IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ROBERT MITCHELL,

 Plaintiff,

v.

TOWNSHIP OF WILLINGBORO

MUNICIPALITY GOVERNMENT, et

al.,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 11-1664 (JBS/JS)

OPINION

APPEARANCES:

Robert Mitchell, pro se

1512 S. 58th Street

Apt. 2

Philadelphia, PA 19143

Dean R. Wittman, Esq.

Matthew B. Wieliczko, Esq.

ZELLER & WIELICZKO

120 Haddontowne Court

cherry Hill, NJ 08034

SIMANDLE, Chief Judge:

I. INTRODUCTION

 This matter is before the Court on Defendant Jeffrey

Perez's motion to dismiss [Docket Item 34], Plaintiff Robert

Mitchell's motion for summary judgment [Docket Item 37] and

Defendant Jeffrey Perez's cross motion for summary judgment

[Docket Item 40]. The instant action arises out of a traffic

stop on July 3, 2010 when Defendant Officer Jeffrey Perez

("Defendant") stopped Plaintiff Robert Mitchell ("Plaintiff")

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after receiving a 9-1-1 dispatch with a description of a

suspicious vehicle. Plaintiff is an African American and alleges

the 9-1-1 dispatch did not create the requisite reasonable

suspicion to stop his car because his vehicle did not match the

given description. Consequently, Plaintiff brought the instant

action against Defendant Perez alleging his Fourth Amendment

rights were violated.

For the reasons discussed below, the court will deny all

pending motions as genuine issues of material fact exist which

prevent summary judgment. In addition, the court will sua sponte

appoint pro bono counsel for the Plaintiff pursuant to 28 U.S.C.

§ 1915(e).

II. BACKGROUND

The factual background of this case is set forth in the

court's opinion of July 26, 2011 and is incorporated herein. 

[Docket Item 5]; Mitchell v. Township of Willingboro Municipality

Government, Civ. No. 11-1664, 2011 WL 3203677 (D.N.J. July 26,

2011). 

Plaintiff filed this action based on a police stop of his

vehicle that resulted in his arrest because of outstanding

warrants against him. Plaintiff claims that the officer stopping

his vehicle lacked reasonable suspicion for the stop, and that he

was stopped because of racial profiling, describing himself as a

"Black Afro-American Male Citizen." Compl. 6B. 

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Specifically, Plaintiff alleges that on July 3, 2010 he was

driving in the Township of Willingboro with his son and son’s

girlfriend. Id. at 6C. They were in a green 1993 Honda Accord

owned by Plaintiff's wife. Id. Plaintiff alleges that he did

not speed or otherwise break any traffic laws. Id. at 6D, 6E. 

Plaintiff alleges that the officer who stopped him explained that

he received a 9-1-1 dispatch call regarding a four-door, blue

Honda Accord with no rear license plate and, therefore, stopped

Plaintiff's car. Id. at 6G. Plaintiff notes that his two-door 1

Honda Accord is green and had a State of Pennsylvania rear

license plate. Id.

Plaintiff did not have his driver's license with him, and

when the officer performed a warrant check, central dispatch

reported that outstanding warrants existed on Plaintiff’s record. 

Id. at 6H. Plaintiff was arrested and brought to the Willingboro

Township Police Department for booking. Id. at 6I. Plaintiff

was issued a ticket for operating a motor vehicle on an expired

driver's license. Id. Plaintiff claims the officer falsified

the summons to show the car as being blue instead of green. Id.

Plaintiff filed the instant action in forma pauperis

pursuant to 28 U.S.C. § 1915, attempting to assert claims for

 Although Officer Perez allegedly told Mitchell that the 9- 1

1-1 caller had identified a blue Honda Accord as the speeding

vehicle with no plates, in fact the dispatch tape, as discussed

below, demonstrates that the dispatcher told Officer Perez that a

dark blue Acura with no license plates was speeding.

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deprivation of constitutional rights under 42 U.S.C. § 1983

against the following Defendants in both their individual and

official capacities: the Township of Willingboro, the Township of

Willingboro Police Department, the Township Manager, the Township

Director of Public Safety, the Township Police Captain , and the

Township Police Officer involved in the stop (who was unnamed in

the caption but identified in the Complaint as Officer Jeffrey

Perez). 

Since Plaintiff brought the instant action in forma pauperis

pursuant to 28 U.S.C. § 1915, the court engaged in a sua sponte

screening, as required by 28 U.S.C. § 1915(e). In conducting the

sua sponte screening, the court noted that "[t]he legal standard

for dismissing a complaint for failure to state a claim pursuant

to § 1915(e)(2)(B) is identical to the legal standard used when

ruling on Fed. R. Civ. P. 12(b)(6) motions." Mitchell, 2011 WL

3203677 at *2 (citing Courteau v. United States, 287 F. App’x

159, 162 (3d Cir. 2008)). 

Applying this standard, the court dismissed the majority of

Plaintiff's complaint. Specifically, the court dismissed the

claims against the Township of Willingboro, the Township of

Willingboro Police Department, the Township Manager, Joanne

Jennings, the Township Director of Public Safety, Gregory Rucker,

and the Township Police Captain, Donna C. Demetri for failure to

state a claim. The court also dismissed the First Amendment and

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Fourteenth Amendment claims against Officer Perez for failure to

state a claim.

However, the court preliminarily concluded the Complaint

asserted a viable Fourth Amendment claim against Officer Perez. 

The court found the Plaintiff had sufficiently pled that Officer

Perez had neither probable cause to believe a traffic violation

had occurred nor reasonable suspicion that Plaintiff was engaged

in criminal activity when he pulled over Plaintiff's vehicle,

making the stop unreasonable under the Fourth Amendment. In

particular, the Complaint alleged the officer’s explanation for

the stop, that he had received a 9-1-1 dispatch call regarding a

four-door, blue Honda Accord, was pretextual. (Compl. 6J.) The

Complaint further alleged that Plaintiff's vehicle was a green,

two-door Honda Accord with Pennsylvania license plates and did

not match the description of the blue, four-door Honda Accord

with no rear license plate apparently provided by the call. Id.

at 6G. 

Therefore, the Court found the Plaintiff sufficiently pled

that Officer Perez had neither probable cause to believe a

traffic violation had occurred nor reasonable suspicion that

Plaintiff was engaged in criminal activity. Mitchell, 2011 WL

3203677 at **4-5. Consequently, Plaintiff was permitted to

proceed with his Fourth Amendment claim against Defendant Perez.

After filing an answer to the Complaint, Defendant Perez

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then filed the instant motion to dismiss. [Docket Item 34.] 2

Defendant Perez argues Plaintiff's complaint fails to state a

Fourth Amendment claim against him and argues that he is entitled

to qualified immunity. 

The Plaintiff did not respond to Defendant Perez's motion to

dismiss. Instead, the Plaintiff filed an independent motion for

summary judgment. [Docket Item 37.] Plaintiff argues he is

entitled to summary judgment because Defendant Perez has failed

to respond to his discovery requests. Specifically, Plaintiff

maintains Defendant Perez failed to answer his interrogatories

and failed to respond to his document requests. 

Defendant Perez then filed a cross motion for summary

judgment. [Docket Item 40.] Defendant Perez attaches as an

exhibit his answers to Plaintiff's interrogatories. Defendant

Perez does not address whether he responded to Plaintiff's

document requests. In his cross motion for summary judgment,

Defendant Perez reiterates his qualified immunity argument and

does not respond to Plaintiff's arguments regarding discovery

violations. In support of his cross motion, Defendant Perez

relies on the transcript of the 9-1-1 dispatch call and internal

affairs investigation report which exonerated Defendant Perez of

 This motion was filed in response to Plaintiff's earlier 2

motion not to dismiss his complaint. [Docket Item 30.] The court

summarily denied this motion as there is no basis in the Federal

Rules of Civil Procedure for the filing of a motion not to

dismiss a complaint. [Docket Item 42.] 

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any misconduct associated with the police stop. The

investigation report concluded that Defendant Perez lawfully

stopped Plaintiff's vehicle because though it "wasn't an exact

match" it was "very similar" to the vehicle described by

dispatch. (Def.'s Ex. D.) The Plaintiff did not file a reply to

Defendant's cross motion.

The court will address each motion separately below.

III. DEFENDANT'S MOTION TO DISMISS

A. Standard

In order to give defendant fair notice, and to permit early

dismissal if the complained-of conduct does not provide adequate

grounds for the cause of action alleged, a complaint must allege,

in more than legal boilerplate, those facts about the conduct of

each defendant giving rise to liability. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a) and

11(b)(3). These factual allegations must present a plausible

basis for relief (i.e., something more than the mere possibility

of legal misconduct). See Ashcroft v. Iqbal, 129 S.Ct. 1937,

1951 (2009). In its review of a motion to dismiss pursuant to

Rule 12(b)(6), Fed. R. Civ. P., the Court must "accept all

factual allegations as true and construe the complaint in the

light most favorable to the plaintiff." Phillips v. County of

Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v.

Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). 

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B. Discussion

The court previously held in its July 26, 2011 Opinion that

Plaintiff's complaint sufficiently stated a claim against

Defendant Perez for violating his Fourth Amendment rights. 

[Docket Item 5.] In screening the complaint pursuant to 28

U.S.C. § 1915(e), the court applied the identical legal standard

used when ruling on Rule 12(b)(6) motions to dismiss. Defendant

Perez has offered no argument to suggest the court erred in its

previous analysis preliminarily upholding Plaintiff's Fourth

Amendment claim.

However, Defendant Perez argues that he is entitled to

qualified immunity and therefore the complaint should be

dismissed. This argument is unpersuasive.

As an "accommodation of competing values," qualified

immunity strikes a balance by permitting a plaintiff to recover

for constitutional violations where a governmental defendant was

"plainly incompetent or . . . knowingly violate[d] the law,"

while immunizing a state officer who "made a reasonable mistake

about the legal constraints on his actions." Curley v. Klem, 499

F.3d 199, 206-07 (3d Cir. 2007) (internal quotations and

citations omitted). 

The Court's assessment of whether a defendant is entitled to

qualified immunity hinges on two considerations. The Court must

determine "whether the plaintiff has alleged a deprivation of a

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constitutional right at all." Id. (citation omitted). If the

Plaintiff has sufficiently alleged such a deprivation, the Court

must address "whether the right that was [allegedly] violated was

clearly established, or, in other words, whether it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted." Id. (internal quotations and

citations omitted). 

The Third Circuit has cautioned against dismissing a case

based on qualified immunity on a Rule 12(b)(6) motion because "it

is generally unwise to venture into a qualified immunity analysis

at the pleading stage as it is necessary to develop the factual

record in the vast majority of cases." Newland v. Reehorst, 328

Fed. Appx. 788, 791 n.3 (3d Cir. 2009). While the issue of

whether a right is clearly established and whether a reasonable

officer could have believed his actions were lawful are questions

of law for the court to decide, the Court does not consider facts

outside the pleadings in assessing these issues. The Third

Circuit has clearly held that "qualified immunity will be upheld

on a 12(b)(6) motion only when the immunity is established on the

face of the complaint." Thomas v. Independence Township, 463

F.3d 285, 291 (3d Cir. 2006). 

In this case, the court confirms its previous holding that

the Plaintiff has sufficiently pled a violation of his Fourth

Amendment rights by Defendant Perez. [Docket Item 5.] 

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Plaintiff's complaint alleges that Officer Perez received a 9-1-1

dispatch call to pull over a blue Honda Accord with no license

plates that had been speeding down a nearby road. Plaintiff

alleges his car was a green Honda Accord with a Pennsylvania

license plate and that he was not committing any traffic

violations at the time he was pulled over by Officer Perez. 

Plaintiff further argues his Honda Accord had a rear Pennsylvania

license plate and that Pennsylvania does not require a license

plate on the front of the car. Plaintiff maintains Defendant

Perez used the 9-1-1 dispatch call as a pretext to make the stop

and Plaintiff avers the only reason he was pulled over was

because he is an African American male. This sufficiently

alleges a deprivation of a constitutional right and plausibly

states a claim under the Fourth Amendment.

With regard to the second prong of the qualified immunity

analysis, it is well established that an officer must have an

articulable and reasonable suspicion that the driver has

committed a motor vehicle offense in order to conduct an

investigatory stop. Delaware v. Prouse, 440 U.S. 648, 699

(1979). Defendant Perez does not argue that Plaintiff's Fourth

Amendment rights in this case were not clearly established. 

Consequently, the Plaintiff's complaint satisfies the second

prong of the qualified immunity analysis.

Therefore, the court concludes it is inappropriate to

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dismiss this case on qualified immunity grounds at the pleading

stage. Here, the immunity is not established on the face of the

complaint. The Plaintiff adequately alleges a violation of his

Fourth Amendment rights and these rights were clearly established

at the time of the incident.

Accordingly, Defendant Perez's motion to dismiss will be

denied.

IV. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

The Plaintiff argues summary judgment is appropriate against

Officer Perez because the Defendant has failed to respond to

Plaintiff's discovery requests. Specifically, Plaintiff

maintains the Defendant has not filed answers to his

interrogatories and has not responded to his document requests. 

Plaintiff argues the Defendant was required to respond to his

discovery requests by April 30, 2012 pursuant to the court's

scheduling order. [Docket Item 27.] By failing to comply with

the discovery schedule, Plaintiff contends summary judgment is

appropriate.

In response to Plaintiff's motion, Defendant attached his

answers to Plaintiff's interrogatories. The Defendant did not

address whether he also complied with Plaintiff's requests for

production of documents. 

Plaintiff's motion for summary judgment is more akin to a

motion seeking sanctions for discovery violations pursuant to

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Fed. R. Civ. P. 37. This rule allows a party to seek a default

judgment when a defendant "fails to obey an order to provide or

permit discovery, including an order under Rule 26(f), 35 or

37(a)." Fed. R. Civ. P. 37(b). The imposition of a default

judgment for a discovery violation is an extreme sanction and is

only permitted in the most egregious cases. National Hockey

League v. Metro. Hockey Club, Inc., 427 U.S. 639, 390 (1976);

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.

1984). 

Before imposing a sanction, such as default, which

prejudicially disposes of the issues in a case, a district court

must consider the following factors: (1) the extent of the

party's personal responsibility; (2) the prejudice to the

adversary caused by the failure to meet scheduling orders and

respond to discovery; (3) a history of dilatoriness; (4) whether

the conduct of the party or the attorney was willful or in bad

faith; (5) the effectiveness of sanctions other than dismissal,

which entails an analysis of alternative sanctions; and (6) the

meritoriousness of the claim or defense. Poulis, 747 F.2d at

868.

Here, the Plaintiff has failed to establish many of the

necessary factors to warrant the extreme sanction of a default

judgment. The Plaintiff filed the instant motion of May 1, 2012,

one day after the discovery deadline had passed. The Plaintiff

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has not alleged that he reached out to counsel to determine what

caused the delay in responding to his interrogatories or document

requests or whether a simple extension of time could have cured

the issue. There is no evidence of prejudice in this case as the

discovery deadline of July 13, 2012 has only recently passed. It

is feasible to reopen discovery to cure any delinquent or

insufficient responses of Defendant Perez without causing

prejudice to the Plaintiff. There is no history of dilatoriness

in the record and there is no evidence that Defendant Perez acted

willfully or in bad faith in failing to respond promptly to

Plaintiff's discovery requests. It is clear to the court that

alternative sanctions, such as an order compelling Defendant

Perez to comply with discovery requests, are more appropriate

than the extreme sanction of default.

Further, Defendant Perez attached his interrogatory answers

to his cross motion for summary judgment. Consequently, this

discovery violation has already been cured. It is unclear to the

court whether Defendant Perez also belatedly complied with

Plaintiff's document requests. However, if this remains an

issue, the Plaintiff can file a motion to compel and this

alternative sanction is more appropriate than the extreme

sanction of default. 

Therefore, Plaintiff's motion for summary judgment, which in

effect seeks a default judgment because of Defendant Perez's

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delayed discovery responses, will be denied. This denial is

without prejudice to Plaintiff filing a motion to compel

discovery to obtain Defendant Perez's response to Plaintiff's

request for production of documents, if necessary.

V. DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT

In response to Plaintiff's motion for summary judgment,

Defendant Perez filed a cross motion for summary judgment seeking

dismissal of Plaintiff's complaint. Defendant Perez again raises

the defense of qualified immunity. In support of his motion,

Defendant Perez relies on the transcript of the 9-1-1 dispatch

call and the internal investigative report which exonerated

Defendant Perez of any alleged misconduct.

According to the 9-1-1 dispatch transcript, on July 3, 2010

at approximately 7:32PM, a resident on Hampton Lane in

Willingboro made a 911 call and reported that a dark blue Acura

with no license plates had been speeding up and down Hampton

Lane. (Def.'s Ex. B, 9-1-1 Dispatch Transcript.) The resident

complained, "He's up and down the road. He just did it again. .

. He don't have any license plates." (Def.'s Ex. B at 3:6-12.) 

Officer Perez then received a call from dispatch which relayed

the information received from the 9-1-1 call. Specifically,

dispatch told the Defendant that "a dark blue Acura with no

plates" was driving up and down Hampton lane at a high rate of

speed. (Def.'s Ex. B at 3:16-18.) 

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"Seconds later," Defendant Perez observed a "teal Honda

Accord" with no front license plate, which passed him on

Harrington Lane. (Statement of Facts ¶9; Def.'s Ex. A, Defendant

Perez's Answers to Interrogatories, ¶2; Def.'s Ex. B at 4:7-8.) 

Defendant Perez reported to dispatch that there were "three or

four occupants" in the car and that the vehicle had a

Pennsylvania license plate. (Def.'s Ex. B at 4:18-20.) 

Defendant Perez noted the vehicle "looks like a blue Honda

Accord." (Def.'s Ex. B at 19-20.) Defendant Perez then

initiated an investigatory stop of the Plaintiff's vehicle. 

After stopping Plaintiff's vehicle, Officer Perez asked for

a license, registration and insurance documents from the

Plaintiff. The Plaintiff did not have his driver's license on

him and instead provided the Defendant with his full name, date

of birth and social security number. The Defendant permitted

Plaintiff's son and girlfriend to exit the car because

Plaintiff's son was having medical problems. Defendant Perez

then ran everyone's identification. Plaintiff's son and

girlfriend had no outstanding warrants and were permitted to

leave the stop. Plaintiff, however, had two outstanding warrants

and had a suspended Pennsylvania driver's license. Consequently,

Plaintiff was taken into custody. (Def.'s Ex. D, Investigation 3

 This information is taken from the internal investigation 3

report of the incident and describes what was reviewed from the

in-car camera video from Defendant Perez's marked patrol vehicle. 

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Report, at 3-4.) 

Defendant Perez argues these facts are sufficient to support

a qualified immunity defense. Specifically, Defendant argues

that he had an articulable and reasonable suspicion to warrant

the investigatory stop. Defendant Perez argues Plaintiff's

allegations that his vehicle was stopped solely because of his

race have no basis in the record. Defendant Perez emphasizes

that the transcript of the dispatch call reveal no use of racial

epithets and there is no allegation that the Defendant was

demeaning to the Plaintiff during the stop. Defendant Perez

argues he was completely justified in stopping Plaintiff's

vehicle based upon the dispatch call he received. The Defendant

further argues that the temporary detention of the Plaintiff to

verify his driving credentials and check for outstanding warrants

was justified under the circumstances.

A. Standard

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A dispute is “genuine” if “the evidence is such that a

This video was not provided to the court for review and is not

part of the record. Since the Plaintiff has not challenged the

admissibility of the investigation report, and has not denied

these facts as alleged in Defendant Perez's Rule 56.1 statement

of material facts not in dispute, these facts will be deemed

admitted for the purposes of this motion.

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reasonable jury could return a verdict for the non-moving party.” 

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is "material" only if it might affect the outcome of the

suit under the applicable rule of law. Id. Disputes over

irrelevant or unnecessary facts will not preclude a grant of

summary judgment. Id. The Court will view any evidence in favor

of the nonmoving party and extend any reasonable favorable

inferences to be drawn from that evidence to that party. Hunt v.

Cromartie, 526 U.S. 541, 552 (1999). See also Scott v. Harris,

550 U.S. 372, 378 (2007) (The district court must “view the facts

and draw reasonable inferences in the light most favorable to the

party opposing the summary judgment motion.”).

B. Discussion

As discussed above, qualified immunity strikes a balance by

permitting a plaintiff to recover for constitutional violations

where a governmental defendant was "plainly incompetent or . . .

knowingly violate[d] the law," while immunizing a state officer

who "made a reasonable mistake about the legal constraints on his

actions." Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir. 2007)

(internal quotations and citations omitted). 

As discussed above in Part III.B, a defendant’s entitlement

to qualified immunity hinges on two considerations. First, a 4

 While under Saucier v. Katz, 533 U.S. 194 (2001), 4

overruled in part by Pearson, 129 S.Ct. at 818, the qualified

immunity standard followed a “rigid order of battle,” Pearson,

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court must determine “whether the plaintiff has alleged a

deprivation of a constitutional right at all,” Pearson v.

Callahan, 555 U.S. 223, 232 (2009)(citation omitted), which, as

the Court of Appeals has emphasized, is not a question of

immunity as such, “but is instead the underlying question of

whether there is even a wrong to be addressed in an analysis of

immunity.” Curley, 499 F.3d at 207. A court must then decide

“whether the right that was violated was clearly established, or,

in other words, whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” 

Id. (internal quotations and citations omitted). This inquiry

“must be undertaken in light of the specific context of the case,

not as a broad general proposition.” Brosseau v. Haugen, 543

U.S. 194, 198 (2004) (citation omitted).

As discussed supra in Subsection III.B, the Plaintiff has

clearly alleged a deprivation of his Fourth Amendment rights. 

The remaining issue before the court and argued by Defendant

Perez in his summary judgment motion is whether the right at

129 S.Ct. at 817 (citation omitted), in which the question of

whether a right was clearly established was assessed only if the

plaintiff had adequately alleged a violation in the first place,

the Supreme Court adopted a more flexible approach in Pearson. 

As the Court explained, “[b]ecause the two-step Saucier procedure

is often, but not always, advantageous, the judges of the

district courts and the courts of appeals are in the best

position to determine the order of decisionmaking will best

facilitate the fair and efficient disposition of each case.” 

Pearson, 129 S.Ct. at 821. 

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issue was clearly established.

A right is clearly established when "it would [have been]

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted." Lamont v. New Jersey, 637 F.3d

177, 182 (3d Cir. 2011). At the time of this incident, it was

clearly established that a police officer must have an

articulable and reasonable suspicion that a driver has committed

a motor vehicle offense in order to conduct an investigatory

stop. Delaware v. Prouse, 440 U.S. 648, 699 (1979). These

stops are "more analogous to a so-called 'Terry Stop,' see Terry

v. Ohio, 392 U.S. 1 (1968), than to a formal arrest." Berkemer

v. McCarty, 468 U.S. 420, 439 (1984). The determination of

whether a police officer had reasonable and articulable suspicion

to make an investigatory stop depends on the "totality of the

circumstances." United States v. Arvizu, 534 U.S. 266, 273

(2002). "The inquiry into the existence of reasonable suspicion

is fact-specific." Karnes v. Skrutski, 62 F.3d 485, 493 n.5 (3d

Cir. 1995)(citing Terry v. Ohio, 392 U.S. 1, 15 (1968)). 

Therefore, since the law was clear at the time of the

incident that reasonable suspicion was required to conduct an

investigatory stop, Defendant Perez can be granted qualified

immunity only if his conduct in stopping Plaintiff's car was a

violation a reasonable officer could have committed. Viewing the

facts in the light most favorable to Plaintiff as the non-moving

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party, the court concludes a reasonable officer would not have

conducted an investigatory stop of the Plaintiff in this

situation and a jury could conclude reasonable suspicion did not

exist. 

In looking at the factual record in the aggregate, there are

several inconsistencies between the suspicious vehicle reported

to dispatch and the Plaintiff's car such that a reasonable

officer could conclude that reasonable suspicion did not exist to

conduct an investigatory stop. First, the record establishes

that, in communicating to Officer Perez before any vehicle was

pulled over, dispatch described the offending vehicle as a dark

blue Acura with no license plates which was driving up and down

Hampton Lane at an excessive rate of speed. By Defendant's own

admission, he saw Plaintiff's vehicle "seconds" after the

dispatch call. (Statement of Material Facts not in Dispute ¶9.) 

It is undisputed by the parties that Plaintiff's vehicle was not

speeding. If a reasonable officer did see Plaintiff's car just

seconds after the dispatch call, he would have expected the

vehicle to be traveling at a high rate of speed as that was the

unlawful conduct reported by dispatch. Since Plaintiff's car was

traveling within the speed limit, a reasonable officer would have

concluded that this car was not the offending vehicle reported to 

dispatch and would not have conducted an investigatory stop.

This is not the only inconsistency between Plaintiff's

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vehicle and the description of the vehicle given by dispatch. 

Plaintiff's vehicle was teal, not dark blue, and was a Honda

Accord, not an Acura. Plaintiff's vehicle was not on Hampton

Lane but he was driving on an adjacent street, which is not

probative either way. Plaintiff's vehicle had a rear

Pennsylvania license plate whereas the offending car was reported

to have no tags. Finally, Plaintiff was traveling with two

passengers (his son and son's girlfriend) and dispatch did not

report that the driver of the offending vehicle had any

additional occupants.

A rational fact finder could conclude that a reasonable

officer under these circumstances would have known that stopping

Plaintiff's vehicle was unlawful because reasonable suspicion did

not exist. There were essentially no similarities between the

Mitchell Honda and the Acura the police were seeking. 

Accordingly, Defendant Office Perez is not entitled to qualified

immunity.

Therefore, Defendant's cross motion for summary judgment

will be denied. 

VI. APPOINTMENT OF PRO BONO COUNSEL

After reviewing the instant motion papers submitted by the

parties and the litigation history of this case, the court finds

it necessary to appoint pro bono counsel under 28 U.S.C. §

1915(e)(1). The court is aware that Plaintiff's previous motions

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for pro bono counsel were denied by the Magistrate Judge. 

However, after having the benefit of reviewing dispositive

motions filed in this case, the court concludes that the balance

of the Tabron factors has shifted and pro bono counsel is

necessary.

Where an unrepresented Plaintiff in a civil suit is

indigent, and where good cause exists for the appointment of pro

bono counsel under 28 U.S.C. § 1915(e)(1), the District Court has

the discretion and authority to appoint pro bono counsel even in

the absence of a specific motion to do so, pursuant to Tabron v.

Grace, 6 F. 3d 147, 156 (3d Cir. 1993). This case presents

circumstances for the Court, sua sponte, to appoint counsel for

Plaintiff, for the following reasons.

This matter came before the court on Defendant's motion to

dismiss, Plaintiff's motion for summary judgment and Defendant's

cross motion for summary judgment. The Plaintiff failed to

respond to both Defendant's motion to dismiss and motion for

summary judgment. Instead, Plaintiff filed his own motion for

summary judgment which was not in fact a motion cognizable under

Rule 56 but instead a motion for discovery sanctions pursuant to

Rule 37. This demonstrates to the court that the Plaintiff does

not understand the Rules of Civil Procedure and does not

comprehend the importance of dispositive motions or their effect

on his claims. 

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The Court may, pursuant to 28 U.S.C. § 1915(e)(1), request

an attorney to represent an indigent plaintiff in a civil action.

“The court may request an attorney to represent any person unable

to afford counsel.” Id.; see also L. Civ. R., App. H. This

Court determined that Plaintiff was indigent when it granted his

request for in forma pauperis status on July 25, 2007 [Docket

Item 7]. At that time, the Court also screened the Complaint and

found that sua sponte dismissal was not warranted under 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(b) because, as to the Fourth Amendment

claim that survived, it did not appear that the case was

frivolous, malicious, sought damages from an immune party or

failed to state a claim. [Docket Item 5.] The court has now

concluded that Plaintiff's complaint is supported by sufficient

facts to withstand summary judgment and proceed to trial. 

Therefore, it is conceivable that the Plaintiff has a meritorious

claim against Defendant Perez.

Plaintiff initially applied for pro bono counsel on May 1,

2012 [Docket Item 38] after filing his first motion for summary

judgment [Docket Item 37]. The Defendant did not oppose the

application. However, that request was denied on June 4, 2012

[Docket Item 41].5

 In denying Plaintiff’s motion for pro bono counsel in this 5

case, the Magistrate Judge cited the Tabron factors courts in

this Circuit typically use to determine whether to grant such 

motions. See Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993). That

Order concluded Plaintiff was adequately able to present his

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Plaintiff then filed a second motion to appoint pro bono

counsel [Docket Item 43] which was summarily denied by the

Magistrate for failure to provide any new information relevant to

the Tabron factor analysis [Docket Item 47]. However, Magistrate

Judge Schneider's denial was without prejudice if appointment of

counsel became warranted "by relevant developments." [Docket

Item 47.]

The court concludes that recent developments have shifted

the balance of the Tabron factors in favor of appointment of pro

bono counsel. First, after reviewing the above dispositive

motion practice, it is clear to the court that the Plaintiff does

not understand the Federal Rules of Civil Procedure and is unable

to adequately represent himself. A plaintiff's ability to

present his case is recognized as "perhaps the most significant

of Tabron's post-threshold factors . . . ." Montgomery v.

Pinchak, 294 F.3d 492, 501 (3d Cir. 2002). To determine whether

a plaintiff is able to present his own case, the Court must

consider the plaintiff's literacy, education, prior work

experience and prior litigation experience. Tabron, 6 F.3d at

156. In this case, the Plaintiff failed to respond to both of

Defendant's dispositive motions. This clearly demonstrates that

claim, the legal issues involved were not complex, the Plaintiff

did not cite to difficulties obtaining discovery, and no expert

testimony was required. Therefore, Magistrate Judge Schneider

concluded that appointment of pro bono counsel was not necessary. 

[Docket Item 41.]

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Plaintiff did not appreciate the nature of these dispositive

motions and their ability to prejudice his rights and the

viability of his claim. Instead, Plaintiff filed his own motion

for summary judgment that had no basis in Rule 56 but rather

sought discovery sanctions pursuant to Rule 37. This is further

evidence that the Plaintiff is unable to understand the federal

rules of civil procedure, conduct discovery and engage in

dispositive motion practice. Without these skills, the Plaintiff

is unable to present his case.

In addition, both motions for summary judgment reveal that

the Plaintiff has had difficulty obtaining discovery from the

Defendant. Plaintiff's motion for summary judgment disclosed

issues with obtaining answers to interrogatories and document

production requests. The Defendant was delinquent in responding

to Plaintiff's discovery requests and did not abide by the

deadline set in the scheduling order. It is unclear whether the

Defendant ever responded to Plaintiff's document requests. 

Further, Defendant's motion for summary judgment included the

internal investigation report as an exhibit. This investigation

report references a video of the traffic stop taken from Officer

Perez's in-car camera. There is no evidence in the record that

Plaintiff requested this crucial piece of evidence or if the

Defendant disclosed this video to the Plaintiff. This video is

central to Plaintiff's claims and this key piece of evidence is

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currently not in the record.

Finally, after examining the central issue in this case,

namely whether Officer Perez had reasonable suspicion to stop

Plaintiff's vehicle, it is apparent that a key component of the

analysis will be Defendant Perez's credibility. "[W]hen witness

credibility is a key issue, it is more likely that the truth will

be exposed where both sides are represented by those trained in

the presentation of evidence and in cross examination." Tabron,

6 F.3d at 156. Here, Defendant Perez's testimony concerning his

observations before the stop and his perception of the dispatch

call will be crucial in determining whether he had the requisite

suspicion to pull over Plaintiff's vehicle. Plaintiff Mitchell's

credibility would also be at issue, for that matter. The court

is also mindful that the Complaint alleges that Plaintiff's race

could have factored into Officer Perez's decision to stop the

Plaintiff and this sensitive issue will need to be explored on

cross examination by competent counsel. 

Therefore, the court concludes that the balance of the

Tabron factors have shifted and it is apparent the Plaintiff is

indigent, has a possibly meritorious claim and is unable to

present his case. Accordingly, the court finds it appropriate to

appoint pro bono counsel at this time.

VII. CONCLUSION

For the reasons discussed herein, the court will deny 

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Defendant Jeffrey Perez's motion to dismiss [Docket Item 34],

Plaintiff Robert Mitchell's motion for summary judgment [Docket

Item 37] and Defendant Jeffrey Perez's cross motion for summary

judgment [Docket Item 40].

In addition, the court will sua sponte appoint pro bono

counsel for the Plaintiff pursuant to 28 U.S.C. § 1915(e) because

it is apparent he is indigent, has a possibly meritorious claim

and is entitled to counsel under the Tabron factors. 

The accompanying Order will be entered.

November 28, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

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