Landor v. Bledsoe et al

Filing 48

MEMORANDUM AND ORDER - IT IS ORDERED that the Plaintiff's second request to appoint counsel is DENIED. Signed by Magistrate Judge Martin C. Carlson on 12/16/11. (rc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAMON LANDOR,
Plaintiff,
v.
B. A. BLEDSOE, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

CIVIL NO. 1:11-CV-759
(Judge Caldwell)

(Magistrate Judge Carlson)

MEMORANDUM ORDER

This matter comes before the Court on Plaintiff’s second motion requesting that
the Court appoint to represent Plaintiff, a federal prisoner and pro se litigant, in this
action. (Doc. 46.) The Plaintiff previously asked the Court to appoint counsel at the
outset of this case, prior to the complaint being served, and before the Court or the
Defendants had an opportunity to assess the legal merits of these claims. (Doc. 3.)
Because we found the motion premature at that time, it was denied. (Doc. 5.)
Plaintiff has now returned to the Court a second time seeking appointment of
counsel, and has represented that his status as an inmate at the United States
Penitentiary at Lewisburg greatly impairs his ability to research, investigate, and
litigate his claims in this case. (Doc. 46.) Plaintiff also offers his belief that a trial in

1

this action, should one occur, may involve conflicting testimony that might benefit
from the plaintiff having pro bono counsel appointed. (Id.) Plaintiff indicates he has
tried without success to obtain a lawyer to represent him in this case, and suggests that
the Court might appoint a lawyer from the American Civil Liberties Union, the
American Bar Association, or even a law student, to represent Plaintiff’s interests in
this case. (Id.) Upon consideration, the motion will be denied.
Once again, we appreciate the Plaintiff’s interest in securing court-appointed
counsel, but continue to emphasize that there is neither a constitutional nor a statutory
right to counsel for civil litigants. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.
1997); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). Instead, 28 U.S.C. §
1915(e)(1) simply provides that “[t]he court may request an attorney to represent any
person unable to employ counsel.” Under §1915(e)(1), a district court’s appointment
of counsel is discretionary and must be made on a case-by-case basis. Tabron, 6 F.3d
at 157-58. In Parham, the United States Court of Appeals outlined the standards to be
considered by courts when reviewing an application to appoint counsel pursuant to 28
U.S.C. § 1915(e)(1). In passing on such we requests we must first:
“[D]etermine[] that the plaintiff's claim has some merit, then [we] should
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 investigation; (4) the amount a case is likely to
2

turn on credibility determinations; (5) whether the case will require the
testimony of expert witnesses; [and] (6) whether the plaintiff can attain
and afford counsel on his own behalf.”
Parham v. Johnson, 126 F.3d at 457.
In this case our analysis of these factors leads us to conclude that counsel should
not be appointed in this case at the present time. At the outset, we believe that we
should defer any such decision until after we have had the opportunity to assess the
first benchmark standard we must address, the question of whether the Plaintiff’s
claims have arguable merit. In our view, it would be inappropriate to appoint counsel
until we have the opportunity to conduct this merits analysis. In this regard, we note
that the merits of Plaintiff’s claims have recently been challenged in Defendants’
preliminary dispositive motion, which is currently pending, and awaiting further
briefing. (Doc. 33.)
Moreover, while we understand that the Plaintiff doubtless faces some obstacles
in bringing this action, to date the Plaintiff has demonstrated an adequate ability to
present his own case. In addition, we do not share Plaintiff’s view that this case is
likely to present difficult and complex legal issues warranting appointment of counsel.
Furthermore, the actual investigation that the Plaintiff has to do is minimal, since the
pleadings show that the Plaintiff is fully aware of the bases for these claims against the
Defendants. Finally, while the case might conceivably turn on credibility
3

determinations between Plaintiff and others, the case likely will not require extensive
expert witness testimony.
Finally, we emphasize that there is, at present, a pending motion to dismiss or,
alternatively, for summary judgment, which addresses a number of threshold legal
matters that might potentially subject this case to preliminary disposition.1 Taking all
of these factors into account we DENY this second request to appoint counsel at this
time without prejudice to re-examining this issue as this litigation progresses.
SO ORDERED, this 16th day of December, 2011.

S/Martin C. Carlson
United States Magistrate Judge

We note also that the Court previously ordered Plaintiff to respond to
Defendants’ dispositive motion (Doc. 33) on or before December 8, 2011. (Doc.
43.) To date, the Court has not received Landor’s opposition brief. We observe
that Landor dated his second motion for appointment of counsel December 6,
2011, and we received the motion 10 days later on December 16, 2011. Thus, it
may be that Landor’s brief in opposition to the motion to dismiss has been mailed
and simply has not yet been received by the Court. However, in the event Landor
has not submitted a responsive brief for filing, he is urged to do so without further
delay or risk having the motion ruled upon as unopposed.
1

4