United States District Court, D. New Jersey
September 15, 2005.
BROWN, McFARLAND, HOEY, GREEN, PECKMAN, and DOE.
The opinion of the court was delivered by: JOEL ROSEN, Magistrate Judge
LETTER OPINION AND ORDER
Dear Litigant and Counsel:
The court shall sua sponte reconsider its earlier order
denying the plaintiff's motion for the appointment of counsel.
Presently before the court is the plaintiff's application for
appointment of legal counsel pursuant to 28 U.S.C. § 1915(e)(1).
The plaintiff initiated this action pursuant to 42 U.S.C. § 1983,
alleging that the defendants violated his civil rights during his
incarceration at the Southwoods State Prison in Bridgeton, NJ.
After careful deliberation of the plaintiff's submissions and
other documents and for the reasons noted below, the plaintiff's motion for appointment of
counsel shall be GRANTED.
II. Factual and Procedural History
Plaintiff Arsell Lewis is presently incarcerated at the
Atlantic County Justice Facility, in Mays Landing, New Jersey.
Approximately two-and-a-half months prior to surgery, the
plaintiff injured his left leg while playing handball.
(Plaintiff's Complaint at Exhibit E-7.) He saw Dr. Stephen Hoey
on July 3, 2002, who ordered surgery at St. Francis Medical
Center to repair the plaintiff's torn Achilles tendon.(Id. at
On September 5, 2002, the plaintiff underwent surgery at St.
Francis Medical Center in Trenton, New Jersey, for a torn left
Achilles tendon. Dr. Mark J. Pressman was the operating physician
and is not a party to this suit. Plaintiff failed to appear for
post-operative treatment of his injury, despite being originally
scheduled for follow-up visits both one-and-a-half weeks and six
weeks following the initial operation. (Id. at 15.) Because of
the extended delay, plaintiff developed an exposed "skin-slough"
with an exposed Achilles tendon.*fn1 Such damage was noticed
when the cast was removed on October 29, 2002.
The current action arises from the plaintiff's allegation that,
instead of sending him to see Dr. Pressman on his scheduled
appointment days, he was sent by the medical services provider
for Southwood State Prison, Correctional Medical Services, Inc.,
to see Dr. Peckman. Despite plaintiff's complaints of pain, Dr.
Peckman refused to remove the cast because he was not the
operating physician. (Id. at 17.) The plaintiff now requires
special boots and a brace. (Id. at 21.) As a result of this allegedly improper medical care, plaintiff is
seeking both physical and punitive damages for a total of three
The plaintiff filed his complaint pursuant to 42 U.S.C. § 1983
alleging that his civil rights were violated. Specifically, he
named Commissioner of the Department of Corrections Devon Brown;
Kathryn McFarland, Administrator of the Southwood State Prison;
John Doe A/K/A Abu Ahsan, M.D., of Correctional Medical Services,
Inc.; Stephen Hoey, D.O., of Correctional Medical Services, Inc.;
Nurse Fran Green of Correctional Medical Services, Inc.; and a
Dr. Peckman, M.D., of Southwood State Prison, as violating his
Eighth Amendment rights in regard to providing proper medical
treatment for an incarcerated prisoner. The District Court
granted in forma pauperis status to the plaintiff on March 24,
2005. On April 19, 2005, the plaintiff filed an application to
appoint counsel pursuant to 28 U.S.C. § 1915(e)(1).
The plaintiff contends in his application for pro bono counsel
that he will be unable to pursue pro se litigation because he
does not understand the law well. (Plaintiff's Application for
Pro Bono Counsel, 04/19/2005.) Additionally, he suggests that
assistance of counsel could bring about a settlement rather than
the burden of trial. (Id.) The plaintiff has attempted to
procure representation, however, he states that he has not
received a response from any attorney he has contacted. (Id.)
Thus far, the plaintiff has proceeded without assistance of
A. Appointment of Counsel Under 28 U.S.C. § 1915(e)
The District Court, may, pursuant to § 1915(e), request that an
attorney represent an indigent plaintiff in a civil action.
Section 1915 provides in relevant part:
(1) The court may request an attorney to represent
any person unable to afford counsel.
(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines
(A) the allegation of poverty is untrue; or
(B) the action or appeal (i) is frivolous or
malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.
28 U.S.C. § 1915(e) (1996) (emphasis added). Unlike in criminal
cases, there is no inherent constitutional right for an indigent
litigant to receive the benefit of counsel in a civil proceeding.
Parham v. Johnson, 126 F.3d 454
, 457 (3d Cir. 1997); see also
Tabron v. Grace, 6 F.3d 147
(3d. Cir. 1993). Counsel may be
appointed at any point in the litigation or sua sponte by the
court. Tabron, 6. F.3d at 156. However, in using this
appointment power, the court must determine whether the claim has
"some merit in fact and law" as a preliminary matter. Id. at
157. If the court determines that the claim does indeed have
merit, the following factors are then considered:
(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
(4) the amount a case is likely to turn on
(5) whether the case will require the testimony of
(6) whether the plaintiff can attain and afford
counsel on his own behalf.
Id. at 156-57. This list is neither exhaustive nor does any one
factor determine the outcome. Id. at 157; see also Parham,
126 F.3d at 458; Montgomery v. Pinchak, 294 F.3d 492
2002). Hamilton v. Leavy, 117 F.3d 742
, 749 (3d Cir. 1997);
Hetzel v. Swartz, 917 F. Supp. 344, 346 (M.D. Pa. 1996);
Robinson v. Horn, 921 F. Supp. 293, 295 (E.D. Pa. 1996); Jones
v. Hinton, 153 F.R.D. 570, 571 (E.D. Pa. 1994). These factors
ensure that courts will only appoint counsel in non-frivolous
matters. Parham, 126 F.3d at 461. When the plaintiff's case has
merit and most of the above factors have been met, the court should consider the
appointment of counsel. Parham, 126 F.3d at 461.
1. The Plaintiff's Ability to Present His Own Case
The first factor for consideration is the plaintiff's ability
to present his own case. In making this determination, the court
should consider the plaintiff's literacy, education, prior work
experience, and prior litigation experience. Tabron,
6 F.3d at 156. A plaintiff's ability to understand English is also relevant
to his ability to present his case. Id. Finally, if the
plaintiff is incarcerated, the restraints placed upon him by
virtue of his confinement should be considered in determining his
ability to represent himself. Id. This includes the
availability of typewriters, photocopiers, telephones and
2. The Complexity of The Legal Issues
The second factor for consideration is the complexity of the
legal issues presented. In making this determination, the court
is more inclined to appoint counsel when the legal issues are
complex. Id. Where the law is not clear, it will best serve the
ends of justice to have both sides of a difficult legal issue
presented by those trained in legal analysis. Id. However,
comprehension alone does not equal the ability to translate
understanding into presentation. Parham, 126 F.3d at 459.
Although the ultimate issue may be comprehensible, the court must
appreciate the complexity of the discovery involved. Id.
3. The Degree to Which Factual Investigation Will Be Necessary
and the Ability of the Plaintiff to Pursue Such Investigation
The third factor for consideration is the degree to which
factual investigation will be necessary and the ability of the
plaintiff to pursue such investigation. In making this determination, the court may consider the extent to which
prisoners and others suffering confinement face problems in
pursuing their claims. Tabron, 6 F.3d at 156. Further, the
court should be aware of an indigent plaintiff's possible
difficulties understanding complex discovery rules. Parham,
126 F.3d at 460. Thus, where the claims are likely to require
extensive discovery and compliance with complex discovery rules,
appointment of counsel may be warranted. Tabron, 6 F.3d at 156.
4. The Amount a Case is Likely to Turn on Credibility
The fourth factor for consideration is whether a case is likely
to turn on credibility determinations. Though many cases turn on
credibility determinations, the court should focus on whether the
case is largely based on the word of one side against the word of
the other side. Parham, 126 F.3d at 460.
5. Whether the Case Will Require the Testimony of Expert
The fifth factor for consideration is the extent expert
testimony may be required. Appointed counsel may be warranted
where the case will require testimony from expert witnesses.
Tabron, 6 F.3d at 156.
6. Whether the Plaintiff Can Attain and Afford Counsel on His
The sixth and final factor for consideration is plaintiff's
financial ability to attain and afford counsel on his own behalf.
Parham, 126 F.3d at 461.
B. The Merit of Plaintiff's Claims
While it is not this court's function in the context of a
motion for appointment of counsel to reach the merits of
plaintiff's claim, Tabron requires that this court consider
whether the plaintiff's claim has "some merit in fact and law"
and is not "frivolous or malicious." Tabron, 6 F.3d at 155; 28 U.S.C. § 1915(e)(2).
Based on the record before this court, the plaintiff's claims
appear to have threshold merit. The allegations of the plaintiff,
if established at trial, would support his Eighth Amendment
deliberate indifference claim.
Deliberate indifference occurs when there is unnecessary
infliction of pain by a prison official. Estelle v. Gamble,
429 U.S. 97, 104 (1976). The Supreme Court held that finding a prison
official liable for violating a prisoner's Eighth Amendment
rights requires proof that the official "knows of and disregards
an excessive risk to inmate health or safety." Farmer v.
Brennan, 511 U.S. 825, 837 (1994). Further, "the official must
both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also
draw the inference." Id.
According to Third Circuit precedent, an inmate alleging
deliberate indifference to medial needs or in relation to the
prisoner's conditions of confinement must demonstrate: 1) a
serious medical need, and 2) acts or omissions by prison
officials that indicate deliberate indifference to that need.
Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d
Cir. 2003) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d
A torn tendon, such as that of the plaintiff's, is likely to
satisfy the first portion of the deliberate indifference test. In
the United States District Court of New Jersey, a broken bone was
stated to be a serious medical need. Nock v. Taylor, No.
05-1020, 2005 WL 1206844 (D.N.J. May 20, 2005). It is likely that
a torn Achilles tendon would be found to have similar
seriousness. Further, the Third Circuit Court of Appeals found
that where there is a denial or delay in treatment that "causes
an inmate to suffer a life-long handicap or permanent loss, the
medical need is serious." Monmouth County Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 347 (1987). The plaintiff has continued
to be treated for the complications from these events to the
present day. (Plaintiff's Complaint at Exhibits 1-7; Defendant
Brown's Letter Brief at 2.)
The second part of the deliberate indifference test requires a
showing that the acts or omissions by prison officials show a
deliberate indifference toward the plaintiff's medical need.
Natale, 318 F.3d at 582 (quoting Rouse, 182 F.3d at 197). The
Third Circuit Court of Appeals has found that deliberate
indifference occurs in situations where "necessary medical
treatment is delayed for non-medical reasons." Natale,
318 F.3d at 582. In the present case, the plaintiff was seen by Dr.
Peckman on October 9, 2002, however, Dr. Peckman refused to
remove the cast on the basis that he was not the operating
doctor, and the plaintiff's appointment was rescheduled.
(Plaintiff's Complaint at 17.) It was an additional twenty days
before the plaintiff was taken back to St. Francis Medical Center
for further proceedings. (Id. at 15.)
The alleged delay in treatment appears to have caused the
plaintiff harm, and thus has threshold merit in both fact and law
to proceed. Nor does the claim appear to be frivolous or
The court is mindful of the defendants' defense denying that
the events took place. However, at this early stage in the
proceedings and without any supporting evidence, the court cannot
accept the defendants' assertions over those of the plaintiff.
C. Litigation Management Factors
This court must consider the litigation management factors to
determine whether this claim warrants appointment of counsel.
See Parham, 126 F.3d at 457. That is, this court must consider whether the plaintiff is incapable of presenting his own
case. In making this determination, as discussed supra, this
court must take into consideration the complexity of the case,
related matters of proof, presentation of testimony, and the
difficulties of discovery, including those related to the
The plaintiff has argued that he will be unable to present his
own case due to his lack of legal experience. However, Mr. Lewis
has demonstrated that he is more than able to present his own
case: his pleadings are well written and articulate and clearly
indicate the legal issues involved in his case. Also, the
plaintiff has displayed an ability to advocate for himself as his
criminal complaint illustrates. All of these factors indicate the
plaintiff's ability to pursue his own case. Although the ability
of the plaintiff to properly bring his claim may be hindered by
his limited knowledge of the law and access to legal materials,
this is an unfortunate situation faced by many indigent pro se
litigants. This alone does not warrant appointment of counsel.
The plaintiff has proceeded thus far appropriately and in
accordance with the rules. He lodged a civil complaint against
the defendants while in prison and was granted in forma
pauperis status without the use of a lawyer.
The plaintiff's articulate filings in this matter, as well as
the allegations in the complaint, do not lead this court to
conclude that the plaintiff is incapable of presenting his own
case. However, as this case involves a medical question, the
legal issues are of greater complexity and expert testimony is
likely necessary. Consequently, it would be in the interest of
the administration of justice and efficiency of court resources
to grant the plaintiff's application for pro bono counsel. IV. CONCLUSION
Accordingly, for the reasons set forth above, the plaintiff's
motion for the appointment of counsel is hereby GRANTED.
The attached order shall be entered. ORDER
This matter having come before the court upon the motion of
Arsell Lewis, Plaintiff pro se, for appointment of counsel
pursuant to 28 U.S.C. § 1915(e); and the court having considered
the submissions of the plaintiff; and the court having further
considered the criteria and analysis set forth in Tabron v.
Grace, 6 F.3d 147 (3d Cir. 1993) and Parham v. Johnson,
126 F.3d 454 (3d Cir. 1997); and for the reasons noted in the letter
opinion entered on this date; and this matter having also come
before the court upon the motion of Arsell Lewis, Plaintiff pro
se, for various relief, including a request for a Marshal form AO
285 for service of summons; and the court having appointed
counsel for the plaintiff; and counsel shall have the opportunity
to review the complaint and the status of the case and may renew
any of the requests for relief in the instant motion; and for
good cause shown;
IT IS this 15th day of September 2005 hereby ORDERED that the plaintiff's motion for appointment of
counsel pursuant to 28 U.S.C. § 1915(e) shall be GRANTED; and
IT IS FURTHER ORDERED that the plaintiff's motion for various
relief (Doc. No. 22), pursuant to Fed.R.Civ.P. 16, shall be
DISMISSED WITHOUT PREJUDICE.
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