Pepe v. Lamas et al

Filing 10

MEMORANDUM re pltf's MOTION to Appoint Counsel 5 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 12/9/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID WILSON PEPE,
Plaintiff
vs.
MARIROSA LAMAS, et al.,
Defendants

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CIVIL NO. 1:CV-14-2270
(Judge Caldwell)

MEMORANDUM
I.

Introduction
On November 21, 2014, the pro se plaintiff, David Wilson Pepe,

commenced this action pursuant to 42 U.S.C. § 1983. Named as defendants are the
following Pennsylvania Department of Corrections (DOC) employees: Marirosa Lamas;
Wilbert Matthews; Michael Prevost; Dawn Prevost; Ms. L. McConnell; Captain R. Chism;
Rebecca M. Reifer; and Wally Dittsworth. (Doc. 1, Compl.) In his Complaint, Pepe
argues that defendants have interfered with his access to the courts and retaliated
against him for filing lawsuits by issuing him “bogus” misconducts. (Id.) We are presently
considering Plaintiff’s motion for appointment of counsel based on his indigent status,
incarceration and lack of legal training. (Doc. 5).
This is a civil action, not a criminal one. Hence the plaintiff has no
constitutional or statutory right to appointed counsel. Montgomery v. Pinchak, 294 F.3d
492, 498 (3d Cir. 2002). Nor can the court compel a lawyer to represent an indigent
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plaintiff. Tabron v. Grace, 6 F.3d 147, 153 n.1 (3d Cir. 1993). Rather, representation for
an indigent is governed by 28 U.S.C. § 1915(e)(1) which only provides that the court
"may request an attorney to represent any person unable to afford counsel." (emphasis
added).
A district court has broad discretion under 28 U.S.C. § 1915(e)(1) in
deciding whether to seek counsel, Montgomery, 294 F.3d at 498, and the decision can be
made at any point of the litigation. Id. at 503-04 (“Either the Magistrate Judge or the
District Court should have recognized Montgomery's difficulties as they became
increasingly apparent and, in light of them, reconsidered Montgomery's motion for
appointment of counsel.”).
The Third Circuit has provided guidance for the exercise of the district
court’s discretion. At the threshold, the court must decide whether the plaintiff’s case
“has some arguable merit in fact and law.” Id. at 499 (quoting Parham v. Johnson, 126
F.3d 454, 457 (3d Cir. 1997)). A court need not appoint counsel “if the indigent’s
chances of success on the merits are extremely slim.” Id. at 500 (quoting Hodge v.
Police Officers, 802 F.2d 58, 60 (2d Cir. 1986))(internal quotation marks and brackets
omitted). If the threshold requirement is met, the court then considers a number of
factors established by the Third Circuit to determine whether it is appropriate to request
counsel for an indigent party. These factors include: (1) the plaintiff’s ability to present
his own case; (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

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investigation; (4) the plaintiff’s capacity to retain counsel on his 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. Tabron, 6 F.3d at 155-57.
“[V]olunteer lawyer time is a precious commodity, Montgomery, supra, 294
F.3d at 499, so the district court’s “broad statutory discretion” should be exercised
“discerningly.” Id. at 505 n.10. However, if the case “appears to have merit” and “most of
the . . . Tabron factors have been met, the Third Circuit “instruct[s]” that the district court
“should make every attempt to obtain counsel.” Id. at 505 (quoting Parham, 126 F.3d at
461)(internal quotation marks omitted).
Plaintiff’s motion for counsel 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. This case has just started. Only recently the court directed the Clerk’s Office to
send waiver-of-service forms and the Complaint to the defendants. Defendants will either
challenge the legal basis of the Complaint or file an answer. Until then, the Court will not
be able to fully assess the threshold question of the arguable factual and legal merit of
Plaintiff’s claims for the purpose of appointing him counsel. Plaintiff’s Complaint, and
other correspondence to the court, have been clearly worded and present logical concise
arguments. To the extent that Plaintiff’s request for counsel is based on the fact of his
incarceration or his indigent status, these facts do not warrant the appointment of counsel
given this court's liberal construction of pro se pleadings. Haines v. Kerner, 404 U.S.
519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). There is no evidence, at this early point in the

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litigation, that any prejudice will befall Plaintiff in the absence of court appointed counsel.
Consequently, at this time Plaintiff’s request for counsel will be denied.
An appropriate order follows.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: December 9, 2014

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