ZAMICHIELI v. ANDREWS et al

Filing 116

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GREGORY M. SLEET ON 11/4/15. 11/4/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

i IN THE UNITED STATES DISTRICT COURT
FOR THE EATERN DISTRICT OF PENNSYLVANIA
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WHEELER ZAMICHIELI,

)
)
)
)
)
)
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Plaintiff,
v.
WILLIAM ANDREWS, et al.,

Civil Action No. 12-cv-3200-GMS

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Defendants.

MEMORANDUM ORDER
At Wilmington, tlriS"i f\day of

f\9w

2015, having considered the plaintiff's

request for counsel (D .I. 110.)

I.

INTRODUCTION
The plaintiff, Wheeler Zamichieli ("the plaintiff'), a pro se litigant who is presently

incarcerated at the Federal Detention Center in Philadelphia, Pennsylvania, filed this civil rights
action in 2012. He appears prose, paid the filing fee and, later, was granted permission to
proceed informapauperis pursuant to 28 U.S.C. § 1915. (D.I. 46.)

II.

REQUEST FOR COUNSEL
The plaintiff seeks counsel on the grounds that: (1) he has made several attempts to

retain counsel, all unsuccessful; (2) he has a genuine claim; (3) municipal defendants have failed
to respond to his discovery requests; (4) the defendant Ronald Dove ("Dove") was recently
charged with hindering apprehension or prosecution, obstructing administration of law, criminal
conspiracy and related' offenses; and (5) his incarceration hinders his ability to effective litigate
this civil action.

I

A pro se litigo/it proceeding in forma pauperis has no constitutional or statutory right to
Representation by counsel. 1 See Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011);

Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However, representation by counsel may be
appropriate under certain circumstances, after a finding that a plaintiff's claim has arguable merit
in fact and law. Tabron, 6 F.3d at 155.
After passing this threshold inquiry, the court should consider a number of factors when
assessing a request for counsel. Factors to be considered by a court in deciding whether to
request a lawyer to represent an indigent plaintiff include: (1) the merits of the plaintiffs claim;
(2) the plaintiffs ability to present his or her case considering his or her education, literacy,
experience, and the restraints placed upon him or her by incarceration; (3) the complexity of the
legal issues; (4) the degree to which factual investigation is required and the plaintiffs ability to
pursue such investigation; (5) the plaintiff's capacity to retain counsel on his or her own behalf;
and (6) the degree to which the case turns on credibility determinations or expert testimony. See

Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56. The
list is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d at 157.
Assuming, solely for the purpose of deciding this motion, that the plaintiffs claims have
merit in fact and law, several of the Tabron factors militate. against granting his request for
counsel. After reviewing the plaintiffs complaint, the court concludes that the case is not so
factually or legally complex that requesting an attorney is warranted. In addition, to date, the

See Mallardv. United States Dist. Court/or the S. Dist. ofIowa, 490 U.S. 296 (1989)
(§ 1915(d) (now§ 1915(e)(l)) does not authorize a federal court to require an unwilling attorney
to represent an indigent civil litigant, the operative word in the statute being "request.").
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plaintiff has ably represented himself in this court. Also, the municipal defendants were recently
. I
ordered to respond to outstanding discovery requests. In light of the foregoing, the court will
deny without prejudice to renew the plaintiffs request for counsel. Should the need for counsel
arise later, one can be appointed at that time.

III.

CONCLUSION

IT IS THEREFORE ORDERED, as follows:
The plaintiffs request for counsel is denied without prejudice to renew (D.

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