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Pinson v. United States

United States District Court, M.D. Pennsylvania

August 23, 2019

JEREMY PINSON, Plaintiff
v.
UNITED STATES OF AMERICA, et al, Defendants

          MEMORANDUM

          Robert D. Mariani United States District Judge

         I. Background

         Plaintiff Jeremy Pinson ("Plaintiff'), a federal inmate who is currently housed at the United States Penitentiary in Tucson, Arizona, initiated this action pursuant to Bivens, 28 U.S.C. § 1331, and the Federal Tort Claims Act ("FTCA"). The matter is proceeding via a second amended complaint. (Doc. 51). Presently pending before the Court is Plaintiffs motion to appoint counsel. (Doc. 73). For the following reasons, the motion will be denied without prejudice.

         II. Discussion

         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).

         Assuming that Plaintiffs claims have an arguable basis in law and fact, he fails to set forth any special circumstances warranting the appointment of counsel. See Tabron, 6 F.3d at 155-56. Plaintiff bases his motion on the limited access to the prison law library. (Doc.74). However, in his pleadings, Plaintiff demonstrates the ability to properly and forcefully prosecute his claims. Despite Plaintiff's incarceration, investigation of the facts is not beyond his capabilities and he is familiar with the facts of his ...


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