Shipman et al v. Gelso et al
MEMORANDUM AND ORDER Appeal is Denied. Judge Carlson's order is affirmed.Signed by Honorable Malachy E Mannion on 4/15/13. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DENNIS SHIPMAN, ET AL.,
JINADA ROCHELLE , ET AL.
CIVIL ACTION NO. 3:11-1162
MEMORANDUM AND ORDER
Before the court is plaintiff’s appeal,3 (Doc. No. 49), of Magistrate Judge
Carlson’s memorandum and order, (Doc. No. 45), denying plaintiff’s request for
the appointment of counsel. After reviewing the record to determine whether the
magistrate judge’s order was clearly erroneous or contrary to law, the court has
determined that Judge Carlson’s order denying plaintiff’s motion to appoint
counsel should be AFFIRMED.
STANDARD OF REVIEW
When a party appeals the nondispositive motion of a magistrate judge,
Aldo and Gnu Gelso were terminated from the lawsuit on January 15
because they reached a settlement with plaintiffs. (Doc. No. 56.)
This case was transferred from Judge Carlson to Judge Schwab on
February 6, 2013. (Doc. No. 58.)
Plaintiff refers to the filing as a “Motion for Reconsideration Pursuant to
Rule 54(B) Fed.R.Civ.P.” (Doc. No. 49, at 1.) However, because plaintiff is
asking this court to review a magistrate judge’s order on a nondispositive
motion, (Doc. No. 49), it is properly characterized as an appeal pursuant to 28
U.S.C. §636(b)(4) and MDPA Local Rule 72.2.
the party filing the appeal bears the burden of proof and the district court must
review the record to determine whether the magistrate judge’s order was
“clearly erroneous or contrary to law.” 28 U.S.C. 636(b)(1)(A); Fed. R. Civ. P.
72(a); Evans v. U.S., 05-CV-133, 2006 WL 2331103, *1 (D.N.J. 2006). The
Third Circuit has stated, “the standard of review is circumscribed: [t]he district
court is bound by the clearly erroneous rule in findings of fact; the phrase
‘contrary to law’ indicates plenary review as to matters of law.” Haines v. Liggett
Group Inc., 975 F.2d 81, 91 (3d Cir. 1992); see also In re Mushroom Direct
Purchaser Antitrust Litigation, 06-CV-0620, 2012 WL 5199388, *1 (E.D.Pa.
2012). A finding is clearly erroneous if, “although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Rycon Specialty Foods, Inc. v.
Wellshire Farms, Inc., 09-CV-2092, 2011 WL 1988016, *1 (M.D.Pa. 2011)
(quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)). Clear error
review grants substantial deference to magistrate judges and, “[a]pplying the
clearly erroneous standard, the reviewing court may not reverse a magistrate
judge’s decision simply because the reviewing court would have decided the
matter differently.” Id.
As an initial matter, courts have broad discretion to determine whether
counsel should be appointed in a civil case. Benchoff v. Yale, 11-CV-1106,
2012 WL 4061218, *3 (M.D.Pa. 2012). Nevertheless, the courts have observed
that counsel is normally appointed in civil cases for indigent parties only “upon
a showing of special circumstances indicating the likelihood of substantial
prejudice to the indigent litigant.” Maisonet v. City of Philadelphia, 06-CV-4858,
2007 WL 1366879, *4 (M.D.Pa. 2007); Seawright v. Kyler, 02-CV-1815, 2006
WL 709118, *2 (M.D.Pa. 2006). Courts should first “determine that the plaintiff’s
claim has some arguable merit in fact and law” and then look to six factors that,
while not dispositive, should guide the judge’s determination. Id. These include:
(1) the plaintiff’s ability to present his or her own case; (2) the
complexity of the legal issues; (3) the degree to which the factual
investigation will be necessary and the ability of the plaintiff to
pursue such investigation; (4) the amount a case is likely to turn on
credibility determinations; (5) whether the case will require the
testimony of expert witnesses; (6) whether the plaintiff can attain
and afford counsel on his or her own behalf. Benchoff v. Yale, 11CV-1106, 2012 WL 4061218 (M.D.Pa. 2012) (quoting Tabron v.
Grace, 6 F.3d 147 (3d Cir. 1993)).
It should be noted that plaintiff fails to address any of these factors in his brief
in support of the appeal.4 (Doc. No. 41.) Nevertheless, “[t]he list is not
exhaustive, and the decision of whether or not to appoint counsel must be
made on a case-by-case basis after considering all relevant factors.” Id.
Plaintiff first argues that Judge Carlson’s opinion was not supported by
The court will limit review of Judge Carlson’s opinion to the arguments
raised in plaintiff’s brief in support of the appeal.
the facts, stating “[s]ince the Magistrate [Judge] was not privy to any of the
threatening emails in question, plaintiff is hard-pressed to determine exactly
what evidence he employed to substantiate his opinion that plaintiff’s position
is not supported by the facts.” (Doc. No. 41, at 1.) Plaintiff neither cites to these
emails nor reiterates their substance in his brief and, after a thorough review
of the record, the court is unable to find any trace of these “threatening
emails.”5 Therefore, Judge Carlson can hardly be faulted for not considering
these emails when plaintiff failed to provide them for the court in the first place.
Next plaintiff claims that pursuing this legal matter has exacerbated the
symptoms of his medical disability. (Doc. No. 49, at 2.) He claims that his
disability is “an impairment that substantially limit[s] a major life activity pursuant
to the Americans With Disabilities Act.” (Doc. No. 41, at 7.) While this might be
a relevant factor to consider, he provided the court no evidence or even specific
allegations to substantiate this assertion. He has not provided any supporting
documentation nor has he stated how his health is deteriorating. The appealing
party bears the burden of showing that a magistrate judge’s ruling should be
overturned. Without this information, a court cannot make a determination as
Plaintiff does say in his motion to appoint counsel, (Doc. No. 41),
“Plaintiff s move for this relief because of threatening, insulting communication
that has intentionally inflicted emotional distress in plaintiff pro se,” but he does
not actually explain how the correspondence was threatening or insulting. (Doc.
No. 41, at 1.)
to whether this factor weighs in favor of appointing counsel.
Even assuming, however, that plaintiff had provided this evidence, it is
doubtful that his burden to require overruling Judge Carlson’s order would be
met. While the court is cognizant that pro se litigants face significant burdens
in bringing civil claims, the equality and fairness engendered by appointing
counsel to indigent parties is not the only factor that the court must consider.
As the Third Circuit observed in Tabron v. Grace:
Finally, in addressing this issue, we must take note of the
significant practical restraints on the district courts’ ability to appoint
counsel: the ever-growing number of . . . civil rights actions filed
each year in the federal courts; the lack of funding to pay appointed
counsel; and the limited supply of competent lawyers who are
willing to undertake such representation without compensation. We
have no doubt that there are many cases in which district courts
seek to appoint counsel but there is simply none willing to accept
appointment. It is difficult to fault a district court that denies a
request for appointment under such circumstances. Gonzalez v.
Nadzom, 12-CV-1021, 2012 WL 4849615 (M.D.Pa. 2012).6
Finding that Judge Carlson’s memorandum and order denying the
The Gonzalez court continued:
Mindful of this consideration it has been emphasized that volunteer
lawyer time is extremely valuable. Hence, district courts should not
request counsel under §1915(d) indiscriminately. As the Court of
Appeals for the Second Circuit has warned: Volunteer lawyer time
is a precious commodity. . . . Because this resource is available in
only limited quantity, every assignment of a volunteer lawyer to an
undeserving client deprives society of a volunteer lawyer available
for a deserving cause. . . . Gonzalez v. Nadzom, 12-CV-1021, 2012
WL 4849615, *1 (M.D.Pa. 2012) (citing Tabron v. Grace, 6 F.3d
147, 157 (3d. Cir. 1993)).
appointment of counsel, (Doc. No. 45), is not clearly erroneous nor contrary to
law, the appeal, (Doc. No. 49), is DENIED, and Judge Carlson’s order (Doc.
No. 45), is AFFIRMED. Plaintiff’s motion to appoint counsel, (Doc. No. 41), is
DISMISSED without prejudice to re-examine the issue, if necessary, as this
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: April 15, 2013
O:\Mannion\shared\MEMORANDA - DJ\2011MEMORANDA\11-1162-02.wpd
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