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Prinkey v. Tennis

November 10, 2010

ROBERT LEE PRINKEY, PLAINTIFF,
v.
FRANKLIN J. TENNIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: (Judge McClure)

MEMORANDUM and ORDER

BACKGROUND

Plaintiff Robert Lee Prinkey ("Plaintiff" or "Prinkey"), an inmate presently confined at the Rockview State Correctional Institution ("SCI-Rockview"), in Bellefonte, Pennsylvania, initiated the above action pro se by filing a Complaint under the provisions of 42 U.S.C. § 1983.

At this stage of the litigation, the only remaining claims are against Defendants Williams and Symons. Defendant Strohm also had been a remaining Defendant, and a motion to dismiss was filed on behalf of Strohm and Williams on August 27, 2010. (Rec. Doc. No. 48.) However, on September 10, 2010, Prinkey filed a document, which was entered incorrectly on the docket as his "brief in opposition" to the motion to dismiss filed on behalf of Strohm and Williams, in which he, inter alia, requested that his claims against Defendant Strohm be dismissed. (Rec. Doc. No. 50.) By Order dated September 13, 2010, we granted Prinkey's request, and Defendant Strohm was terminated as a party to this action. (Rec. Doc. No. 52.) In our Order, we also granted an extension of time for Williams' counsel to file a brief in support of the motion to dismiss, and directed Prinkey to file his brief in opposition within fourteen (14) days from the date of filing of the supporting brief. (Id.)

On September 17, 2010, counsel for Williams filed a supporting brief. (Rec, Doc. No. 54.) By Order dated September 20, 2010 (Rec. Doc. No. 55) we invited supplementary briefing to more fully address the claims against Williams, and on October 4, 2010, a supplemental brief was filed (Rec. Doc. No. 57). Our September 20 Order also provided that, regardless of whether a supplemental brief was filed, Plaintiff's opposition brief was due on or before October 18, 2010. (See Rec. Doc. No. 55.) Although the time for filing his opposition brief has expired, Plaintiff neither has filed his brief nor requested an extension of time in which to do so. Instead, on November 1, 2010, he filed a motion to appoint counsel. (Rec. Doc. No. 62.) Also pending is Plaintiff's "Motion Pertaining to Discovery," which was filed on October 25, 2010. (Rec. Doc. No. 61.)

For the reasons set forth below, Plaintiff's request for the appointment of counsel will be denied without prejudice, and his "Motion Pertaining to Discovery" will be deemed withdrawn for failure to file a supporting brief as Prinkey was directed to do in our October 18, 2010 Order (Rec. Doc. No. 59).

MOTION TO APPOINT COUNSEL

In his motion, Prinkey states that he is asserting his rights under the Constitution to counsel. (Rec. Doc. No. 62 at 1.) However, there is neither a constitutional nor a statutory right to counsel for civil litigants. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). Notwithstanding this lack of a constitutional or statutory right to appointed counsel, in a civil case, 28 U.S.C. § 1915(e)(1) provides that "[t]he court may request an attorney to represent any person unable to employ counsel." A district court's appointment of counsel pursuant to this statute is discretionary and must be made on a case-by-case basis. Tabron, 6 F.3d at 157-58.

In Tabron, the United States Court of Appeals for the Third Circuit first outlined with specificity the applicable standards to be considered by courts upon an application to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1). Id. at 155-57. In Parham, the Third Circuit identified the following guidelines for appointing counsel to indigent civil litigants:

As a preliminary matter, the plaintiff's claim must have some merit in fact and law. If the district court determines that the plaintiff's claim has some merit, then the district court should consider the following factors:

(1) the plaintiff's ability to present his or her own case;

(2) the complexity of the legal issues;

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


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