United States District Court, M.D. Pennsylvania
BACKGROUND OF THIS ORDER IS AS
Ronald Blue West commenced this civil rights action pursuant
to the Federal Tort Claims Act, 28 U.S.C. § 1346. In
this action, he seeks injunctive and monetary relief for
violations of his constitutional rights in conjunction with
employees at the Federal Correctional Institution
("FCI") at Allenwood, Pennsylvania, who are alleged
to have negligently put his life in danger. He is no longer
confined there, and is currently housed at the FCI- Estill,
South Carolina. Although Plaintiff names three (3) individual
employees as defendants in this matter, the only proper
defendant is the United States of America. Plaintiff has
filed a motion seeking leave to proceed in forma
pauperis in this matter (Doc. 2) and an Authorization
form (Doc. 3). He has also filed a motion seeking the
appointment of counsel and a statement in support thereof.
(Docs. 5, 6.) After reviewing the information provided by
Plaintiff, his request to proceed in forma pauperis
will be granted, the request for counsel will be denied
without prejudice, and service of the complaint will be
respect to Plaintiffs request for counsel, it is well
established that there is neither a constitutional nor
statutory right to counsel for civil litigants.
Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.
2001). Congress has granted district courts the discretion to
"request an attorney to represent any person unable to
afford counsel." 28 U.S.C. § 1915(e)(1) (noting
that appointment of counsel pursuant to 28 U.S.C. §
1915(e)(1) is "discretionary"). A court's
discretionary authority to appoint an attorney to represent a
civil litigant (prisoner or non-incarcerated individual) only
comes into play when the party is proceeding within the terms
of 28 U.S.C. § 1915, Proceedings In Forma
Pauperis, which necessarily implies the litigant's
indigent status, and is made on a case-by-case basis.
Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir. 1993).
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.2d22, 26(3dCir. 1984).
initial determination to be made by the court in evaluating
the expenditure of the "precious commodity" of
volunteer counsel is whether the plaintiffs 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 his motion the court will assume that the
case has arguable merit in law and the facts.
successfully clearing the above hurdle, other factors to be
1. The plaintiffs 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
4. The plaintiffs capacity to retain counsel on his or her
5. The extent to which a case is likely to turn on
credibility determinations; and
6. Whether the case will require testimony from expert