The opinion of the court was delivered by: (Judge Muir)
Removal Petition Filed 6/02/04
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Plaintiff Steven Allen Shawley is an inmate at the State Correctional Institution at Frackville, Pennsylvania, and he is proceeding in this matter pro se. All pre-trial matters and motions except that treated in this order have been resolved. On November 17, 2005, Shawley filed a motion for appointment of counsel in which he represents that he is currently being treated for a mental condition and is receiving 400 milligrams of seraquill [sic] that makes it hard to concentrate and hinder[s] his abilities to conduct a proper jury selection and a trial. (Motion to Appoint Counsel, p. 4) Also on November 17, 2005, Shawley filed a separate motion requesting that his trial be postponed for three months because of various reasons, including his mental condition and the treatment for that condition.
On November 21, 2005, we issued an order in which we, inter alia, 1) granted Shawley's motion to continue the case by placing it on our March, 2006, trial list, and 2) established a briefing schedule with respect to Shawley's motion to appoint counsel.
On December 22, 2005, Shawley filed a brief and exhibits in support of his motion to appoint counsel.*fn1 On November 21, 2005, and January 3, 2006, the Defendants filed opposition briefs.*fn2
Shawley filed his reply brief on January 13, 2006, thereby ripening for disposition his motion to appoint counsel.
As we stated in our two orders denying Shawley's prior motions to appoint counsel to represent him, although pro se parties have no constitutional or statutory rights to appointment of counsel in a civil case, a court does have broad discretionary power to appoint counsel under 28 U.S.C. § 1915(d). Tabron v. Grace, 6 F.3d 147, 153, 155-157 (3d Cir. 1993), cert. denied, 114 S.Ct. 1306 (1994); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981).
The factors listed in Tabron include 1) an evaluation of the merits of the claims at issue, 2) the plaintiff's ability to present the case in light of his or her educational literacy, experience, and restraints imposed by incarceration, 3) the complexity of the legal issues, 4) the degree to which a factual investigation is necessary and the degree to which the plaintiff is capable of performing the investigation, and 5) the degree to which the case turns on credibility determinations or expert testimony. Tabron 6 F.3d at 155-56.
In considering such a motion, the Court of Appeals for the Third Circuit has also stated that an indigent litigant should be appointed counsel only upon a showing of special circumstances indicating 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). With that standard in mind, we turn to the merits of Shawley's motion to appoint counsel.
As a threshold matter we note that the vast majority of the arguments raised in Shawley's pending motion were considered and rejected in our order of July 15, 2005, in which we denied one of Shawley's prior motions to appoint counsel. For the reasons stated in that order, we summarily find the arguments initially presented in Shawley's prior motion, and repeated in his current motion, to be without merit. In this order we will consider only the contentions made by Shawley for the first time in his pending motion for counsel.
The first such argument is that the issues in this case are complex. Shawley's only two claims to be tried by a jury are that some of the Defendants unlawfully denied Shawley access to legal materials, and that some of the Defendants allowed Shawley to be injured in an altercation with another inmate. We are of the view that the issues relating to those claims are not sufficiently complex to justify the appointment of counsel.
Shawley next argues that the limitations placed upon his ability to copy and mail documents justifies the appointment of counsel. He is apparently allowed copying and mailing expenses up to $10.00 per month. We have accommodated Shawley by continuing this case to the March, 2006, trial list so that he may anticipate and meet the costs associated with trying this case. In the light of ...