The opinion of the court was delivered by: Chief Judge Kane
This civil rights action pursuant to 42 U.S.C. § 1983 was filed by Frederick Collins ("Collins"), an inmate currently confined at the State Correctional Institution at Coal Township (SCI-Coal Township), Pennsylvania. The remaining Defendants in this matter are former Department of Corrections ("DOC") Secretary Jeffrey Beard, DOC Chief Grievance Officer Dorina Varner, and several employees of SCI-Dallas, Collins' former place of incarceration.*fn1
Along with the complaint, Collins submitted a document entitled "Statement of Facts" (Doc. No. 4) and exhibits (Doc. No. 18), which have been construed as part of the complaint. Following a Memorandum and Order issued by the Court on September 22, 2010 addressing Defendants' motion to dismiss, several retaliation claims and an Eighth Amendment conditions of confinement claim remain in this action. (Doc. No. 34.) The parties have engaged in discovery. Presently before the Court is Collins' third motion seeking the appointment of counsel (Doc. No. 60). Also pending is Defendants' motion for sanctions against Plaintiff for failure to respond to interrogatories. (Doc. No. 61.) For the reasons that follow, the motion for counsel will be denied without prejudice. In addition, Defendants' motion for sanctions will be denied, however Plaintiff will be directed to supplement his response to interrogatory #1.
On two prior occasions, Collins has been unsuccessful in seeking the appointment of counsel in this matter. (Doc. No. 27, 55.) Pending is his third request wherein he simply argues that he does not know how to respond to Defendants' interrogatories, he is unlettered in the law and is "mildly retarded." (Doc. No. 60 at 1.)
As set forth in the earlier opinions issued by this Court, while 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), district courts have broad discretionary power to appoint counsel under 28 U.S.C. § 1915(e)(1). Montgomery v. Pinchak, 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. For purposes of this motion, the Court will assume that Collins' case has arguable merit in law and the facts, particularly in light of the fact that he was partially successful in opposing Defendants' motion to dismiss.
Next, upon successfully clearing the above hurdle, the Court must examine the following factors:
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 ...