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Payne v. Gordon

United States District Court, M.D. Pennsylvania

August 2, 2018

JOSHUA I. PAYNE, Plaintiff
MARGARET GORDON, et al, Defendants


          Robert D. Mariani United States District Judge.

         Plaintiff 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 without prejudice.

         Although 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. 1984).

         The 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 investigation;
(4) the plaintiffs capacity to retain counsel on his or her own behalf;
(5) the extent to which the case is likely to turn on credibility determinations; and
(6) whether the case will require testimony from expert witnesses.

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).

         In the 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.

         Based 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 ...

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