United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE
before the court is the report of Magistrate Judge Karoline
Mehalchick which recommends that the instant action be
dismissed for the plaintiff's failure to prosecute. (Doc.
17). With the time for doing so having passed, the plaintiff
has not filed objections to the report.
plaintiff filed this action on November 5, 2018. (Doc. 2).
Upon giving the plaintiff's complaint preliminary
consideration, Judge Mehalchick recommended that the
complaint be dismissed for failure to state a claim, but
further recommended that the plaintiff be given leave to file
an amended complaint. (Doc. 12). By order dated March 21,
2019, the undersigned adopted the report of Judge Mehalchick
(Doc. 13) and the plaintiff was ultimately granted until May
9, 2019 to file her amended complaint (Doc. 15). The
plaintiff failed to file an amended complaint and, as such,
Judge Mehalchick issued the pending report. Rather than file
objections to Judge Mehalchick's report, the plaintiff
filed a motion for appointment of counsel.
motion for appointment of counsel, the plaintiff claims that
she cannot afford counsel because she is on a fixed income
and is disabled. The petitioner has previously been advised
as to the standard for appointment of counsel:
There is no constitutional or statutory right to appointment
of counsel in a civil case, 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). Under §1915(e)(1), the “court may request
an attorney to represent any person unable to employ counsel.
The district court's appointment of 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 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 plaintiff's case has
some arguable merit in fact and law. Montgomery, 294
F.3d at 499. If a plaintiff overcomes this threshold hurdle,
other factors to be examined are:
(1) the plaintiff's ability to present his or her own
(2) the difficulty of the particular legal issues; (3) the
degree to which factual investigation will be necessary and
the ability of the claimant to pursue investigation; (4) the
plaintiff's 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.
Montgomery, 294 F.3d at 499 (citing Tabron,
6 F.3d at 155-57).
See Mendez v. McDonald's Restaurant, Civil
Action No. 3:18-391, Doc. 9.
the plaintiff has not overcome the threshold hurdle of
demonstrating that her case has some arguable merit in fact
and law. Upon preliminary consideration, it was determined
that, even giving the plaintiff's pro se
complaint liberal construction, the facts alleged by the
plaintiff failed to state any claim upon which relief can be
granted. As such, the plaintiff's original complaint was
dismissed and she was given the opportunity to file an
amended complaint. To date, the plaintiff has failed to do
so, and she has no claim before the court justifying the
appointment of counsel. In light of this, the plaintiff's
motion for appointment of counsel will be denied.
with respect to Judge Mehalchick's report, the plaintiff
has failed to file any objections. When no objections are
filed to a report and recommendation, the court should, as a
matter of good practice, “satisfy itself that there is
no clear error on the face of the record in order to accept
the recommendation.” Fed.R.Civ.P. 72(b), advisory
committee notes; see also Univac Dental Co. v. Dentsply
Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010)
(citing Henderson v. Carlson, 812 F.2d 874, 878 (3d
Cir. 1987) (explaining judges should give some review to
every report and recommendation)). Nevertheless, whether
timely objections are made or not, the district court may
accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28
U.S.C. §636(b)(1); Local Rule 72.31.
undersigned has reviewed Judge Mehalchick's report and
finds no clear error of record. The report and recommendation
with therefore be adopted in its entirety.
THEREFORE, IT IS ...