Montalban v. Powell et al
MEMORANDUM re MOTION to Appoint Counsel 9 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 4/7/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MR. POWELL, et al.,
CIVIL NO. 1:CV-17-0212
We are considering Plaintiff’s motion for appointment of counsel (ECF No. 9).
The pro se plaintiff, Jose Montalban, a federal inmate formerly housed at USP-Canaan in
Waymart, Pennsylvania, filed this civil-rights action alleging that USP-Canaan employees
used excessive force to subdue him after he assaulted a staff member and that he was
then denied medical care and food.1 He also alleges his legal materials were lost or stolen
when he was transported to federal court to appear on criminal assault charges. (ECF No.
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).
Montalban is presently housed at FCI Coleman in Coleman, Florida.
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).
This case is at an extremely early stage. In fact, Plaintiff filed a motion to file
an amended complaint, which we granted. Upon our receipt of the amended complaint, we
will screen it. Until then, we are unable to fully assess the threshold question of the
arguable factual and legal merit of Plaintiff’s claims for the purpose of appointing him
Additionally, we observe that the Complaint, and other correspondence to the
court, thus far have been clearly worded and present logical, concise arguments. Plaintiff’s
ability to communicate in English is demonstrated by his extensive Complaint and the many
documents attached to it. Further, to the extent that Plaintiff’s request for counsel is based
on his incarceration or indigent status, these circumstances 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 early point in the
litigation, we will therefore deny the motion for counsel.
An appropriate order follows.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: April 7, 2017
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