Joh v. Suhey, D.O. et al

Filing 14

MEMORANDUM re. Mtn for appointment of counsel 9 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 9/29/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD JOH,
Plaintiff
vs.
DR. PAUL SUHEY, D.O., et al.,
Defendants

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CIVIL NO. 1:CV-15-2286
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Presently before the court is plaintiff, Richard Joh’s Motion for appointment of

counsel. (ECF No. 9). 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.
“[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

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“should make every attempt to obtain counsel.” Id. at 505 (quoting Parham, 126 F.3d at
461)(internal quotation marks omitted).
Joh seeks the appointment of counsel based on his indigent status, lack of
“full comprehension and the capability to fluently use legal terminology,” and his “inability to
fluently speak English”. (ECF Nos. 9 and 10). At the time of filing his Complaint, Joh was
58 years old and had attended “some college.” (ECF No. 5). Presently Joh is no longer
incarcerated and is residing in Philadelphia. Procedurally, we have recently screened Joh’s
Complaint and dismissed it pursuant to 28 U.S.C. § 1915(e)(2)(B). However, Joh has been
granted leave to file an amended complaint. Based on Joh’s Complaint, and other
correspondence to the court, it is clear he can read and write in English. His Complaint and
correspondence are easily understood, clearly worded and present logical and concise
issues for consideration. To the extent his request for counsel is based on his indigent
status and lack of legal training, these facts alone 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). At this point in the litigation, there is no
evidence that any prejudice will befall Joh in 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: September 29, 2016

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