Boring v. Sanders et al

Filing 10

MEMORANDUM AND ORDER, Motions terminated: 3 MOTION to Appoint Counsel filed by Robert C Boring.Signed by Honorable John E. Jones, III on 3/26/12. (bw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT C. BORING,
Plaintiff,
v.
DOCTOR SANDERS, et al.,
Defendants.

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CIVIL NO. 1:12-CV-0419
Hon. John E. Jones III

MEMORANDUM and O R D E R
March 26, 2012
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Plaintiff Robert C. Boring (“Plaintiff” or “Boring”), a state inmate presently
confined at the State Correctional Institution Rockview (“SCI Rockview”) in
Bellefonte, Pennsylvania, initiated the above action pro se by filing a civil rights
Complaint under the provisions of 42 U.S.C. § 1983. (Doc. 1.) Named as Defendants
are members of the SCI Rockview staff, including Marirosa Lamas, Superintendent;
Robert Marsh, Deputy Superintendent; Ted Williams, Medical Director; and Doctor
Sanders, Medical Eye Doctor, as well as Dorina Varner, Chief Grievance Officer for
the Pennsylvania Department of Corrections (“DOC”). (Id. at 23.) Boring alleges that
Defendants have been deliberately indifferent to a serious medical need by denying
his requests for surgery to remove cataracts from his left eye.

Service of the Complaint has been directed by separate order. Presently before
the Court is Boring’s Motion requesting the appointment of counsel to represent him
in this matter. (Doc. 3.) For the reasons set forth below, the Motion will be denied
without prejudice.
I.

LEGAL STANDARD
The Court recognizes 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). Notwithstanding this lack of
a constitutional or statutory right to appointed counsel, in a civil case, 28 U.S.C.
§ 1915(e)(1) provides that “[t]he court may request an attorney to represent any
person unable to employ counsel.” A district court’s appointment of counsel pursuant
to this statute is discretionary and must be made on a case-by-case basis. Tabron, 6
F.3d at 157-58. The exercise of this discretion, however, is guided by certain basic
principles. Gordon v. Gonzalez, 232 Fed. Appx. 153, 156 (3d Cir. 2007).
In Tabron, the United States Court of Appeals for the Third Circuit first
outlined with specificity the applicable standards to be considered by courts upon an
application to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1). Id. at 155-57. In
Parham, the Third Circuit identified the following guidelines for appointing counsel

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to indigent civil litigants:
As a preliminary matter, the plaintiff’s claim must have
some merit in fact and law. If the district court determines
that the plaintiff’s claim has some merit, then the district
court 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
an investigation;
(4) the amount a case is likely to turn on credibility
determinations;
(5) whether the case will require the testimony of
expert witnesses;
(6) whether the plaintiff can attain and afford counsel
on his own behalf.
Parham, 126 F.3d at 457 (citation omitted).
II.

DISCUSSION
Our analysis of the above factors suggests that counsel should not be appointed

in this case at the present time. While the Court takes note of Boring’s averment that
he has made repeated efforts to obtain an attorney through the ACLU and Penn Legal
Services without success, and thus a consideration of whether he can attain and afford

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counsel on his own behalf would appear to weigh in his favor, we find that Boring has
demonstrated an ability to present his case on his own through his Complaint, as well
as in his pleadings submitted in a previous case before this Court. See Boring v.
Beard, et al., Civil No. 4:08-CV-1236. We are mindful of Boring’s statement in the
instant Motion that he is visually impaired, but observe that, despite this apparent
limitation, Boring has presented his claims in his Complaint in a clear and concise
manner and has demonstrated an ability to understand and present the legal authority
relevant to his claims. We also find based upon our review of the Complaint that the
legal issues presented by this case are not overly complicated and that there is no
indication that a significant amount of factual investigation will be required for Boring
to continue to litigate this action. Finally, while this case may turn, at least in part, on
credibility determinations, and Boring expresses concern about his ability to present
evidence and cross-examine witnesses at trial, this concern is premature at this very
early stage of the case where Defendants have not yet even been served with the
Complaint. It cannot be said, at least at this point, that Boring will suffer substantial
prejudice if he is required to proceed with litigating this case on his own. This Court’s
liberal construction of pro se pleadings, Haines v. Kerner, 404 U.S. 519 (1972),
coupled with Boring’s apparent ability to litigate this action, weigh against the

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appointment of counsel. Therefore, the instant Motion will be denied. However, the
denial will be without prejudice such that, if future proceedings demonstrate the need
for counsel, the matter may be reconsidered either sua sponte or upon a properly filed
motion.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

Plaintiff’s Motion to Appoint Counsel (Doc. 3) is DENIED without
prejudice.

s/ John E. Jones III
John E. Jones III
United States District Judge

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