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John J. Gabrys v. Michael J. Astrue

December 14, 2012

JOHN J. GABRYS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION DEFENDANT.



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

MEMORANDUM

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

I. BACKGROUND

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) appealing the decision of the Secretary of Health and Human Services denying him Social Security benefits. (Doc. No. 1.) On November 6, 2012, we granted Plaintiff leave to proceed in forma pauperis. (Doc. No. 5.) We now decide Plaintiff's Motion for the Appointment of Counsel.

II. DISCUSSION

A. Appointment of Counsel and the Tabron Factors

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).

As a threshold matter, we must ascertain whether Plaintiff's claims have arguable merit in fact and law. We find that they do not. Plaintiff attempted to attain counsel from five different attorneys. Plaintiff admits that two of these attorneys did not find merit in this case. (See Doc. Nos. 2 & 4.) Additionally, Plaintiff avers that the Legal Aid Society of Philadelphia did not find his case worthy of merit. (See Doc. No. 2.) We regard the failure to attain counsel by Plaintiff as indicative of the fact that his claims lack merit. See Johnson v. Stempler, 373 Fed. App'x 151, 155 (3d Cir. 2010) (affirming denial of counsel where five attorneys declined to represent plaintiff of which two of these rejections were based on the merits); Jackson v. Cnty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992) (finding that though the willingness of counsel to take a case is not a perfect indicator of the meritoriousness of the action, it should be given "significant consideration" in order to sift out the "patently frivolous" claims). Nevertheless, with an eye toward fully developing the record, we proceed to analyze Plaintiff's Motion for the Appointment of Counsel in light of the factors set forth in Tabron.

B. Applying the Tabron Factors

Even if Plaintiff's claims were to bear arguable merit in fact or law, we find that the Tabron factors warrant the denial of Plaintiff's Motion for the Appointment of Counsel. We base our decision on the following analysis of the Tabron factors.

1. The Plaintiff's Ability to Present His Own Case and the Difficulty of the Legal Issues

The ability of a plaintiff to present his own case is arguably the most significant of the Tabron factors. Montgomery, 294 F.3d at 501. This determination is based on several criteria including plaintiff's education, literacy, prior work experience, prior litigation experience, ability to understand English and access to resources necessary to proceed with the litigation (i.e., access to typewriter, telephone and computer). Tabron, 6 F.3d at 156; see also Parham, 126 F.3d at 459.

A review of the above factors, does not support the appointment of counsel. Plaintiff requests the Court to appoint an attorney on his behalf because he "does not perfectly know the law." (Doc. 1 at 2.) However, it is not necessary that plaintiffs have the skills and expertise of a trial lawyer; only that they possess the baseline abilities to adequately present their case. See Gorden v. Gonzalez, 232 F. App'x 153, 157 (3d Cir. 2007) (the decision point is not whether plaintiff is a trial lawyer). It is evident from Plaintiff's filings, in which he writes coherently, that he possesses the baseline abilities to adequately present his case. Because this is an action pursuant to 42 U.S.C. ยง 405(g), it is solely a record review for which only ...


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