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Smith v. Thomas

United States District Court, Third Circuit

January 23, 2014

JEREMY SMITH, Plaintiff,
v.
WARDEN THOMAS, et al., Defendants.

MEMORANDUM

ROBERT D. MARIANI, District Judge.

I. Background

Plaintiff Jeremy Smith ("Plaintiff' or "Smith"), an inmate presently confined at the United States Penitentiary in Lewisburg, Pennsylvania ("USP-Lewisburg") initiated the above pro se action by filing aComplaint pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. 1). In his Complaint, Smith alleges an excessive use of force claim. ( Id. ). By Order dated December 2, 2013, service of the Complaint was directed. (Doc. 6). While the summonses have been issued, no proofs of service have been filed and no attorneys have entered appearances on behalf of the Defendants.

Presently before the Court is Smiths' motion for appointment of counsel (Doc. 10) and supporting brief (Doc. 11). For the reasons set forth below, the motion will be denied without prejudice.

II. Discussion

The Court recognizes that there is neither aconstitutional 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 acase-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 plaintiffs claim must have some merit in fact and law. If the district court determines that the plaintiffs claim has some merit, then the district court should consider the following factors:
(1) the plaintiffs 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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