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Ali v. DOC

September 26, 2008

AL-WAHID ALI
v.
DOC, CMS, ET AL.



The opinion of the court was delivered by: Honorable Patty Shwartz United States Magistrate Judge

LETTER OPINION & ORDER

Dear Litigants:

The Court is in receipt of Al-Wahid Ali's ("plaintiff") request for appointment of pro bono counsel under 28 U.S.C. § 1915(e)(1), filed August 22, 2007. For the reasons set forth below, the plaintiff's request is denied.

BACKGROUND

Plaintiff submitted a Complaint in the Superior Court of New Jersey, Law Division, Essex County on February 8, 2008 against the New Jersey Department of Corrections ("DOC"), Correctional Medical Services, Inc. ("CMS"), the Union County Jail, and the Monmouth County Jail. In his Complaint, plaintiff claims that, between July 29, 1999 to the present, defendants failed to provide him with adequate medical treatment in connection with plaintiff's Hepatitis C illness. Plaintiff alleges this conduct violates his Eighth Amendment right to be free from cruel and unusual punishment. See Docket Entry No. 2.

On May 16, 2008, CMS filed a Notice to remove the case to this Court. On May 30, 2008, plaintiff filed an application for the appointment of pro bono counsel. See Docket Entry No. 2. The application was denied without prejudice on June 10, 2008*fn1 . See Order, dated June 10, 2008. On June 11, 2008, Judge Hochberg ordered that the Complaint be dismissed with prejudice as to the DOC, the Union County Jail, and the Monmouth County Jail. See Order, dated June 11, 2008. On July 11, 2008, plaintiff filed a motion to amend his Complaint to add additional defendants, which was denied on July 16, 2008. See Order, dated July 16, 2008.

On August 22, 2008, plaintiff filed this application for the appointment of counsel. See Docket Entry No.19 ("App. for Counsel"). In his application, plaintiff argues that he is entitled to counsel because: (1) he cannot afford an attorney; (2) he does not possess the "lawyering skills", legal education, and resources necessary "for this type of complaint"; (3) he does not have the "ability to acquire the needed experts" to prosecute this case; and (4) he does not have the physical or mental capacity to represent himself, due to, among other things, "blood circulation problems", "numbness" in both legs, "neurological damage", "herniated spinal disks", "carpal tunnel syndrome", "short term memory loss", "post traumatic stress disorders", and "constant untreated pain...." See App. for Counsel at ¶¶ 2-8.

On September 5, 2008, defendant CMS filed a Letter Brief in Opposition to plaintiff's application for pro bono counsel. See Docket Entry No. 22 ("Brief in Opposition"). In this brief, CMS argues that plaintiff is not entitled to counsel because: (1) plaintiff has "failed to present any new basis for the assignment of pro bono counsel"; (2) plaintiff does not have a "constitutional or statutory right to the appointment" of counsel; (3) plaintiff has "demonstrated his ability to represent himself" and has a considerable amount of "prior litigation experience"; (4) the legal issues involved in this case are "clear and well-settled"; (5) the "constraints" on plaintiff due to his imprisonment are "the same or similar to those placed upon every other prisoner-plaintiff"; (6) the case "does not turn on credibility determinations, but rather on objectively verifiable medical evidence"; (7) plaintiff has not established the "need to retain an expert"; and (8) plaintiff's inability to retain and afford counsel does not by itself "warrant the appointment of counsel." See Brief in Opposition.

DISCUSSION

There is no constitutional or statutory right to appointed counsel for indigent civil litigants. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). District courts have broad discretion in determining whether the appointment of counsel is appropriate. 28 U.S.C. § 1915 (e)(1); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). In considering a request for appointment of counsel, the Court must first assess "whether the claimant's case has some arguable merit in fact and law." Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002) (citing Tabron, 6 F.3d at 155). If the applicant satisfies this threshold requirement, then the Court should consider the following factors:

(1) the plaintiff's ability to present his case;

(2) the difficulty of the particular legal issues;

(3) the degree to which factual investigations will be necessary and the ability of the plaintiff ...


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