The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID SELLOW, Civil Action No. 18-13820 (PGS)
Plaintiff,
MEMORANDUM OPINION
v.
IHOUMA NWACHUKWU,
Defendant.
BONGIOVANNI, Magistrate Judge
This matter has been opened to the Court upon pro se Plaintiff, David Sellow’s
(“Plaintiff”), motions seeking an extension of time to file an affidavit of merit (Docket Entry No.
23) and for the appointment of pro bono counsel (Docket Entry No. 24). For the reasons set forth
below, the Court will (1) appoint pro bono counsel for the limited purpose of determining whether
Plaintiff can obtain an affidavit of merit in support of his claim for medical malpractice and
negligence against Defendant; and (2) extend the time for filing the affidavit of merit. The stay on
dispositive motion practice is extended until after pro bono counsel is appointed and has the
opportunity to explore whether an affidavit of merit can be obtained.
I. Factual Background and Procedural History
The Court sets forth only those facts necessary to this Opinion. Plaintiff, who is a pro se
prisoner currently incarcerated at New Jersey State Prison (“NJSP”), submitted his Complaint on
September 12, 2018. (Docket Entry No. 1). Plaintiff’s Complaint was deemed filed on October
17, 2018, when Plaintiff’s application to proceed in forma pauperis was granted (Docket Entry
No. 2), and a summons was issued on November 15, 2018 after the District Court determined on
November 2, 2018 that Plaintiff’s Eight Amendment and New Jersey Tort Claims Act claims were
sufficiently stated to pass its sua sponte screening. (Docket Entry Nos. 3 & 6). Generally, the
Complaint alleges that Defendant, who treated Plaintiff at NJSP, was deliberately indifferent to
his serious medical needs when she failed to properly treat Plaintiff’s surgery, including post-
surgical treatment, delayed in sending Plaintiff to the hospital, and failed to properly treat
Plaintiff’s severe constipation. (Docket Entry No. 1, Compl. ¶¶ 6-15). Plaintiff alleges that as a
result of Defendant’s actions, he suffered unnecessarily, fell and hurt himself while trying to use
the bathroom, needed to be rushed into an operating room to have a second medical procedure,
suffered unnecessarily from severe constipation, and had to stop taking his prescribed pain
medication in order to alleviate the aforementioned constipation because Defendant failed to
provide him with effective treatment, which consequently, resulted in him having to endure
immense pain and suffering. (See Id.) In addition to his federal claim, Plaintiff, through his
Complaint, alleges that Defendant’s actions also amounted to medical malpractice and negligence.
(Id. ¶¶ 33-40).
Defendant was served with the Summons and Complaint on December 3, 2018, making
her Answer or other response due on December 24, 2018. (Docket Entry No. 7). Defendant failed
to timely respond to Plaintiff’s Complaint and default was entered against her on January 16, 2019.
On April 1, 2019, Plaintiff moved for a default judgment as to Defendant. (Docket Entry No. 9).
On October 3, 2019, counsel entered a notice of appearance on behalf of Defendant and
simultaneously sought an extension of time to respond to Plaintiff’s motion for default judgment.
(Docket Entry Nos. 10 -12). On October 10, 2019, Defendant filed a motion to set aside default.
(Docket Entry No. 13).
The District Court heard argument on Plaintiff’s motion for default judgment and
Defendant’s motion to set aside default on November 20, 2019. (Docket Entry No. 19). The
District Court denied Plaintiff’s motion for default judgment, granted Defendant’s motion to set
aside default and directed Defendant to file an Answer or otherwise plead in response to Plaintiff’s
Complaint. (Docket Entry No. 18). On November 26, 2019, Defendant filed her Answer. (Docket
Entry No. 20). On December 2, 2019, the Court entered a Scheduling Order, which, in part, set
April 2, 2020 as the fact discovery end date and directed the parties to provide the Court with a
status update by March 2, 2020. (Docket Entry No. 21). Defendant reported back as directed,
submitting a letter in which she advised that “[d]iscovery has not proceeded with this prisoner
plaintiff, but I do expect to be filing dispositive motions prior to the May 8, 2020 directive in your
Order[.]” (Docket Entry No. 22). Plaintiff also reported back. However, instead of filing a letter,
he filed the instant motions for an extension of time to file an affidavit of merit (Docket Entry No.
23) and for pro bono counsel (Docket Entry No. 24). In light of Plaintiff’s motions, the Court
entered an Order staying dispositive motion practice until after the motions were decided. (Docket
Entry No. 25).
II. Discussion
As outlined by the Third Circuit, New Jersey’s affidavit of merit statute was enacted “‘as
part of a tort reform packaged designed to strike a fair balance between preserving a person’s right
to sue and controlling nuisance suits.’” Nuveen Mun. Trust v. WithumSmith Brown, P.C., 692 F.3d
283, 290 (3d Cir. 2012) (quoting Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 579 (3d
Cir. 2003) (internal quotation marks and citation omitted)). The statute:
[R]equires that a plaintiff filing “any action for damages for personal
injuries, wrongful death or property damage resulting from an
alleged act of malpractice or negligence by a licensed professional”
provide each defendant with “an affidavit of an appropriate licensed
person [stating] that there exists a reasonable probability that the
care, skill or knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the complaint, fell outside
acceptable professional or occupational standards or treatment
practices.”
Id. (quoting N.J.S.A. § 2A:53A-27).
Further, pursuant to the statute, the affidavit or merit “must be provided within 60 days
after the defendant files its answer. Id. (citing N.J.S.A. § 2A:53A-27). Though, “[f]or good cause
shown, the Statute provides one extension period of an additional 60 days contiguous to the initial
60-day period.” Id. (citing N.J.S.A. § 2A:53A-27). As explained by the Third Circuit, “[t]he
penalty for not following the . . . Statute is severe. Absent a showing of one of four limited
exceptions, the failure to file the affidavit ‘shall be deemed a failure to state a cause of action.’”
Id. at 290-91 (quoting N.J.S.A. § 2A:53A-29). The four limited statutory exceptions are (i) a
statutory exception regarding lack of information; (ii) a “common knowledge” exception; (iii)
substantial compliance with the affidavit of merit requirement; or (iv) “extraordinary
circumstances that warrant equitable relief. See N.J.S.A. § 2A:53A-28 (detailing statutory
exceptions).
Here, the affidavit of merit statute applies to Defendant. Further, more than 60 days has
passed since Defendant filed her Answer on November 26, 2019. Indeed, Plaintiff filed his motion
for an extension of time 97 days after Defendant filed her Answer. Additional time has since
passed. While the Court finds good cause to provide the additional 60 day extension permitted by
N.J.S.A. § 2A:53A-27, the Court finds it highly unlikely that Plaintiff will be able to file the
requisite affidavit of merit by March 25, 2020, which is the 120th day after Defendant filed her
Answer. As a result, the Court must determine whether any of the four exceptions exist, which
would allow the Court to further extend Plaintiff’s time to file an affidavit of merit.
Plaintiff argues that, “[c]ourts in this district have found extraordinary circumstances
sufficient to permit an extension of time to file an affidavit of merit, when plaintiff is a pro se
prisoner, who also encountered other obstacles.” (Docket Entry No. 23 at 2). Plaintiff notes that
he is currently proceeding pro se, has filed a motion for pro bono counsel, has been unable to
secure an affidavit of merit and has encountered several obstacles in litigating this case. For
example, he indicates that paralegal who was assisting him was transferred to a different prison,
no additional paralegals have been available to help him, and he lacks sufficient access to the law
library.
The Court finds Plaintiff’s request for the appointment of counsel relevant to his request
for an extension of time to file the affidavit of merit. Indeed, it appears that Plaintiff is unable to
effectively litigate the affidavit of merit issue without the assistance of counsel. 28 U.S.C. §
1915(e) “gives district courts broad discretion to request an attorney to represent an indigent civil
litigant.” Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1997). In determining whether pro bono
counsel should be appointed, the Court considers, “the Tabron guideposts that may be relevant to
any particular request for counsel, including successive requests, at the time and stage of litigation
that the request is made.” Houser v. Folino, Civil Action No. 16-2242, 2019 U.S. App. LEXIS
18368 at *16-17 (3d Cir. June 19, 2019).
Under Tabron, in deciding whether counsel should be appointed, the Court first considers
whether a claim or defense has “arguable merit in fact and law,” and, if it does, the Court then
considers additional factors, which include: (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. Tabron v. Grace, 6 F.3d at 155-57. Other factors such as “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” must also be considered when deciding an
application for the appointment of pro bono counsel. 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).
Here, Plaintiff’s claims, which survived the Court’s initial screening, clearly have arguable
merit in fact and law. As a result, the Court turns to the other factors, which the Court, on balance,
finds weigh in favor of appointing counsel at this juncture. Of these, Plaintiff’s ability to present
his case is “[p]erhaps the most significant” of the factors to consider in determining whether
counsel should be appointed. Montgomery v. Pinchak, 294 F.3d 492, 501 (3d Cir. 2002). As noted
above, Plaintiff appears unable to litigate the affidavit of merit issue without the assistance of
counsel. As a result, this important factor weighs in favor of appointing counsel. The Court finds
that the second factor also favors the appointment of counsel. In this regard, while the timeline
for submitting the affidavit of merit is fairly straightforward, the process of actually obtaining the
required affidavit is quite complex. See Id. at 502 (quoting Tabron, 6 F.3d at 157) (“instructing
that the difficulty of the legal issues must be considered ‘in conjunction with . . . the plaintiff’s
capacity to present his own case’”). Further, the fifth factor supports Plaintiff’s request for counsel,
as it is likely in this medical malpractice case that testimony from expert witnesses will be required.
See Parham, 126 F.3d at 460 (noting that “[a] medical malpractice case involves complex facts
and medical records that even most lawyers struggle to comprehend. Hence, most of these cases
require expert testimony”). The sixth factor also supports Plaintiff’s request as Plaintiff, who is
proceeding in forma pauperis, certainly cannot afford counsel on his own behalf. While Plaintiff
may be able to pursue the necessary factual investigation related to the claims and defenses at
issue,1 and while it is unclear the extent to which credibility determinations will be at play, the
Court finds that, on balance, even after considering 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, the appointment of counsel is warranted here.
The Court also finds that extraordinary circumstances exist, which warrant an extension of
time beyond 120 contiguous days to file the required affidavit of merit in this case. In reaching
this conclusion, the Court is mindful of the fact that even in represented cases, the Third Circuit
has long acknowledged that a plaintiff’s state law medical malpractice claim need not be dismissed
with prejudice if the failure to file an affidavit of merit within the statutory time period was due to
extraordinary circumstances. See Chamberlain v. Giampapa, 210 F.3d 154, 162 (3d Cir. 2000).
“What constitutes an ‘extraordinary circumstance’ is a fact-sensitive analysis.” Id. (citation
omitted). Generally, such “circumstances must be exceptional and compelling”; they cannot arise
out of “an attorney’s mere carelessness or lack of proper diligence.” Id. (internal quotation marks
and citations omitted). Similarly, “[c]ourts in the pro se context have considered whether the
failure to comply with the filing deadline resulted from ‘carelessness, lack of circumspection, lack
of diligence, [] ignorance of the law[,]’ or failure to seek legal advice.” Fontanez v. U.S., 24
F.Supp. 3d 408, 414 (D.N.J. 2014) (quoting Marcantonio v. Hundertmark, No. A-2012-04T5,
2005 WL 3663634, at *4 (N.J.Super.Ct.App.Div. Jan. 23, 2007) (internal quotation marks and
citation omitted)). None of these reasons alone are sufficient to qualify as extraordinary
circumstances. See id.
However, where a plaintiff is a pro se prisoner, extraordinary circumstances have been
found where the plaintiff has encountered other obstacles. See Fontanez v. U.S., 24 F.Supp. 3d
1 The Court notes that according to Defendant, no discovery has taken place. (See Docket Entry No. 22). As such, it
is unclear whether Plaintiff is, in fact, able to conduct the necessary factual investigation.
408, 414-16. For example, in Fontanez, the Court noted that the plaintiff’s “incarceration during
the period within which to file a timely affidavit of merit undoubtedly frustrated [his] ability to
timely acquire an affidavit of merit.” Id. at 416. Combined with other unique circumstances, the
Court in Fontanez found extraordinary circumstances existed to excuse the plaintiff’s failure to
timely file an affidavit of merit and to grant him an additional extension of time to do so. See id.
at 416-17. In so doing, the Court in Fontanez noted that “‘[t]he Affidavit of Merit statute was
intended to flush out insubstantial and meritless claims[,]’ but ‘was not intended to encourage
gamesmanship or a slavish adherence to form over substance.’” Id. at 416 (quoting Ferreira v.
Rancocas Orthopedic Assocs., 178 N.J. 144, 836 A.2d 779, 783 (2003)).
Up until today, Plaintiff, an incarcerated prisoner, has been proceeding pro se in this matter.
Despite his prisoner pro se status he has attempted to comply not only with the Orders entered by
this Court, but also with the affidavit of merit statute. Despite his considerable efforts, he has not
been able to obtain the requisite affidavit of merit. Further, while attempting to litigate this matter,
the paralegal who was assisting him was transferred to a different prison and he was unable to
obtain additional paralegal assistance. In addition, Plaintiff has expressed concerns about his
access to the law library. The Court finds that Plaintiff’s pro se status in conjunction with these
additional obstacles establish extraordinary circumstances warranting an extension of time for
Plaintiff to file the affidavit of merit after the expiration of the contiguous 120 day-period on March
25, 2020. At this time, the Court will (1) appoint counsel for the limited purpose of assisting
Plaintiff in determining whether he can obtain the appropriate affidavit of merit; and (2) extend
the time within which Plaintiff may submit the required affidavit or otherwise meet the
requirements of the affidavit of merit statute. The time is extended 60 days from the date pro bono
counsel makes an appearance in this matter. Dispositive motion practice is stayed.
III. Conclusion
For the reasons stated above, the Court will appoint pro bono counsel for the limited
purpose of assisting Plaintiff in obtaining the required affidavit of merit in support of his medical
malpractice and negligence claims against Defendant.2 Further, for the reasons outlined herein,
the Court will extend the time in which Plaintiff may file the required affidavit of merit.
Dispositive motion practice is stayed and shall be reset at a later date. An appropriate Order
follows.
Dated: March 13, 2020
s/ Tonianne J. Bongiovanni_______________
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE
2 If an affidavit of merit is obtained and Plaintiff’s claim for medical malpractice proceeds, the
Court will then determine whether pro bono counsel shall continue to represent Plaintiff for all
purposes.