Gresh v. Huntingdon County et al

Filing 78

ORDER conditionally granting pro se pltf's motion for appt of cnsl 73 , directing Clrk of Ct to fwd case docs to pro bono chair of MDPA Chapter of FBA, directing pro bono chair to w/in 60 day notify ct in writing whether volunteer atty will enter appearance on behalf of pltf, & noting nothing in this order alters, etc., pretrial case mgmt ddls establihed by separate order of today's date. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 12/6/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DENNIS GRESH,
Plaintiff
v.
HUNTINGDON COUNTY, et al.,
Defendants

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CIVIL ACTION NO. 1:15-CV-1466
(Chief Judge Conner)

ORDER
AND NOW, this 6th day of December, 2016, upon consideration of the motion
(Doc. 73) to appoint counsel by pro se plaintiff Dennis Gresh (“Gresh”), wherein
Gresh asserts that his limited knowledge of the law will severely inhibit his ability to
investigate and prepare his case prior to trial, that this litigation involves complex
legal and factual disputes that will be challenging for a pro se litigant to present at
trial, and that he is unable to afford counsel, (id.), and it appearing that “[i]ndigent
civil litigants possess neither a constitutional nor a statutory right to appointed
counsel,” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Parham v.
Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997)), but that Congress authorizes courts to
“request an attorney to represent any person unable to afford counsel” on a pro
bono basis if circumstances compel that result, see 28 U.S.C. § 1915(e)(1), and the
court obliged to assess, as a threshold matter, whether the moving litigant’s claim
has “arguable merit in fact and law,” Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993),
and finding that Gresh has satisfied this requirement by successful prosecution of
his claim to this juncture, and, turning to consideration of the remaining factors

pertinent to appointment inquiries, to wit: the litigant’s ability to present a case or
defense, the complexity of the legal issues, the degree of factual investigation
required, whether the case requires expert witness testimony, and whether the
litigant can otherwise afford to retain counsel, see Parham, 126 F.3d at 457, the
court finding that the substance of Gresh’s remaining claims is complex and that
trial of this matter may involve the presentation of conflicting testimony, to likely
include Gresh’s own testimonial account, which will most efficiently proceed with
the assistance of counsel trained in the law and rules of evidence, and the court
finding that the case requires additional factual investigation and that Gresh is
unable to afford retained counsel, and the court noting, in conclusion, that § 1915(e)
“gives district courts broad discretion to determine whether appointment of counsel
is warranted,” and that “the determination must be made on a case-by-case basis,”
Tabron, 6 F.3d at 157-58, and concluding that the circumstances of this case warrant
appointment of pro bono counsel if available, it is hereby ORDERED that:
1.

Gresh’s motion (Doc. 73) to appoint counsel pursuant to 28 U.S.C. §
1915(e)(1) is conditionally GRANTED.

2.

If counsel cannot be found to represent the pro se plaintiff, this
conditional order appointing counsel will be revoked, and plaintiff will
be required to proceed in this matter without counsel.

3.

The Clerk of Court is directed to forward to the pro bono chair of
the Middle District of Pennsylvania Chapter of the Federal Bar
Association copies of the following documents: (i) this order, (ii)
Gresh’s amended complaint (Doc. 40), and (iii) the memorandum
opinions (Docs. 38, 74) and orders (Docs. 39, 75) granting in part and
denying in part defendants’ motions (Docs. 43, 45, 47) to dismiss.

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4.

Within sixty (60) days of the date of this order, the pro bono chair of
the Middle District of Pennsylvania Chapter of the Federal Bar
Association shall notify the court in writing whether a volunteer
attorney will enter an appearance on behalf of plaintiff.

5.

Nothing in this order shall alter, amend, or otherwise supersede the
pretrial case management deadlines established by separate order of
today’s date.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania