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Steinhardt v. Bernardville Police Department

United States District Court, D. New Jersey

July 31, 2018

ANNETTE L. STEINHARDT, Plaintiff,
v.
BERNARDVILLE POLICE DEPARTMENT, et al., Defendants.

          ORDER DENYING APPOINTMENT OF PRO BONO COUNSEL

          LOIS H. GOODMAN, UNITED STATES MAGISTRATE JUDGE.

         This matter has been opened to the Court upon a Motion filed by pro se Plaintiff Annette L. Steinhardt (“Plaintiff”) seeking appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1) (the “Motion) [Docket Entry No. 23]. Defendants have not opposed the Motion. For the reasons set forth below, Plaintiff's Motion for Appointment of Pro Bono Counsel is DENIED.

         I. BACKGROUND

         Plaintiff filed an initial Complaint on March 29, 2017. [Docket Entry No. 1]. The Honorable Michael A. Shipp, U.S.D.J., dismissed that Complaint for failure to state a claim pursuant to Federal Rule of Procedure 12(b)(6) and gave Plaintiff leave to file an Amended Complaint. Memorandum and Order entered January 12, 2018 [Docket Entry No. 31]. Plaintiff filed a Second Amended Complaint on February 14, 2018. [Docket Entry No. 33].

         The Second Amended Complaint (“SAC”) consists of twenty-seven pages and names at least fifteen Defendants, including the Bernardsville Borough Council, the Bernardsville Police Department, several of its officers, Bernardsville Mayor Kevin Sooy, retired Municipal Court Judge Miles Winder, III, and Paul Egan, Esq., of the Office of the Attorney General for New Jersey. SAC at 2-3, 7-10.[1] The Second Amended Complaint appears to allege under 42 U.S.C. § 1983 that Bernardsville police and Borough officials engaged in a pattern of mistreating Plaintiff, including, among other acts: attempting to seize her dog, refusing to enforce parking and property ordinances, shredding evidence that she was assaulted by a third party; refusing to assist her in a dispute with a construction contractor; and refusing to issue a police report documenting theft and vandalism of her personal property. SAC at 11-26.

         In response to the Second Amended Complaint, Defendants have filed a series of Motions to Dismiss, which are currently before the Court. [Docket Entry Nos. 36-39].

         II. DISCUSSION

         Plaintiff's Motion to Appoint Pro Bono Counsel is terse, consisting essentially of an assertion that she lacks the funds to pay for an attorney, and the following paragraph:

In order to proceed with my case I need assistance of counsel. In some states pro se can call [and] ask questions to a lawyer on call. The State of New Jersey does not have this service. I am out of State [and] can not do research at the Court library. Since I am up against skilled trial attorneys I am not sure what is required. I am a lay person when it comes to court. However, all attornies [sic] that have reviewed my case feel it is a good case; with outstanding evidence.

Motion at 3. The Court also reviewed Plaintiff's request to proceed in forma pauperis. [Docket Entry No. 1-1].

         Courts are granted discretion in appointing counsel, and civil litigants have no constitutional or statutory right to appointment of counsel. Parham v. Johnson, 126 F.3d 454, 456-457 (3d Cir. 1997). As a threshold matter, the court must first determine whether the plaintiff's claim has merit in fact and law. Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If the claim has merit, the court should then consider: 1) the plaintiff's ability to present his or her own case; 2) the complexity of the legal issues involved; 3) the degree to which factual investigation will be necessary and the ability of the plaintiff to pursue such investigation; 4) the degree to which the case is likely to turn on credibility determinations; 5) whether the case will require the testimony of expert witnesses; and 6) whether the plaintiff can attain and afford counsel on his own behalf. Parham, 126 F.3d at 457. While this list of factors is not exhaustive, “courts should exercise care in appointing counsel because volunteer lawyer time is a precious commodity and should not be wasted on frivolous cases.” Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).

         The Court has fully reviewed the operative Complaint and considered Plaintiff's submission. At this very preliminary stage, and without opining as to the ultimate merits of Plaintiff's suit, the Court is satisfied that the Second Amended Complaint possesses sufficiently arguable merit in fact and law to warrant proceeding with an assessment of her Motion for pro bono counsel. [Docket Entry No. 42 at 2].

         Once a court has established that a plaintiff's claim has arguable merit in fact and law, the first factor to be considered is the plaintiff's ability to present his or her own case. Tabron, 6 F.3d at 155-156. In weighing this factor, the court considers plaintiff's education level, literacy, prior work experience, prior litigation experience, and plaintiff's ability to understand English. Id. The court also looks to any conditions which may hamper the plaintiff's ability to press claims, including his ability to use a typewriter, photocopying machine, telephone, or computer. Id.

         With respect to the first factor under Tabron, as already noted, Plaintiff asserts that she is a layperson and that she does not have access to the Court's library because she resides out of state. While Plaintiff states that she lacks legal training, she has not disclosed her level of education or prior work experience. From a review of her Second Amended Complaint it is readily apparent that Plaintiff is literate, understands English, and can express her concerns, if not clearly, to a degree sufficient to convey her meaning. Plaintiff's assertion that she lacks access to this Court's law library because she resides out of state is less than persuasive because that she likely has similar ...


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