United States District Court, W.D. Pennsylvania
DANIEL J. HEFFLEY, Plaintiff,
KIMBERLY STEELE, et al., Defendants.
R. Hornak Chief United States District Judge.
April 12, 2019, pro se Plaintiff Daniel Heffley
filed a Second Amended Complaint ("SAC") against
twelve (12) individual Defendants. (2d Am. Compl., ECF No.
38.) In addition, Plaintiff filed a Motion to Appoint
Counsel. (Mot. to Appoint, ECF No. 39; Suppl. Resp., ECF No.
of those Defendants filed various Motions to Dismiss. (Mots.
To Dismiss, ECF Nos. 43 (William Clifford), 45 (Stephanie
Muick), 47 (Arnold Caplan), 50 (Elizabeth Molnar), 59
(Elizabeth Bennington), 64 (Deborah Witchel), 66 (Neil
Rosenblum),  79 (Katherine Gibson).) Plaintiff filed
several documents on the docket that the Court considers to
be responses to the Motions to Dismiss and will consider them
in its disposition of the pending Motions. (ECF Nos. 71, 72,
76-78, 83, 84, 91, 95,  98.) Defendant Stephanie Muick filed a
reply. (ECF No. 75.)
remaining four Defendants (Kimberly Steele, Mark Steele,
Jocelyn Steele, and James Bozigar) have not entered any
appearance by counsel on the docket, and the Court issued a
Show Cause Order on June 5, 2019, as to why those Defendants
should not be dismissed from the case for lack of service of
process. (Order, ECF No. 82.) Plaintiff
responded. (ECF Nos. 85, 87.)
these documents and filings, the Court embarks on a
claim-by-claim analysis of the SAC and disposition of the
miscellaneous motions. This Opinion comes in three parts. The
first part provides the procedural history and factual
background as alleged in the SAC. The second part of this
opinion addresses Plaintiffs Motion to Appoint Counsel. And
the third part addresses Defendants' Motions to Dismiss.
initiated this action on December 15, 2017 (ECF No. 1), and
shortly thereafter filed his First Amended Complaint
("FAC"). (1st Am. Compl., ECF No. 4). "The
core assertions in the Amended Complaint all appear to relate
to litigation in the Pennsylvania state courts regarding
child custody matters, and the Defendants in this case are
all seemingly participants in those proceedings, but most
certainly as private actors." (Mem. Order, ECF No. 35,
Court reviewed that FAC and dismissed Plaintiffs claims-some
with prejudice and some without. (Id. at 1.) The
Court dismissed with prejudice all claims based on alleged
violations of the First, Fifth, Ninth, and Fourteenth
Amendments to the United States Constitution as to all
Defendants. (Id.) The Court also dismissed with
prejudice various state law claims based on "perceived
violations of [Defendants'] various professional ethics
codes" and "positions/testimony taken or made by
such persons in the state court litigation."
(Id. at 2.) Plaintiff was given leave to amend his
FAC solely to plead "specific and particular"
claims brought pursuant to the Americans with Disabilities
filed his Second Amended Complaint on April 12, 2019. Despite
the Court's instructions to include only claims brought
under the ADA, Plaintiff reasserted the vast majority of his
constitutional and state law claims in the SAC. Plaintiffs
ADA claims consisted of the same factual allegations included
in his FAC.
Plaintiffs Motion to Appoint Counsel
to filing the SAC, Plaintiff filed a "Motion to Request
the Appointment of Advisory Counsel," (ECF No. 30),
which the Court denied without prejudice as that motion
failed to "demonstrate  an entitlement or
authorization in law requiring or counseling the appointment
of counsel in this civil action, nor does the Motion set out
a basis counseling the Courts search for pro bono counsel on
the Plaintiffs behalf." (Order, ECF No. 34.) Plaintiff
then renewed his request for appointed counsel. (ECF No. 39.)
Although this Court denied the duplicate request (ECF No.
41), the Court incorporates Plaintiffs arguments presented
there (and in ECF No. 98) into Plaintiffs Motion for
Appointed Counsel (ECF No. 39), and concludes that Plaintiffs
Motion to Appoint Counsel (ECF No. 39), should be denied.
civil litigants possess neither a constitutional nor a
statutory right to appointed counsel." Montgomery v.
Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). It is true
that Congress granted this Court authority to request
appointed counsel for a civil litigant (such as Plaintiff)
that is unable to afford counsel. That statute is located at
28 U.S.C. § 1915(e)(1). But when addressing a pro
se plaintiffs request for appointed counsel, the
district court must undertake a two-part inquiry.
as a threshold matter, the district must determine that
Plaintiffs case "has arguable merit in fact and
law." Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.
1993). Under Third Circuit case law, a district court is
required to complete this first step in every instance when a
plaintiff requests appointed counsel. Houser v.
Folino, 927 F.3d 693, 698 (3d Cir. 2019) ("[I]t
would be an abuse of discretion to appoint counsel to advance
claims with no arguable merit in law and fact."). And
when the court examines whether the plaintiffs case has
"merit in fact and law" it should scrutinize the
allegations contained in the complaint. Montgomery,
294 F.3d at 499. Specifically, the court should demand more
than "mere bald assertions" in the plaintiffs
pleadings. Id. Rather, the plaintiff must present
some factual showing that demonstrates he has more than an
'"extremely slim' chance of success on the
merits." Id. at 501 (quoting Hodge v.
Police Officers, 802 F.2d 58, 60 (2d Cir. 1986)).
"[i]f the district court determines that the plaintiffs
claim has arguable merit in fact and law, the court should
then consider a number of additional factors that bear on the
need for appointed counsel." Tabron, 6 F.3d at
155. The factors include, but are not limited to:
(1) the plaintiffs ability to present his or her own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue such
(4) the amount the case is likely to turn on credibility
(5) whether the case will require the testimony of expert
(6) whether the plaintiff can attain and afford counsel on
his own behalf.
Parham v. Johnson, 126 F.3d 454, 456 (3d Cir. 1997)
(citing Tabron, 6 F.3d at 155-56, 157 n.5). But even
when considering these factors, "courts should exercise
care in appointing counsel because volunteer lawyer time is a
precious commodity and should not be wasted on frivolous
cases." Montgomery, 294 F.3d at 499 (citing
Parham v. Johnson, 126 F.3d 454, 4568 (3d Cir.
Plaintiff fails to satisfy the threshold inquiry. Plaintiffs
claims have no arguable merit. And as the Court will explain
in greater detail below, Plaintiffs SAC fails to state a
claim for which this Court can grant relief. The Court
certainly appreciates that litigation in federal court can be
difficult to navigate. But this is not a situation in which
Plaintiffs case is being dismissed for "tiny and truly
inconsequential faux pas regarded as errors in law."
(ECF No. 39.) Rather it will be dismissed because Plaintiffs
recitation of the facts in the SAC simply did not ...