The opinion of the court was delivered by: JOEL ROSEN, Magistrate Judge
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. ...