Heffley v. Steele

          OPINION

          Mark R. Hornak Chief United States District Judge.

         On 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. 98.)

         Eight 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), ^[1] 79 (Katherine Gibson).^[2]) 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, ^[3] 73, 74, ^[4] 76-78, 83, 84, 91, 95, ^[5] 98.) Defendant Stephanie Muick filed a reply. (ECF No. 75.)

         The 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.^[6] (ECF Nos. 85, 87.)

         With these documents and filings, the Court embarks on a claim-by-claim analysis of the SAC and disposition of the miscellaneous motions.^[7] 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.

         I. BACKGROUND

         Plaintiff 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, at 2.)

         The 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 Act ("ADA").

         Plaintiff 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.

         II. Plaintiffs Motion to Appoint Counsel

         Prior 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.

         "Indigent 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.

         First, 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)).

         Second, "[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 investigation;

(4) the amount the case is likely to turn on credibility determinations;

(5) whether the case will require the testimony of expert witnesses;

(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. 1997)).

         Here, 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 ...