United States District Court, D. New Jersey
MEMORANDUM AND ORDER
L. WOLFSON UNITED STATES DISTRICT JUDGE
Rashid, Ibn Pasha, and William McCray (collectively,
“Plaintiffs”), as well as Sharob Abdul-Aziz,
acting pro se, originally commenced this civil
rights action under 42 U.S.C. § 1983 in April 2014,
alleging that various practices in New Jersey prisons violate
their First Amendment rights to free exercise of religion. In
April 2017, after Abdul-Aziz demonstrated an intent to
proceed under a separate pleading, the Court severed the
matter into two separate actions. Plaintiffs in this action
filed an amended complaint in October 2017.
with the amended complaint, Plaintiffs filed a motion seeking
appointment of pro bono counsel. (ECF No. 8). They
contend that they need an attorney to represent them given
their unfamiliarity with the complex underlying law, the
obstacles they face trying to litigate the case while
incarcerated, and as they contend that the litigation will
require factual investigation, credibility determinations,
and expert testimony. (Id.)
Gary M. Lanigan, Stephen D'Ilio, Andrew P.
Sidamon-Eristoff, and Jignasa Desai-McCleary (collectively,
“Defendants”), filed no response to
Plaintiffs' motion for appointment of pro bono
counsel. On December 8, 2017, however, Defendants moved to
dismiss the amended complaint for failure to state a claim,
under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 13.)
Plaintiffs then filed a motion, received by the Court on
January 16, 2018, for an extension of their time to oppose
the pending dismissal motion. (ECF No. 14.) The Court now
addresses Plaintiffs' motions for appointment of pro
bono counsel and for an extension of time to oppose the
pending dismissal motion.
civil litigants have no constitutional or statutory right to
counsel. See United States v. Zoebisch, 586 F.
App'x 852, 856 (3d Cir. 2014). In some cases, the need
for representation is great, and thus 28 U.S.C. §
1915(e)(1) grants district courts broad discretion to request
the appointment of attorneys to represent indigent civil
litigants in appropriate circumstances. The Court recognizes,
however, that “volunteer lawyer time is extremely
valuable” and, for that reason, that “district
courts should not request counsel . . .
indiscriminately.” Tabron v. Grace, 6 F.3d
147, 157 (3d Cir. 1993). The Court must bear in mind
“the significant practical restraints on the district
court's ability to appoint counsel: . . . the lack of
funding to pay appointed counsel and the limited supply of
competent lawyers who are willing to undertake such
representation without compensation.” Id.
evaluating an application for the appointment of pro bono
counsel, the Court assesses seven factors originally
identified by the United States Court of Appeals for the
Third Circuit in Tabron v. Grace, 6 F.3d 147:
the potential merit of the applicant's legal position;
the applicant's ability to present the case without
the complexity of the legal issues involved;
the extent of factual discovery and the applicant's
ability to investigate and to comply with discovery rules;
the extent to which the case may turn on credibility
whether expert testimony will be needed; and
whether the applicant can afford paid counsel.
See Pricaspian Dev. Corp. v. Martucci, No. 11-1459,
2011 WL 2429315, at *2 (D.N.J. June 13, 2011) (citing
Tabron, 6 F.3d at 155, 158); Prudential Ins. Co.
of Am. v. Dobson, No. 08-3951, 2009 WL 115966, at *1-2
(D.N.J. Jan. 16, 2009) (same).
the various Tabron factors, the Court finds that
Plaintiffs have failed to show that appointment of pro
bono counsel is warranted at this time. Plaintiffs
appear able to adequately advance their legal positions
despite the complexity of the issues involved, and, in any
case, their pro se filings will be liberally
construed. See Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam). Assuming that this proceeding survives
the pending dismissal motion, Plaintiff may seek, if
necessary, the Court's assistance to obtain relevant
factual discovery. The Court presently does not foresee any
credibility determinations or expert testimony.
Plaintiffs' motion for appointment of pro bono
counsel is denied without prejudice to another such
application if circumstances related to the Tabron
factors substantially change.
seek thirty additional days to oppose the pending dismissal
motion as they are in different locations and as they are
proceeding pro se. (ECF No. 14.) In the interests of
justice, this additional time is granted.
IT IS, on this 30th day of January 2018, ORDERED
that Plaintiffs' motion to appoint pro bono counsel (ECF
No. 8) is DENIED without prejudice; and it is further
that Plaintiffs' motion for additional time to file
papers opposing the pending motion to dismiss (ECF No. 14) is
GRANTED and Plaintiffs shall file any opposition papers no
later than February 28, 2018; and it is further ORDERED that
the Clerk ...