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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MARK N. ARTIS,

Plaintiff,

v.

OFFICER MCCANN, et al.,

 Defendants.

11-CV-3613-WJM

 

MEMORANDUM 

OPINION & ORDER

This matter comes before the Court on Plaintiff Mark N. Artis’s motion for 

appointment of pro bono counsel under 28 U.S.C. § 1915(e)(1). For the reasons 

stated below, the Court will deny the application.

Based on his own allegations, Mr. Artis is a resident of the Special 

Treatment Unit in Woodbridge, New Jersey (the “STU”), where he has been civilly 

committed pursuant to New Jersey’s Sexual Violent Predators Act, N.J.S.A. 30:4-

27.24, et seq. On June 22, 2011, Mr. Artis filed a 42 U.S.C. § 1983 action against 

several New Jersey Department of Corrections officers based on an event that 

occurred in the STU on July 7, 2010. According to the allegations of the 

Complaint, on that date, Mr. Artis received a routine pat down from Defendant 

Senior Corrections Officer Darlene McCann prior to attending a group therapy 

session. During the frisk, Officer McCann pushed him into a wall; when he thrust 

out his hand to prevent his head from striking the wall, his back accidentally struck 

Officer McCann’s body. After completing the frisk – which revealed that Mr. Artis 

did not possess any contraband on his person – Officer McCann allegedly called in 

“a code” and ordered Mr. Artis to kneel down on the ground with his hands behind 

his heads. Several officers, all named as defendants, responded to the call, and 

began to physically assault Mr. Artis while he kneeled on the ground. Officer 

McCann did not participate in the assault, but she did observe the assault and did 

nothing to prevent it. One responder, Lieutenant Eric Qualls, also took no action. 

After assaulting him, Defendants allegedly handcuffed him and placed him in a 

special cell unit for approximately four days. He alleges that he was released only 

after members of the STU’s treatment staff who had observed the incident 

submitted written statements about it. Mr. Artis seeks monetary damages, a 

declaration that the actions taken by Defendants violated various Constitutional 

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and statutory rights, and an injunction requiring Defendants to take affirmative 

steps to prevent future use of excessive force against STU residents.1

Mr. Artis made his first application for appointment of pro bono counsel 

when he filed his complaint on June 22, 2011. The Court denied his application as 

premature because none of the Defendants had yet had an opportunity to respond. 

ECF No. 2. On December 12, 2011, Defendant Qualls filed his answer. On 

December 23, 2011, Mr. Artis filed a renewed application, even though the

remaining Defendants had not yet answered. On February 16, 2012, the remaining 

Defendants filed their joint answer. All remaining parties having filed their initial 

response to Mr. Artis’s allegations, the Court will now address his application.

Section 1915(e)(1) provides that “[t]he court may request an attorney to 

represent any person unable to afford counsel.” District courts have “broad 

discretion” to decide whether requesting counsel is appropriate, may request 

counsel at any point in the litigation, and may do so sua sponte. Montgomery v. 

Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron v. Grace, 6 F.3d 147, 

153 (3d Cir. 1993)). As an initial matter, the Court must first determine if the party 

seeking counsel has an underlying case with arguable merit in fact and law. Id. at 

498-99. Once the claim has passed that threshold, the Court then considers the 

following list of criteria to assess whether requesting counsel would be 

appropriate: (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. Id. at 499. The list is nonexhaustive, and the Court may consider other facts or factors it determines are 

important or helpful. Id.

Assuming the allegations of the Complaint are true, Mr. Artis’s general 

claim has more than arguable legal merit. A plaintiff must demonstrate two 

essential elements to maintain a claim under § 1983: (1) that the plaintiff was 

deprived of a “right or privileges secured by the Constitution or the laws of the 

United States” and (2) that plaintiff was deprived of her rights by a person acting 

under the color of state law. Williams v. Borough of West Chester, Pa., 891 F.2d 

458, 464 (3d Cir. 1989). A state law enforcement officer or other government 

official’s use of excessive force in execution of their duties violates the Fourth and 

Fourteenth Amendments to the United States Constitution and is actionable under 

Section 1983. See, e.g., Groman v. Twonship of Manalapan, 47 F.3d 628, 633-34 

(3d Cir. 1995). 

 1 The Complaint also named the New Jersey Department of Corrections as a defendant, but in its October 4, 2011 

order, the Court sua sponte dismissed the Department pursuant to 28 U.S.C. § 1915. See ECF No. 2.

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But Mr. Artis’s request remains otherwise premature despite the filing of 

Defendants’ responses. First, it does not appear that Mr. Artis has made any 

attempt to obtain pro bono counsel on his own. While the precise circumstances of 

his incarceration may limit his ability to do so, the Court has nothing before it 

establishing that he is unable to make a good faith attempt. (Mr. Artis’s inability to 

pay for counsel does not necessarily prevent him from obtaining counsel; many 

lawyers provide pro bono services without be ordered to do so by a court.) And

while Mr. Artis may be unversed in legal practice, the Court is familiar with 

Section 1983 actions and the seemingly straightforward nature of the claims in this 

case would not appear to require that Mr. Artis be guided by counsel. Nor does it 

appear at this time that Mr. Artis needs counsel in order to adequately investigate 

and present the facts of his case; the action involves one event witnessed by a finite 

number of people who may be called to testify.

For the foregoing reasons and for good cause shown;

IT IS on this 22nd day of February 2012, hereby,

ORDERED that Mr. Artis’s application is DENIED. Mr. Artis may renew

his application for pro bono counsel if future motions or proceedings increase his 

need for legal assistance, but he must first attempt to obtain counsel on his own or 

provides adequate explanation for his inability to make such attempt. The Court 

may also sua sponte renew Mr. Artis’s application in the future at any time it 

deems appropriate. 

/s/ William J. Martini

WILLIAM J. MARTINI, U.S.D.J.

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