Rosa-Diaz v. Harry et al

Filing 20

MEMORANDUM re pltf's MOTION to Appoint Counsel 19 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 4/6/17. (ma)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA GABRIEL ROSA-DIAZ, Plaintiff, v. LAUREL HARRY, et al., Defendant. : : : : : : : : : Civil No. 1:16-cv-2303 Magistrate Judge Carlson Judge Sylvia H. Rambo MEMORANDUM Before the court is Plaintiff’s motion for appointment of counsel. (Doc. 19.) For the reasons that follow, the motion will be denied. I. Discussion Although litigants have no constitutional or statutory rights to appointment of counsel in a civil case, the court does have broad discretionary power to appoint counsel under 28 U.S.C. § 1915(e)(1). Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)); see also Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). In Tabron, the Third Circuit developed a list of criteria to aid the district courts in weighing the appointment of counsel for indigent civil litigants. As a threshold matter, a district court must assess whether the claimant’s case has some arguable merit in fact and law. Tabron, 6 F.3d at 155. If a claimant overcomes this threshold hurdle, the Third Circuit has identified a number of factors that a court should consider when assessing a claimant’s request for counsel. These 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. Id. at 155-57. Furthermore, the appointment of counsel for an indigent litigant should be made when circumstances indicate “the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case.” Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984). Assuming, solely for the purpose of deciding this motion, that Plaintiff’s complaint has arguable merit, Plaintiff has demonstrated that he is capable of presenting comprehensible arguments. He has set forth his complaint in legibly written understandable paragraphs. The legal issues are relatively uncomplicated, and the court cannot say, at least at this point, that Plaintiff will suffer prejudice if he is forced to prosecute the case on his own. Furthermore, this court’s liberal construction of pro se pleadings mitigates against appointment of counsel. Haines v. Kerner, 404 U.S. 519 (1972). 2 II. Conclusion The court will deny Plaintiff’s motion for appointment of counsel. In the event, however, that future proceedings demonstrate the need for counsel, the matter may be reconsidered either by the court, on its own initiative, or upon a properly filed motion by Plaintiff. An appropriate order will issue. s/Sylvia H. Rambo SYLVIA H. RAMBO United States District Judge Dated: April 6, 2017 3

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