United States District Court, W.D. Pennsylvania
Magistrate Judge United States.
CYNTHIA REED EDDY UNITED STATES MAGISTRATE JUDGE.
has requested that the Court appoint counsel (ECF No. 63).
Plaintiff's application for leave to proceed in forma
pauperis was granted on November 21, 2017 (ECF No. 64).
not the first time Plaintiff has requested the appointment of
counsel His first motion was filed on March 8, 2016 (ECF No.
15), before any defendant had been served. The motion was
denied without prejudice that same day, and Plaintiff was
informed that “should the case survive any dispositive
motions and appear ready to proceed to trial, the Court will
reconsider this request.” (ECF No. 16).
filed his second motion for appointment of counsel on April
12, 2017 (ECF No. 54). The motion was denied without
prejudice on April 13, 2017 (ECF No. 55) for the reasons
stated in the Court's previous order (ECF No. 16), noting
that the request could be reconsidered if this case proceeds
past dispositive motions. Plaintiff was instructed that if he
“would like to request a brief stay of this action
while he seeks private counsel, he should inform the Court by
filing a Motion for Stay for a reasonable period of time for
the purpose of seeking private counsel.” (ECF No. 55)
23, 2017, Defendants filed a motion for summary judgment, to
which plaintiff has not responded, despite having been
ordered to do so twice: first, by Order dated June 23, 2017
(ECF No. 60) and second, on November 21, 2017 (ECF No.
issue now is Plaintiff's third Motion to Appoint Counsel
(ECF No. 63).
the Court begins from the established premise that
“indigent civil litigants possess neither a
constitutional nor a statutory right to appointed
counsel.” Gordon v. Gonzalez, 232 F. App'x
153, 156 (3d Cir. 2007) (quoting Montgomery v.
Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). However, in
some instances the need for representation is great and
district courts are granted broad discretion to request the
appointment of attorneys for indigent civil litigants. 28
U.S.C. § 1915(e)(1). The court's decision whether to
appoint counsel is to be given wide latitude and will only be
overturned if its ruling is clearly an abuse of discretion.
Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993),
cert. denied, 510 U.S. 1196 (1994). In
Tabron, our court of appeals established the
framework for determining whether the appointment of pro
bono counsel is warranted. Id. at 158.
applying the Tabron factors, as a threshold matter,
the court must first determine if the Plaintiff's claim
has arguable merit in fact and law. Id. at 155. Upon
a favorable finding, the court then proceeds to consider the
factors enunciated in Tabron, and discussed in this
Court's previous Orders, which 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. Montgomery,
294 F.3d at 499 (quoting Tabron, 6 F.3d at 155-56).
This list is not exhaustive, nor is any one factor
determinative. Parham v. Johnson, 126 F.3d 454, 458
(3d Cir. 1997).
Court of Appeals for the Third Circuit has also emphasized,
“that volunteer lawyer time is extremely
valuable” and for that reason, “district courts
should not request counsel under § 1915[(e]
indiscriminately.” Tabron, 6 F.3d at 157.
Finally, “we must take note of the significant
practical restrains on the district courts' ability to
appoint counsel: the ever-growing number of prisoner civil
rights actions filed each year in the federal court; and the
limited supply of competent lawyers who are willing to
undertake such representation without compensation.”
discussed supra, as an initial matter, this Court
must first determine whether Plaintiff's Complaint is
meritorious. When evaluating the merit of a pro se
plaintiff's complaint, courts traditionally give
“greater leeway where they have not followed the
technical rules of pleading and procedure.”
Tabron, 6 F.3d at 154; see also Haines v.
Kerner, 404 U.S. 519, 520 (1972). For purposes of this
Opinion only, the Court will assume, without
deciding, that Plaintiff's case has merit in both fact
and law. Consequently, the Court will proceed upon the
analytical course charted in Tabron.
Plaintiff's Ability to ...