United States District Court, D. New Jersey
Jersey State Prison, Lock Bag R, Plaintiff Pro Se.
CHRISTOPHER A. ORLANDO, COUNTY COUNSEL, By: Anne E. Walters,
Assistant County Counsel, Office of County Counsel, Attorney
B. SIMANDLE U.S. DISTRICT JUDGE.
matter is before the Court upon a motion by plaintiff pro se,
Adam Sosa, seeking appointment of pro bono counsel. (D.E.
23.) The Court, after reviewing the record, finds as follows:
June 4, 2018, the Court entered an opinion (D.E. 21)
(“June 4 Opinion”) and order (D.E. 22)
(“June 4 Order”) granting the motion for summary
judgment (“the SJ Motion”) (D.E. 18) of
defendants County of Camden (“County”), Camden
County Freeholders (“Freeholders”), and Warden of
the Camden County Correctional Facility
(“Warden”) (County, Freeholders, and Warden are
collectively referred to as “Defendants”). The
Court considered the SJ Motion. which was then unopposed, on
the papers pursuant to Fed.R.Civ.P. 78(b).
June 12, 2018, the Clerk's Office of this Court received
from Plaintiff a Letter Motion to Appoint Pro Bono Counsel.
(D.E. 23 (“Plaintiff's Motion”).)
Allowing for regular U.S. mail delivery time between this
Court and East Jersey State Prison, it appears that
Plaintiff's Motion crossed in the mail with this
Court's June 4 Opinion and Order.
Under Local Civ. R. 7.1(d)(2), Plaintiff's timely
opposition to the SJ Motion would have been due on or before
May 21, 2018. Plaintiff did not timely file such opposition.
Nevertheless, Plaintiff's Motion, to the extent it
opposes the SJ Motion, arguably was not unreasonably late
either, as he could have requested an automatic fourteen-day
extension under Local Civ. R. 7.1(d)(5). Under that
provision, Plaintiff could have had until June 4, 2018 to
file his opposition for a June 18, 2018 motion day.
The Court Will Re-Open This Case:
In light of the above-described mail-crossing, in the
interests of fairness to all parties to this proceeding, and
given Plaintiff's pro se status, the Court will consider
Plaintiff's Motion as a request to: (a) re-open the
docket of Civil Action No. 16-cv-8662 and; (b) set aside the
June 4 Opinion and June 4 Order. The Court will grant that
request and instruct the Clerk of Court accordingly, as set
forth at the conclusion of this Order.
The Parties Shall Complete Limited Discovery By
July 1, 2019: The only discovery requests or
responses of any party attached to any filings in this case
are Defendants' Fed.R.Civ.P. 26 Disclosures (D.E. 18-4 at
2-4) and Defendants' interrogatories and document
requests to Plaintiff. (D.E. 18-5 at 2-14.) The
Defendants' Brief in Support of Summary Judgment (D.E.
18-2 at 6) and their Statement of Material Facts (D.E. 18-8
at 2) argue that Plaintiff did not serve discovery responses
or Fed.R.Civ.P. 26 disclosures. Perhaps related to this
point, Plaintiff contends that he “understand[s] it
[is] [his] responsibility to respond on a timely basis,
” but he is “in dire straits” as he is in
need of counsel to help him with his case. (D.E. 23 at 1.) On
the issue of discovery, the Court notes also that there is no
indication in the record that Defendants attempted to resolve
Plaintiff's discovery failures with him, or to otherwise
bring it to Magistrate Judge Ann Marie Donio's attention,
prior to the close of pre-trial fact discovery on March 30,
2018 (see D.E. 17 at 1) or prior to the filing of
Defendants' May 11, 2018 SJ Motion. The interests of
justice here -- including the unique timing of the
above-referenced mail-crossing, Plaintiff's demonstrated
unfamiliarity with litigation, Plaintiff's attempt to
oppose summary judgment, and the case's discovery posture
as of the June 4 Opinion and Order -- warrant that the
parties be directed to conduct limited discovery with the aid
of Plaintiff's pro bono counsel, as discussed below.
The Court Will Grant Plaintiff's Request For
Appointment of Pro Bono Counsel: Plaintiff asks
this Court to assign him pro bono counsel. He states that he
understands his responsibilities as a litigant, but he is in
“desperate need of an attorney[']s
assistance” because “[t]he inmate that was
assisting me has been transferred to another prison.”
(D.E. 23 at 1.) Appointment of counsel is a privilege, not a
statutory or constitutional right. Brightwell v.
Lehman, 637 F.3d 187, 192 (3d Cir. 2011). Section 1915
permits a court to request that an attorney represent any
person who is unable to afford counsel on his own. 28 U.S.C.
§ 1915(e)(1). Courts, in deciding whether to appoint pro
bono counsel, first must consider whether plaintiff's
claim “has some merit in fact and law.”
Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993)
(quotation omitted). If the court finds that it does, the
court should consider the following factors: (a) the
plaintiff's ability to present his or her own case; (b)
the complexity of the legal issues; (c) the degree to which
factual investigation will be necessary and the ability of
the plaintiff to pursue such investigation; (d) the amount a
case is likely to turn on credibility determinations; (e)
whether the case will require the testimony of expert
witnesses; and (f) whether the plaintiff can attain and
afford counsel on his own behalf. Parham v. Johnson,
126 F.3d 454, 457 (3d Cir. 1997) (citing Tabron, 6
F.3d at 155- 56, 157 n. 5). This list of factors is not
exhaustive, nor is a single factor determinative.
Id. at 458. Instead, the factors serve as guideposts
for district courts to ensure valuable attorney time is not
“wasted on frivolous cases.” Id.
Based on this Court's August 30, 2017 Opinion and Order
that permitted Plaintiff's conditions of confinement
claims and his New Jersey Constitution claim to proceed
beyond initial screening (D.E. 5; D.E. 6), Plaintiff's
claims appeared to have some merit in fact and law, thus
meeting Tabron's initial hurdle.
However, as of June 2018, Plaintiff had failed to come
forward with any evidence supporting either his conditions of
confinement claims (see D.E. 21 at 10-16) or his
First Amendment claims. (Id. at 16-19.) The Court
finds that these points illustrate Plaintiff's inability
to manage, investigate, understand, substantiate, and present
his own case. These points also suggest his lack of education
or experience to sufficiently appreciate the legal issues
that will impact the ultimate success or failure or his
claims. Although the Court makes no finding at this time as
to the truth of Plaintiff's factual representations in
his Motion (D.E. 23), the Court notes that he claims someone
who was helping him with the litigation was transferred to
another facility. (Id. at 1.) If true, and assuming
such person in fact possessed some degree of legal experience
or education, this point would further underscore the need
for pro bono counsel in Plaintiff's circumstances.
While it may be presently unclear whether this case will in
fact proceed to trial or whether the case will require expert
witness testimony, Plaintiff's Motion shows that he is
undoubtedly unfamiliar with the litigation process and motion
practices. Successive mis-steps, omissions, and untimely
filings such as those thus far will only further tax both
sides to this litigation. Appointment of pro bono counsel,
who can enter an appearance, participate in resolving
discovery disputes, and suggest a new dispositive motion
schedule, is a sensible resolution in this situation.
However, nothing in this Memorandum Order should be construed
as questioning the sound and well-reasoned analysis of Judge
Donio in her November 27, 2017 Order denying appointment of
counsel for Plaintiff. (D.E. ...