Rivera v. Rendell et al

Filing 72

ORDER denying 29 Motion to Appoint Counsel, without prejudice. Signed by Honorable A. Richard Caputo on 3/27/13 (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERTO C RIVERA,
Plaintiff
v.
GOVERNOR ED RENDELL, et al.,
Defendants

:
:
:
:
:
:
:
:
:

CIVIL NO. 3:CV-10-0505
(Judge Caputo)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On March 5, 2010, Roberto C. Rivera, an Pennsylvania state prisoner confined at
SCI-Dallas, in Dallas, Pennsylvania, filed a pro se civil rights action pursuant to 42 U.S.C.
§ 1983,1 suing twenty-six defendants.2 Mr. Rivera’s Complaint asserts a variety of claims:
(1) a Due Process claim in connection with a misconduct hearing for arson; (2) an Eighth
Amendment claim that the medical staff failed to properly treat his mental health condition
when they failed to timely renew his psychotropic medications; (3) an Eighth Amendment
claim of deliberate indifference against both sets of defendants for failing to ensure his
1

For the convenience of the reader of this document in electronic format, hyperlinks
to authority cited herein have been inserted. The Court accepts no responsibility for, and
does not endorse, any product, organization, or content any hyperlinked site, or at any site
to which that site might be linked. The Court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the
user to some other site does not affect the opinion of this Court.
2

The Defendants in this action are divided into two groups: (1) Commonwealth of
Pennsylvania employees; and (2) physicians employed by the contract health care provider
at the State Correctional Institution at Dallas (SCI-Dallas), in Dallas. Pennsylvania. Each
group is represented by separate counsel.

continued housing in a single cell due to his mental health problems; and (4) a claim that
prison officials violated his rights under the American with Disabilities Act (ADA) by failing
to timely process his request for a single cell. (Doc. 1, Compl.) Presently before the
Court is Plaintiff Roberto Rivera’s Motion for Appointment of Counsel (Doc. 9) based on
the assertion that his mental and physical infirmities impede his ability to understand these
proceedings or adequately present the complex issues involved in this action. (Doc. 29,
Mot. for Counsel.) For the reasons that follow, Mr. Rivera’s motion will be denied without
prejudice.
A pro se litigant proceeding in forma pauperis has no constitutional or statutory right
to representation by counsel. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002).
Congress has granted district courts the discretion to “request an attorney to represent
any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). A district court as “broad
discretion” to determine whether counsel should be appointed. Montgomery, 294 F. 3d at
498. The appointment of counsel is made only "upon a showing of special circumstances
indicating the likelihood of substantial prejudice to [plaintiff] resulting ... from [plaintiff's]
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). The initial determination to be made by the court in evaluating the expenditure
of the "precious commodity" of volunteer counsel is whether the plaintiff's case "has some
arguable merit in fact and law.” Montgomery, 294 F.3d at 499. Next, if plaintiff's claims
meet this threshold review, other non-exclusive factors to be examined are:
1. the plaintiff's ability to present his or her own case;
2. the difficulty of the particular legal issues;
3. the degree to which factual investigation will be necessary
-2-

and the ability of the plaintiff to pursue investigation;
4. the extent to which a case is likely to turn on credibility
determinations;
5. whether the case will require testimony from expert
witnesses;
6. the plaintiff's capacity to retain counsel on his or her own behalf;
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997)(citing Tabron v. Grace, 6 F.3d 147,
155-57 (3d Cir. 1993)). After examining the above factors, the Court will deny Mr.
Rankin’s present motion for counsel without prejudice.
“Perhaps the most significant,” factor influencing our decision whether counsel
should be appointed is Plaintiff’s ability to present his case to the court. Montgomery,
294. F.3d at 501. Although Mr. Rivera may take psychotropic medication, this alone does
not establish his mental incapacity or inability to represent himself. In this case, it appears
that Mr. Rivera possesses an adequate level of competency and literacy to present his
case. From the Court’s review of Mr. Rivera’s filings to date, it is apparent that he has a
sufficient grasp of his case and the issues involved, and is able to adequately articulate
the factual and legal basis of his claims. The fact that Mr. Rivera states he relies on the
assistance of others to assist him with his filings does not alter our analysis in this matter
or our findings today. Our determination that at the present time it appears Mr. Rivera is
able to represent himself in this matter is reinforced by the fact that presently pending
before the Court are separate motions to dismiss filed by the Commonwealth defendants
and the medical defendants. Mr. Rivera actively opposed both motions submitting briefs
that cite to relevant case law and make appropriate counter arguments to the Defendants’
motions. Finally, until the Court resolves these motions, we will not be able to fully assess
the threshold question of the arguable factual and legal merit of Plaintiff’s claims for the
-3-

purpose of appointing him counsel. There is no evidence, at this point, that any prejudice
will result in the absence of counsel.
Consequently, at this time, Mr. Rivera’s request for counsel will be denied.
However, Plaintiff may file another motion for appointment of counsel if circumstances
change.
ACCORDINGLY, THIS

27th

DAY OF MARCH, 2013, IT IS HEREBY

ORDERED THAT Mr. Rivera’s motion for appointment of counsel (Doc. 29) is denied
without prejudice.

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

-4-