United States District Court, M.D. Pennsylvania
WESLEY M. POLLARD, Plaintiff
TAMMY FERGUSON, et al., Defendants
RICHARD CAPUTO UNITED STATES DISTRICT JUDGE.
before the Court is Mr. Pollard's motion for appointment
of counsel pursuant to 28 U.S.C. § 1915(e)(1). (ECF No.
4). For the reasons set forth below, the motion will be
Wesley M. Pollard, an inmate presently housed at Benner State
Correctional Institution (SCI-Benner), in Bellefonte,
Pennsylvania, initiated this action pursuant to 42 U.S.C.
§ 1983 on July 12, 2018. (ECF No. 1, Compl.). Named as
Defendants are the following SCI-Benner employees:
Superintendent Tammy Ferguson; Major Timothy Graham;
Lieutenant (Lt.) Speck; Lt. Grassmeyer; Lt. Merva; Sergeant
(Sgt.) Gerber; Sgt. Kohn; Corrections Officer (CO) Smith; CO
Houser; CO Gibson; CO Cowfer; CO Robinson; CO Fishbaine; CO
Breeden; and CO Snyder. Mr. Pollard claims that in
retaliation for his refusal to accept a cellmate, and in
violation of his Eighth Amendment rights, Defendants placed
him in an uninhabitable Restricted Housing Unit (RHU) cell
from August 11-31, 2017. (Id.)
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 plaintiffs
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 plaintiff's 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
plaintiff's 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. at 155
- 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. The Court has recently
screened Mr. Pollard's Complaint and directed the Clerk
of Court to forward it to the Defendants. Defendants will
either challenge the legal basis of the Complaint or file an
answer. 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. Pollard'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). In addition, Mr. Pollard's
concerns over his limited access to the law library do not
merit the appointment of counsel. In the event Mr. Pollard
needs additional time to research and/or respond to a motion,
Mr. Pollard need simply file a motion for enlargement of time
with the Court in advance of his response deadline. Likewise,