United States District Court, W.D. Pennsylvania
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE.
before the Court are three motions filed by Plaintiff Daaron
Shears in which he seeks appointment of counsel (ECF Nos.
103, 106, 107). For the reasons that follow, Plaintiffs
motions will be denied.
an inmate at the State Correctional Institutional
("SCI") Smithfield, initiated this pro se in
forma pauperis prisoner civil rights action alleging
violations of the Eighth Amendment to the United States
Constitution which occurred at SCI Greene, where he was
previously incarcerated. (ECF No. 64). Specifically, Plaintiff
alleges that Defendant CO Mooney, a corrections officer at
SCI Greene, subjected him to cruel and unusual punishment by
deliberately slamming his hand shut in the wicket where
Plaintiff had placed his breakfast tray. (Id. at 2,
4). Plaintiff also claims that, after injuring his hand,
Defendant acted with deliberate indifference to Plaintiffs
serious medical needs by failing to provide any first aid
assistance. (Id. at 5).
well-established that "[c]ivil litigants have no
constitutional or statutory right to appointed counsel."
Houser v. Folino, 927 F.3d 693, 697 (3d Cir. 2019)
(citing Montgomery v. Pinchak, 294 F.3d 492, 498 (3d
Cir. 2002)). Under 28 U.S.C. § 1915, however, courts
have "broad discretion to request an attorney to
represent an indigent civil litigant." Tabron v.
Grace, 6 F.3d 147, 153 (3d Cir. 1993); see 28
U.S.C. 1915(e)(1) ("The court may request an attorney to
represent any person unable to afford counsel."). The
Third Circuit has instructed courts to follow a
"two-step process" in exercising that discretion.
Folino, 927 F.3d at 697. First, the court must
"determine that the plaintiffs claim has arguable
merit in fact and law . . . ." Tabron, 6 F.3d
at 155. Second, if plaintiffs claim is meritorious, "the
court should then consider a number of additional factors
that bear on the need for appointed counsel."
Those factors include: (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 a case is likely to turn on
credibility determinations; (5) whether the case will require
the testimony of expert witnesses; [and] (6) whether the
plaintiff can attain and afford counsel on his own behalf.
Folino, 927 F.3d at 697 (citing Parham v.
Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing
Tabron, 6 F.3d at 155-56, 157 n.5)). In addition to
assessing these factors, known as the Tabron
factors, "courts should exercise care in appointing
counsel because volunteer lawyer time is a precious
commodity." Id. at 700 (quoting Montgomery
v. Pinchak, 294 F.3d 492, 494 (3d Cir. 2002)).
turning to Plaintiffs pending motions seeking appointment of
counsel, the Court notes that prior to this case being
assigned to the undersigned on July 15, 2019, (ECF No. 95),
Plaintiff sought appointment of counsel on ten different
occasions. (ECF Nos. 8, 9, 18, 20, 30, 43, 44, 71, 81, and
86). In denying those motions without prejudice to be raised
at a later time, the Court explained that Plaintiffs requests
were premature because under the Court's local rules,
motions for the appointment of counsel submitted by
incarcerated individuals who are proceeding pro se are not
granted until after the resolution of dispositive motions
absent special circumstances. (ECF Nos. 10, 22, 31, 45, 72,
82, and 93); see W.D. Pa. LCvR 10.C ("Absent
special circumstances, no motions for the appointment of
counsel will be granted until after dispositive motions have
most recent motion for appointment of counsel was denied in
an order dated July 10, 2019. (ECF No. 93). As of the filing
of the currently pending motions for appointment of counsel,
discovery is complete (ECF No. 101), but dispositive motions
are not due until November 4, 2019. (ECF No. 91). Thus,
Plaintiffs renewed motions are premature. Additionally, the
docket does not reflect any special circumstances that
warrant the appointment of counsel. However, instead of
summarily denying Plaintiffs pending motions based on prior
orders and the Court's local rules, the Court will follow
the two-step process outlined above because
"Tabron applies to successive requests for
counsel the same as it applies to initial requests for
counsel. . . ." Folino, 927 F.3d at 698.
Court takes no position at this juncture regarding whether
Plaintiffs claim has any arguable merit in law or fact, but
instead will focus on consideration of the additional
Tabron factors. An analysis of these factors reveals
that appointment of counsel at this time in this instance is
first and second Tabron factors, which concern
Plaintiffs ability to present his case and the complexity of
the legal issues, weigh against appointment of counsel
because Plaintiff has demonstrated some understanding of the
facts and the law. He has amended his complaint twice, first
to add a defendant (ECF No. 25), and then to remove that
defendant (ECF No. 64) in response to a motion to dismiss.
(ECF No. 50). Additionally, Plaintiffs discovery requests
(ECF Nos. 63, 74, 88) and his recently filed pre-trial
statement (ECF No. 104) suggest that he has identified
relevant factual and legal issues, none of which are complex.
third factor, related to the degree of factual investigation
needed for Plaintiff to pursue his claims, also weighs
against appointment of counsel. In this regard the Court
makes two observations. First, Plaintiffs claims are not of
the type that "require extensive discovery and
compliance with complex discovery rules."
Tabron, 6 F.3d at 156. Second, discovery is already
complete in this case.
Court is unable at this time to evaluate the fourth and fifth
factors, i.e., whether (and to what degree) will this case
turn on credibility determinations or require the testimony
of expert witnesses, because Defendant has until November 4,
2019, to either move for summary judgment or file a pretrial
statement. (ECF No. 91).
as to the sixth factor, because Plaintiff is incarcerated and
has been granted in forma pauperis status, the Court
assumes that he cannot attain or afford counsel. While this
one factor may weigh in favor of appointment of counsel, when
the Court evaluates all of the Tabron factors, the
balance weighs against the appointment of counsel. Given this
conclusion, the Court declines to exercise its discretion to
request volunteer counsel to represent plaintiff in the
prosecution of this action "because volunteer lawyer
time is a precious commodity." Folino, 927 F.3d
Plaintiff has not set forth any "special
circumstances" that warrant granting counsel at this
time under the Court's local rules. Should Plaintiffs
claims survive any dispositive motion that may be filed and
the case proceeds to trial, the Court may ...