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LEWIS v. BROWN

September 15, 2005.

LEWIS,
v.
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:
I. Introduction
  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 19.)

  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 million dollars.

  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 counsel.

  III. Analysis

  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 that —
(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 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 investigation;
(4) the amount a case is likely to turn on credibility determinations;
(5) whether the case will require the testimony of expert witnesses;
(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 (3d Cir. 2002). Hamilton v. ...

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