United States District Court, M.D. Pennsylvania
RICHARD M. HARRIS, Plaintiff
JOHN SHOVELIN, et al., Defendants
RICHARD CAPUTO United States District Judge.
before the Court is Mr. Harris' Motion for Appointment of
Counsel (ECF No. 12) pursuant to 28 U.S.C. § 1915(e)(1).
For the reasons set forth below, the motion will be denied.
Richard M. Harris, a state prisoner currently incarcerated at
the Benner Township State Correctional Institution
(SCI-Benner), in Bellefonte, Pennsylvania, brings the instant
pro se civil rights action, pursuant to 42 U.S.C.
§ 1983 alleging Eighth Amendment claims against John
Shovelin and Mark Nycum following a January 13, 2017 event at
SCI-Smithfield. He claims Mr. Shovelin assaulted him while
Mr. Nycum looked on. Following the assault, Defendants
allegedly conspired to cover up the event by issuing Mr.
Harris a false misconduct claiming he assaulted Mr. Shovelin.
The Defendants also conspired to obstruct justice by lying to
the Pennsylvania State Police and the Pennsylvania Department
of Corrections Office of Special Investigations and
Intelligence during their investigations of the event. (ECF
No. 15, Am. Compl.) Mr. Harris suffered physical and
emotional injury following the event. He seeks compensatory,
punitive and injunctive relief. (Id.)
Standard of Review
prisoners have no constitutional or statutory right to the
appointment of counsel in a civil case, the Court has broad
discretionary power to appoint counsel under 28 U.S.C. §
1915(e)(1); see also Tabron v. Grace, 6 F.3d 147 (3d
decision, the Tabron Court announced the factors to
be considered by a district court when deciding whether to
exercise its discretion and appoint counsel for an indigent
litigant in a civil case. Initially, “the district
court must consider as a threshold the merits of the
plaintiff's claim.” Tabron, 6 F.3d at 155.
Next, if a claim has arguable merit, “[t]he
plaintiff's ability to present his or her claim is, or
course, a significant factor that must be considered in
determining whether to appoint counsel.” Id.
at 156. “If it appears that an indigent plaintiff with
a claim of arguable merit is incapable of presenting his or
her own case ... and if such a plaintiff's claim is truly
substantial, counsel should ordinarily be appointed.”
addition to the indigent plaintiff's ability to present
his or her case, Tabron requires the district court
to consider the following additional factors: (1) the
difficulty of the particular legal issues; (2) the degree to
which factual investigation will be necessary and the ability
of the plaintiff to pursue investigation; (3) the
plaintiff's capacity to retain counsel on his own behalf;
(4) the extent to which a case is likely to turn on
credibility determinations; and (5) whether the case will
require testimony from expert witnesses. Id. at 155
- 57. However, while these factors are meant to guide the
Court in making its determination, they are not exhaustive
and the Court may consider any other factor it deems
relevant. Id. at 157. Moreover, it is noted that
appointment of counsel under § 1915(d) may be made by
the court sua sponte at any point in the litigation.
Id. at 156.
district “courts have no authority to compel counsel to
represent an indigent civil litigant, ” id. at
157 n. 7, and courts are cautioned against the indiscriminate
appointment of counsel in view of the limited supply of
competent attorneys willing to accept such assignments.
Id. at 157.
the relevant Tabron factors in this case, the
appointment of counsel is not warranted at this time.
case is in its procedural infancy. Defendants were recently
served with the Amended Complaint. Defendants will either
challenge the legal basis of the Amended Complaint or file an
answer. Until then, the Court will not be able to fully
assess the threshold question of the arguable factual and
legal merit of Plaintiff's claims for the purpose of
appointing him counsel. We note that at the time of filing
his motion for appointment of counsel he was housed at
SCI-Rockview's Mental Health Unit (MHU). Mr. Harris,
however, is now housed at a different facility, SCI-Benner,
and has filed his Amended Complaint. Upon consideration of
these facts and Mr. Harris' filings to date, the Court
finds that he has demonstrated an ability to understand and
communicate clearly in English. Further, his arguments are
logical and straightforward in their presentation. He does
not suggest, or provide other documentation, that he
presently suffers from any impediment unusual to other
pro se prisoner litigants before this Court. It is
also noted that Mr. Harris does not advise the Court of any
effort he has undertaken to obtain counsel on his own.
extent that Mr. Harris' request for counsel is based on
the fact of his incarceration or his indigent status, these
facts do not warrant the appointment of counsel given this
Court's liberal construction of pro se