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Mark Anthony Robinson v. John Wetzel

November 28, 2011

MARK ANTHONY ROBINSON, PLAINTIFF
v.
JOHN WETZEL, WARDEN AND DORINA VARNER, CHIEF GRIEVANCE OFFICER, DEFENDANTS



The opinion of the court was delivered by: (mannion, M.J.)

: (MARIANI, D.J.)

MEMORANDUM AND ORDER*fn1

Pending before the court is a motion filed by the plaintiff in which he seeks (1) to have the court certify the instant action as a class action and (2) to have the court appoint him counsel. (Doc. No. 3).

Initially, the plaintiff requests that the court certify the instant action as a class action. In doing so, the plaintiff does nothing more than to cite the factors relevant to obtaining class certification pursuant to Fed.R.Civ.P. 23. The plaintiff provides no support which would indicate that these factors are applicable to the instant action. As such, his motion for class certification will be denied.

The plaintiff next requests, with nothing more, that the court appoint him counsel. To this extent, it is well established that indigent litigants have no constitutional or statutory right to appointed counsel in a civil case. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997)). However, Congress has given the district courts broad discretion to appoint counsel when deemed appropriate. See id.; 28 U.S.C. §1915(e)(1) (2006).*fn2 For example, appointment of counsel should be made when circumstances "indicate the likelihood of substantial prejudice to [the indigent litigant] resulting . . . from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Ferrell v. Beard, 2006 U.S. Dist. LEXIS 63504, at *9 (M.D. Pa. Sept. 9, 2006) (quoting Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984)). Yet the court must always make a threshold determination of "whether the claimant's case has some arguable merit in fact and law." Montgomery, 294 F.3d at 499-500; Ferrell, at *9.

If the case is genuinely meritorious, then the court will consider a variety of factors that guide the court in deciding whether to appoint counsel. A nonexhaustive list includes:

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 determinations, and;

6. whether the case will require testimony from expert witnesses.

Montgomery, 294 F.3d at 499 (citing Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993)).

In addition, the court is to consider several other practical considerations which serve to restrain a court's decision to appoint counsel in a civil case: the growing number of civil rights actions filed in federal courts by indigent litigants; the lack of funding to pay appointed counsel; and the finite pool of qualified attorneys willing to undertake assignments on a pro bono basis. See id. at 505. Yet despite these circumstances, careful ...


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