United States District Court, W.D. Pennsylvania
October 14, 2005.
ANDRE JACOBS, et al., Plaintiffs,
RAMON RUSTIN, et al., Defendants.
The opinion of the court was delivered by: TERRENCE McVERRY, District Judge
On September 23, 2005, this case was initiated when plaintiffs,
fifteen inmates at the Allegheny County Jail, submitted a
proposed civil rights class action complaint regarding conditions
at the jail. They have named as defendants a dozen individuals
and corporations associated with the jail. Although the proposed
complaint was signed by all fifteen inmates, financial
information for leave to proceed in forma pauperis was submitted
only on behalf of one of them, Mark Sneed.
On September 26, 2005, the magistrate judge filed a Report and
Recommendation (Docket No. 2), recommending that the proposed
class action complaint be dismissed without prejudice and that
any of the plaintiffs who desire to do so may file individual
complaints against the defendants.
Service of the Report and Recommendation was made on the
parties, and the plaintiffs filed objections (Docket No. 3) on
October 4, 2005. In their objections, plaintiffs contend that,
although the Report and Recommendation correctly concluded that
lead plaintiff Andre Jacobs is not capable of maintaining a class
action on behalf of the other prisoners, they request appointment
of counsel to represent them in prosecuting this case. The Court
will construe the objections as a request for appointment of
counsel. In considering a motion for the appointment of counsel, this
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
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, supra at 155. If the court determines that the claim
has some merit, the court should then consider the following
1. the plaintiff's ability to present his or her own
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
4. the amount a case is likely to turn on credibility
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
After careful consideration of the plaintiffs' allegations, it
would appear that the appointment of counsel is not warranted and, therefore, the Court
will not exercise its discretion in this case.
Initially, it does not appear with any degree of certainty that
plaintiffs are setting forth a factual basis which demonstrates
that they will ultimately prevail on the merits. Nevertheless, in
considering factors one and two the litigant's ability to
present his case and the difficulty of the legal issues involved
it is clear that the issues presented in the complaint are
neither difficult nor complex, and nothing in the record
indicates that plaintiffs would be incapable of presenting their
case. Similarly, the third consideration the degree to which
factual investigation will be necessary and plaintiff's ability
to conduct such investigation does not weigh in favor of the
appointment of counsel since plaintiffs' case would basically
rely on their testimony and little factual investigation appears
to be necessary.
Further, while it may be that the credibility of the witnesses
will be at issue in the case it does not appear that the case
will become a "swearing contest" nor does it appear that proper
adjudication will require the testimony of an expert witness.
Indeed, the only factor that seemingly weighs in plaintiffs'
favor is the fact that they have indicated that they would be
unable to afford to retain counsel on their own behalf as
evidenced by their having requested in forma pauperis status.
This factor alone, however, does not entitle plaintiffs to
appointed counsel but should be considered only when the other
factors weigh in the plaintiffs' favor. Moreover, as noted above,
the request for in forma pauperis status has been submitted only
on behalf of plaintiff Mark Sneed, not the other fourteen
AND NOW, this day of October, 2005,
IT IS ORDERED that plaintiffs' objections to the Report and
Recommendation, construed as a request for appointment of counsel
(Docket No. 3), are denied. IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the
Federal Rules of Appellate Procedure if the plaintiffs desire to
appeal from this Order they must do so within thirty (30) days by
filing a notice of appeal as provided in Rule 3, Fed.R.App.P.
Magistrate Judge Mitchell's Report and Recommendation dated
September 26, 2005 (Docket No. 2) is adopted as the opinion of
the Court, as supplemented by the instant Memorandum Order.
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