United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge
before the court is plaintiff, Albert Martinez's, Motion
for appointment of counsel. (ECF No. 19). For the reasons
that follow the motion will be denied.
a civil action, not a criminal one. Hence the plaintiff has
no constitutional or statutory right to appointed counsel.
Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.
2002). Nor can the court compel a lawyer to represent an
indigent plaintiff. Tabron v. Grace, 6 F.3d 147, 153
n.1 (3d Cir. 1993). Rather, representation for an indigent is
governed by 28 U.S.C. § 1915(e)(1) which only provides
that the court "may request an attorney to
represent any person unable to afford counsel."
district court has broad discretion under 28 U.S.C. §
1915(e)(1) in deciding whether to seek counsel,
Montgomery, 294 F.3d at 498, and the decision can be
made at any point of the litigation. Id. at 503-04
(“Either the Magistrate Judge or the District Court
should have recognized Montgomery's difficulties as they
became increasingly apparent and, in light of them,
reconsidered Montgomery's motion for appointment of
Third Circuit has provided guidance for the exercise of the
district court's discretion. At the threshold, the court
must decide whether the plaintiff's case “has some
arguable merit in fact and law.” Id. at 499
(quoting Parham v. Johnson, 126 F.3d 454, 457 (3d
Cir. 1997)). A court need not appoint counsel “if the
indigent's chances of success on the merits are extremely
slim.” Id. at 500 (quoting Hodge v. Police
Officers, 802 F.2d 58, 60 (2d Cir. 1986))(internal
quotation marks and brackets omitted). If the threshold
requirement is met, the court then considers a number of
factors established by the Third Circuit to determine whether
it is appropriate to request counsel for an indigent party.
These factors include: (1) the plaintiff's ability to
present his 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 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.
Tabron, 6 F.3d at 155-57.
lawyer time is a precious commodity, Montgomery,
supra, 294 F.3d at 499, so the district court's
“broad statutory discretion” should be exercised
“discerningly.” Id. at 505 n.10.
However, if the case “appears to have merit” and
“most of the . . . Tabron factors have been
met, the Third Circuit “instruct[s]” that the
district court “should make every attempt to obtain
counsel.” Id. at 505 (quoting Parham,
126 F.3d at 461)(internal quotation marks omitted).
filed this pro se action asserting a First Amendment
claim that Defendants, employees of the Adams County Prison,
interfered with his ability to practice his religion.
Martinez, who is Jewish, asserts that Defendants denied him
access to a Rabbi, appropriate religious services and a
Kosher diet while housed at the prison. (ECF No. 1, Compl.)
Defendants have Answered the Complaint and discovery is set
to close on May 22, 2017. (ECF No. 18, Scheduling Order).
support of his motion for counsel, Martinez argues that he is
indigent, the issues in this case are complex and that he has
limited access to the law library. He adds that he is
presently also a defendant in a criminal action and must
allocate a portion of his limited law library time to this
action as well as his criminal matter. He adds that his
efforts to obtain outside counsel to represent him in this
matter have thus far been unsuccessful. (ECF No. 19, Mot. for
date, Martinez's correspondence with the court has been
clear and easily understood. His communication is direct and
demonstrates a firm grasp of the English language.
Martinez's brief in support of his motion for counsel is
thorough and complete with legal citation. (ECF No. 20, Br.
in Supp. Mot. for Counsel). Although Martinez perceives the
legal issues presented in his Complaint as complex, they are
not. The merits of his case are rather straightforward.
Likewise, although he is indigent and incarcerated, these
facts alone do not merit the appointment given this
court's liberal construction of prose
pleadings. Haines v. Kerner, 404 U.S. 519, 92 S.Ct.
594, 30 L.Ed.2d 652 (1972). Martinez has not suggested why he
cannot conduct discovery on his own, like other pro
se inmates. Also, he need not be concerned with his
limited access to the law library as he may always request an
enlargement of time if, and ...