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 Brandon Houser for the appointment of
pro bono counsel pursuant to 28 U.S.C. §
1915(e). [ECF No. 13]. Plaintiff's Motion is unopposed.
For the reasons set forth below, Plaintiff's Motion for
the appointment of pro bono counsel [ECF No. 13] is
December 8, 2016, Plaintiff filed a Complaint and an
application to proceed in forma pauperis in this
action. ECF No. 1. Following the denial of Plaintiff's
in forma pauperis application, Plaintiff submitted a
new application with the required documents. On May 29, 2018,
the Honorable Claire C. Cecchi, U.S.D.J. granted
Plaintiff's in forma pauperis application and
ordered the Clerk of Court to file Plaintiff's Complaint.
ECF No. 14.
claims in this action arise from an incident that allegedly
occurred in December of 2014 at Morris County Correctional
Facility. Compl., ECF No. 1 at 3. According to Plaintiff,
Sergeant Williams and other unnamed officers used excessive
force while removing him from the housing unit. Id.
at 4. Plaintiff claims that Sergeant Williams “attacked
and grabbed [him] from behind by the arm and slammed him on
concrete unprovoked.” Id. As a result of that
incident, Plaintiff now seeks monetary relief for, inter
alia, assault, injury, post-traumatic stress, and
emotional distress in the amount of $2, 000, 000.00 per each
defendant. See Id. at 17.
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, an application to proceed in forma
pauperis, several letters to the Court, and the present
motion for the appointment of pro bono counsel.
These filings themselves demonstrate that Plaintiff is able
to present his case. Plaintiff's application for pro
bono counsel states: “I cannot access law library
or legal services to research” and “I have
medical/mental health conditions preventing me from
representing myself.” ECF No. 13 at 3. Although
Plaintiff states that he does not have access to certain
resources and that he has health issues, Plaintiff fails to
explain how this will affect his ability to present his case.
In fact, 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 ...