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Tompkins v. Primecare Medical, Inc.

United States District Court, W.D. Pennsylvania

December 23, 2019

TRENT TOMPKINS, Plaintiff,
v.
PRIMECARE MEDICAL, INC., ERNA CRAIG, THREE JOHN DOE DEFENDANTS, and EIGHT JOHN DOE DEFENDANTS DEFENDANTS.

          MEMORANDUM ORDER RE: ECF NOS. 39 AND 41

          MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Trent Tompkins ("Plaintiff”), an inmate at the State Correctional Institution at Camp Hill ("SCI - Camp Hill"), has presented an amended civil rights complaint which he has been granted leave to prosecute without prepayment of costs alleging that Defendants violated his constitutional rights through the unlawful use of force at a time when Plaintiff suffered a psychiatric event and in otherwise failing to treat and/or accommodate his serious mental health condition. ECF No. 17.

         Presently before this Court are Plaintiffs Motion for Permission seeking leave to file a motion for appointment of counsel, ECF No. 39, and Plaintiffs Motion to Appoint Counsel for a Specified Purpose, ECF No. 41. In particular, Plaintiff seeks the appointment of counsel to assist in drafting an amended complaint to perfect his claims for discrimination under the Americans with Disabilities Act, and to obtain a Certificate of Merit in compliance with Pennsylvania state law in support of state law claims for inadequate mental health treatment. Id. at 2. Plaintiffs motions require the Court to determine whether or not, under the facts and circumstances of this case, the Court should exercise its discretion pursuant to 28 U.S.C. § 1915(e)(1) and request an attorney to represent Plaintiff in the prosecution of this action.

         In considering a motion for the appointment of counsel, the Court must determine whether or not to request counsel to represent this litigant under the provisions of 28 U.S.C. § 1915(e)(1), fully recognizing that if successful counsel may be entitled to recover fees under the provisions of Section 1988 of Title 42, United States Code. Section 1915(e)(1) gives the Court broad discretion to determine whether the appointment of counsel is warranted, and that determination must be made on a case-by-case basis. Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir. 1993).

         As a threshold matter the district court should consider whether the plaintiffs claim has arguable merit in fact or law. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). See Tabron v. Grace, 6 F.3d at 155. If the court determines that the claim has some merit, the court should then consider the following factors:

1. the plaintiff s 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; and
6. whether the plaintiff can attain and afford counsel on his own behalf.

Parham v. Johnson, 126 F.3d at 457. "The list of factors is not exhaustive, but instead should serve as a guidepost for the district courts. Correspondingly, courts should exercise care in appointing counsel because volunteer lawyer time is a precious commodity and should not be wasted on frivolous cases." Id. at 458.

         After careful consideration of Plaintiff s allegations, Plaintiffs Motion for Permission to file a Motion for Appointment of Counsel, ECF No. 39, is granted. However, it would appear that the appointment of counsel is not warranted and, therefore, the Court will not exercise its discretion.

         Initially, it does not appear with any degree of certainty that Plaintiff is setting forth a factual basis that demonstrates he will ultimately prevail on the merits. Nevertheless, in considering factors one and two, the litigant's ability to present his case and the difficulty of the legal issues involved, it is clear that the issues presented in the complaint are neither difficult nor complex, and nothing in the record indicates that Plaintiff is incapable of presenting his case. Plaintiff contends that his confinement has limited his ability to obtain relevant records and has hindered his access to a typewriter so that he can neatly draft letters to potential attorneys. ECF No. 41. However, discovery in accordance with Rule 26 of the Federal Rules of Civil Procedure ...


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