Pepe v. Lamas et al
Filing
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MEMORANDUM re pltf's MOTION to Appoint Counsel 17 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 02/17/15. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID WILSON PEPE,
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Plaintiff
vs.
MARIROSA LAMAS, et al.,
Defendants
CIVIL NO. 1:CV-14-2270
(Judge Caldwell)
MEMORANDUM
I.
Introduction
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 alleges that the defendants
interfered with his access to the courts and retaliated against him for filing lawsuits by
issuing him “bogus” misconducts. (Id.)
We are considering Plaintiff’s second motion for appointment of counsel.
(Doc. 17). It is almost identical to his first motion as it is based on his indigent status,
incarceration and lack of legal training. (Compare Doc. 5, with Doc. 17). The only
difference is that Pepe now includes two letters from outside counsel declining to
represent him. See Doc. 17. For the following reasons, the motion will be denied.
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
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
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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
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).
As previously noted, the only difference between Pepe’s first motion for
counsel and his second is that he now includes two letters from outside counsel declining
to represent him in this matter. 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. Defendants have recently filed a motion to dismiss challenging
the legal basis of his claims. (Doc. 18). The issues in this case, as well as the defenses
presented in the defendants’ motion to dismiss, are straightforward. See Doc. 19. 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
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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). By his own admission, Pepe, although an indigent inmate,
has experience as a pro se litigator. Moreover, his pleading and correspondence to date
have been clearly written. If Pepe needs additional time to conduct research or formulate
a response to defendants’ motion to dismiss, he need only file a motion asking for an
enlargement of time. Plaintiff’s second request for counsel will be denied.
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: February 17, 2015
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