United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
STEWART CERCONE JUDGE
the Court is an appeal (ECF No. 58) filed by Plaintiff
Derrick Gibson ("Gibson" or "Plaintiff)
requesting review of the magistrate judge's Order dated
October 10, 2017 (ECF No. 56) (the "Order"), which
denied without prejudice Plaintiffs third motion for
appointment of counsel.
review of the matters raised by Gibson, the Court concludes
that the Order appealed from is neither clearly erroneous nor
an abuse of discretion. Therefore, Gibson's appeal will
Federal Magistrates Act, 28 U.S.C. §§ 631-639,
provides two separate standards for judicial review of a
magistrate judge's decision: (i) "de novo" for
magistrate resolution of dispositive matters, 28 U.S.C.
§ 636(b)(1)(B)-(C), and (ii) "clearly erroneous or
contrary to law" for magistrate resolution of
nondispositive matters. 28 U.S.C. § 636(b)(1)(A).
Accord FED. R. Civ. P. 72(a), (b); Local Civil Rule
72.1(C)(2); see Cipollone v. Liggett Group, Inc.,
785 F.2d 1108, 1113 (3d Cir. 1986).
Order of October 10, 2017, was for a non-dispositive matter
under 28 U.S.C. § 636(b)(1)(A) and, thus, will not be
disturbed unless it is found to be clearly erroneous or
contrary to law. A finding is clearly erroneous "when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed."
Anderson v. City of Bessemer City, JV.C., 470U.S.
564, 573 (1985) (citing United States v. United States
Gypsum Co., 333 U.S. 364 (1948)).
review of the record in this matter, the Court finds that the
decision of the magistrate judge to deny without prejudice
Plaintiffs third request for appointment of counsel was
neither clearly erroneous nor contrary to law.
magistrate judge explained, the Court has authority "to
request an attorney to represent any person unable
to afford counsel." 28 U.S.C. § 1915(e)(1)
(emphasis added). In Tabron v. Grace, the United
States Court of Appeals for the Third Circuit announced the
factors that are to be considered by a district court in
deciding whether to exercise its discretion and seek counsel
for an indigent litigant in a civil case. 6 F.3d 147, 153 (3d
Cir. 1993), cert, denied, 510 U.S. 1196(1994).
Following Tabron, the first consideration by a
district court should be whether the plaintiffs claim has
"some merit in fact and law." Parham v.
Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing
Tabron, 6 F.3d at 157). At this stage of the
litigation, which has not proceeded past the pleadings stage,
it is not yet clear to the Court whether this case has any
merit, either in fact or in law.
this Court agrees with the magistrate judge that while Gibson
alleges he suffers from mental and physical illnesses and
injuries that allegedly "will greatly limit his ability
to litigate, " a review of his pleadings and motions in
this case reveals that Gibson is clearly communicating his
allegations to Defendants and his position to the court.
Aside from all the circumstances surrounding every
incarcerated litigant, Gibson has set forth no special
circumstances that warrant granting counsel at this time. If
Gibson has any evidence that he has been adjudicated
incompetent he should refile his motion for appointment of
counsel, along with such evidence.
pro se litigant Gibson will have the benefit of Haines v.
Kerner, 404 U.S. 519 (1972), and its progeny, which
provides that courts must liberally construe pro se
pleadings. Considering the severe shortage of attorneys with
experience and knowledge in this area of the law, who are
also willing to take these cases pro bono, it does not appear
that this case merits a request by this Court for counsel to
represent him pursuant to 28 U.S.C. § 1915(e) at this
point in the litigation. Additionally, Plaintiff has made no
showing that he has made any attempt to retain counsel
himself. Furthermore this Court notes that Local Civil Rule
10.C indicates that "[a]bsent special circumstances, no
motions for the appointment of counsel will be granted until
after dispositive motions have been resolved." Should
the case survive any dispositive motions and appear ready to
proceed to trial, the Court will reconsider his request for
the appointment of counsel.
these reasons, the Court finds that Plaintiff has not shown
that the magistrate judge's ruling was clearly erroneous
or contrary to ...