The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STACY SMITH
:
: Civil Action No. 19-8771 (JMV)
Plaintiff,
:
:
v.
:
: OPINION AND ORDER
THE NEWARK BOARD OF
:
EDUCATION,
:
Defendant. :
:
THIS 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. 4]. Plaintiff’s
Motion is unopposed. For the reasons set forth below, Plaintiff’s Motion for the appointment of
pro bono counsel [ECF No. 4] is DENIED.
On 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 sex.”
ECF No. 1 at 1.
Plaintiff 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 case;
(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 investigations;
(4) the amount a case is likely to turn on credibility determinations;
(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).
Presently, 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.
Plaintiff’s 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 “having trouble looking because [he] is disabled.” ECF No. 4 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 whether to appoint pro bono counsel.
An 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.
While 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 warranted. In the event that Plaintiff renews his
application for pro bono counsel in the future, the Court instructs Plaintiff to address the Tabron
factors set forth above.
The Court having considered this matter pursuant to Fed. R. Civ. P. 78, and for good cause
shown;
IT IS on this 17th day of October, 2019,
ORDERED that Plaintiff’s Motion for the appointment of pro bono counsel
[ECF No. 4] is DENIED WITHOUT PREJUDICE.
s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge