Torres v. Owner or owners of Lebanon County Correctional Facility et al

Filing 27

MEMORANDUM AND ORDER re 24 Request for appointment of counsel filed by Jesus M Torres is DENIED.Signed by Magistrate Judge Malachy E. Mannion on 11/3/11. (bs, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

JESUS M. TORRES,

:

Plaintiff

:
CIVIL ACTION NO. 1:11-0941

v.

:

OWNER OR OWNERS OF THE
:
LEBANON COUNTY
CORRECTIONAL FACILITY, et. al., :
Defendants

(JONES, D.J.)
(MANNION, M.J.)

:

MEMORANDUM AND ORDER1
Before the court is a letter motion filed by the plaintiff for, among other
things, appointment of counsel. (Doc. No. 24).
It is well established that indigent litigants have no constitutional or
statutory right to appointed counsel in a civil case. Montgomery v. Pinchak,
294 F.3d 492, 498 (3d Cir. 2002) (citing Parham v. Johnson, 126 F.3d 454,
456-57 (3d Cir. 1997)). However, Congress has given the district courts
broad discretion to appoint counsel when deemed appropriate. See id.; 28
U.S.C. § 1915(e)(1) (2006).2 For example, appointment of counsel should be
made when circumstances “indicat[e] the likelihood of substantial prejudice
to [the indigent litigant] resulting . . . from his probable inability without such
For the convenience of the reader of this document in electronic
format, hyperlinks to the Court’s record and to authority cited herein have
been inserted. No endorsement of any provider of electronic resources is
intended by the Court’s practice of using hyperlinks.
1

2

The Third Circuit has rejected the notion that the appointment of
counsel under section 1915(e)(1) is justified only under “exceptional
circumstances.” Montgomery, 294 F.3d at 498 n.9 (internal citations omitted).

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). Yet the court must always make a threshold determination of “whether
the claimant’s case has some arguable merit in fact and law.” Montgomery,
294 F.3d at 499-500.
If the case is genuinely meritorious, then the court will consider a variety
of factors that guide the court in deciding whether to appoint counsel. A
nonexhaustive list includes:
1.
2.
3.
4.
5.
6.

the plaintiff’s ability to present his or her own case;
the difficulty of the particular legal issues;
the degree to which factual investigation will be necessary
and the ability of the plaintiff to pursue investigation;
the plaintiff’s capacity to retain counsel on his or her own
behalf;
the extent to which a case is likely to turn on credibility
determinations, and;
whether the case will require testimony from expert witnesses.

Montgomery, 294 F.3d at 499 (citing Tabron v. Grace, 6 F.3d 147, 155-57 (3d
Cir. 1993)).
In addition, the court is to consider several other practical
considerations which serve to restrain a court’s decision to appoint counsel
in a civil case: the growing number of civil rights actions filed in federal courts
by indigent litigants; the lack of funding to pay appointed counsel; and the
finite pool of qualified attorneys willing to undertake assignments on a pro
bono basis. See id. at 505. Yet despite these circumstances, careful analysis
of the post-threshold factors will allow for the appropriate allocation of these
limited legal resources. See id.

The plaintiff's complaint indicates that he has the ability to "present the
facts and legal issues to the court" without the assistance of an attorney. A
review of the record of this case suggests that plaintiff can, given the leeway
afforded to pro se litigants, adequately present his case and follow the
applicable Rules. The plaintiff is literate and is able to communicate his
thoughts to the court. His filings this far have been understood, and they
indicate that plaintiff is capable of pursuing his complaint without the benefit
of appointed counsel. The issues raised by plaintiff do not appear to be overly
complex. The Court notes that the plaintiff states he is in the RHU and has
some mental disabilities and has a seizure disorder. These alone, so far, have
not affected his ability to state his case. At this time, the plaintiff’s filings are
clearly understood.
Thus, for the foregoing reasons, the plaintiff’s request for courtappointed counsel will be denied.
NOW, THEREFORE, IT IS ORDERED THAT the plaintiff’s motions for
appointment of counsel (Doc. No. 24) is DENIED.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States Magistrate Judge

Dated: November 3, 2011
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