Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hernandez v. Montoya

United States District Court, D. New Jersey

September 27, 2018

Angel Hernandez
v.
Montoya, et al

          Angel Hernandez 1126241/SBI 474709C Pro Se

          LETTER OPINION AND ORDER

          MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE

         Dear Litigants:

         Presently before the Court is Plaintiff pro se Angel Hernandez's second motion for appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1), D.E. 66. For the reasons set forth below, Plaintiff's application is GRANTED.

         Background

         Plaintiff, Angel Hernandez, filed this action on July 28, 2016, against multiple named and unnamed officers of the City of Paterson Police Department alleging multiple violations of his constitutional rights under 42 U.S.C. § 1983. Compl., D.E. 1. At the time Plaintiff filed the Complaint, he also applied to proceed in forma pauperis, which was granted by the Hon. Kevin McNulty on August 2, 2016. IFP Appl., D.E. 1-2; D.E. 2. On October 12, 2016, Defendants Gonzalez, Esposito, Huntington, Judeh, and Macolino moved to dismiss Plaintiff's Complaint and on May 5, 2017, the Court denied Defendants' motion. D.E. 23, 39. Defendant Montoya moved to dismiss Plaintiff's Complaint on October 10, 2016, which Judge McNulty also denied on May 17, 2017. D.E. 15, 41. On October 23, 2017, Plaintiff filed his first motion to appoint pro bono counsel, which the Court denied on November 29, 2017. D.E. 57, 60.

         Plaintiff filed a second motion to appoint pro bono counsel on May 16, 2018. D.E. 66. Plaintiff now argues that he “was unfairly prejudiced by being denied the appointment of counsel” and that it is “in the interest of justice” to grant his request for counsel. Specifically, he writes:

Applicant is learning disabled, and his academic grade level is 3rd grade…Appli-cants [sic] test score/grade level is 3.9, therefore making the applicant incapable of understanding the legalese of law as it pertains to all aspects of law and his Civil filing…Applicant furthermore does not speak English, as his native language is Spanish.

Id. The instant motion contains two substantive changes: (1) inclusion of his scores on the Test of Adult Basic Education; and (2) the claim that Plaintiff does not speak English. Id.

         Additionally, on April 4, 2018, this Court received a Letter from Plaintiff (“Rios Letter”), D.E. 64, which addressed the Court's denial of his first motion to appoint pro bono counsel. The Rios Letter begins with a statement from Roberto Rios, (1079803/SBI 706996-B), an inmate incarcerated alongside Plaintiff at South Woods State Prison. According to the Rios letter, Roberto Rios assisted in its drafting because “Mr. Hernandez seems to have a learning disability he really does not comprehend.” Id. It continued, “I am aware that if any foregoing statements made by me are willfully false, I am subject to punishment by law” which was followed by Mr. Rios' signature. Id. It goes on to state that Plaintiff has “relied souly [sic] on the assitance [sic] of paralegals” and “all briefs and motions and missives are in fact done by others.” Id. Finally, the Rios Letter addresses each of the Tabron factors and challenges the Court's observations in the denial of Plaintiff's first motion to appoint pro bono counsel. Id.

         Discussion

         In civil cases, neither the Constitution nor any statute gives civil litigants the right to appointed counsel. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). District courts, however, have broad discretion to determine whether appointment of counsel is appropriate under 28 U.S.C. § 1915(e). Montgomery v. Pinchack, 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)). Appointment of counsel may be made at any point in the litigation, including sua sponte by the Court. Montgomery, 294 F.3d at 498 (citing Tabron, 6 F.3d at 156).

         In the Third Circuit, the Court considers the framework established in Tabron. Montgomery, 294 F.3d at 498-99. Under the Tabron framework, the Court must first assess “whether the claimant's case has some arguable merit in fact and law.” Montgomery, 294 F.3d at 499 (citing Tabron 6 F.3d at 155.) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.