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Wilson v. Bufalino


October 19, 2007


The opinion of the court was delivered by: Edwin M. Kosik United States District Judge

(Judge Kosik)

Memorandum and Order

I. Background

Plaintiff As'Salaam Kinte Wilson is currently confined at the Luzerne County Correctional Facility ("LCCF")in Wilkes-Barre, Pennsylvania. He filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 16, 2007. Named as Defendants are Eric Bufalino and Mr. Mitkowski, two (2) correctional officers at LCCF. Plaintiff alleges that Defendants subjected him to excessive force which resulted in a laceration to his left hand and elbow. He requests damages for his physical and emotional injury. On May 30, 2007, service of the complaint and attached motion for counsel was directed. (Doc. 9.) On June 1, 2007, Plaintiff filed another request for counsel. A third request for counsel was submitted on July 24, 2007. An answer to the complaint was filed on September 10, 2007. For the reasons that follow, the motions for counsel will be denied without prejudice.

II. Discussion

It is a well-established principle that prisoners have no constitutional or statutory right 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. In addition, a weighing of the other pertinent factors play in to the determination as to whether counsel should be appointed. 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 pursue the investigation;

4. The plaintiff's capacity to retain counsel on his or her own behalf;

5. The extent to which a case is likely to turn on credibility determinations; and,

6. Whether the case will require testimony from expert witnesses. Montgomery, 294 F.3d at 499, citing Tabron, 6 F.3d at 155-57.

In support of his motions for counsel, Plaintiff contends that he is "educationally unequipped" to competently challenge the injustices committed against him (Doc. 1, unnumbered p.4). Other than this argument, he does not advance any other support for his request.

This case is still at an early stage. To date, Plaintiff has shown every sign that he is fully capable of litigating this case on his own. His submissions are both literate and comprehensible. There is nothing in the record to suggest that he is in need of counsel at this point in the case and for these reasons, the motions for appointment of counsel will be denied without prejudice at this time. Should future proceedings demonstrate the need for counsel, the matter can be reconsidered, either sua sponte or upon a motion properly filed.*fn1

ACCORDINGLY, THIS 19th DAY OF OCTOBER, 2007, IT IS HEREBY ORDERED THAT Plaintiff's motions for counsel (Docs. 1, 10 and 15) are denied without prejudice.

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