United States District Court, D. New Jersey
OPINION AND ORDER
B. CLARK, III UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on a Motion by pro
se Plaintiff Stacy Smith for the appointment of pro
bono counsel pursuant to 28 U.S.C. § 1915(e). [ECF
No. 6]. Plaintiff's Motion is unopposed. For the reasons
set forth below, Plaintiff's Motion for the appointment
of pro bono counsel [ECF No. 6] is
March 20, 2019, Plaintiff initiated this action by filing a
Complaint against Defendant The Newark Board of Education.
ECF No. 1. Plaintiff has not filed to proceed in forma
pauperis. Rather, Plaintiff paid the requisite four
hundred dollar filing fee and was issued a summons by the
Clerk of Court. ECF No. 2. Plaintiff's claims arise from
alleged discrimination based on his disability and
retaliation. ECF No. 1 at 1.
seeks the appointment of counsel under 28 U.S.C. §
1915(e), which provides that “[t]he court may request
an attorney to represent any person unable to afford
counsel.” The appointment of counsel is a privilege,
not a statutory or constitutional right. Brightwell v.
Lehman, 637 F.3d 187, 192 (3d Cir. 2011). The decision
to appoint pro bono counsel involves a two-step analysis.
First, a court must determine, as a threshold matter, whether
a plaintiff's claim has “some merit in fact and
law.” Tabron v. Grace, 6 F.3d 147, 155 (3d
Cir. 1993). If a court finds that the action arguably has
merit, it should then consider the following factors:
(1) the plaintiff's ability to present his or her own
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue such
(4) the amount a case is likely to turn on credibility
(5) whether the case will require the testimony of expert
witnesses; and (6) 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 is not exhaustive, but rather provides guideposts for
the Court. Montgomery v. Pinchak, 294 F.3d 492, 499
(3d Cir. 2002) (citations omitted). A court's decision to
appoint counsel “must be made on a case-by-case
basis.” Tabron, 6 F.3d at 157-58.
Additionally, the Third Circuit Court of Appeals has stated
that “courts should exercise care in appointing counsel
because volunteer lawyer time is a precious commodity and
should not be wasted on frivolous cases.”
Montgomery, 294 F.3d at 499 (citing Parham,
126 F.3d at 458).
as an initial matter and regardless of whether or not
Plaintiff's claims have merit, the factual and legal
issues “have not been tested or developed by the
general course of litigation, making [a number of factors] of
Parham's test particularly difficult to
evaluate.” See Chatterjee v. Philadelphia
Federation of Teachers, 2000 WL 1022979 at *1 (E.D.Pa.
July 18, 2000) (stating that unlike Parham, which
concerned a directed verdict ruling, and Tabron,
which involved summary judgment adjudication, plaintiff's
claims asserted in the complaint and motions “have
barely been articulated” and have a distinctive
procedural posture). With respect to the Tabron
factors, Plaintiff has not demonstrated at this stage of the
proceeding that pro bono counsel is warranted.
pro bono application wholly fails to address the
Tabron factors. In support of his request for
pro bono counsel, Plaintiff explains that he needs
to be appointed counsel because he is “permanently
disabled” leaving him “unable to reach out and
obtain leagel [sic] services.” ECF No. 6 at 3. While
the Court acknowledges Plaintiff's disability may inhibit
his mobility, this does not suggest that Plaintiff is
otherwise unable to contact legal services. Furthermore,
Plaintiff's physical disability is not a factor to be
considered in determining the appointment of pro
bono counsel. Plaintiff additionally states that he has
been unable to attain an attorney because “of the
nature of [his] case against the City of Newark and the
union, ” and he believes “most lawyers are scared
to take it.” Id. The Court finds
Plaintiff's claim to be speculative at best, and even if
Plaintiff could support such a claim, the Court does not
consider the desirability of Plaintiff's case in
evaluating whether to appoint pro bono counsel.
important factor the Court does consider is Plaintiff's
ability to afford his own counsel. As noted above, Plaintiff
paid the required four hundred dollar filing fee to initiate
this action. Unlike most pro se litigants who file
cases in this district, Plaintiff did not seek permission to
proceed in forma pauperis. Although Plaintiff's
ability to pay the Court filing fee may not be an accurate
reflection of his finances, absent any additional evidence to
the contrary, it appears that Plaintiff has the ability to
attain and afford counsel on his own.
the Court understands Plaintiff's desire to have the
Court appoint counsel, the Court notes that the appointment
of counsel is a privilege and not a statutory or
constitutional right in a civil action. Brightwell,
637 F.3d at 192. The Court recognizes that issues may arise
throughout the course of this litigation which may raise a
question as to Plaintiff's need for counsel. The Court
will monitor this issue throughout case management and, as
the case progresses, may consider a renewed motion for the
appointment of counsel. However, at this stage of the
litigation, the Court finds that the appointment of counsel
is not ...