Martinez v. Stevens et al
MEMORANDUM re MOTION to Appoint Counsel 19 filed by Albert Eliezer Martinez (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 1/26/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALBERT ELIEZER MARTINEZ,
ROBERT STEVENS, et al.,
CIVIL NO. 1:CV-16-1474
Presently before the court is plaintiff, Albert Martinez’s, Motion for
appointment of counsel. (ECF No. 19). For the reasons that follow the motion will be
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
“should make every attempt to obtain counsel.” Id. at 505 (quoting Parham, 126 F.3d at
461)(internal quotation marks omitted).
Martinez filed this pro se action asserting a First Amendment claim that
Defendants, employees of the Adams County Prison, interfered with his ability to practice
his religion. Martinez, who is Jewish, asserts that Defendants denied him access to a
Rabbi, appropriate religious services and a Kosher diet while housed at the prison. (ECF
No. 1, Compl.) Defendants have Answered the Complaint and discovery is set to close on
May 22, 2017. (ECF No. 18, Scheduling Order).
In support of his motion for counsel, Martinez argues that he is indigent, the
issues in this case are complex and that he has limited access to the law library. He adds
that he is presently also a defendant in a criminal action and must allocate a portion of his
limited law library time to this action as well as his criminal matter. He adds that his efforts
to obtain outside counsel to represent him in this matter have thus far been unsuccessful.
(ECF No. 19, Mot. for Counsel).
To date, Martinez’s correspondence with the court has been clear and easily
understood. His communication is direct and demonstrates a firm grasp of the English
language. Martinez’s brief in support of his motion for counsel is thorough and complete
with legal citation. (ECF No. 20, Br. in Supp. Mot. for Counsel). Although Martinez
perceives the legal issues presented in his Complaint as complex, they are 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 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Martinez has not suggested why he cannot conduct discovery on his own, like other pro se
inmates. Also, he need not be concerned with his limited access to the law library as he
may always request an enlargement of time if, and when needed, to respond to a court
imposed deadline. (Id.) At this point in the litigation, there is no evidence that any
prejudice will befall Martinez 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: January 26, 2017
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