The opinion of the court was delivered by: (Chief Judge Kane)
Plaintiff James W. Adee ("Adee") filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 6, 2011. At the time, Adee was confined at the State Correctional Institution at Coal Township (SCI-Coal Township), Pennsylvania.*fn1 Along with the complaint Adee also filed a motion seeking the appointment of counsel in this matter (Doc. No. 4), and a motion for the issuance of a temporary restraining order (Doc. No. 5).*fn2 Named as Defendants in the complaint are various Pennsylvania Department of Corrections officials, as well as SCI-Coal Township officials and employees. Adee claims that Defendants violated his right to adequate medical care under the Eighth Amendment with respect to an ankle injury he sustained on August 16, 2010, while confined at SCI-Coal Township, and his requests for treatment thereafter. He also sets forth conspiracy and state law claims. Adee seeks compensatory, punitive and equitable relief. For the reasons that follow, the motion for counsel will be denied, without prejudice, and service of the complaint will be directed.
In moving for the appointment of counsel Adee argues that: (1) he is not experienced in the law and is unable to compete with Defendants' counsel; (2) the appointment of counsel will expedite this matter; (3) an attorney is better equipped to prepare an amended complaint, if necessary; and (4) counsel is able to investigate his claims. (Doc. No. 4 at 1-2.)
The district court's authority to appoint counsel to represent an indigent litigant in a civil case derives from 28 U.S.C. § 1915(e)(1) which proves that the court may request an attorney to represent any person unable to afford counsel. Under this section the district court has broad discretionary power. Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002)(citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). The United States Court of Appeals for the Third Circuit has stated that the appointment of counsel for an indigent litigant should be made when circumstances "indicate the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).
The initial determination to be made by the court in evaluating the expenditure of the "precious commodity" of volunteer counsel is whether the plaintiff's case "has some arguable merit in fact and law." Montgomery, 294 F.3d at 499. For purposes of this motion, the Court will assume that Adee's case has arguable merit in law and the facts.
Next, upon successfully clearing the above hurdle, other factors to be examined are:
1. The plaintiff's ability to present his or her own case;
2. The difficulty of the particular legal issues;
3. The degree to which factual investigation will be necessary and the ability of the plaintiff to pursue investigation;
4. The plaintiff's capacity to retain counsel on his or her own behalf;
5. The extent to which a case is likely to turn on credibility determinations; and
6. Whether the case will require testimony from expert witnesses. Montgomery, 294 F.3d at 499 (citing ...