United States District Court, D. New Jersey
54, 55, Motions For Pro Bono Counsel
C. MANNION UNITED STATES MAGISTRATE JUDGE.
the Court are Plaintiff, Beverly Harris("Ms.
Harris") Motions for Pro Bono Counsel.' The
Court has reviewed Ms. Harris' Motions, and for the
reasons set forth herein, they are DENIED.
MAGISTRATE JUDGE AUTHORITY
judges are authorized to decide any non-dispositive motion
designated by the Court. This District specifies that magistrate
judges may determine all non-dispositive pre-trial motions,
including motions for pro bono
counsel. Decisions by magistrate judges must be
upheld unless "clearly erroneous or contrary to
DISCUSSION AND ANALYSIS
courts are granted broad discretion to appoint attorneys to
represent indigent civil litigants,  but civil litigants possess
neither a constitutional nor a statutory right to appointed
counsel. Moreover, though Congress has empowered
district courts to "request" counsel for civil
litigants, courts cannot "require" an unwilling
attorney to serve as counsel. This Court must, therefore,
"take note of the significant practical restraints on
the district courts' ability to appoint counsel; ... the
lack of funding to pay appointed counsel; and the limited
supply of competent lawyers who are willing to undertake such
representation without compensation."
evaluating a request for the appointment of pro bono
counsel, a district court should first determine whether the
plaintiffs claim "has arguable merit in fact and
law." The Third Circuit has articulated an
analytical framework that district courts must use in
exercising their discretion. The analysis begins with a
threshold assessment of the merits of the case.
court first finds "some arguable merit in fact and law,
''then it must go on to weigh a series of
considerations known as the Tabron post-threshold
factors. These factors include: (1) the
plaintiffs ability to present his case; (2) the complexity of
the legal issues involved; (3) the extent of factual
discovery and the plaintiffs ability to investigate and to
comply with complex discovery rules; (4) the extent to which
the case may turn on credibility determinations; (5) whether
expert testimony will be required; and (6) whether the
plaintiff can afford counsel on his or her own
Court assumes solely for the purpose of this Application that
Ms. Harris' case has "some arguable merit in fact
and law." The Court need not undertake a detailed
analysis of this point because application of the
Tabron post-threshold factors weighs against
appointment of pro bono counsel at this time.
Ms. Harris' Ability to Present Her Case
first factor has been identified as "perhaps the most
significant." For this factor, the Court considers Ms.
Harris' "education, literacy, prior work experience,
and prior litigation experience...." As additional
guidance, the Third Circuit has noted that courts should
consider Ms. Harris' ability to present her case
"[i]n conjunction with ... the difficulty of the
particular legal issues."
Harris contends that she requires pro bono counsel
"for advisory assistance ... [concerning] the Fed[eral]
Rules[, ] ... Local Requirements[, ] ... required documents[,
] and deadlines." Ms. Harris' lack of formal legal
training alone, however, does not constitute sufficient
grounds to warrant the appointment of counsel. Ms.
Harris' level of education is not entirely clear from her
submissions to the Court, but she does refer to herself as
"Dr." in those submissions, implying that she may
have some form of higher education. Additionally, she seems
to have already appeared as a pro se litigant (in a
case before the United States District Court for the Southern
District of New York).
Ms. Harris' filings with the Court thus far reflect
literacy and a general understanding of the litigation
process. For example, without the aid of counsel, Ms. Harris
has already drafted and amended her complaint,  responded to
Defendants', Thomas Bozzuto, Toby Bozzuto, David Curcio,
Michelle Demetriou, and the Bozzuto Group
("Defendants"), Motion to Dismiss,  and filed
various motions, including this one to appoint pro bono
counsel. Therefore, the first Tabron
factor weighs against appointment.
The Legal Complexity of the Case
second Tabron factor concerns the complexity of the
particular legal issues. To assess the complexity of legal
issues for the purpose of appointing counsel, "courts
must ... look to the proof going towards the ultimate issue
and the discovery issues involved." The Third
Circuit has stated that "where the law is not clear, it
will often best serve the ends of justice to have both sides
of a difficult legal issue presented by those trained in
Harris has pled negligence, violations of 28 U.S.C. §
2511, defamation, first amendment violations, and other
potential civil rights violations. At the present time, the
Court does not find the legal issues in this action to be
particularly complex. Ms. Harris seems to agree (she notes in
her "Amended" Motion For Pro Bono counsel
that even were counsel to be appointed, she expects "to
remain in full control" of her substantive legal
claims). Therefore, the second Tabron
factor weighs against appointment.
The Degree to Which Factual Investigation ...