United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL UNITED STATES DISTRICT JUDGE
before the Court is Ash's motion for appointment of
counsel. (ECF No. 26, Mot. for Counsel). 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
(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 in 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).
se Plaintiff, William Ash, an inmate presently housed at the
Dallas State Correctional Institution (SCI-Dallas), in
Dallas, Pennsylvania, filed this civil-rights action pursuant
to 42 U.S.C. § 1983 on January 21, 2016. He seeks
monetary damages for the fifteen days he spent in county
prison following his receipt of a judicial order granting him
unsecured bail. Named as Defendants are the following Luzerne
County employees: Robert Lawton; J. Allen Nesbitt; James
Larson and Mark Rockcovich. (ECF No. 1, Compl.) Defendants
have filed a motion to dismiss Ash's Complaint arguing
that it was filed outside the applicable statute of
limitations. (ECF No. 21, Mot. to Dismiss). Ash filed a brief
in opposition to Defendants' potentially dispositive
motion. (ECF No. 25, Pl.'s Opp'n Br.).
support of Plaintiff's motion for counsel, Ash argues
that he is indigent, the issues in this case are complex and
his lack of knowledge of the law may hinder his ability to
proceed, and that his attempts to obtain counsel on his own
have been unsuccessful. (ECF No. 26).
date, Ash's correspondence to the court has been clear
and easily understood. His communication is direct and
demonstrates a firm grasp of the English language. Although
Ash perceives the single legal issues presented in his
Complaint as complex, it is 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 pro
se pleadings. Haines v. Kerner, 404 U.S. 519,
92 S.Ct. 594, 30 L.Ed.2d 652 (1972). At this point in the
litigation, the court has yet to address Defendants'
motion to dismiss. Following our resolution of that motion
the Court will be better positioned to determine what issues,