Knight v. Lowry et al

Filing 43

ORDER denying 42 Motion to Appoint Counsel without prejudice. Signed by Honorable A. Richard Caputo on 4/16/12 (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAWRENCE H. KNIGHT, II,
Plaintiff
v.
CO LOWRY, et al.,
Defendants

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CIVIL NO. 3:CV-10-2168
(Judge Caputo)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Presently before the Court is Plaintiff’s Fifth Motion for the Appointment of
Counsel. Doc. 42. Plaintiff’s previous four motions for appointment of counsel
(Docs. 10, 16, 24, and 34) were denied. See Docs. 12, 18, 25, and 36. In his
present motion for counsel Plaintiff outlines his unsuccessful attempt to obtain legal
representation on his own and asserts that he does not understand the Defendants’
filing of March 6, 2012, and that he does not know if he is supposed to file
something in response.1 Doc. 42 at p. 2. He believes the appointment of legal
counsel will assist him in obtaining medical expert witnesses, and medical testing
that would prove his case that he was assaulted in 2008 by several officers at SCI-

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The Court notes that the docket does not reflect any entry by Defendants dated
March 6, 2012. Aside from the present motion for counsel, there are no outstanding
motions pending on the docket.

Waymart. Id. at p. 3. For the reasons that follow, Plaintiff’s Fifth Motion for
Appointment of Counsel will be denied without prejudice.
There is no statutory or constitutional right to the appointment of counsel for
pro se indigent civil litigants. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.
1997). However, district courts have broad discretionary powers to request an
attorney to represent any person unable to afford counsel. See 28 U.S.C. §
1915(e)(1); Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002)(citing Tabron
v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)). Appointment of counsel may be made at
any point in the litigation, including sua sponte by the Court. Montgomery, 294 F.3d
at 498 (citing Tabron, 6 F.3d at 156).
The United States Court of Appeals for the Third Circuit has stated that when
deciding whether to appoint counsel, the threshold question is whether the litigant’s
case has arguable merit in law or fact. Montgomery, 294 F.3d at 499 (emphasis
added). Next, if plaintiff's claims should overcome this review, the following nonexclusive matters are examined:
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the plaintiff's ability to present his or her own case;
the difficulty of the particular legal issues;
the degree to which factual investigation will
be necessary and the plaintiff's ability to
pursue investigation;
the plaintiff's capacity to retain counsel on
his or her own behalf;
the extent to which a case is likely to turn
on credibility determinations, and;
whether the case will require testimony
from expert witnesses.

Montgomery, 294 F.3d at 499, citing Tabron, 6 F.3d at 155-57. Further, there are

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significant practical restraints that temper the court's ability to appoint counsel and
that volunteer lawyer time is a precious commodity. Because volunteer lawyer time
is limited, every assignment of a volunteer lawyer to an undeserving client deprives
society of a volunteer lawyer for a deserving cause. Tabron, 6 F.3d at 157.
At this point, Plaintiff has successfully defended against the Defendants’
Motion to Dismiss, and his Eighth Amendment excessive use of force claim survives
against CO Black and CO Lowry. Additionally, Plaintiff has successfully named and
substituted two John Does in this action, CO Freechand and CO Leval. These
defendants were just recently served with the Complaint and have yet to file a
response to the Complaint. Additionally, while Plaintiff contends he suffers from
extensive physical disabilities, there is no evidence that these alleged medical
disabilities hinder his ability to adequately articulate his claims. Moreover, although
Plaintiff argues that he has little legal knowledge, he sets forth sound legal
arguments and citation to relevant case law in his various submissions which clearly
demonstrate his access to legal resources, and the ability to understand and
present such authority. For these reasons, the Court is unable to conclude at this
point that Plaintiff will suffer substantial prejudice if he is required to proceed with
the prosecution of this case on his own. The 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),
coupled with Plaintiff's apparent ability to litigate this action, weigh against the
appointment of counsel at this moment.
Finally, while not determinative, it is also important to consider the effort
made by Plaintiff to retain an attorney on his own before asking the court to appoint
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one. See Tabron, 6 F.3d at 157 n.5. Although Plaintiff states he has been
unsuccessful in obtaining counsel on his own, this factor alone does not warrant the
appointment of counsel. As such, his pending motion will be denied. If future
proceedings demonstrate the need for counsel, the matter may be reconsidered
either sua sponte or upon a motion properly filed by Plaintiff.
ACCORDINGLY, THIS 16th DAY OF APRIL, 2012, IT IS HEREBY
ORDERED THAT Plaintiff’s Fifth Motion for Appointment of Counsel (Doc. 42) is
DENIED WITHOUT PREJUDICE.

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

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