McDowell v. DeParlos et al
Filing
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MEMORANDUM re. mtn to appt cnsl 4 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 03/26/15. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
REUBEN McDOWELL,
Plaintiff
vs.
KEVIN DePAROLS, et al.,
Defendants
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CIVIL NO. 1:CV-15-0487
(Judge Caldwell)
MEMORANDUM
I.
Introduction
The pro se plaintiff, Reuben McDowell, an inmate at the Lycoming County
Prison in Williamsport, Pennsylvania, filed this pro se civil-rights action alleging that
defendants failed to protect him from assault by another inmate, issued him a fabricated
misconduct regarding that event, and then denied him due process during his disciplinary
hearing resulting in his confinement in the prison’s Special Management Unit for over
thirty days. Named as defendants are: the Lycoming County Prison (LCP); Warden
Kevin DeParlos; Lt. Harry Entz; Lt. Josh Rogers; Sgt. Mike White; Corrections Counselor
Ryan Barns; Corrections Officer (CO) Travis Scrobel and CO Johnson.
We are considering Plaintiff’s motion for appointment of counsel based on
his indigent status and lack of legal training. (Doc. 4).
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
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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
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
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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).
McDowell’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. The pleadings submitted by Plaintiff in this case so far are comprehensible and
the claims set forth are not complex. McDowell is clearly literate and, while it is true he
that he is incarcerated, he appears able to litigate this action on his own. It cannot be
said, at least at this point, that he will suffer substantial prejudice if he is required to
proceed with the prosecution of this case without the assistance of an attorney. 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), coupled with McDowell’s apparent ability to litigate this
action, weigh against the appointment of counsel. His present motion for counsel will be
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denied. If future proceedings demonstrate the need for counsel, the matter may be
reconsidered either sua sponte or pursuant to a properly filed motion.
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: March 26, 2015
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