Blount v. Brook et al

Filing 49

ORDER ADOPTING REPORT AND RECOMMENDATIONS - ACCORDINGLY, this 15th day of Jan., 2010, upon con. of plf.'s mtn. for appt. of counsel 45 & the R&R of the mag. judge 42 , filed 12/1/09, & upon independent review of the record, it is ordered that : 1. Plf.'s mtn. for appt. of counsel is denied. 2. The mag.'s report is adopted. 3. Defts.' mtn. for SJ 33 is granted. 4. The Clerk of Crt. shall enter jgm. in favor of defts. Brook, Miller & the Lower Paxton Township Police Dept. & against the plf. Tonry Blount. 5. The Clerk of Crt. shall close this file. 11 Signed by Honorable William W. Caldwell on 1/15/10. (am, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA TONY BLOUNT, Plaintiff vs. POLICE OFFICERS BROOK AND MILLER OF THE LOWER PAXTON TOWNSHIP POLICE DEPARTMENT AND LOWER PAXTON TOWNSHIP POLICE DEPARTMENT, Defendants : : : CIVIL NO. 1:CV-08-1732 : (Judge Caldwell)

: (Magistrate Judge Smyser) :

ORDER THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: We are considering the Report and Recommendation of the Magistrate Judge recommending we grant summary judgment in favor of the Defendants. The Plaintiff, Tony Blount, has not objected to the report. Instead, he filed multiple documents, one of which is a motion for appointment of counsel. A plaintiff has no constitutional or statutory right to appointed counsel in a civil case. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). The court also cannot compel a lawyer to represent an indigent plaintiff. Tabron v. Grace, 6 F.3d 147, 153 n.1 (3d Cir. 1993). Rather, representation for an indigent is governed by 28 U.S.C. § 1915(e)(1) which provides that the court "may request an attorney to represent any person unable to afford counsel." We have broad discretion under 28 U.S.C. § 1915(e)(1) in deciding whether to seek counsel, Montgomery, 294 F.3d 498, and the decision can be made at any point of the litigation. Id. at 503-04. At the threshold, the court must decide whether a plaintiff's case "has some arguable merit in fact and law." Id. at 499 (quoting Parham v. Johnson, 126

F.3d 454, 457 (3d Cir. 1997)). We need not appoint counsel "if the indigent's chances of success on the merits are extremely slim." Id. at 500 (quoting Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986))(internal quotation marks and brackets omitted). If the plaintiff's case satisfies this initial test, the district court must consider the "Tabron factors," Montgomery, 294 F.3d at 505, although these factors are not meant to be exhaustive. Tabron, 6 F.3d at 157. The factors 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 plaintiff's capacity to retain counsel on his or her 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 (citing Tabron, 6 F.3d at 155-57). We conclude the Plaintiff's case has no merit because we adopt the thorough and well reasoned report and recommendation of the magistrate judge. Since we conclude the Plaintiff's case has no arguable merit, there is no need for us to apply the Tabron factors. ACCORDINGLY, this 15th day of January, 2010, upon consideration of Plaintiff's motion for appointment of counsel (doc. 45) and the report and recommendation of the magistrate judge (doc. 42), filed December 1, 2009, and upon independent review of the record, it is ordered that:

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1. Plaintiff's motion for appointment of counsel is denied. 2. The magistrate judge's report is adopted. 3. Defendants' motion for summary judgment (doc. 33) is granted. 4. The Clerk of Court shall enter judgment in favor of Defendants Brook, Miller and the Lower Paxton Township Police Department and against Plaintiff Tony Blount. 5. The Clerk of Court shall close this file.

/s/William W. Caldwell William W. Caldwell United States District Judge

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