United States District Court, E.D. Pennsylvania
Swiderski alleges Northampton County, Warden Penchisen of the
Northampton County Prison, and a host of prison employees and
state actors violated his civil rights in the denial of
medical care while the Commonwealth incarcerated him at the
Northampton County Prison. He alleges the prison exposed him
to toxic black mold in the prison affecting his health and
state actors including prison officials acted with deliberate
indifference to his medical needs while incarcerated.
Defendants answered the amended complaint raising a variety
of legal defenses including immunity and failure to exhaust.
Mr. Swiderski now seeks appointment of counsel. He has
suffered from psychiatric illness placing him in hospitals.
We recently stayed his case while he recovered. He raises
claims regarding prison officials being deliberatively
indifferent to the effects of alleged toxic black mold on his
health. He claims other prisoners are equally affected.
provides "[t]he court may request an attorney to
represent any person unable to afford counsel," granting
us '"broad discretion' to determine whether
appointment of counsel in a civil case would be
appropriate." Although Congress in 28 U.S.C. §
1915(e)(1) permits us to appoint counsel in civil rights
cases for indigent prisoners, our Court of Appeals emphasizes
"volunteer lawyer time is extremely valuable," and
"district courts should not request counsel. . .
indiscriminately." "Civil litigants have no
constitutional or statutory right to appointed
our Court of Appeals' guidance in Tabron, we
undertake a two-step inquiry. First, we must consider the
merits of the claim, deciding whether it has "arguable
merit." If so, we then consider a non-exhaustive
list of factors, including (1) the plaintiffs ability to
present his or her own case; (2) the complexity of the legal
issues; (3) the degree to which the factual investigation
will be necessary and the ability of the plaintiff to pursue
such investigation; (4) the extent to which the case is
likely to turn on credibility determinations; (5) whether the
case will require the testimony of expert witnesses; and (6)
the plaintiffs ability to retain and afford
counsel. These same factors apply to first and
subsequent requests, regardless of the stage of the case, and
we "should consider the Tabron guideposts that
may be relevant ... at the time and stage of the litigation
that the request is made." Our Court of Appeals cautions
"courts should exercise care in appointing counsel
because volunteer lawyer time is a precious commodity and
should not be wasted on frivolous cases."
as true the allegations in the amended Complaint and the
Answer, we cannot yet determine whether Mr. Talbert's
claims should proceed to trial. But they will proceed into
discovery as Defendants elected to answer. The claims have
arguable merit although several legal questions including on
immunity, exhaustion, and causation warrant further
turn to the Tabron factors. Mr. Swiderski appears
not to be capable at this stage of presenting his own case.
The legal issues are complex as to immunity and personal
involvement related to the alleged presence of prison mold.
Mr. Swiderski also moved for appointment of a private
investigator and laboratory to examine his
claims. The fact investigation while not overly
extensive may require investigation into the existence of
mold, remediation, knowledge, and causation. While it is
possible his claims may involve credibility determinations,
we are not near this issue yet. The case may involve expert
witnesses. Mr. Swiderski has not detailed efforts to retain
counsel, but we are mindful of his asking for counsel before
we stayed the case to allow him to recover. At this
stage, these factors together weigh in favor of referring Mr.
Swiderski's claims to our volunteer panel for a short
period to evaluate the claims. We will stay the matter until
we can measure the interest.
grant Mr. Swiderski's Motion for appointment of counsel
in the accompanying Order and refer his case to our volunteer
 Montgomery v. Pinchak, 294
F.3d 492, 498 (3d Cir. 2002) (quoting Tabron v.
Grace, 6 F.3d 147, l53(3dCir. 1993)).
 Tabron, 6 F.3d at
 Houser v. Folino, 927 F.3d
693, 697 (3d Cir. 2019) (citing Montgomery, 294 F.3d
 Houser, 927 F.2d at 697
(citing Tabron, 6 F.3d at 155).
Id. (citing Parham v.
Johnson,126 F.3d 454, 457 (3d Cir. 1997);
Tabron, 6 F.3d ...