Ash v. Lawton et al

Filing 30

MEMORANDUM re pltf's MOTION to Appoint Counsel 26 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 9/7/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM A ASH,
Plaintiff
v.
ROBERT LAWTON, et al.,
Defendants

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CIVIL NO. 1:CV-16-0148
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Presently before the Court is Ash’s motion for appointment of counsel.

(ECF No. 26, Mot. for Counsel). 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 (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

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be made at any point in 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

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court “should make every attempt to obtain counsel.” Id. at 505 (quoting Parham, 126
F.3d at 461)(internal quotation marks omitted).
The pro se Plaintiff, William Ash, an inmate presently housed at the Dallas
State Correctional Institution (SCI-Dallas), in Dallas, Pennsylvania, filed this civil-rights
action pursuant to 42 U.S.C. § 1983 on January 21, 2016. He seeks monetary
damages for the fifteen days he spent in county prison following his receipt of a judicial
order granting him unsecured bail. Named as Defendants are the following Luzerne
County employees: Robert Lawton; J. Allen Nesbitt; James Larson and Mark
Rockcovich. (ECF No. 1, Compl.) Defendants have filed a motion to dismiss Ash’s
Complaint arguing that it was filed outside the applicable statute of limitations. (ECF
No. 21, Mot. to Dismiss). Ash filed a brief in opposition to Defendants’ potentially
dispositive motion. (ECF No. 25, Pl.’s Opp’n Br.).
In support of Plaintiff’s motion for counsel, Ash argues that he is indigent,
the issues in this case are complex and his lack of knowledge of the law may hinder his
ability to proceed, and that his attempts to obtain counsel on his own have been
unsuccessful. (ECF No. 26).
To date, Ash’s correspondence to the court has been clear and easily
understood. His communication is direct and demonstrates a firm grasp of the English
language. Although Ash perceives the single legal issues presented in his Complaint as
complex, it is not. The merits of his case are rather straightforward. Likewise, although
he is indigent and incarcerated, these facts alone do not merit the appointment given
this court's liberal construction of pro se pleadings. Haines v. Kerner, 404 U.S. 519, 92

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S.Ct. 594, 30 L.Ed.2d 652 (1972). At this point in the litigation, the court has yet to
address Defendants’ motion to dismiss. Following our resolution of that motion the
Court will be better positioned to determine what issues, if any, remain. At this point
there is no evidence that any prejudice will befall Ash in the absence of court-appointed
counsel. Consequently, his request for counsel will be denied at this time.
An appropriate order follows.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: September 7, 2017

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