The opinion of the court was delivered by: Chief Judge Vanaskie
Michael Sabella, an inmate currently confined at the State Correctional Institution at Coal Township, Pennsylvania, filed this civil rights action on February 28, 2005, pursuant to 42 U.S.C. § 1983. Named as Defendants are the following law enforcement officers: Bureau of Narcotics Agents Troutner, Westmoreland and Diller; Tri-County Drug Task Force Members Kurtz and Turner; Officer McNair; and Parole Officer Baughman. In the complaint Sabella contends that Defendants subjected him to excessive force when they arrested him on February 21, 2003. Presently pending are Sabella's motion for the appointment of counsel (Dkt. Entry 8) and Defendants' motions to dismiss (Dkt. Entries 11, 17 and 25.)
Sabella alleges that on February 21, 2003, during the course of an illegal arrest, Defendant Troutner claimed Sabella had backed into his new van. Troutner then proceeded to punch him in the mouth and head, breaking his teeth. Sabella also alleges that Troutner pulled his hair and threatened him. Following this assault, Defendant Westmoreland grabbed Sabella, threw him against Sabella's truck and searched him for weapons. Westmoreland thereafter grabbed Sabella by the throat, picked him up and threw him face-first to the pavement. Sabella claims that he was knocked out and, when he awoke, was being kicked by unknown law enforcement officers.
Sabella contends that Defendant Kurtz was on the scene and failed to take steps to stop the assault. He also claims that Kurtz did not obtain medical attention for him until he was forced to do so by the Cumberland County Prison.
The complaint also alleges that Defendant McNair, who was in an unmarked car, did not attempt to stop the other Defendants from attacking him or obtain medical attention for him until forced to do so by the prison officials. Defendant Diller is also alleged to have witnessed the assault incident. While Sabella admits that he does not feel Diller had an active role in the assault, Diller is alleged to have failed to intervene or summon medical attention following the assault. Sabella claims that Diller illegally interrogated him knowing he was in need of medical attention, particularly because Diller is the one who photographed his injuries. Diller is also alleged to have told Sabella that he would "get a better sentence" if he did not report the incident. (Dkt. Entry 1, Compl. at unnumbered 2(a).) Sabella claims that based upon Diller's comment, and because he feared retaliation, he did not file this lawsuit until after his sentence was imposed.
Defendant Baughman is alleged to have used a parole violator warrant to circumvent the need for police to obtain an actual search warrant. Sabella further maintains that Baughman was present during the assault and failed to intervene, even though no one saw him there until he showed up following the assault with the parole warrant papers. Sabella further contends that other unknown officers were actively and inactively involved in the assault. As relief, he requests monetary damages.
Defendants Troutner, Westmoreland, Diller and Turner have filed a motion to dismiss the complaint on statute of limitations grounds. (Dkt. Entry 11.) Defendant McNair has filed a motion to dismiss on the same basis. (Dkt. Entry 25.) The remaining Defendants have filed a motion to dismiss on the ground that, to the extent Plaintiff asserts a false arrest claim, Plaintiff's conviction precludes adjudication of the claim until and unless the conviction has been set aside. (Dkt. Entry 17.) Each of these motions has been briefed and is ripe for consideration by the Court.
II. Motion for Appointment of Counsel
Following service of the complaint in this case, Sabella filed a motion seeking the appointment of counsel in this case. (Dkt. Entry 8.) In the motion, he states that he is unable to afford an attorney, is limited in his ability to litigate this case due to his imprisonment, only has a few hours per week in the prison law library and has minimal knowledge of the law. He further contends that this case contains numerous defendants, is complex and will involve a trial with conflicting testimony requiring a skilled attorney's assistance.
It is well established that prisoners have no constitutional or statutory rights to appointment of counsel in a civil case. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). Yet, district courts have broad discretionary power to appoint counsel under 28 U.S.C. § 1915. Montgomery v. Pichak, 294 F.3d 492, 499 (3d Cir. 2002), citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). The United States Court of Appeals for the Third Circuit has stated that the appointment of counsel for an indigent litigant should be made when circumstances "indicate 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).
The initial determination to be made by the court in evaluating the expenditure of the "precious commodity" of volunteer counsel is whether the plaintiff's case "has some arguable merit in fact and law." Montgomery, 294 F.3d at 499. Insufficient facts have been alleged thus far to make an assessment of the probable merit of Sabella's claims.
Even assuming that the claims do have arguable merit, a weighing of the other pertinent factors militates against appointment of ...