United States District Court, D. New Jersey
Hernandez 1126241/SBI 474709C Pro Se
LETTER OPINION AND ORDER
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE
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
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.
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
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.
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.
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).
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.) ...