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Andrew Outen v. Prialeau

November 27, 2012


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before this Court is Plaintiff, Andrew Outen's ("Plaintiff"), Motion for the Appointment of Counsel. For the reasons set forth below, this Motion is denied.


Plaintiff is, and was at all times, a prisoner of the state of Pennsylvania in the custody of the Department of Corrections. (Compl. ¶ 3.) In November of 2011, Plaintiff was paroled from prison to Gaudenzia D.R.C. ("Guadenzia"), a treatment center located in Philadelphia, Pennsylvania. (Id. ¶ 11.) As a condition of his parole, Plaintiff was ordered to participate in a violence prevention program and to receive outpatient drug and mental health treatment. (Id.) On March 13, 2012, Plaintiff's parole was revoked and he was returned to prison for drug use and for wearing dark sunglasses inside the facility. (Id. at 38.)

On September 10, 2012, Plaintiff filed suit against Defendants, Parole Agent Mark Thompson, Parole Supervisor Carlos Riera*fn1 (both employees of the Pennsylvania Board of Probation and Parole), and Gaudenzia employees Darien Prialeau, Larry Barksdale, Annie McCray and Brenda Kennerly, for deprivation of his civil rights under 42 U.S.C. § 1983. (Id. ¶ 4-9.) Specifically, Plaintiff claims Defendants violated his First, Fifth, Eighth and Fourteenth Amendment rights, as well as the Americans with Disabilities Act (the "ADA") 42 U.S.C. § 12101. (Id. ¶ 15, 46, 47, 52, 53, 65.)

Plaintiff has been granted leave to proceed in forma pauperis. (Doc. 6.) Now, he comes before the Court requesting the appointment of counsel.


Plaintiff sets forth several grounds to support his request for the appointment of counsel. Plaintiff asserts that he lacks legal skills, a formal education and access to a law library, a copier and a typewriter. Additionally, Plaintiff avers that he suffers from the side effects of glaucoma and schizophrenia. In light of these considerations, Plaintiff believes it would be in the best interests of justice to appoint counsel.

It is well settled that "indigent civil litigants possess neither a constitutional nor a statutory right to appointed counsel." Gordon v. Gonzalez, 232 F. App'x 153, 156 (3d Cir. 2007) (quoting Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002)). However, a district court is empowered with the discretion to "request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). The court's decision whether to appoint counsel is to be given wide latitude and will only be overturned if its ruling is clearly an abuse of discretion. Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).

As a preliminary matter, the district court must first determine if the plaintiff's claim has arguable merit in fact and law. Upon a favorable finding, the court then proceeds to consider certain additional factors that bear on the necessity for the appointment of counsel. Id. at 155. These factors enunciated by the United States Court of Appeals for the Third Circuit ("Third Circuit") in Tabron include: (1) the plaintiff's ability to present his 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 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 (quoting Tabron, 6 F.3d at 155). This list is not exhaustive, nor is any one factor determinative. Parham v. Johnson, 126 F.3d 454, 458 (3d Cir. 1997).

In his Complaint, Plaintiff recites a long and detailed list of alleged offenses - all of which appear to lack merit in fact or law. In an effort to pare down this extensive document, we provide a short summary of the Complaint. Plaintiff asserts that the conditions of his confinement at Guadenzia violated his Eighth and Fourteenth Amendment rights due to the presence of drug use (i.e., the smoking of the synthetic drug "K2"). (Id. ¶ 47-52.) After complaining of these conditions to the proper officials, Plaintiff contends that these officials, in conjunction with Defendants Parole Agent Thompson and Parole Supervisor Riera, retaliated against the exercise of his lawful First Amendment rights by revoking his parole and sending him back to prison. (Id. ¶ 38.) In addition, Plaintiff asserts that Defendants used his medical need to wear dark sunglasses at all times as a pretext for their retaliatory conduct in violation of the Americans with Disabilities Act. ( ¶ 53, 57). Finally, Plaintiff avers violations of his Fifth Amendment rights for allegedly being denied a "meaningful post deprivation remedy." (Id. ¶ 46.)

Plaintiff's claims appear dubious at best. For example, Plaintiff contends that he is suffering mental and physical harm due to his forcible return to prison. (Id. ¶ 59.) Yet, he admits to smoking marijuana, in violation of his parole, which is the very act that triggered his return to incarceration. (Id. ¶ 17, 40.) Plaintiff's admission undermines all of his claims by destroying the foundation upon which they rest. In light of our determination that Plaintiff's claims appear to lack merit in fact and law, we do not believe the appointment of counsel is proper in this case.

At this early stage in the proceedings, we note that we are not making judicial determinations as to the facts or legal standings of Plaintiff's claims. Rather, they are solely manifested in regards to the decision to appoint counsel for Plaintiff. Without regard to this finding, but with an eye towards providing a complete record, we will assume arguendo that Plaintiff's claims ...

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