The opinion of the court was delivered by: Magistrate Judge Amy Reynolds Hay
Judge Terrence F. McVerry
Presently before this Court is plaintiff's motion for the appointment of counsel which requires the Court to determine whether or not, under the facts and circumstances of this case, the Court should exercise its discretion pursuant to 28 U.S.C. § 1915(e)(1) and request an attorney to represent plaintiff in the prosecution of this action.
The plaintiff, Thomas R. Bergbigler, an inmate at the State Correctional Institution at Huntingdon, has presented a civil rights complaint which he has been granted leave to prosecute without prepayment of costs against Butler County Prison, Butler County Prison Medical Staff Coop, Sgt. John Hogan, Capt. Dave Williams, Warden Gigliotti and Dr. Simmon Wilcox. In his complaint, plaintiff alleges that Warden Gigliotti has ignored and condoned the overcrowding and unsanitary conditions at the Butler County Prison and the fact that his staff engages in cruel and unusual punishment; that Dr. Wilcox ignored plaintiff's symptoms and failed to take a necessary culture which resulted in him developing an ulcer in his left nostril from a staph infection; that Captain Williams engaged in cruel and unusual punishment by using food as punishment, pulling plaintiff out of his cell and slamming him against the bars while three other officers held him there, and by ignoring the sewage on the floor after a flood; that Sergeant Hogan engaged in cruel and unusual punishment by ignoring the sewage on the floor and by failing to intervene when Williams abused him. Plaintiff also alleges that Captain Williams confiscated the property of eighteen inmates without due process of law and that Hogan agreed to the taking. These facts are said to state a cause of action under the provisions of 42 U.S.C. § 1983.
In considering a motion for the appointment of counsel, the Court must determine whether or not to request counsel to represent this indigent litigant under the provisions of 28 U.S.C. § 1915(e)(1), fully recognizing that if successful counsel may be entitled to recover fees under the provisions of Section 1988 of Title 42, United States Code. Section 1915(e)(1) gives the Court broad discretion to determine whether appointment of counsel is warranted, and that determination must be made on a case-by-case basis. Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir. 1993).
As a threshold matter the district court should consider whether the plaintiff's claim has arguable merit in fact or law. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). See Tabron v. Grace, 6 F.3d at 155. If the court determines that the claim has some merit, the court should then consider the following factors:
1. the plaintiff's 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 the 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.
Parham v. Johnson, supra. "The list of factors is not exhaustive, but instead should serve as a guidepost for the district courts. Correspondingly, courts should exercise care in appointing counsel because volunteer lawyer time is a precious commodity and should not be wasted on frivolous cases." Id. at 458.
After careful consideration of plaintiff's allegations, it would appear that the appointment of counsel is not warranted and, therefore, ...