UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
October 21, 2009
DAVID GASKINS, PLAINTIFF,
SHERIFF JERRY SPEZIALE, EDWARD DOMBROSKI, E.O. UNDERSHERIFF, WARDEN CHARLES MEYERS, DEPUTY WARDEN STEVE MEYERS, UNDERSHERIFF JERRY GAMBLE, AND UNDERSHERIFF MILTON SMILEK, DEFENDANTS.
The opinion of the court was delivered by: William J. Martini, U.S.D.J.
THIS MATTER comes before the Court on Plaintiff's application for pro bono counsel. This motion is unopposed. There was no oral argument. Fed. R. Civ. P. 78.
Plaintiff David Gaskins, appearing pro se, filed a § 1983 complaint against the Passaic County Sheriff and five corrections officials, alleging unsanitary confinement conditions at the Passaic County Jail. Plaintiff's petition to proceed in forma pauperis was granted by this Court on May 5, 2008. Over a year later, Plaintiff filed the instant motion requesting the appointment of pro bono counsel. See Docket No. 18.*fn1 Defendants have not filed opposition papers.
An indigent civil litigant has neither a statutory nor a constitutional right to appointed counsel. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). With respect to lawsuits filed by prisoners, the appointment of counsel is within the Court's discretion. 28 U.S.C. § 1915(e)(1); Tabron v. Grace, 6 F.3d 147, 155 n.4 (3d Cir. 1993).
In considering whether to appoint counsel, the Third Circuit requires that the district court first evaluate, as a threshold matter, the merits of plaintiff's claim. Id. at 155. Only if Plaintiff's claim has "arguable merit in fact and law" should the court then delve into the fact-specific consideration of whether Plaintiff is capable of trying his or her case. Id. at 155-56.
There is no need to proceed to that second step here. By his own admission, Plaintiff has sought neither formal nor informal relief from the appropriate administrative officials at the Passaic County Jail. Compl. at 5. Since a prisoner litigant is required to exhaust administrative remedies before filing a § 1983 complaint, this claim has no arguable merit. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."). Therefore, Plaintiff's application for pro bono counsel is denied.
For the same reason, the Court notes sua sponte that Plaintiff's complaint fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff did not exhaust his administrative remedies prior to bringing suit regarding prison conditions. As such, no claim can lie at this time. See 42 U.S.C. § 1997e(a). For the foregoing reasons, and for good cause appearing;
IT IS on this 21st day of October 2009, hereby
ORDERED that Plaintiff's application for pro bono counsel is DENIED; it is FURTHER ORDERED that Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE.