United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
DOUGLAS E. ARPERT UNITED STATES MAGISTRATE JUDGE
following matters are before the Court: Plaintiff's
second Motion to Appoint Pro Bono Counsel pursuant to 28
U.S.C. § 1915(e)(1), ECF No. 32; Plaintiff's Motion
to Amend the Complaint, ECF No. 36; and Plaintiff's
Application for an Order for the USMS to Serve Subpoenas, ECF
Nos. 34, 39. The Court has fully considered Plaintiff's
motions and application and, having declined to hold oral
argument pursuant to Fed.R.Civ.P. 78(b), for the reasons set
forth below Plaintiff's Motion to Appoint Pro Bono
Counsel, Motion to Amend the Complaint, and Application for
an Order for the USMS to Serve Subpoenas are DENIED.
is a pro se civil litigant proceeding in forma
pauperis under 28 U.S.C. § 1915. ECF No. 4.
Plaintiff's Complaint alleges violations of his civil
rights in connection with his April 15, 2015 arrest. ECF No.
1. The original Complaint, filed on August 17, 2016, when
Plaintiff was incarcerated, named 15 defendants. Id.
Upon screening the Complaint in November 2017 pursuant to
§1915(e)(2)(B), U.S. District Judge Freda L. Wolfson
allowed Plaintiff's §1983 claims for false arrest,
false imprisonment, and illegal search to proceed against
Defendants Kimberly Cavanaugh and Michelle Rey, while his
claims against all other named defendants were dismissed. ECF
December 11, 2017, Plaintiff filed a Motion to Appoint Pro
Bono Counsel claiming “he is ‘unfamiliar with
Federal Court procedure and [is] not versed in Federal
law.'” ECF No. 16 at 2. This Court denied that
motion as premature, because the factual and legal issues had
not been developed with the case then at its earliest stages.
Id. This Court also stated that Plaintiff's
admitted unfamiliarity “with Federal Court
procedure” and with federal law alone are “not a
basis for appointing counsel, because it is a limitation held
in common by most pro se parties.”
Id. (citing Hooks v. Schultz, No. 07-5627,
2010 U.S. Dist. LEXIS 7344, at *1 n.2 (D.N.J. Jan. 29,
2010)). Lastly, this Court ruled that Plaintiff's in
forma pauperis status and statements that he could not
afford counsel also were “insufficient to grant
Plaintiff's motion.” Id.
August 10, 2018, Plaintiff filed his second Motion to Appoint
Pro Bono Counsel. ECF No. 32. On September 7, 2018, Plaintiff
filed the Motion to Amend the Complaint seeking to join an
individual defendant. ECF No. 36. On August 27, 2018,
Plaintiff filed the Application for an Order for the USMS to
Serve Subpoenas, stating that he “had no money to cover
the cost of this action” and that the subpoenas
“are an integral part of my case” and were needed
“to further pursue this current case at bar.” ECF
Legal Standard for the Appointment of Pro Bono
there is no right to counsel in a civil case, Parham v.
Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997); Tabron
v. Grace, 6 F.3d 147, 153-54 (3d Cir. 1993), pursuant to
§1915(e)(1), “[t]he court may request an attorney
to represent any person unable to afford counsel.”
Appointment of counsel under § 1915(e)(1) may be made at
any point in the litigation and may be made by the Court
sua sponte. See Tabron, 6 F.3d at 156.
deciding whether to appoint counsel under § 1915, the
Court must be persuaded that Plaintiff's claim has some
merit in law and fact. Id. at 155. If the Court
finds Plaintiff's claim has merit, the Court then must
weigh a variety of factors to decide whether it is
appropriate to appoint counsel: (1) the applicant's
ability to present his or her case; (2) the complexity of the
legal issues presented; (3) the degree to which factual
investigation is required and the ability of the applicant to
pursue such investigation; (4) whether credibility
determinations will play a significant role in the resolution
of the applicant's claims (5) whether the case will
require testimony from expert witnesses; and (6) whether the
applicant can afford counsel on his or her own behalf.
Tabron, 6 F.3d at 155-157. Other factors such as
“the lack of funding to pay appointed counsel, the
limited supply of competent lawyers willing to do pro bono
work, and the value of lawyers' time” also must be
considered when deciding an application for the appointment
of pro bono counsel. Jenkins v. D'Amico, No.
06-2027, 2006 U.S. Dist. LEXIS 59102, at *1 (D.N.J. Aug. 22,
2006) (citing Tabron, 6 F.3d at 157-58).
Wolfson's ruling allowing Plaintiff's § 1983
claims to proceed against Defendants Kimberly Cavanaugh and
Michelle Rey means the Complaint has at least some merit on
its face. Thus, the Court can proceed to examine the
than 10 months ago, this Court denied Plaintiff's first
Motion to Appoint Pro Bono Counsel for the reasons stated
above. The Court notes that little has changed beyond the
filing of an Answer in March 2018 by the only two remaining
defendants. ECF No. 26. This Court earlier found that
Plaintiff's admitted unfamiliarity “with Federal
Court procedure” and with federal law alone are
“not a basis for appointing counsel, because it is a
limitation held in common by most pro se
parties.” Plaintiff now adds that with the case at the
discovery stage Plaintiff “will need to file motions
with the Court and I am unsure what to do.” ECF No. 32
at 3. And yet in the intervening 10 months, Plaintiff has
competently filed a Motion Seeking Summary Judgment, ECF No.
31, the instant Motion to Appoint Pro Bono Counsel, an
Application for Issuance of Subpoenas, ECF No. 33, an
Application for an Order for the Marshall's Service to
Serve Subpoenas, as well as the instant Motion to Amend the
Complaint. ECF No. 36. Only the last is facially deficient, a
matter to be discussed below. Furthermore, Plaintiff has not
demonstrated that the legal issues involved here and any
necessary factual investigation, credibility determinations,
or expert testimony warrant the appointment of counsel. It
still appears, as it did 10 months ago, that this matter
presents relatively straightforward legal issues and is not
unusually complex, and that Plaintiff appears capable of-and
indeed has-presenting his claims without the assistance of
motion, therefore, is denied.
Legal Standard for a Motion ...