Purnell v. Cwalina et al

Filing 202

MEMORANDUM AND ORDER conditionally granting 200 Motion to Appoint Counsel. IT IS HEREBY ORDERED: 1. Plaintiff's Motion to Appoint Counsel (Doc. 200) is conditionally GRANTED. 2 The Clerk of Court is directed to forward a copy of this Memoran dum and Order to the Chair of the Federal Bar Association's Pro Bono Committee, Stephen M. Greecher, Jr., Esquire, who shall select, or affect the selection of a member of the Bar Association to represent Plaintiff in this matter. 3. Appointed counsel for Plaintiff is directed to file an entry of appearance with the Court no later than 45 days from the date of this Order. Signed by Honorable A. Richard Caputo on 11/15/11 (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KERRY PURNELL,
Plaintiff

CIVIL NO. 3:07-CV-0024

v.
(JUDGE CAPUTO)
PETER CWALINA, ET AL.,
Defendants
MEMORANDUM
Before the Court is Kerry Purnell’s Motion for Leave to File Motion for
Appointment of Counsel (Doc. 200) which I construe as a motion for appointment
of counsel.
This is a civil action filed under 42 U.S.C. §1983 by Plaintiff for events which
occurred in SCI-Dallas. The claim is based upon a violation of the Fourteenth
Amendment (excessive force). The Eighth Amendment (deliberate indifference to
medical needs) claim has been dismissed and is no longer part of the case.
DISCUSSION
In Tabron v. Grace, 6 F.3d 147 (3rd Cir. 1993), the United States Court of
Appeals for the Third Circuit identified several factors to assist district courts in
determining when the appointment of counsel is appropriate. Preliminarily, the
plaintiff’s claim must have some merit and fact in law, Id. at 155, and if the claim has
merit the district court should consider the following factors: 1) plaintiff’s ability to
present his or her own case, 2) the complexity of the legal issues, 3) the degree to
which factual investigation will be necessary and the ability of the plaintiff to pursue

such investigation, 4) whether the case is likely to turn on credibility determinations,
5) whether the testimony of expert witnesses is required, and 6) whether plaintiff
can attain and afford counsel in his own behalf. Id. at 155-58.
By adopting the Magistrate Judge’s Report and Recommendation this Court
found that the Plaintiff’s claim has merit. I will now explore the remaining factors set
forth in Tabron.

1.

Plaintiff’s ability to present his own case.

Plaintiff has filed a complaint containing 88 paragraphs. The allegations are
clear, and the allegations concerning Defendants Cywinski, Sowga and Smatko are
clearly written. He also filed briefs which were clearly written.
2.

The complexity of legal issues.

I do not believe that the legal issues are complex, however, since credibility
is such a crucial issue in this case, I am not convinced the Plaintiff can perform
adequately.
3.

The degree to which factual investigation will be necessary
and the ability of the plaintiff to pursue such investigation.

In the present case, extensive discovery is not necessary. Moreover, while
the case is ready for trial, it may well be that Plaintiff needs an expert to opine on
his injuries and the cause of the injuries. Whether or not such opinion can be
obtained is unknown, but, I view the need for Plaintiff to explore this possibility as
essential to the Plaintiff’s case. In this respect, counsel would be a necessary
ingredient in assisting the Plaintiff in the preparation of this aspect of the case. The
2

Plaintiff should have the opportunity to determine whether he can secure medical
opinion evidence, and the necessary and appropriate way to do so is through
appointed counsel. 1 Therefore, the appointment of counsel is necessary to assist
the Plaintiff in conducting a factual investigation.

4.

The likelihood that the case will turn on credibility determinations.

Credibility determinations are important in the case, and I am not convinced
Plaintiff is up to this task. Counsel is necessary for the cross examination of
witnesses. This factor weighs in favor of appointment.

5.

Whether the case will require expert testimony.

Under Tabron, appointed counsel “may be warranted where the case will
require testimony from expert witnesses” Id. at 156. As noted, Plaintiff may require
the testimony of a medical expert in order to present his case. I am convinced that
the Plaintiff should have the opportunity to secure an expert, and further that the
appointment of counsel would be necessary in order to assist Plaintiff in attempting
to secure an expert evaluation. As a result, this Tabron factor weighs in favor of the
appointment of counsel.

1

Local Rule of Court 83.34.6 provides that a court appointed pro bono
attorney may seek reimbursement of costs not to exceed a limit
established by Standing Order, which at present is $1500.00 (S.O. 05-05).
An expert’s fee would qualify as an expense for which reimbursement
may be sought under this Local Rule.

3

6.

Whether Plaintiff can attain and afford counsel.

Plaintiff cannot afford counsel.

CONCLUSION
After analysis of the Tabron factors, I find the appointment of counsel in the
present case is warranted. My finding is based upon the conclusion that credibility
is crucial and that counsel is necessary to assure fairness to Plaintiff, and that there
may be the need for a medical expert with respect to connecting Plaintiff’s injuries
to the alleged incidents.
Accordingly, Plaintiff’s motion will be conditionally granted. If counsel cannot
be found to represent Plaintiff, the conditional order for appointment of counsel will
be revoked.2
An appropriate Order will follow.

Date: November 15, 2011

2

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

Plaintiff is advised that if the Court is unable to appoint counsel in this
matter, he will be required to proceed with his case without counsel.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KERRY PURNELL,
CIVIL NO. 3:07-CV-0024
Plaintiff
(JUDGE CAPUTO)

v.
PETER CWALINA, ET AL.,
Defendants
ORDER

NOW, this 15th day of November, 2011, IT IS HEREBY ORDERED
1. Plaintiff’s Motion to Appoint Counsel (Doc. 200) is conditionally
GRANTED.
2. The Clerk of Court is directed to forward a copy of this Memorandum
and Order to the Chair of the Federal Bar Association’s Pro Bono Committee,
Stephen M. Greecher, Jr., Esquire, Tucker, Arensberg & Swartz, 11 North Front
Street, P.O. Box 889, Harrisburg, Pennsylvania, 17108, who shall select, or affect
the selection of a member of the Bar Association to represent Plaintiff in this matter.
3. Appointed counsel for Plaintiff is directed to file an entry of appearance
with the Court no later than forty-five (45) days from the date of this Order.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge