OPINION AND ORDER Re: ECF Nos. 20 and 21.
MAUREEN P. KELLY, Magistrate Judge.
Presently before this Court are two Motions for the Appointment of Counsel [ECF No. 20, 21], filed by Plaintiff Ricky Douglas ("Plaintiff") which require the Court to determine whether or not, under the facts and circumstances of this case, the Court should exercise its discretion pursuant to 28 U.S.C. § 1915(e)(1) and request an attorney to represent Plaintiff in the prosecution of this action. In addition, in conjunction with his Motion for Appointment of Counsel at ECF No. 20, the Court has construed certain of Plaintiff's allegations as a second motion for preliminary injunction, setting forth identical grounds for relief previously resolved by this Court by Order entered May 21, 2013 at ECF No. 22. For the following reasons, it is respectfully recommended that the motions be denied.
Plaintiff, an inmate currently housed at the Allegheny County Jail, has presented a civil rights complaint which he has been granted leave to prosecute without prepayment of costs. The Complaint alleges that Defendants violated his rights by permitting or encouraging an assault by fellow inmates on June 30, 2012. [ECF No. 9, p. 2]. Defendants are accused of failing to intervene for his protection and standing by and/or encouraging inmates to harm him. Plaintiff further alleges that Defendants are conspiring to poison his food and encouraging fabricated reports of misconduct. Plaintiff seeks an Order separating him from all Disciplinary Housing Unit officers who are conspiring against him.
In considering a motion for the appointment of counsel, the Court must determine whether or not to request counsel to represent this indigent litigant under the provisions of 28 U.S.C. § 1915(e)(1), fully recognizing that if successful counsel may be entitled to recover fees under the provisions of Section 1988 of Title 42, United States Code. Section 1915(e)(1) gives the Court broad discretion to determine whether appointment of counsel is warranted, and that determination must be made on a case-by-case basis. Tabron v. Grace , 6 F.3d 147, 157-58 (3d Cir. 1993).
As a threshold matter the district court should consider whether the plaintiff's claim has arguable merit in fact or law. Parham v. Johnson , 126 F.3d 454, 457 (3d Cir. 1997). See Tabron v. Grace , 6 F.3d at 155. If the court determines that the claim has some merit, the court should then 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 investigation;
4. the amount the case is likely to turn on credibility determinations;
5. whether the case will require the testimony of expert witnesses; and
6. whether the plaintiff can attain and afford counsel on his own behalf.
Parham v. Johnson , 126 F.3d at 457. "The list of factors is not exhaustive, but instead should serve as a guidepost for the district courts. Correspondingly, courts should exercise care in appointing counsel because volunteer lawyer time is a precious commodity and should not be wasted on frivolous cases." Id. at 458.
After careful consideration of Plaintiff's allegations, it would appear that the appointment of counsel is not warranted at this time and, therefore, the Court will not exercise its discretion to appoint counsel at this early stage of the litigation.
Initially, it does not appear that Plaintiff has set forth a factual basis upon which relief may be granted. Nevertheless, in considering factors one and two B the litigant's ability to present his case and the difficulty of the legal issues involved B it is clear that the issues presented in the complaint are neither difficult nor complex, and nothing in the record indicates that Plaintiff is incapable of presenting his case. In fact, Plaintiff has amply demonstrated his ability to file a detailed and well-documented Complaint, and otherwise communicate with the Court during the course of this litigation. Similarly, the third consideration B the degree to which factual investigation will be necessary and Plaintiff's ability to conduct such investigation B does not weigh in favor of the appointment of counsel ...