United States District Court, D. New Jersey
G. SHERIDAN, U.S.D.J.
is a state inmate incarcerated at New Jersey State Prison in
Trenton, New Jersey. He is proceeding pro se with an
amended civil rights complaint filed pursuant to 42 U.S.C.
§ 1983. On May 13, 2019, this Court screened the amended
complaint and proceeded several claims, including claims of
excessive force, failure to let plaintiff decontaminate
himself from pepper-spray and forcing plaintiff to remain in
dirty clothing, retaliation, claims related to contaminated
drinking water and failure to remedy vermin, deliberate
indifference to plaintiffs medical needs and failure to feed
31, 2019, this Court received plaintiffs motion for
reconsideration of the screening opinion coupled with
plaintiffs request for the appointment of pro bono counsel.
(ECF 12). For the following reasons, the motion for
reconsideration will be denied. Plaintiffs request for the
appointment of pro bono counsel will be denied without
Motion for Reconsideration
Civil Rule 7.1 allows a party to seek a motion for
re-argument or reconsideration of "matter[s] or
controlling decisions which the party believes the Judge or
Magistrate Judge has overlooked ...." Local Civ. R.
7.1(i). Whether to grant a motion for reconsideration is a
matter within the Court's discretion, but it should only
be granted where such facts or legal authority were indeed
presented but overlooked. See Belong v. Raymond
lnt'l Inc., 622 F.2d 1135, 1140 (3d Cir.
1980), overruled on other grounds by Croker v. Boeing
Co., 662 F.2d 975 (3d Cir. 1981); see also Williams
v. Sullivan, 818 F.Supp. 92, 93 (D.N.J. 1993).
prevail on a motion for reconsideration, the movant must
show: "(1) an intervening change in the controlling law;
(2) the availability of new evidence that was not available
when the court... [rendered the judgment in question]; or (3)
the need to correct a clear error of law or fact or to
prevent manifest injustice." U.S. ex rel. Shumann v.
Astrazeneca Pharm. L.P., 769 F.3d 837, 848-49 (3d Cir.
2014) (citing Max's Seafood Cafe ex rel. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
The standard of review involved in a motion for
reconsideration is high and relief is to be granted
sparingly. United States v. Jones, 158 F.R.D. 309,
314 (D.N.J. 1994). "The Court will grant a motion for
reconsideration only where its prior decision has overlooked
a factual or legal issue that may alter the disposition of
the matter. The word 'overlooked' is the operative
term in the Rule" Andreyko v. Sunrise Sr. Living,
Inc., 993 F.Supp.2d 475, 478 (D.N.J. 2014) (internal
citations and quotation marks omitted). Mere disagreement
with the Court's decision is not a basis for
reconsideration. United States v. Compaction Sys.
Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999).
asserts that this Court "overlooked" that prison
officials keep spraying him with mace in retaliation for
filing complaints. (See ECF 12 at 8). Plaintiffs
amended complaint is fifty pages, includes a plethora of
factual allegations as well as a section entitled
"Claims for Relief." Plaintiffs allegations
involving being sprayed with mace are within a section
headlined "Uses of Force." (See ECF 7 at
15-16). In that section, plaintiff alleged that officers
Smith, Martini and Piazza were involved in spraying him with
mace. (See id.) Thereafter, in his "Claims for
Relief," plaintiff alleged that Officers Martini, Piazza
and Sgt. Smith violated his Eighth Amendment rights by
spraying him with mace. (See Id. at 44). This Court
permitted plaintiffs Eighth Amendment claims against these
three officers to proceed past screening. (See ECF
10 at 2).
respect to retaliation, plaintiff alleged that Sgt. Smith
encited other officers to retaliate against him.
(See ECF 7 at 45). Plaintiffs retaliation claim was
also proceeded, but only against Smith because that is the
only officer plaintiff alleged with any specificity who
specifically retaliated against plaintiff. (See ECF
10 at 3). Because plaintiffs amended complaint does not
specifically allege that officers Martini and Piazza used
mace against plaintiff to retaliate against him, this Court
did not "overlook" proceeding a retaliation claim
against other officers based on what was specifically alleged
in the amended complaint. Therefore, plaintiffs motion for
reconsideration is denied.
Request to Appoint Counsel
has also requested the appointment of counsel. Indigent
persons raising civil rights claims have no absolute right to
counsel. See Parham v. Johnson, 126 F.3d 454, 456-57
(3d Cir. 1997). As a threshold matter, there must be some
merit in fact or law to the claims the plaintiff is
attempting to assert. See Tabron v. Grace, 6 F.3d
147, 155 (3d Cir. 1993). In determining whether to appoint
counsel, a court considers the following: (1) the plaintiffs
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; and
(6) whether the plaintiff can attain and afford counsel on
his own behalf. See Id. at 155-56, 157 n. 5; see
also Cuevas v. United States, 422 Fed.Appx. 142, 144-45
(3d Cir. 2011) (per curiam) (reiterating the Tabron
factors). The power to appoint counsel lies solely with the
discretion of this Court. See Parham, 126 F.3d at
plaintiff s claims have made it past screening. However,
based on considering the other factors outlined above, this
Court denies plaintiffs motion for the appointment of pro
bono counsel without prejudice at this time.