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Howard v. Bureau of Prisons

December 29, 2005

JAMES V. HOWARD, PLAINTIFF,
v.
BUREAU OF PRISONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Before me is Plaintiff's Motion for Appointment of Counsel. (Doc. 6.) Plaintiff offers the following reasons in support of his motion: (1) he cannot afford counsel; (2) imprisonment will limit his ability to prepare his case which is complex and will require significant research. He also states that he has "virtually no access to the prison law library and limited knowledge of the law." (id); (3) the case will involve conflicting testimony, and counsel will be better able to cross examine witnesses; and, (4) plaintiff was never a civil litigant before this case.

DISCUSSION

In determining whether to appoint counsel for Plaintiff, I must review the factors set forth in Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993) cert. denied, 510 U.S. 1196; 114 S.Ct. 1306 (1994). I must first determine whether Plaintiff's claim has arguable merit. Id. at 155. Plaintiff alleges Eighth Amendment violations in this Bivens action. He alleges a variety of actions by various defendants that were deliberately indifferent in circumstances where Plaintiff faced a substantial risk of harm. Farmer v. Brennan, 511 U.S. 825, 847 (1994). There is therefore arguable merit to the Plaintiff's case based upon the pleadings.

I turn now to the other Tabron factors, namely, (1) the ability to pay for counsel; (2) the ability to present the case pro se; (3) whether the legal issues are complex; (4) whether a factual investigation is required, and the ability of the Plaintiff to conduct such an investigation; (5) whether the case will turn on credibility determinations; and, (6) whether expert testimony is needed. Tabron, 6 F.3d at 155.

I will consider each of these factors in relation to Plaintiff's case.

1. Ability to Pay

Since Plaintiff has been granted in forma pauperis status, he does not have the means to pay for counsel.

2. Ability to Present the Case

The complaint is written in clear and concise fashion and adequately expresses the claim. I did observe the Plaintiff in a preliminary injunction hearing in this case, and he would have been better served had he been represented by counsel.

3. Whether the Legal Issues are Complex

The complaint describes several difficult factual scenarios which raise questions about whether Plaintiff was faced with a substantial risk of harm, and, if so, whether in the face of that the Defendants treated it with deliberate indifference. The Plaintiff alleges he was bipolar, and was forced to room with an assaultive cell-mate who ultimately assaulted him. He also alleges that when he was moved to USP Lewisburg there was word out that he was an informant. He alleges that he was in danger as a result, but was not given protective consideration. At a hearing on a preliminary injunction, I determined that based on Mr. Howard's evidence, he was unlikely to succeed on the merits. He indicated that where there was a perceived risk of harm, the prison officials took action to assure Mr. Howard's safety. He also alleges that excessive force was used in what appears to be a cell extraction. Despite my determination on the motion for preliminary injunction, these issueshave some complexity because of the facts and the relationship of the facts to the issue of deliberate indifference. Moreover the issue of the use of excessive force in the cell extraction was not before me on the motion for preliminary injunction. This factor mitigates in favor of the appointment of counsel.

4. Need for Factual Investigation

A factual investigation is needed. This factor mitigates in favor of the ...


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