United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
Ernesto Jose Chavez Rodriguez ("Plaintiff'), an
inmate who, at all relevant times, was housed at the United
States Penitentiary in Allenwood, Pennsylvania,
("USP-Allenwood"), commenced this
Bivens28 U.S.C. § 1331, civil rights action
on December 22, 2016. (Doc. 1). Named as Defendants are the
Federal Bureau of Prisons, Michael Magyar, L.J. Oddo, James
Potope, C. Craig, Brian Buschman, and T. Wickman. (Docs. 1,
26). The allegations of the complaint relate to Plaintiffs
medical care at USP-Allenwood. (Id.).
pending before the Court is Plaintiffs motion to appoint
counsel. (Doc. 31). For the reasons set forth below, the
motion will be denied without prejudice.
prisoners have no constitutional or statutory right to
appointment of counsel in a civil case, the Court has
discretion "to request an attorney to represent any
person unable to afford counsel." 28 U.S.C. §
1915(e)(1); Parham v. Johnson, 126 F.3d 454, 456-57
(3d Cir. 1997); Montgomery v. Pinchak, 294 F.3d 492,
499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153
(3d Cir. 1993). The United States Court of Appeals for the
Third Circuit has stated that the appointment of counsel for
an indigent litigant should be made when circumstances
indicate "the likelihood of substantial prejudice to him
resulting, for example, from his probable inability without
such assistance to present the facts and legal issues to the
court in a complex but arguably meritorious case."
Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir.
initial determination to be made by the Court in evaluating
the expenditure of the "precious commodity" of
volunteer counsel is whether the case has some arguable merit
in fact or law. Montgomery, 294 F.3d at 499. If a
plaintiff overcomes this threshold hurdle, other factors to
be examined are:
(1) the plaintiffs ability to present his or her 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
(4) the plaintiffs capacity to retain counsel on his or her
(5) the extent to which the case is likely to turn on
credibility determinations; and
(6) whether the case will require testimony from expert
Id. (citing Tabron, 6 F.3d at 155-57). The
Third Circuit Court of Appeals added two other factors to be
taken into consideration: (1) the court's willingness to
aid the indigent party in presenting his or her own case; and
(2) the available supply of lawyers willing to accept section
1915(e) requests within the relevant geographic area. See
Gordon v. Gonzalez, 232 Fed.Appx. 153 (3d Cir.
arguendo that the complaint has merit, Plaintiff
fails to set forth any circumstances warranting the
appointment of counsel. See Tabron, 6 F.3d at
155-56. Plaintiff bases the motion on his limited knowledge
of the law. (Doc. 31). Upon review of the complaint, the
legal issues presented in this case are not complex and
likely will not require expert testimony. Furthermore,
despite his incarceration, investigation of the facts is not
beyond Plaintiffs capabilities and he is familiar with the
facts of his case. In his pleadings, Plaintiff demonstrates
the ability to adequately present his case. Moreover, the
Court notes that it does not have a large group of attorneys
who would represent this action in a pro bono
on the foregoing, it does not appear that Plaintiff will
suffer prejudice if forced to prosecute this case on his own.
The Court's duty to construe pro se pleadings
liberally, Haines v. Kerner,404 U.S. 519 (1972),
Riley v. Jeffes,777 F.2d 143, 147-48 (3d Cir.
1985), coupled with Plaintiffs apparent ability to litigate
this action, militate against the appointment of counsel.
Accordingly, the motion for ...