United States District Court, M.D. Pennsylvania
JOSHUA I. PAYNE, Plaintiff
MARGARET GORDON, et al, Defendants
D. Mariani United States District Judge.
Joshua I. Payne ("Payne"), an inmate confined at
the Mahanoy State Correctional Institution in Frackville,
Pennsylvania ("SCI-Mahanoy"), initiated the instant
action pursuant to 42 U.S.C. § 1983. (Doc. 1). Named as
Defendants are the following Department of Corrections
officials and employees: Margaret Gordon, Ulrich Klemm, John
Wetzel, Theresa A. Delbalso, Bernadette Mason, and John
Steinhart. (Id.). Also named as a Defendant is
Courtney Rodgers, D.O. (Id.). The complaint alleges
constitutional violations for events that occurred at
SCI-Mahanoy. (Id.). Presently pending before the
Court is Plaintiffs motion for appointment of counsel. (Doc.
22). For the following reasons, the motion will be denied
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. 2007).
instant action, Plaintiff fails to set forth any special
circumstances warranting the appointment of counsel. See
Tabron, 6 F.3d at 155-56. Plaintiff bases the motion on
the alleged complexity of the case, his inability to afford
counsel, inability to pay for costs associated with
discovery, and limited knowledge of the law. (Doc. 22).
However, in his pleadings, Plaintiff demonstrates the ability
to properly and forcefully prosecute his claims. Despite
Plaintiffs incarceration, investigation of the facts is not
beyond his capabilities and he is familiar with the facts of
his case. Additionally, a review of this Court's docket
reveals that Plaintiff has filed several cases and has
proceeded in all cases without counsel. See, e.g.,
Robinson, et al. v. Wetzel, et al., 3:11-cv-2194;
Payne v. Wetzel, et al, 3:12-cv-1932; Payne v.
Doe, et al., 3:12-cv-2243; Payne v. Duncan, et
ai, 3:13-cv-2203. Moreover, the Court notes that it does
not have a large group of attorneys who would represent this
action in a pro bono capacity.
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 appointment of counsel will be
denied, however the denial will be without prejudice. As the
Court in Tabron stated,
[A]ppointment of counsel under § 1915(d) may be made at
any point in the litigation and may be made by the district
court sua sponte... even if it does not appear until
trial (or immediately before trial) that an indigent litigant
is not capable of trying his or her case, the ...