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Consentino v. Wingard

United States District Court, W.D. Pennsylvania

January 3, 2018


          Magistrate Judge United States.



         Plaintiff 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).

         This is 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).

         Plaintiff 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)

         On June 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. 65).[1]

         At issue now is Plaintiff's third Motion to Appoint Counsel (ECF No. 63).

         Legal Standard

         Initially, 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.

         Before 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).

         The 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.” Id.


         As 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.

         (A) Plaintiff's Ability to ...

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