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Bynum v. Thiroway

September 12, 2007

RASHA A. BYNUM, PLAINTIFF,
v.
B. THIROWAY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(JUDGE VANASKIE)

MEMORANDUM

I. Background

Rasha A. Bynum, at the time an inmate at the United States Penitentiary at Canaan, Pennsylvania, originally filed this civil rights action pursuant to 28 U.S.C. § 1331 in the United States District Court for the Eastern District of Pennsylvania. In the complaint, Plaintiff names three (3) Defendants, all employees at the Federal Correctional Institution at Schuylkill (FCI-Schuylkill), his former place of confinement. Named as Defendants are Brian Thiroway and Robert Schreffler, Senior Officer Specialists, and Michael Kabonick, EMT. The complaint alleges that Thiroway and Schreffler assaulted him on October 28, 2004, resulting in injury to his head and neck. He further contends that Kabonick failed to treat him for his injuries. On November 17, 2006, the action was transferred to this Court pursuant to 28 U.S.C. § 1391(e), where the proper venue exists.

On November 29, 2006, an Order was issued directing service of the complaint on the Defendants. (Dkt. Entry 2.) On January 8, 2007, the summons was returned executed as to the United States Attorney General and the United States Attorney. (Dkt. Entry 3.) Waivers of service were filed the same date as to Defendants Thiroway and Schreffler. (Dkt. Entry 4.) On February 23, 2007, Plaintiff submitted a filing docketed by the Clerk's Office as a "Motion to Supplement." (Dkt. Entry 7.) Thereafter, a motion for summary judgment was filed on behalf of all named Defendants. (Dkt. Entry 9.) Supporting documents have also been submitted. On May 11, 2007, Plaintiff filed a motion for appointment of counsel. (Dkt. Entry 21.) For the reasons that follow, the motion to supplement will be construed as both a request for discovery and a motion to re-direct service on Defendant Kabonick. The request for discovery will be granted only to the extent that Plaintiff will be afforded the opportunity to conduct discovery in this case. Defendants' motion for summary judgment will be denied without prejudice to reinstate/supplement the motion. The request to redirect service will be denied. Further, Plaintiff's motion for appointment of counsel will be denied without prejudice.

II. Discussion

A. Motion for Counsel

In the pending motion for counsel, Plaintiff states that he is unable to afford an attorney, is limited in his ability to litigate this case due to his imprisonment, only has limited time in the prison law library and has minimal knowledge of the law. He further contends that a trial in this case will likely involve conflicting testimony requiring the assistance of a skilled attorney. (Dkt. Entry 21.)

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 request counsel to represent an indigent litigant. 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 Plaintiff's claims.

Even assuming that the claims do have arguable merit, a weighing of the other pertinent factors militates against appointment of counsel at this time. Those factors are:

1. The plaintiff's ability to present his or her own case;

2. The difficulty of the particular legal issues;

3. The degree to which factual investigation will be necessary and the ability of the plaintiff to ...


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