Margetta v. Ferguson et al

Filing 17

MEMORANDUM re pltf's MOTION to Appoint Counsel 12 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 3/6/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEVEN MARGRETTA,
Plaintiff
vs.
TAMMY FERGUSON, et al.,
Defendants

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CIVIL NO. 1:CV-17-0037
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Presently before the court is Steven Margetta’s motion for appointment of

counsel. (ECF No. 12). 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
“should make every attempt to obtain counsel.” Id. at 505 (quoting Parham, 126 F.3d at
461)(internal quotation marks omitted).

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Margretta filed his Complaint concerning the loss of his prison job on
December 30, 2016. (ECF No. 1, Compl.) On January 19, 2017, we screened the
Complaint pursuant to 28 U.S.C. § 1915 dismissing some claims with prejudice while
allowing Margretta to file an amended complaint as to others. (ECF Nos. 6 and 7). The
court has only recently directed service of Margretta’s Amended Complaint on the
defendants. (ECF No. 10). Until the defendants respond, the court will not be able to fully
assess the threshold question of the arguable factual and legal merit of Plaintiff’s claims for
the purpose of appointing him counsel. Margretta’s Amended Complaint and other filings
have thus far been clearly worded and present logical concise arguments. To the extent
that Margretta’s request for counsel is based 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). Margretta has not suggested why he cannot conduct discovery on his own,
like other pro se inmates, even though he argues he “lacks the ability to make
investigations in this matter and interview witnesses.” (ECF No. 12). Also, Margretta need
not be concerned with his limited access to the law library (4.5 hours) as he may always
request an enlargement of time if needed to respond to a court imposed deadline. (Id.) At
this point in the litigation, there is no evidence that any prejudice will befall Margretta 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: March 6, 2017
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