DiPietro v. The Department of Corrections and Its Employees Listed Herein et al
Filing
20
MEMORANDUM re MOTION to Appoint Counsel 17 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 4/28/16. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICODEMO DiPIETRO,
Plaintiff
vs.
THE DEPARTMENT OF
CORRECTIONS & ITS EMPLOYEES
LISTED HEREIN, et al.,
Defendants
:
:
:
:
:
:
:
:
:
:
:
CIVIL NO. 1:CV-15-1137
(Judge Caldwell)
MEMORANDUM
I.
Introduction
Presently before the court is plaintiff, Nicodemo DiPietro’s, Motion for
appointment of counsel. (Doc. 17). For the reasons that follow the motion will be denied.
II.
Discussion
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
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.
-2-
“[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).
The court has only recently directed service of DiPietro’s Amended
Complaint. Until the defendants respond, 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. DiPietro’s Amended Complaint and other filings have
thus far been clearly worded and present logical concise arguments. To the extent that
DiPietro’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). DiPietro has not suggested why he cannot conduct discovery on his
own, like other pro se inmates. Although he notes he has been “transferred from place to
place . . . to hinder his ability to investigate,” he does not suggest how his repeated
transfers will impede his ability to conduct discovery. (Doc. 17). Also, he need not be
concerned with his “extremely limited access to the law library,” as he may always
request an enlargement of time if needed to respond to a court imposed deadline. (Id.)
At this point in the litigation, there is no evidence that any prejudice will befall DiPietro in
-3-
the absence of court-appointed counsel. Consequently, his request for counsel will be
denied.
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: April 28, 2016
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?