Culver v. Specter et al
Filing
12
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED THAT: 1) Plaintiff's motions for leave to proceed in forma pauperis (Doc. Nos. 2, 9) are construed as motions to proceed without full prepayment of fees and costs, and are granted. 2) Plaintiff's motion for the appointment of counsel (Doc. No. 4) is denied without prejudice. 3) The Clerk of Court is directed to forward Plaintiff's Complaint (Doc. No. 1), along with a copy of this order, to the US Marshals Service for service upon the named Defendants.Signed by Chief Judge Yvette Kane on 12/14/11. (pjr)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRETT T. CULVER,
Plaintiff,
v.
JAMES SPECTER, et al.,
Defendants
:
:
:
:
:
:
:
CIVIL NO. 1:CV-11-2205
(Chief Judge Kane)
MEMORANDUM
I.
Background
Brett T. Culver (“Culver”), an inmate currently confined at the State Correctional
Institution at Mahanoy (“SCI-Mahanoy”), Pennsylvania, filed this civil rights action on
November 29, 2011, pursuant to 42 U.S.C. § 1983. Along with the complaint, Culver filed
motions seeking leave to proceed in forma pauperis (Doc. No. 2, 9) and a motion for the
appointment of counsel (Doc. No. 4). Named as Defendants are employees at SCI-Mahanoy.
In the complaint, Culver claims that Defendants failed to protect him from assault by another
inmate when they informed the other inmate that Culver had made complaints against him.
Culver claims that said deliberate action by Defendants was a total disregard for his safety and
incited hostility against him resulting in the other inmate attacking him and breaking his jaw.
Culver further sets forth claims with respect to the inadequate care he received for his jaw
following the incident. He also sets forth claims with respect to the denial of adequate nutrition
following the incident, the denial of due process and retaliation. For the reasons that follow, the
motions to proceed in forma pauperis will be granted, and the motion for counsel will be denied
without prejudice. In addition, the Clerk of Court will be directed to forward the complaint to
the United States Marshal for service upon the Defendants.
II.
Discussion
In moving for the appointment of counsel Culver argues that: (1) his case involves
complex legal issues; (2) he is greatly limited in litigating the case due to his incarceration; (3)
he has limited access to the law library and limited knowledge of the law; (4) he suffers from
psychological conditions that alter his competency to litigate; and (5) the case will involve
conflicting testimony that an attorney is better equipped to handle. (Doc. No. 4.)
Although prisoners have no constitutional or statutory rights to appointment of counsel in
a civil case, Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997), district courts have broad
discretionary power to appoint counsel under 28 U.S.C. § 1915(e)(1). Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002)(citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)); Ray v.
Robinson, 640 F.2d 474, 477 (3d Cir. 1981). The United States Court of Appeals for the Third
Circuit has stated that the appointment of counsel for an indigent litigant should be made when
circumstances “indicate the likelihood of substantial prejudice to him resulting, for example,
from his probable inability without such 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).
The initial determination to be made by the court in evaluating the expenditure of the
“precious commodity” of volunteer counsel is whether the plaintiff’s case “has some arguable
merit in fact and law.” Montgomery, 294 F.3d at 499. For purposes of this motion, the Court
will assume that Culver’s case has arguable merit in law and the facts.
Next, upon successfully clearing the above hurdle, other factors to be examined are:
1. The plaintiff’s ability to present his or her own case;
2
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).
The pending motion fails to set forth any special circumstances or factors that would
warrant the appointment of counsel at this time. Tabron, 6 F.3d at 155-56. The pleadings
submitted thus far do not contain complicated legal issues. In reviewing the complaint, Culver is
obviously literate and clearly able to litigate this action on his own. The complaint is welldrafted and clearly sets forth the claims he desires to pursue in this matter. He has filed the
instant motion for counsel, and cited to relevant legal authority therein. This clearly implies that
he has access to legal resources, and the ability to understand and present relevant legal
authority, even though he may not have the ability to visit the law library as often as he chooses.
It cannot be said, at least at this point, that Culver will suffer substantial prejudice if he is
required to proceed with the prosecution of his case on his own. This Court’s liberal
construction of pro se pleadings, Haines v. Kerner, 404 U.S. 519 (1972), coupled with Culver’s
apparent ability to litigate this action, weigh against the appointment of counsel. His pending
motion will be denied. If future proceedings demonstrate the need for counsel, the matter may
be reconsidered either sua sponte or upon a properly filed motion. In addition, the Clerk of
Court will be directed to forward Culver’s complaint (Doc. No. 1) to the United States Marshal
for service upon the Defendants named therein. An appropriate order follows.
3
4
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRETT T. CULVER,
Plaintiff,
v.
JAMES SPECTER, et al.,
Defendants
:
:
:
:
:
:
:
CIVIL NO. 1:CV-11-2205
(Chief Judge Kane)
ORDER
AND NOW, this 14th day of December, 2011, in accordance with the attached
Memorandum, IT IS HEREBY ORDERED THAT:
1.
Plaintiff’s motions for leave to proceed in forma pauperis (Doc. Nos. 2, 9) are
construed as motions to proceed without full prepayment of fees and costs, and
are granted.1
2.
Plaintiff’s motion for the appointment of counsel (Doc. No. 4) is denied without
prejudice.
3.
The Clerk of Court is directed to forward Plaintiff’s complaint (Doc. No. 1),
along with a copy of this order, to the United States Marshals Service for service
upon the named Defendants.
S/ Yvette Kane
YVETTE KANE, Chief Judge
Middle District of Pennsylvania
1
Plaintiff completed this Court’s form application for leave to proceed in forma pauperis
and authorization form. An Administrative Order was thereafter issued on December 12, 2011
(Doc. No. 11), directing the warden at SCI-Mahanoy to commence deducting the full filing fee
from Plaintiff’s prison trust fund account.
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