Broussard v. Ebbert et al

Filing 21

MEMORANDUM re MOTION to Appoint Counsel 20 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 11/16/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DERMONT L. BROUSSARD,
Plaintiff
vs.
DAVID J. EBBERT, et al.,
Defendants

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CIVIL NO. 1:CV-15-1568
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se plaintiff, Dermont L. Broussard, a federal inmate housed at USP

Lewisburg, filed this civil-rights action in August 2015. Presently before the court is
Broussard’s motion for appointment of counsel (Doc. 20). For the following reasons, the
motion will be denied.

II.

Background
In his Complaint, Broussard alleges he was involved in a use-of-force incident

on December 28, 2014, at USP Lewisburg. (Doc. 1, Compl.) He claims a video of the
event will show staff used excessive force against him when extracting him from his J Block
cell. He also claims prison staff sexually assaulted him and destroyed his personal
property. (Id.) Broussard did not connect any of the events to the named defendants
(Warden Ebbert, Michael Tapelski or Darnell Strolde). (Doc. 12).

The court screened Broussard’s Complaint and dismissed it pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) due to Broussard’s failure to state a claim for relief against any of
the named defendants. Broussard was granted leave to file an Amended Complaint.
(Docs. 12 and 13). On October 22, 2015, we granted Plaintiff’s request for an enlargement
of time to file an amended complaint. (Docs. 17 and 18). Broussard has until November
23, 2015, to file his amended complaint.

III.

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
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(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.
“[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 claims he “has missed every set deadline set forth from the court.”
(Id.) He believes his “ability to follow breadcrumbs are beyond his scope,” thus
necessitating his request for counsel. (Id.) To date, Broussard has not missed any filing
deadlines. He did seek an enlargement of time to file his amended complaint, which the

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court granted. He clearly has the ability to communicate with the court. He has command
of the English language and the ability to convey his Complaint, and other matters, to the
court. To the extent his request for counsel is premised 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 litigation, that any
prejudice will befall Broussard in the absence of court-appointed counsel. At this point,
Broussard is obligated to file an amended complaint setting forth the basis of his claim for
relief, and identifying what role each of those he names as a defendant played in violating
his constitutional rights. Based on Broussard’s filings to date, this task is not beyond
Broussard’s abilities. In the event that Plaintiff needs additional time to file his amended
complaint, he need only ask to the court as he did before. Consequently, at this time,
Broussard’s request for counsel will be denied.
An appropriate order follows.1
/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: November 16, 2015
1

Broussard suggests the court erred when directing prison officials to commence remitting
the $350.00 filing fee in installments when he was granted leave to proceed in forma pauperis.
(Doc. 20). He is mistaken. The grant of in forma pauperis standing does not relieve the plaintiff of
his obligation to pay the filing fee in full. See 28 U.S.C. § 1915(b). Instead, it allows him to
commence his civil-rights action, regardless of his ability to pay the filing fee in one lump sum.
Broussard signed an Authorization acknowledging this obligation and authorizing prison officials to
deduct the fee periodically from his account. See Doc. 9.

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