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Richardson v. Derose

United States District Court, M.D. Pennsylvania

October 22, 2014

JOHN RICHARDSON, Plaintiff,
v.
DOMINICK DeROSE, et al., Defendants.

MEMORANDUM

EDWIN M. KOSIK, District Judge.

I. Background

Plaintiff, John Richardson, filed this civil rights action pursuant to 42 U.S.C. § 1983 while confined at the Dauphin County Prison, Pennsylvania. At the present time, it appears that he is in transit to a Pennsylvania State Correctional Institution.[1] In the complaint, Plaintiff names three (3) Dauphin County prison officials/employees and appears to set forth conditions of confinement, failure to protect and retaliation allegations in violation of the Eighth Amendment. Service of the complaint has been directed, but no response has yet been filed by Defendants. Presently before the court is Plaintiff's request for the appointment of counsel. (Doc. 20.) For the reasons that follow, the motion will be denied without prejudice at this time.

II. Discussion

Plaintiff seeks counsel because he is without funds to hire an attorney and employees at the Dauphin County Prison are interfering with his mail and retaliating against him for filing this lawsuit. Although prisoners have no constitutional or statutory rights to appointment of counsel in a civil case, Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997), district courts have broad discretionary power to appoint counsel under 28 U.S.C. § 1915(e)(1). Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002)(citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). The United States Court of Appeals for the Third Circuit has stated that the 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. Without passing judgment as to the ultimate merits of Plaintiff's claims, for the sole purpose of this motion, the court will assume that the case has arguable merit in law and the facts.

Upon successfully clearing the above 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 plaintiff to pursue investigation;
4. The plaintiff's capacity to retain counsel on his or her 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 (citing Tabron, 6 F.3d at ...


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