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Billy G. Asemani v. Secretary of the Department of Homeland Security

February 22, 2012

BILLY G. ASEMANI,
PLAINTIFF,
v.
SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM ORDER

AND NOW, this 22nd day of February, 2012, upon consideration of (1) Plaintiff's Motion for Appointment of Counsel (Doc. No. 7) and (2) Plaintiff's Application to Proceed IFP (Doc. No. 8), it is hereby ORDERED as follows:

1. Plaintiff's Motion for Appointment of Counsel (Doc. No. 7) is DENIED.

2. Plaintiff's Application to Proceed IFP (Doc. No. 8) is DENIED AS MOOT, as we have already granted Plaintiff's previous IFP motion. (See Doc. No. 4).

Plaintiff Billy G. Asemani, an inmate proceeding in forma pauperis (IFP), brought this 42 U.S.C. § 1983 action against the Secretary of the Department of Homeland Security ("DHS"). Asemani's Complaint alleges that DHS's refusal to recognize Asemani as a U.S. National, even though a federal court previously declared that he has "demonstrated his permanent allegiance to the United States sufficient to constitute him a 'national' within the meaning of" the Foreign Sovereign Immunities Act ("FSIA"), see Asemani v. Islamic Republic of Iran, 266 F. Supp. 2d 24, 26-27 (D.D.C. 2003), violates his Equal Protection rights because the state correctional institution to which he is confined will not lower his security level / status as long as Asemani is subject to an "immigration detainer." (See Doc. No. 5).

Asemani asks us to appoint counsel to represent him in this civil action pursuant to 28 U.S.C. § 1915(e)(1). An "indigent civil litigant has neither a constitutional nor a statutory right to counsel." Woodham v. Sayre Borough Police Dept., 191 Fed. App'x 111, 114 (3d Cir. 2006). However, Section 1915 provides that "[t]he court may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). District courts have "broad discretion to determine whether appointment of counsel is warranted." Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir. 1993). In Tabron, the Third Circuit articulated a two-step framework to guide district courts in deciding whether to appoint counsel under Section 1915. First, as a threshold matter, a court should not appoint counsel unless it appears that the requesting plaintiff's claim has some merit in fact and law. Tabron, 6 F.3d at 155. Once the plaintiff clears this hurdle, a court should then consider the following six (6) factors in analyzing the appointment of counsel question. None of the factors alone is dispositive, and the list is non-exhaustive:

1. 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 pursue such investigation;

4. The amount a case is likely to turn on credibility determinations;

5. Whether the case will require expert witness testimony; and

6. Whether the plaintiff can attain and afford counsel on his or her own behalf. Tabron, 6 F.3d at 156-57. Here, we will not yet speculate on whether Asemani's claims have "some merit in fact and law." The Defendant has not even answered the Complaint. However, as detailed below, after applying the six Tabron factors, we conclude that appointment of counsel is not warranted in this matter regardless of the merit of Asemani's claim.

A. Asemani Can Capably Present His Own Case The plaintiff's ability to present his own case is perhaps the most significant of the

Tabron factors. Montgomery v. Pinchak, 294 F.3d 492, 501 (3d Cir. 2002). In determining whether the plaintiff can ably represent himself, we consider the plaintiff's education, literacy, prior work experience, prior litigation experience, ability to understand English, and the restraints placed on him by incarceration. See Tabron, 6 F.3d at 156. Of course, the fact that an indigent party lacks a trial lawyer's skills does not mean we should grant his request for counsel. See Gordon v. Gonzalez, 232 Fed. App'x 153, 157 (3d Cir. 2007) (noting that plaintiff's "reading of this factor seems to suggest that ...


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