United States District Court, M.D. Pennsylvania
RICHARD CAPUTO United States District Judge
before the Court is Mr. Kalu’s motion for appointment
of counsel pursuant to 28 U.S.C. § 1915(e)(1). (ECF No.
4). For the reasons set forth below, the motion will
Jose Kalu, a federal inmate incarcerated at the Victorville
Federal Correctional Institution in Adelanto, California,
proceeding pro se and in forma pauperis,
brings the instant civil rights action, pursuant to 28 U.S.C.
§ 1331 alleging he was sexually assaulted and subject to
retaliatory discipline when housed at FCI-Allenwood in 2016.
Mr. Kalu alleges that Lt. Middernatch sexually assaulted him
on three separate occasions in the fall of 2016. After filing
a Prison Rape Elimination Act (PREA) complaint with prison
officials he was Disciplinary Hearing Officer Bittenbender
subjected him to retaliatory discipline when he refused to
drop his PREA complaint against Lt. Middernatch. The
disciplinary report was later expunged from Mr. Kalu’s
record. (ECF No. 1.)
Standard of Review
prisoners have no constitutional or statutory right to the
appointment of counsel in a civil case, the Court has broad
discretionary power to appoint counsel under 28 U.S.C. §
1915(e)(1); see also Tabron v. Grace, 6
F.3d 147 (3d Cir. 1993).
decision, the Tabron Court announced the factors to
be considered by a district court when deciding whether to
exercise its discretion and appoint counsel for an indigent
litigant in a civil case. Initially, “the district
court must consider as a threshold the merits of the
plaintiff’s claim.” Tabron, 6 F.3d at
155. Next, if a claim has arguable merit, “[t]he
plaintiff’s ability to present his or her claim is, or
course, a significant factor that must be considered in
determining whether to appoint counsel.” Id. at
156. “If it appears that an indigent plaintiff
with a claim of arguable merit is incapable of presenting his
or her own case ... and if such a plaintiff’s claim is
truly substantial, counsel should ordinarily be
addition to the indigent plaintiff’s ability to present
his or her case, Tabron requires the district court
to consider the following additional factors: (1) the
difficulty of the particular legal issues; (2) the degree to
which factual investigation will be necessary and the ability
of the plaintiff to pursue investigation; (3) the
plaintiff’s capacity to retain counsel on his own
behalf; (4) the extent to which a case is likely to turn on
credibility determinations; and (5) whether the case will
require testimony from expert witnesses. Id. at 155
- 57. However, while these factors are meant to
guide the Court in making its determination, they are not
exhaustive and the Court may consider any other factor it
deems relevant. Id. at 157. Moreover, it is noted
that appointment of counsel under § 1915(d) may be made
by the court sua sponte at any point in the
litigation. Id. at 156.
district “courts have no authority to compel counsel to
represent an indigent civil litigant, ” id. at
157 n. 7, and courts are cautioned against the indiscriminate
appointment of counsel in view of the limited supply of
competent attorneys willing to accept such assignments.
Id. at 157.
the relevant Tabron factors in this case, the appointment of
counsel is not warranted at this time.
case is in its procedural infancy. The Court has recently
screened Mr. Kalu’s Complaint and directed the Clerk of
Court to forward it to the Defendants. Defendants will either
challenge the legal basis of the Complaint or file an answer.
Until then, the Court will not be able to fully assess the
threshold question of the arguable factual and legal merit of
Plaintiff’s claims for the purpose of appointing him
extent that Mr. Kalu’s request for counsel is based on
the fact of his incarceration or his indigent status, these
facts do not warrant the appointment of counsel given this
Court's liberal construction of pro se pleadings.
Haines v. Kerner,404 U.S. 519, 92 S.Ct. 594, 30
L.Ed.2d 652 (1972). In addition, Mr. Kalu’s concerns
over his limited skills as a first-time litigant need not
concern him as he stands in the same shoes as many other pro
se litigants who come before this Court. To date Mr.
Kalu’s communication with the Court have been clear,
well organized, and smartly written. Given the Court’s
obligation to construe pro se filings by a more lenient
standard than those drafted by lawyers, id at 520, at this
point there is no evidence that any prejudice will befall Mr.
Kalu in the absence of court appointed counsel. ...