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Stewart v. Varano

United States District Court, M.D. Pennsylvania

June 5, 2014

CARL T. STEWART, JR., a/k/a CARL BURTON, Plaintiff,
v.
DAVID A. VARANO, et al., Defendants

MEMORANDUM

KAROLINE MEHALCHICK, Magistrate Judge.

This case involves a pro se plaintiff, Carl T. Stewart, Jr., who has filed the above-captioned civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Currently pending before the Court are: Plaintiff's motions for appointment of counsel (Doc. 37; Doc. 62; Doc. 73; Doc. 84);[1], [2] Plaintiff's motion to join parties (Doc. 30); Plaintiff's motion to file a sur-reply brief (Doc. 84); and Plaintiff's motion for a docket sheet (Doc. 37).

I. DISCUSSION

A. PLAINTIFF'S MOTIONS FOR APPOINTMENT OF COUNSEL (DOC. 37; DOC. 62; DOC. 73; DOC. 84)

Although prisoners have no constitutional or statutory right to appointment of counsel in a civil case, Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997), the court has discretion to request "an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1); see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). The district court's appointment of counsel is discretionary and must be made on a case-by-case basis. Tabron, 6 F.3d at 157-58.

The United States Court of Appeals for the Third Circuit has stated that appointment of counsel for an indigent litigant should be made when circumstances indicate "the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984). The initial determination to be made by the court in evaluating the expenditure of the "precious commodity" of volunteer counsel is whether the plaintiff's case has some arguable merit in fact and law. Montgomery, 294 F.3d at 499. If a plaintiff overcomes this threshold hurdle, other factors to be examined are:

(1) the plaintiff's ability to present his or her 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 claimant to pursue investigation; (4) the plaintiff's capacity to retain counsel on his or her own behalf; (5) the extent to which the 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 (citing Tabron, 6 F.3d at 155-57).

Additionally, another practical consideration must be taken into account when considering a motion for appointment of counsel. As the Third Circuit has observed,

[W]e must take note of the significant practical restraints on the district courts' ability to appoint counsel: the ever-growing number of prisoner civil rights actions filed each year in the federal courts; the lack of funding to pay appointed counsel; and the limited supply of competent lawyers who are willing to undertake such representation without compensation. We have no doubt that there are many cases in which district courts seek to appoint counsel but there is simply none willing to accept appointment. It is difficult to fault a district court that denies a request for appointment under such circumstances.

Tabron, 6 F.3d at 157.

In analyzing these factors, the Court concludes that counsel should not be appointed in this case at the present time. The question of whether Plaintiff's claims have arguable legal merit has not yet been assessed. It would be inappropriate to appoint counsel until the Court has the opportunity to complete a legal merits analysis in this matter. Moreover, the plaintiff's complaint (Doc. 1) indicates that he has the ability to present facts and issues to the court without the assistance of an attorney. Plaintiff is literate and able to communicate his thoughts to the Court. Based on the foregoing, it does not appear that Plaintiff will suffer prejudice if forced to prosecute this case on his own. The Court's duty to construe pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519 (1972), coupled with Plaintiff's apparent ability to litigate this action, weigh against the appointment of counsel. Hence, the Court will deny Plaintiff's motions for appointment of counsel. In the event, however, that future proceedings demonstrate the need for counsel, the matter may be reconsidered either sua sponte or upon motion of Plaintiff.

Accordingly, IT IS HEREBY ORDERED that Plaintiff's motions for appointment of counsel (Doc. 37; Doc. 62; Doc. 73; Doc. 84) are DENIED. If further proceedings demonstrate the need for counsel, the matter will be ...


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