McCain v. Wetzel et al

Filing 39

MEMORANDUM AND ORDER Denying 36 MOTION to Appoint Counsel filed by John McCain and 38 MOTION to Appoint Counsel filed by John McCain without prejudice to re-examining this issue as litigation progresses. Signed by Magistrate Judge Martin C. Carlson on 9/7/12. (pw, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN MCCAIN,

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Plaintiff,
v.
JOHN WETZEL, et al.,
Defendants.

Civil No. 1:12-CV-789

( Judge Rambo)
(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
This matter comes before the Court on two requests to appoint counsel for the
plaintiff, a pro se litigant. (Docs. 36 and 38.) The plaintiff has asked the Court to
appoint counsel at an early stage of this litigation while there is still pending before
the court a motion to dismiss this complaint. We also note that the judge previously
assigned to this case, Magistrate Judge Smyser, denied two prior motions for
appointment of counsel in this matter. (Docs. 9, 10 and 13.)
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

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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
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. In our view, it would be inappropriate to appoint
counsel until we have the opportunity to conduct this merits analysis in this matter.
Moreover, while we understand that the plaintiff doubtless faces some obstacles in
bringing this action, to date the plaintiff has demonstrated an ability to effectively

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present his own case. 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.
Taking all of these factors into account we DENY these requests to appoint
counsel (Docs. 36 and 38), at this time without prejudice to re-examining this issue as
this litigation progresses.
SO ORDERED, this 7th day of September, 2012.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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