Lucas v. Bledsoe et al

Filing 88

MEMORANDUM AND ORDER - Taking all of these facts into account we DENY the plaintiff's renewed motion to appoint counseol (Doc. 87), at this time without prejudice to re-examining this issue as this litigation progresses.Signed by Magistrate Judge Martin C. Carlson on 06/28/13. (pjr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES A. LUCAS,
Plaintiffs
v.
B.A. BLEDSOE , et al.,
Defendants.

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Civil No. 1:11-CV-2318
(Judge Jones)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
This matter comes before the Court on a request to appoint counsel for the
plaintiff, James A. Lucas, who is proceeding pro se. (Doc. 87.) The plaintiff asks the
Court to appoint counsel at a stage in this litigation when the defendants filed with
the Court a motion to dismiss or, in the alternative for summary judgment, which has
been fully briefed by the parties, and which squarely tests the merits of the plaintiff’s
claims in this action.
We appreciate the plaintiff’s interest in securing court-appointed counsel, but
also recognize 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 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
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 legal merit. This central issue is presented squarely to the Court
in the defendants’ fully briefed motion to dismiss or, in the alternative, for summary
judgment. (Doc. 62.) In our view, it would be inappropriate to appoint counsel until
we have the opportunity to conduct this merits analysis in this matter, and consider
the pending motion. Moreover, while we understand that the plaintiff doubtless faces

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some obstacles in bringing this action, and that these obstacles may be more
pronounced given the plaintiff’s current custody at USP-Florence, to date the plaintiff
has demonstrated an ability to effectively present this case. Furthermore, the actual
investigation that the plaintiff has to do at this point is minimal, since the pleadings
show that the plaintiff is fully aware of the bases for the claims against the
defendants, and because the plaintiff’s claims are now being tested in a pending
dispositive motion that has been fully briefed by the parties, and which has been
taken under advisement by the Court.
Taking all of these factors into account we DENY the plaintiff’s renewed
motion to appoint counsel (Doc. 87.), at this time without prejudice to re-examining
this issue as this litigation progresses.
SO ORDERED, this 28th day of June 2013.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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