United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER RE: ECF NOS. 39 AND 41
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
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.
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
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).
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
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
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.
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.
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 ...