United States District Court, D. New Jersey
OPINION AND ORDER
B. CLARK, III UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on a Motion by pro
se Plaintiff Kenneth Jamison for the appointment of
pro bono counsel pursuant to 28 U.S.C. §
1915(e) [ECF No. 20]. Defendant Dr. Kyzer opposes
Plaintiff's Motion [ECF No. 23]. For the reasons set forth
below, Plaintiff's Motion for the appointment of pro
bono counsel [ECF No. 20] is DENIED.
matter concerns alleged constitutional violation pursuant to
42 U.S.C. § 1983. Compl. ECF No. 1. Plaintiff alleges
that he was injured by various named Defendants during his
arrest on June 4, 2014. Id. On February 24, 2017,
the United States District Judge John Vazquez dismissed
Plaintiff's Complaint without prejudice for failure to
state a claim. ECF No. 3. On March 27, 2017, Plaintiff filed
his Amended Complaint seeking damages and injunctive relief
for alleged constitutional violations that occurred during
his arrest, and for his lack of medical treatment in Hudson
County Correctional facility. See ECF No. 4. On May
25, 2017, Judge Vazquez ordered, inter alia, that
Plaintiff's Amended Complaint be filed and that the
§ 1983 claim against Dr. Kyzer may proceed. ECF No. 8.
Plaintiff filed the present Motion for pro bono
counsel on October 27, 2017. ECF No. 20.
seeks the appointment of counsel under 28 U.S.C. §
1915(e), which provides that “[t]he court may request
an attorney to represent any person unable to afford
counsel.” The appointment of counsel is a privilege,
not a statutory or constitutional right. Brightwell v.
Lehman, 637 F.3d 187, 192 (3d Cir. 2011). The decision
to appoint pro bono counsel involves a two-step analysis.
First, a court must determine, as a threshold matter, whether
a plaintiff's claim has “some merit in fact and
law.” Tabron v. Grace, 6 F.3d 147, 155 (3d
Cir. 1993). If a court finds that the action arguably has
merit, it should then consider the following factors:
(1) the plaintiff's ability to present his or her own
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue such
(4) the amount a case is likely to turn on credibility
(5) whether the case will require the testimony of expert
(6) whether the plaintiff can attain and afford counsel on
his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997)
(citing Tabron, 6 F.3d at 155-56, 157 n.5). This
list is not exhaustive, but rather provides guideposts for
the Court. Montgomery v. Pinchak, 294 F.3d 492, 499
(3d Cir. 2002) (additional citations omitted). A court's
decision to appoint counsel “must be made on a
case-by-case basis.” Tabron, 6 F.3d at 157-58.
Additionally, the Third Circuit Court of Appeals has stated
that “courts should exercise care in appointing counsel
because volunteer lawyer time is a precious commodity and
should not be wasted on frivolous cases.”
Montgomery, 294 F.3d 499 (citing Parham,
126 F.3d at 458).
as an initial matter and regardless of whether or not
Plaintiff's claims have merit, the factual and legal
issues “have not been tested or developed by the
general course of litigation, making [a number of factors] of
Parham's test particularly difficult to
evaluate.” See Chatterjee v. Philadelphia
Federation of Teachers, 2000 WL 1022979 at *1 (E.D.Pa.
July 18, 2000) (stating that unlike Parham, which
concerned a directed verdict ruling, and Tabron,
which involved summary judgment adjudication, plaintiff's
claims asserted in the complaint and motions “have
barely been articulated” and have a distinctive
procedural posture). With respect to the Tabron
factors, Plaintiff has not demonstrated at this stage of the
proceeding that pro bono counsel is warranted.
filings with the Court thus far reflect literacy and the
ability to reference relevant legal authority. For example,
without the assistance of counsel, Plaintiff has filed a
Complaint, Amended Complaint, application to proceed in
forma pauperis, a letter requesting an extension of
time, and the present motion for the appointment of pro
bono counsel. These filings themselves demonstrate that
Plaintiff is able to present his case. In his application for
pro bono counsel, Plaintiff alleges, inter
alia, that he needs a lawyer because “I am
ignorant in the law and do not know my way around a law book
. . ..” ECF No. 20. Plaintiff further alleges that he
is unable to afford an attorney because he is currently
incarcerated. Id. Although Plaintiff states
that he is unable to afford counsel, Plaintiff does not
provide any information relevant to the remaining
Tabron factors. Upon the Court's own review of
this matter, it appears that the legal issues are not
complex, that no extensive factual investigation will be
required, and that the testimony of expert witnesses will
likely not be required. While the sixth Tabron
factor may weigh slightly in Plaintiff's favor, this fact
alone is not enough to justify the appointment of counsel.
See Christy v. Robinson, 216 F.Supp.2d 398, 410
(D.N.J. 2002) (denying application for pro bono counsel where
indigency was the only one of the six factors . . .
weigh[ing] in favor of appointment of counsel).
Court recognizes that issues may arise throughout the course
of this litigation which may raise a question as to
Plaintiff's need for counsel. The Court will monitor this
issue throughout case management and, as the case progresses,
may consider a renewed motion for the appointment of counsel.
However, at this stage of the litigation, the Court finds
that the Tabron factors weigh against appointment.
In the event that Plaintiff renews his ...