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HALL v. CITY OF PHILADELPHIA

August 12, 1993

GERALD HALL
v.
CITY OF PHILADELPHIA, et al.



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III

 Bartle, J.

 Plaintiff Gerald Hall instituted this pro se civil rights action pursuant to 42 U.S.C. § 1983 *fn1" against the City of Philadelphia and officials of Holmesburg Prison. Plaintiff alleges that he was deprived of his civil rights when defendants subjected him to excessive force on December 17, 1990. According to the complaint, plaintiff was hospitalized from that date until January 1, 1991 as a result of the alleged beating.

 On June 28, 1993, this Court granted defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the action was time-barred. Subsequently, plaintiff filed a Motion for Appointment of Counsel along with an "objection" to the defendants' summary judgment motion. Since summary judgment has already been granted, the Court will treat the latter as a motion for reconsideration. For the reasons set forth below, both of plaintiff's motions will be denied.

 A plaintiff has no constitutional or statutory right to the appointment of counsel in a civil lawsuit. Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981), citing Peterson v. Nadler, 452 F.2d 754, 757 (8th Cir. 1971). While this Court does have the authority to appoint counsel under 28 U.S.C. § 1915(d), an appointment should be made only when it is necessary to avoid fundamental unfairness. Ray v. Robinson, supra at 477; Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981).

 Appointment of counsel in civil cases is justified only in exceptional circumstances. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The Court of Appeals of this Circuit has stated that appointment of counsel should be made:

 
only . . . upon a showing of special circumstances indicating the likelihood of substantial prejudice . . . resulting . . . from [a] 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).

 In this case, there are no exceptional circumstances requiring the appointment of counsel. This is a factually simple case alleging that while incarcerated at Holmesburg Prison, plaintiff was denied his civil rights when excessive force was used against him. The pleadings on file establish: (1) that plaintiff has shown the ability to litigate this action pro se ; and (2) that this case is not a complex case. Plaintiff's ability to handle this matter, together with the case's lack of complexity, negate the need for appointment of counsel. Maclin v. Freake, supra at 888; Smith-Bey v. Petsock, supra at 26.

 We now turn to plaintiff's motion for reconsideration as to whether his claim is time-barred. In Wilson v. Garcia, 471 U.S. 261, 280, 105 S. Ct. 1938, 1949, 85 L. Ed. 2d 254 (1985), the Supreme Court held that § 1983 claims are governed by the relevant state's statute of limitations for personal injury actions. Therefore, Pennsylvania's two-year statute of limitations for personal injury claims is applied here. 42 Pa. Cons. Stat. Ann. § 5524(2). *fn2" While state law controls the period of limitations, federal law determines when a cause of action accrues and the statute begins to run. Antonioli v. Lehigh Coal And Navigation Company, 451 F.2d 1171, 1175 (3d Cir. 1971) cert. denied, 406 U.S. 906, 92 S. Ct. 1608, 31 L. Ed. 2d 816 (1972). Under federal law, a cause of action accrues, and the statute of limitations begins to run, when a plaintiff knows or has reason to know of the injury that is the basis of the action. Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982).

 Where a federal court is applying a state statute of limitations, state tolling principles are to be followed as long as such principles are not inconsistent with federal policy. Vernau v. Vic's Market, Inc., 896 F.2d 43, 45 (3d Cir. 1990) (citing Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64, 95 S. Ct. 1716, 1722, 44 L. Ed. 2d 295 (1975)). No contention has been made that Pennsylvania tolling principles conflict with federal policy.

 42 Pa. Cons. Stat. Ann. § 5533(a) states:

 
Except as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.

 Pennsylvania courts as well as courts applying Pennsylvania law have not allowed the incapacity of a plaintiff to toll the statute of limitations. Brunea v. Gustin, 775 F. Supp. 844 (W.D. Pa. 1991). Despite any harsh circumstances that may be visited upon the plaintiff, limitations periods must be ...


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