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Melgar-Garcia v. United States

January 9, 2008

HUGO NELSON MELGAR-GARCIA, PLAINTIFF
v.
UNITED STATES OF AMERICA, DEFENDANT



The opinion of the court was delivered by: Judge Caldwell

MEMORANDUM

I. Introduction

Plaintiff, Hugo Nelson Melgar-Garcia, filed this action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., seeking damages as a result of an alleged assault by federal correctional officers at USP-Lewisburg, Pennsylvania. (Doc. 1, Compl.). Melgar-Garcia, confined at the Coleman Federal Correctional Complex in Coleman, Florida, was formerly incarcerated at Lewisburg.

Presently before the Court is Plaintiff's "Motion for ReAlledging (sic)". In that motion, Melgar-Garcia reasserts the basic elements of his Complaint, implies that he has not received copies of the documents Defendant filed in connection with its Motion for Summary Judgment, and seeks appointment of counsel. For the following reasons, the Court will direct the Clerk of Court to supply Plaintiff with copies of Defendant's summary-judgment materials (docs. 16-19), deny Plaintiff's request for counsel, and direct Plaintiff to file opposition to Defendant's summary-judgment motion on or before January 21, 2008.

II. Discussion

A. Motion for Appointment of Counsel

In support of his request for counsel, Melgar-Garcia simply suggests that he "is a prisoner proceeding pro-se, and doesn't have the funds to hire councel (sic)". (Doc. 20). The Court finds that the facts of case do not warrant appointment of counsel at this time. Hence, Melgar-Garcia's motion for counsel will be denied.

Title 28 U.S.C. § 1915(e)(1) provides that a district court may request an attorney to represent an indigent litigant in a civil case. Under § 1915(3)(1), the court has broad discretion to determine whether appointment of counsel is warranted in a particular case. While a district court may, in its discretion, appoint counsel under 28 U.S.C. § 1915, a prisoner does not have a constitutional or statutory right to counsel in a civil case. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). Additionally, the court has no funds to pay an attorney who may accept appointment (although attorney's fees are available under 42 U.S.C. § 1988 if a plaintiff becomes a "prevailing party" in the litigation). The United States Court of Appeals for the Third Circuit has stated that 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 (emphasis added). Next, if plaintiff's claims meet this threshold review, other non-exclusive factors to be examined 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 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 ...


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