at which point Mr. Goodman
requested permission to withdraw as Bragg's attorney
because Bragg had expressed his desire not to continue with
Mr. Goodman as his attorney and because Bragg “made
numerous misrepresentations” about his firm's
handling of Bragg's cases, made “unreasonable
demands, ” and requested that counsel “take
unreasonable positions” despite orders of the Court
informing Bragg that counsel did not represent Bragg for all
time and for all purposes. (Docket No. 09-4331, Mot. To
Withdraw (ECF No. 86-1) at 2-3.)
However, during a conference regarding Mr. Goodman as his
counsel, Bragg “indicated that he no longer wished to
have counsel relieved.” (Docket No. 09-4331 at ECF No.
89.) Bragg's apparent history of mental illness also
arose during that hearing, and Judge Bongiovanni therefore
requested copies of Bragg's medical records to determine
if the appointment of a guardian ad litem was
necessary pursuant to the Third Circuit's ruling in
Powell v. Symons, 680 F.3d 301 (2012).
(Id.) Counsel apparently submitted those records for
in camera review, and those records are not
currently before the Court. Based on the submitted medical
records, Judge Bongiovanni denied the motion to withdraw
counsel without prejudice, but ordered a psychiatric
evaluation pursuant to Powell to determine
Bragg's competency. (Docket No. 09-4331 at ECF No. 91.)
Although Judge Bongiovanni required Mr. Goodman to remain
counsel for Bragg “as previously ...