NOT FOR PUBLICATION

MEMORANDUM OPINION

MICHAEL A. SHIPP, District Judge.

This matter comes before the Court upon the Motion for Summary Judgment ("Motion") of Warden Barry Nadrowski ("Warden Nadrowski") and Lieutenant Vilacoba1 ("Lieutenant Vilacoba" or "Vilacoba") (collectively, "Defendants"). (Mot., ECF No. 73.) Pro se Plaintiff Todd Stathum, Sr. ("Plaintiff") opposed the Motion. (Pl.'s Resp. to Mot., ECF No. 81.) For the reasons set forth below, Defendants' Motion is granted in part and denied without prejudice in part.

I. BACKGROUND

On or about July 13, 2015, Plaintiff filed a Complaint alleging violations under the First Amendment and Equal Protection Clause. (Compl., ECF No. 1.) At the time Plaintiff submitted his Complaint, he was incarcerated at Monmouth County Correctional Institution ("MCCI"). (Id. at 3.) The Complaint alleged that Plaintiff is Muslim, and he was denied Halal meals as required by his religious beliefs. (Id. at 6.) The Complaint further alleged that Jewish inmates receive Kosher meals, but when Plaintiff requested Kosher meals—which would have substantially complied with Plaintiff's religious practices—the request was denied. (Id.) Plaintiff was told that Muslim inmates must eat "whatever is served or become vegetarians," whereas Jewish inmates were not forced to become vegetarians. (Id.) The Court permitted the Complaint to proceed. (July 22, 2015 Order, ECF No. 3.) Defendants MCCI, Warden Nadrowski and Lieutenant Vilacoba filed a Motion to Dismiss. (Mot. to Dismiss, ECF No. 21.) The Court denied the Motion on Plaintiff's claim arising under the Equal Protection Clause but granted the Motion on Plaintiff's First Amendment claim and all claims as to MCCI. (Dec. 22, 2016 Order, ECF No. 33.) Subsequently, Plaintiff was moved to East Jersey State Prison. (Letter Order, ECF No. 38.) Following discovery, Defendants filed the instant motion on the remaining equal protection claim. (Mot., ECF No. 73.) Plaintiff filed a Response (Pl.'s Resp. to Mot., ECF No. 81), and Defendants filed a Reply Brief (Reply Br., ECF No. 88). The Court separately ordered Defendants to submit complete deposition transcripts (Mar. 13, 2019 Order, ECF No. 83), which Defendants provided (ECF No. 86).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 permits a court to award a party summary judgment only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is genuine if supported by evidence such that a reasonable jury could return a verdict in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Kaucher v. Cty. of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006). A fact is material if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. See Anderson, 477 U.S. at 248; Kaucher, 455 F.3d at 423. In determining whether a genuine dispute of material fact exists, the Court must view the facts and all reasonable inferences drawn from those facts "in the light most favorable to the [non-movant]." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

III. DISCUSSION

Defendants contend that summary judgment must be granted in their favor because they are not liable in their official or individual capacities and because Plaintiff fails to establish a violation of his equal protection rights. (Br. in Supp. of Mot., ECF No. 73-1.) Defendants also argue that Plaintiff failed to exhaust his administrative remedies, and they are entitled to qualified immunity. (Reply Br.)

A. Official Capacity Claims

Defendants first contend that the claims for damages against them in their official capacities must be dismissed. It is well established that "[s]tate officers sued for damages in their official capacity are not `persons'" under 42 U.S.C. § 1983 ("Section 1983"). Hafer v. Melo, 502 U.S. 21, 27 (1991); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). The Court, accordingly, grants Defendants' Motion as to Plaintiff's Section 1983 claims for damages against Defendants in their official capacities.

B. Remaining Claims

The Court declines to reach Defendants' arguments that Plaintiff failed to exhaust administrative remedies and that Defendants are entitled to qualified immunity because Defendants raised these arguments for the first time in their Reply Brief. See Werner v. Werner, 267 F.3d 288, 302 (3d Cir. 2001) (Nygaard, J., dissenting in part) ("A reply brief is like rebuttal—an opportunity for the appellant to `reply' to arguments of the appellee, not to raise a new issue at a time when the appellee cannot respond."); See also D'Alessandro v. Bugler Tobacco Co., No. 05-5051, 2007 WL 130798, at *2 (D.N.J. Jan. 12, 2007) (citing Int'l Raw Materials, Ltd. v. Stauffer Chem. Co., 978 F.2d 1318, 1327 n.11 (3d Cir. 1992)) ("A moving party may not raise new issues and present new factual materials in a reply brief that it should have raised in its initial brief.")

The Court also finds good cause to deny the remainder of Defendants' motion pending the appointment of pro bono counsel. Defendants' Statement of Facts ("SOF") in support of their Motion provides, in relevant part:

(Defs.' SOF ¶¶ 11-14, 18, ECF No. 73-3) (internal punctuation edited for consistency).

Reviewing Defendants' SOF, Imam Alvi's role in the Halal determination is relevant to Plaintiff's and Defendants' arguments in this matter. The deposition transcript of Imam Alvi reflects the following colloquy:

(Imam Alvi Dep. 35:16-36:18, ECF No. 86-1.) The deposition transcript reflects that Imam Alvi's deposition commenced at 10:20 a.m., adjourned at 11:00 a.m., and included two notations of "off the record." (Id. at 2:6, 14:12, 35:14-15, 36:20.) Imam Alvi's deposition did not resume. In his Motion to Compel Discovery, Plaintiff argued that:

(Mot. to Compel 2, ECF No. 82.) The Court subsequently ordered Defendants to provide complete deposition transcripts. (Mar. 13, 2019 Order.) The Court has reviewed the deposition transcripts of Plaintiff, Imam Alvi, and Lieutenant Vilacoba and finds that the simple provision of Imam Alvi's "complete" deposition transcript to Plaintiff does not rectify Defendants' failure to provide Plaintiff the opportunity to cross examine Imam Alvi.

It is axiomatic that "[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." Goldberg v. Kelly, 397 U.S. 254, 269 (1970). Moreover, the Third Circuit has recognized that "the right of cross-examination inheres in every adversary proceeding and that it is established beyond any necessity for citation of authorities . . . that if cross-examination of an available witness is not had[,] the litigant, deprived of cross-examination, has been denied due process of law." Derewecki v. Pa. R.R. Co., 353 F.2d 436, 442 (3d Cir. 1965).

Here, Defendants' arguments are largely based on the role of Imam Alvi in the approval process for religious meals, yet Plaintiff was not afforded the opportunity to cross-examine Imam Alvi. Based on the parties' arguments and the current record, the Court finds good cause to deny Defendants' Motion. The Court will afford Defendants the opportunity to file a renewed motion for summary judgment at an appropriate juncture in this matter.

C. Appointment of Pro Bono Counsel

Plaintiff filed previous requests for pro bono counsel, which the Court denied. (Oct. 7, 2015 Order, ECF No. 11; May 20, 2016 Order, ECF No. 18.) In both Orders, the Court found that "[t]he appointment of counsel is not warranted at this juncture." (Oct. 7, 2015 Order 3; May 20, 2016 Order 3.) A court must consider a number of factors in determining whether pro bono counsel should be appointed, including the applicant's ability to present his case, the degree to which factual investigation is required and the ability of the applicant to pursue such investigation, and whether the case will require testimony from expert witnesses.2 Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993). A consideration of the Tabron factors in light of the deposition transcripts demonstrates that the appointment of pro bono counsel is appropriate at this juncture. Lieutenant Vilacoba's testimony reflected that he relied upon Imam Alvi with respect to Halal determinations because Imam Alvi was the expert. Namely, Vilacoba testified, "I refer to Imam Alvi if . . . I have any questions about the religious components of any problems we have here because I'm not an expert in any way. And Inmate Stathum didn't agree with the answers that I was getting from Imam Alvi." (Vilacoba Dep. 65:7-12, ECF No. 86-3.) In another colloquy, Vilacoba testified:

(Vilacoba Dep. 71:14-73:6.)

During Vilacoba's deposition, his counsel also objected to certain lines of questioning as calling for expert testimony. For example:

(Id. at 77:4-78:11.) In addition:

(Id. at 155:13-156:7.)

During the deposition, counsel for Lieutenant Vilacoba objected to certain questions because they call for expert testimony. Lieutenant Vilacoba, nevertheless, testified that he relied on Imam Alvi with respect to Halal meals. As discussed earlier, Plaintiff, however, was never afforded the opportunity to cross examine Imam Alvi. Here, the Court finds it appropriate to appoint pro bono counsel. After pro bono counsel has been appointed and has had the opportunity to review the docket in the matter, the parties shall meet and confer and submit a joint proposed scheduling order.4

IV. CONCLUSION

Based on the foregoing, and other good cause shown, the Court grants Defendants' Motion on Plaintiff's Section 1983 claims for damages against Defendants in their official capacities. The Court denies Defendants' Motion as to the remaining claims. The Court will issue an appropriate order.