GABRYS v. ASTRUE

Filing 9

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ROBERT F. KELLY ON 12/14/2012. 12/14/2012 ENTERED AND COPIES MAILED TO PRO SE.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
:
JOHN J. GABRYS,
:
CIVIL ACTION
:
Plaintiff,
:
:
v.
:
No. 12-6099
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security Administration :
:
Defendant.
:
__________________________________________:
MEMORANDUM
ROBERT F. KELLY, Sr. J.

DECEMBER 14, 2012

Presently before this Court is Plaintiff, John J. Gabrys’ (“Plaintiff”), Motion for the
Appointment of Counsel. For the reasons set forth below, this Motion is denied.
I.

BACKGROUND
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) appealing the decision of the

Secretary of Health and Human Services denying him Social Security benefits. (Doc. No. 1.) On
November 6, 2012, we granted Plaintiff leave to proceed in forma pauperis. (Doc. No. 5.) We
now decide Plaintiff’s Motion for the Appointment of Counsel.
II.

DISCUSSION
A.

Appointment of Counsel and the Tabron Factors

It is well settled that “indigent civil litigants possess neither a constitutional nor a
statutory right to appointed counsel.” Gordon v. Gonzalez, 232 F. App’x 153, 156 (3d Cir. 2007)
(quoting Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002)). However, a district court is
empowered with the discretion to “request an attorney to represent any person unable to afford

counsel.” 28 U.S.C. § 1915(e)(1). The court’s decision whether to appoint counsel is to be given
wide latitude and will only be overturned if its ruling is clearly an abuse of discretion. Tabron v.
Grace, 6 F.3d 147, 155 (3d Cir. 1993).
As a preliminary matter, the district court must first determine if the plaintiff’s claim has
arguable merit in fact and law. Upon a favorable finding, the court then proceeds to consider
certain additional factors that bear on the necessity for the appointment of counsel. Id. at 155.
These factors enunciated by the United States Court of Appeals for the Third Circuit (“Third
Circuit”) in Tabron include: (1) the plaintiff’s ability to present his 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 plaintiff’s capacity to retain counsel on his
own behalf; (5) the extent to which a case is likely to turn on credibility determinations; and (6)
whether the case will require testimony from expert witnesses. Montgomery, 294 F.3d at 499
(quoting Tabron, 6 F.3d at 155). This list is not exhaustive, nor is any one factor determinative.
Parham v. Johnson, 126 F.3d 454, 458 (3d Cir. 1997).
As a threshold matter, we must ascertain whether Plaintiff’s claims have arguable merit in
fact and law. We find that they do not. Plaintiff attempted to attain counsel from five different
attorneys. Plaintiff admits that two of these attorneys did not find merit in this case. (See Doc.
Nos. 2 & 4.) Additionally, Plaintiff avers that the Legal Aid Society of Philadelphia did not find
his case worthy of merit. (See Doc. No. 2.) We regard the failure to attain counsel by Plaintiff as
indicative of the fact that his claims lack merit. See Johnson v. Stempler, 373 Fed. App’x 151,
155 (3d Cir. 2010) (affirming denial of counsel where five attorneys declined to represent
plaintiff of which two of these rejections were based on the merits); Jackson v. Cnty. of McLean,
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953 F.2d 1070, 1073 (7th Cir. 1992) (finding that though the willingness of counsel to take a case
is not a perfect indicator of the meritoriousness of the action, it should be given “significant
consideration” in order to sift out the “patently frivolous” claims). Nevertheless, with an eye
toward fully developing the record, we proceed to analyze Plaintiff’s Motion for the
Appointment of Counsel in light of the factors set forth in Tabron.
B.

Applying the Tabron Factors

Even if Plaintiff’s claims were to bear arguable merit in fact or law, we find that the
Tabron factors warrant the denial of Plaintiff’s Motion for the Appointment of Counsel. We base
our decision on the following analysis of the Tabron factors.
1.

The Plaintiff’s Ability to Present His Own Case and the Difficulty of
the Legal Issues

The ability of a plaintiff to present his own case is arguably the most significant of the
Tabron factors. Montgomery, 294 F.3d at 501. This determination is based on several criteria
including plaintiff’s education, literacy, prior work experience, prior litigation experience, ability
to understand English and access to resources necessary to proceed with the litigation (i.e., access
to typewriter, telephone and computer). Tabron, 6 F.3d at 156; see also Parham, 126 F.3d at 459.
A review of the above factors, does not support the appointment of counsel. Plaintiff
requests the Court to appoint an attorney on his behalf because he “does not perfectly know the
law.” (Doc. 1 at 2.) However, it is not necessary that plaintiffs have the skills and expertise of a
trial lawyer; only that they possess the baseline abilities to adequately present their case. See
Gorden v. Gonzalez, 232 F. App’x 153, 157 (3d Cir. 2007) (the decision point is not whether
plaintiff is a trial lawyer). It is evident from Plaintiff’s filings, in which he writes coherently, that

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he possesses the baseline abilities to adequately present his case. Because this is an action
pursuant to 42 U.S.C. § 405(g), it is solely a record review for which only written submissions
are required. Gorrell v. Comm. of Soc. Sec., 449 Fed. App’x 176, 179 (3d Cir. 2011). As such,
there will be no need to communicate orally with either the Court or witnesses. Id.
Furthermore, Plaintiff’s claims do not involve any difficult or complex legal issues. See
Tabron, 6 F.3d at 156 (noting where litigation involves complicated legal issues, courts should be
“more inclined to appoint counsel”). This litigation is a routine review of a decision of the
Secretary of Health and Human Services denying Social Security benefits to Plaintiff. Courts
have found that these type of cases are not overly complex. See Kirkpatrick v. Astrue, No. 080407, 2008 WL 879407, at *1 (W.D. La. Mar. 31, 2008) (noting Social Security appeals are not
unduly complex). In light of Plaintiff’s abilities and aptitude, we believe that the legal issues are
within his range of competence.
2.

The Necessity and Ability of the Plaintiff to Pursue Factual
Investigation

Courts must consider the extent of factual investigation necessary to prosecute a claim
and the ability of the indigent plaintiff to pursue the investigation. Tabron, 6 F.3d at 156.
Situations which are “likely to require extensive discovery and compliance with complex
discovery rules” gravitate toward the appointment of counsel. Id. Since Plaintiff’s action is a
review of the record from a decision by the Secretary of Health and Human Services, we do not
foresee the need for factual investigation. Nevertheless, we note that Plaintiff has no restraints
on his ability to pursue such investigation if necessary.

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3.

The Plaintiff’s Capacity to Retain Counsel on His Own Behalf

Counsel is not to be appointed where the plaintiff can easily afford and attain counsel. Id.
at 157. In these cases, the court must recognize and preserve the “precious commodity” of
volunteer legal advocates. Parham, 126 F.3d at 458. This is not a case where Plaintiff can afford
counsel as he is proceeding in forma pauperis. However, as previously stated, Plaintiff readily
admits that two attorneys and a non-profit legal aid organization declined to be of counsel
because they did not find merit to his claims. Thus, we do not believe this case justifies
siphoning attorneys from the limited pool of pro bono advocates. Id.
4.

The Extent to Which this Case is Likely to Turn on Credibility
Determinations and the Need for Expert Witness Testimony

Cases where adjudication relies solely on credibility determinations and where the crossexamination of expert witnesses is imperative favor the appointment of counsel. Lasko v. Watts,
373 F. App’x 196, 201-202 (3d Cir. 2010). This action is a review of a previous decision where
only written submissions are permitted. Accordingly, this is not a case involving credibility
determinations or expert witness testimony.
III.

CONCLUSION
Congress has entrusted the district courts with the judicial discretion to determine when

to appoint counsel. See 28 U.S.C. § 1915(e)(1). In effectuating this responsibility, the Third
Circuit developed an analytical framework to serve as a “guidepost” in these determinations. See
Tabron, 6 F.3d at 155. Inherent in their decision, district courts must be mindful of the
competing interests between the need to provide legal representation to effectively prosecute
meritorious cases and the necessity of protecting the limited and “precious commodity” of

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volunteer legal advocates. After careful analysis in light of Tabron and its progeny, we do not
find that any factors weigh in favor of appointing counsel. This is not a complex case. It
requires only the written submission of documents and no factual investigation or need to
examine witnesses. Plaintiff can read, write and understand English, and his filings exhibit the
baseline abilities to adequately prosecute his case. Consequently, Plaintiff’s Motion for the
Appointment of Counsel is denied.
An appropriate Order follows.

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