Wilson v. Mahally

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN WILSON, Civil No. 3:18-cv-1637 Plaintiff ‘(Judge Mariani)

v. .

DENNIS GROMMEL, ef al, Defendants MEMORANDUM

Background Plaintiff Kevin Wilson (“Plaintiff”), an inmate who, at all relevant times, was housed at

the State Correctional Institution, Dallas, Pennsylvania, initiated the instant action pursuant

to 42 U.S.C. § 1983. (Doc. 1). The remaining Defendants are Correctional Officers

Grommel and Wilson. In the complaint, Plaintiff alleges that two unidentified inmates

stabbed him, Defendants Grommel and Wilson did not intervene during the attack, and did

not call for medical attention after the attack. (/d.). Presently pending before the Court is Plaintiffs second motion to appoint counsel.

(Doc, 39). For the following reasons, the motion will be denied without prejudice.

ll. Discussion .

Although prisoners have no constitutional or statutory right to appointment of counsel

in a civil case, the Court has discretion “to request an attorney to represent any person

unable to afford counsel.” 28 U.S.C. § 1915(e)(1); Parham v. Johnson, 126 F.3d 454, 456-

57 (3d Cir. 1997); Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v.

Grace, 6 F.3d 147, 153 (3d Cir. 1993). The United States Court of Appeals for the Third

Circuit has stated that the appointment of counsel for an indigent litigant should be made

when circumstances indicate “the likelihood of substantial prejudice to him resulting, for

example, from his probable inability without such assistance to present the facts and legal

issues to the court in a complex but arguably meritorious case.” Smith-Bey v. Petsock, 741

F.2d 22, 26 (3d Cir. 1984). The initial determination to be made by the Court in evaluating the expenditure of the

“precious commodity” of volunteer counsel is whether the case has some arguable merit in

fact or law. Montgomery, 294 F.3d at 499. If a plaintiff overcomes this threshold hurdle,

other factors to be examined are:

(1) the plaintiff's ability to present his or her own case; (2) the difficulty of the particular legal issues; (3) the degree to which factual investigation will be necessary and the ability of the plaintiff to pursue investigation; (4) the plaintiffs capacity to retain counsel on his or her own behalf; (5) the extent to which the case is likely to turn on credibility determinations; and (6) — whether the case will require testimony from expert witnesses.

Id. (citing Tabron, 6 F.3d at 155-57). The Third Circuit Court of Appeals added two other

factors to be taken into consideration: (1) the court’s willingness to aid the indigent party in

presenting his or her own case; and (2) the available supply of lawyers willing to accept

section 1915(e) requests within the relevant geographic area. See Gordon v. Gonzalez,

232 F. App’x 153 (3d Cir. 2007). On January 3, 2019, the Court previously denied a similar motion for appointment of

counsel filed by Plaintiff. (See Docs. 4, 22, 23). Since the entry of that Order, Plaintiff has

continued to demonstrate a reasonable ability to litigate this action pro se. Furthermore, his

latest motion fails to set forth sufficient special circumstances or factors which would

warrant the appointment of counsel. See Tabron, 6 F.3d at 153, 155-57.

Assuming that Plaintiff's claims have an arguable basis in law and fact, he fails to set

forth any special circumstances warranting the appointment of counsel. See Tabron, 6 F.3d

at 155-56. Plaintiff bases his motion on the inability to afford counsel, the alleged complexity of the case, and difficulty investigating the facts of his case. (Doc. 39).

However, in his pleadings, Plaintiff demonstrates the ability to properly and forcefully

prosecute his claims. Despite Plaintiffs incarceration, investigation of the facts is not

beyond his capabilities and he is intimately familiar with the facts of his case. Moreover, the

Court notes that it does not have a large group of attorneys who would represent this action

in a pro bono capacity. Based on the foregoing, it does not appear that Plaintiff will suffer prejudice if forced

to prosecute this case on his own. The Court's duty to construe pro se pleadings liberally,

Haines v, Kerner, 404 U.S. 519 (1972), Riley v. Jeffes, 777 F.2d 143, 147-48 (3d Cir. 1985),

coupled with Plaintiff's apparent ability to litigate this action, militate against the appointment

of counsel. Accordingly, the motion for appointment of counsel will be denied, however the

denial will be without prejudice. As the Court in Tabron stated:

[Alppointment of counsel under § 1915(d) may be made at any point in the litigation and may be made by the district court sua sponte ... even if it does not appear until trial (or immediately before trial) that an indigent litigant is not capable of trying his or her case, the district court should consider appointment of counsel at that point. Tabron, 6 F.3d at 156-57. Therefore, in the event that future proceedings demonstrate the

need for counsel, the matter may be reconsidered either sua sponte or upon motion of

Plaintiff. A separate Order shall issue.

bate: December 12018 GA ce Robert D. Mariani United States District Judge