United States District Court, D. New Jersey
RAHSHARD J. JOHNSON Plaintiff,
U.S. MARSHAL, et al., Defendants.
OPINION AND ORDER
B. Clark, III United States Magistrate Judge.
MATTER comes before the Court on a Motion by pro
se Plaintiff Rashard J. Johnson for the appointment of
pro bono counsel pursuant to 28 U.S.C. §
1915(e). [ECF No. 22]. Plaintiff's Motion is unopposed.
For the reasons set forth below, Plaintiff's Motion for
the appointment of pro bono counsel [ECF No. 22] is
initiated this action on April 3, 2017 by filing a Complaint
and an application to proceed in forma pauperis. ECF
No. 1. Following the denial of Plaintiff's
in forma pauperis application, Plaintiff submitted a
new application with the required documents. ECF No. 4. On
June 5, 2017, the Court granted Plaintiff's in forma
pauperis application and ordered the Clerk of Court to
file Plaintiff's Complaint; however, the Complaint was
subsequently dismissed without prejudice for failure to state
a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(i), but providing the right for Plaintiff to
file an amended complaint to address identified deficiencies.
ECF No. 6.
23, 2017, Plaintiff filed his First Amended Complaint. ECF
No. 7. On December 26, 2017, the Court subsequently dismissed
Plaintiff's First Amended Complaint without prejudice for
failure to state a claim pursuant to 28 U.S.C.
§§1915(e)(2)(B)(ii) and 1915A(b)(i), but providing
the right for Plaintiff to file a second amended complaint to
address identified deficiencies. ECF No. 9. Plaintiff
thereafter filed his Second Amended Complaint on January 9,
2018. ECF No. 11. Plaintiff's claims in his Second
Amended Complaint arise from Defendants' alleged
deliberate indifference to his serious medical condition-a
cervical spine injury. See Id. at pp. 2-13. On
February 13, 2019, the Court permitted Plaintiff's claims
against Defendants Paul O'Connor, Dr. Lionel Anicette and
Dr. Syed Rizvi to proceed while claims against all other
defendants were dismissed. See ECF Nos. 17, 18.
now 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).
the initial question of whether Plaintiff's claims have
merit, the Court notes that Plaintiff's remaining claims
were screened by the Court and allowed to proceed, and for
the purposes of the present motion the Court will assume that
Plaintiff's surviving claims have at least some merit.
Presently, 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.
filings with the Court thus far reflect literacy and the
ability to reference relevant legal authority. For example,
without the assistance of counsel, Plaintiff has filed a
Complaint, an application to proceed in forma
pauperis, two Amended Complaints, several letters to the
Court, and the present motion for the appointment of pro
bono counsel. These filings themselves demonstrate that
Plaintiff is able to present his case. Plaintiff's
application for pro bono counsel states:
“imprisonment will greatly limit his ability to
litigate and the issues involved in this complaint are
complex” and his claims “will require significant
research and investigation, ” but he “has limited
access to the law library and limited knowledge of the
law.” ECF No. 22 at p. 1. Although Plaintiff states
that he has limited access to certain resources and his
claims will require research and investigation, Plaintiff
fails to explain how this will affect his ability to present
his case. Furthermore, Plaintiff does not explain how the
legal issues are complex. In this matter, it appears, in
fact, that the remaining legal issues are not complex, but
straightforward, which weighs against appointment of counsel.
also states that this action will “likely involve
conflicting testimony, and counsel would better enable
plaintiff to present evidence and cross examine
witnesses.” ECF No. 22 at p. 2. While the appointment
of counsel may be warranted in cases that turn on credibility
determinations and require testimony from expert ...