The opinion of the court was delivered by: Simandle, District Judge
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 comes before the Court on its own motion, pursuant to 28 U.S.C. § 1915(e)(1). Plaintiff Eddie Williams is representing himself in this civil action. He appears to be alleging that he is deaf and communicates using American Sign Language, but that the prison in which he was incarcerated, South Woods State Prison in Bridgeton, New Jersey, failed to provide him with access to its services and programs by denying him reasonable accommodations, including interpreter services and a TTY, in violation of the Americans with Disabilities Act. Plaintiff also appears to be alleging that such failures have deprived him of medical care, which, if sufficiently serious, would also violate the Eighth Amendment.
As Plaintiff indicated in his first motion for pro bono counsel [Docket Item 4], his language barrier makes it difficult for him to communicate with the Court; Plaintiff has limited English reading and writing skills, which impair his ability to understand written opinions, orders and correspondence from the Court and to effectively represent himself in this action.
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 August 16, 2006 [Docket Item 2]. 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 it did not appear that the case was frivolous, malicious, sought damages from an immune party or failed to state a claim.
Plaintiff then applied for pro bono counsel on August 31, 2006 [Docket Item 4]. That request was denied on September 8, 2006 [Docket Item 5] as premature because Defendants had not yet answered the Complaint.*fn1
The denial of appointment of pro bono counsel as premature can cause significant confusion and delay that are further exacerbated in cases, like this one, in which defendants seek extensions of time to answer but ultimately decide to file motions to dismiss. Pro se plaintiffs typically fail to reapply for pro bono counsel at that stage, when such application might no longer be deemed "premature." Perhaps pro se plaintiffs forget that they were not simply denied pro bono counsel, but that they were told to reapply later; perhaps the directive to wait until there is an "Answer" does not sufficiently apprise lay people of the functional equivalence of a motion to dismiss; or perhaps such plaintiffs are focused on the motions to dismiss at hand and, not wanting to risk termination of their cases, make rational decisions to concentrate their efforts, as best they can, on those motions to dismiss rather than on renewed requests for counsel.
In this case, the defendants received multiple extensions of time to answer, from this Court and the Magistrate Judge, and finally filed a motion to dismiss on January 29, 2007, more than five months after the Complaint was filed. While the extensions in this case prolonged the interval between the initial request for pro bono counsel and that motion to dismiss, the procedure generally has an unintended consequence: pro se Plaintiffs denied pro bono counsel as premature fail to reapply for such counsel after a motion to dismiss has been filed.
In denying Plaintiff's motion for pro bono counsel in this case, the Magistrate Judge cited the Tabron factors courts in this Circuit typically use to determine whether to grant such motions. See Tabron, 6 F.3d 147. That Order stated:
[A]lthough Plaintiff may renew his application for the appointment of counsel once Defendants have answered the complaint, Plaintiff must supply more information than that contained within the present application.
Specifically, Plaintiff must supply: [(i)] a detailed explanation of Plaintiff's claims against Defendants, including facts and a legal basis upon which those contentions are based; (ii) specific reasons why Plaintiff is unable to present an effective case without an attorney; and (iii) what investigation Plaintiff believes he will be unable to accomplish to prepare his claims.
Williams v. Hayman, No. 06-3705 (D.N.J. Sept. 8, 2006)(order denying motion for pro bono counsel).
Although Plaintiff has not appealed the Magistrate Judge's denial or submitted a new application for pro bono counsel, this Court finds, sua sponte, that such consideration is no longer premature and that the interests of justice require the appointment of counsel to assist Mr. Williams in the prosecution of this case. See Tabron, 6 F.3d at 156 ("we emphasize that appointment of counsel under § 1915[(e)] may be made at any point in the litigation and may be made by the district court sua sponte"). Two factors influence this Court's decision to grant counsel without a new motion from Plaintiff. First, in a letter he wrote to Chambers [Docket Item 28], which exemplifies Plaintiff's limited ability to communicate in writing, Plaintiff reiterated his difficulty presenting legal arguments. This letter could be interpreted as his attempt to renew his request for pro bono counsel. Second, and more importantly, Plaintiff's submissions to date indicate that it is unrealistic to expect -and would be unfair to require - Plaintiff to ...