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Anthony Busey v. Officer Brian Smith

March 28, 2012

ANTHONY BUSEY, PLAINTIFF,
v.
OFFICER BRIAN SMITH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: : Hon. John E. Jones III

MEMORANDUM and ORDER

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Plaintiff Anthony Busey ("Plaintiff" or "Busey"), an inmate presently confined at the State Correctional Institution Camp Hill ("SCI Camp Hill") in Camp Hill, Pennsylvania, initiated the above action pro se by filing a civil rights Complaint under the provisions of 42 U.S.C. § 1983. (Doc. 1.) Named as Defendants are the following members of the staff at SCI Camp Hill: Corrections Officers Brian Smith and A. Anstead, and Hearing Examiner K.P. Reisinger. Busey alleges that Defendants Smith and Anstead used excessive force against him, retaliated against him, and caused him emotional and physical injuries, and that Defendant Reisinger violated his substantive and procedural due process rights in disciplinary proceedings that ensued following an incident involving Busey, Smith, and Anstead.

Service of the Complaint has been directed by separate order. Presently before the Court is Busey's Motion requesting that the Court appoint counsel to represent him in this matter. (Doc. 4.) For the reasons set forth below, the Motion will be denied without prejudice.

I. LEGAL STANDARD

The Court recognizes that 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. The exercise of this discretion, however, is guided by certain basic principles. Gordon v. Gonzalez, 232 Fed. Appx. 153, 156 (3d Cir. 2007).

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 pursue such an investigation;

(4) the amount a case is likely to turn on credibility determinations;

(5) whether the case will require the testimony of expert witnesses;

(6) whether the plaintiff can attain and afford counsel on ...


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