United States District Court, M.D. Pennsylvania
WILLIAM A. ASH, Plaintiff,
D.O.C., et al., Defendants.
RICHARD CAPUTO United States District Judge.
before the Court is Mr. Ash's motion for appointment of
counsel pursuant to 28 U.S.C. § 1915(e)(1). (ECF No.
12.) For the reasons set forth below, the motion will be
William Ash, a state prisoner currently incarcerated at the
Dallas State Correctional Institution (SCI-Dallas), in
Dallas, Pennsylvania, initiated this action on June 2, 2017.
Mr. Ash was injured during his transport from SCI-Benner to
SCI-Graterford on October 20, 2015. He was rendered no
medical assistance during the transport or upon his arrival
(or nineteen day stay) at SCI-Graterford. He was then
transferred to SCI-Dallas on November 7, 2015, where he was
denied medical care for his injuries for almost two years. He
was later diagnosed as suffering from post-concussive
syndrome, a lifelong injury. (ECF No. 11, Am. Compl.)
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 plaintiffs 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 plaintiffs
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. aM55 - 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. Shortly after filing his
Complaint (ECF No. 1), Mr. Ash sought leave to file an
amended complaint. The Court recently screened the Amended
Complaint (ECF No. 11) pursuant to 28 U.S.C. §
1915(e)(2)(B) and dismissed the Amended Complaint as to the
named Defendants (Wetzel and Link). Mr. Ash was also granted
leave to file a second amended complaint. To date, no second
amended complaint has been filed. If Mr. Ash files a second
amended complaint the Court will screen it pursuant to 28
U.S.C. § 1915(e)(2)(B). Then, if appropriate, the Court
will direct service of the second amended complaint on the
named Defendants who will file an answer or motion to
dismiss. 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.
extent that Mr. Ash's 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
pleadings. Haines v. Kerner,404 U.S. 519, 92 S.Ct.
594, 30 L.Ed.2d 652 (1972). While Mr. Ash is concerned as to
his ability to represent himself given his limited education
and history of enrollment in special education classes, he
has demonstrated through his filings with the Court his
ability to communicate effectively with the Court. At this
early point in the litigation, there is no evidence that any
prejudice will befall Mr. Ash in the absence of court
appointed counsel. Consequently, Mr. Ash's ...