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Burkett v. Sheaffer

United States District Court, M.D. Pennsylvania

June 26, 2019

WAYNE PAUL BURKETT, Plaintiff,
v.
SGT. TRAVIS SHEAFFER, et al., Defendants.

          Jones, Judge

          MEMORANDUM

          JOSEPH F. SAPORITO, JR UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Wayne Paul Burkett, has been granted leave to proceed in forma pauperis in this pro se Federal civil rights action. Presently pending before the court is plaintiffs motion to appoint counsel. (Doc. 22). For the following reasons, the motion will be denied without prejudice.

         Although civil litigants have no constitutional or statutory right to appointed counsel, Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997), the Court has discretion "to request an attorney to represent any person unable to afford counsel." 28 U.S.C. §1915(e)(1); see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). The district court's appointment f counsel is discretionary and must be made on a case-by-case basis. Tabron, 6 F.3d at 157-58.

         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 Tabron, the court emphasized that volunteer lawyer time is extremely valuable and court should not appoint counsel indiscriminately. Tabron, 6 F.3d at 157.

         Assuming arguendo that the complaint has merit, plaintiff fails to set forth sufficient circumstances warranting the appointment of counsel. See Tabron, 6 F.3d at 156-58. The plaintiff requests that we grant his motion for the following reasons: (1) he is not trained in the law or skilled in the art of cross-examination; (2) he is unable to do legal research and investigations; (3) the issues will turn on the credibility of the parties; and (4) he has been unable to retain counsel. (Doc. 22). In his complaint and the subject motion, the plaintiff demonstrates the ability to present comprehensible arguments and to present his own ...


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