United States District Court, D. New Jersey
DOUGLAS E. ARPERT UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on two motions by pro
se Plaintiff, Scott Baker for the appointment of pro
bono counsel [ECF Nos. 14 and 23]. Plaintiff, a prisoner at
New Jersey State Prison, brought this action against the New
Jersey Department of Corrections, New Jersey State Prison,
and certain medical personnel who have provided medical care
to Plaintiff during his incarceration. Plaintiff complains of
violations of his civil rights and also asserts various state
law claims, including medical malpractice. For the reasons
below, Plaintiff's motion for the appointment of counsel
Complaint, Plaintiff states that at some point prior to May
2016, he was prescribed the blood pressure medication
Lisinopril by prison medical staff. ECF No. 1-4 at ¶ 16.
On May 13, 2016, Plaintiff was transported to
“UMDNJ” for a spinal procedure, and Plaintiff
alleges that the treating surgeon advised him that Lisinopril
was a “bad drug” that causes “people to
have severe reactions.” Id. at ¶ 17. The
surgeon further stated that the drug was not working, and
Plaintiff should be taken off Lisinopril and “put on a
better medication.” Id. at ¶ 18.
According to Plaintiff, the surgeon stated that he would
convey this to prison medical staff. Thereafter, however,
Plaintiff states that the prison medical staff increased
Plaintiff's dosage of Lisinopril.
9, 2016, Plaintiff alleges he had a life-threatening reaction
to the Lisinopril. He was seen at the prison medical clinic
and then transported to St. Francis Medical Center, where he
was treated for an allergic reaction to Lisinopril.
Id. at 28-31. Plaintiff alleges that he now suffers
from nightmares, post-traumatic stress disorder and a fear of
taking medications. Id. at ¶ 33.
commenced this action in or about September 2017 by filing a
complaint in the New Jersey Superior Court, Law Division,
Mercer County. ECF No. 1-4. The matter was removed to this
Court on November 28, 2017. ECF No. 1. On March 8, 2018, the
Honorable Peter G. Sheridan, U.S.D.J., granted a motion by
Defendants New Jersey Department of Corrections
(“NJDOC”) and New Jersey State Prison
(“NJSP”) to dismiss the claims against them with
prejudice. Thereafter, Plaintiff filed the instant
motions seeking the appointment of counsel. Also pending
presently is a motion for summary judgment filed Defendants
Joy Camarillo, A.P.N.; Ihuoma Nwachukwu, M.D.; Rutgers, The
State University of New Jersey; and University Behavioral
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
28 U.S.C. §1915(e)(1), “[t]he court may request an
attorney to represent any person unable to afford
counsel.” Appointment of counsel under 28 U.S.C. §
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. See Tabron, 6 F.3d at 155. If
the Court finds Plaintiff's claim has merit, the Court
must then 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.
Parham, 126 F.3d at 457-58; Tabron, 6 F.3d
at 155-157. Other factors that must also be considered when
deciding an application for the appointment of pro bono
counsel are “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”.
Jenkins v. D'Amico, Civ. Action No. 06-2027,
2006 WL 2465414, at *1 (D.N.J. Aug. 22, 2006) (citing
Tabron, 6 F.3d at 157-58).
noted above, the threshold factor in deciding a motion
seeking the appointment of pro bono counsel is whether
Plaintiff's claims have some merit in law and fact. Here,
Plaintiff's Complaint was dismissed in its entirety as to
the NJDOC and NJSP. The remaining Defendants are presently
seeking summary judgment, and Plaintiff has opposed the
motion. It appears that there is at least some overlap in the
issues between the earlier motion to dismiss and the pending
motion for summary judgment, and some of the reasoning in the
decision dismissing the earlier claims may be applicable to
the current motion. As such, the Court is not persuaded, at
least prior to a decision on the pending summary judgment
motion, that the merits of this case warrant the appointment
contends that he is not “intellectual[ly] skilled
enough” to prosecute his case, engage in discovery and
respond properly to the pending summary judgment motion. ECF
Nos. 14, 23. However, a lack of legal experience alone
“is not a basis for appointing counsel, because it is a
limitation held in common by most pro se parties.”
Hooks v. Schultz, No. 07-5627, 2010 WL 415316, at *1
n.2 (D.N.J. Jan. 29, 2010). Plaintiff has, thus far,
demonstrated that he has sufficient abilities to represent
himself at this point in the case. He has drafted and filed
his Complaint, correspondence with the Court, two motions for
the appointment of pro bono counsel, and opposition to
Defendants' summary judgment motion.
Court recognizes that the above considerations may change as
this litigation proceeds. The Court will continue to monitor
the issues raised by Plaintiff and may exercise its
discretion to appoint counsel sua sponte if any of
these considerations change.
Conclusion and Order
reasons above, the Court finds that the appointment of
counsel is not warranted at this time. Accordingly, ...