Robinson v. Wetzel et al

Filing 15

ORDER the plaintiffs motion for class certification and appointment of counsel, (Doc. No. 3), is DENIED.Signed by Magistrate Judge Malachy E. Mannion on 11/28/11 (bs, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MARK ANTHONY ROBINSON,

:

Plaintiff

:

CIVIL ACTION NO. 3:11-1269

v.

:

(MARIANI, D.J.)
(MANNION, M.J.)

JOHN WETZEL, Warden and
DORINA VARNER, Chief
Grievance Officer,
Defendants

:
:
:

MEMORANDUM AND ORDER1
Pending before the court is a motion filed by the plaintiff in which he
seeks (1) to have the court certify the instant action as a class action and (2)
to have the court appoint him counsel. (Doc. No. 3).
Initially, the plaintiff requests that the court certify the instant action as
a class action. In doing so, the plaintiff does nothing more than to cite the
factors relevant to obtaining class certification pursuant to Fed.R.Civ.P. 23.
The plaintiff provides no support which would indicate that these factors are
applicable to the instant action. As such, his motion for class certification will
be denied.
The plaintiff next requests, with nothing more, that the court appoint him

1

For the convenience of the reader of this document in electronic format,
hyperlinks to the court’s record and to authority cited have been inserted. No
endorsement of any provider of electronic resources is intended by the court’s
practice of using hyperlinks.

counsel. To this extent, it is well established that indigent litigants have no
constitutional or statutory right to appointed counsel in a civil case.
Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Parham v.
Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997)). However, Congress has given
the district courts broad discretion to appoint counsel when deemed
appropriate. See id.; 28 U.S.C. §1915(e)(1) (2006).2 For example,
appointment of counsel should be made when circumstances “indicate the
likelihood of substantial prejudice to [the indigent litigant] resulting . . . from
his probable inability without such assistance to present the facts and legal
issues to the court in a complex but arguably meritorious case.” Ferrell v.
Beard, 2006 U.S. Dist. LEXIS 63504, at *9 (M.D. Pa. Sept. 9, 2006) (quoting
Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984)). Yet the court must
always make a threshold determination of “whether the claimant’s case has
some arguable merit in fact and law.” Montgomery, 294 F.3d at 499-500;
Ferrell, at *9.
If the case is genuinely meritorious, then the court will consider a variety
of factors that guide the court in deciding whether to appoint counsel. A
nonexhaustive list includes:
1.

the plaintiff’s ability to present his or her own case;

2.

the difficulty of the particular legal issues;

2

The Third Circuit has rejected the notion that the appointment of
counsel under §1915(e)(1) is justified only under “exceptional circumstances.”
Montgomery, 294 F.3d at 498 n.9 (internal citations omitted).

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 or her 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.

Montgomery, 294 F.3d at 499 (citing Tabron v. Grace, 6 F.3d 147, 155-57 (3d
Cir. 1993)).
In addition, the court is to consider several other practical
considerations which serve to restrain a court’s decision to appoint counsel
in a civil case: the growing number of civil rights actions filed in federal courts
by indigent litigants; the lack of funding to pay appointed counsel; and the
finite pool of qualified attorneys willing to undertake assignments on a pro
bono basis. See id. at 505. Yet despite these circumstances, careful analysis
of the post-threshold factors will allow for the appropriate allocation of these
limited legal resources. See id.
In this case, the plaintiff’s filings seem to indicate that he has the ability
to “present the facts and legal issues to the court” without the assistance of
an attorney. A review of the record of this case suggests that plaintiff can,
given the leeway afforded to pro se litigants, adequately present his case and
follow the applicable Rules. The plaintiff is literate and is able to communicate
his thoughts to the court. His filings this far have been understood, and they
indicate that plaintiff is capable of pursuing his complaint without the benefit
of appointed counsel. The issues raised by plaintiff do not appear to be

complex. Thus, the plaintiff’s request for court-appointed counsel will be
denied.
As a final matter, the court notes that, although the plaintiff is seeking
class certification in addition to the appointment of counsel, Fed.R.Civ.P. 23
also does not provide a basis for appointment of counsel in this case. To this
extent, while Rule 23 requires the appointment of a class counsel and
provides the procedures for such an appointment once a class has been
certified, these provisions do not authorize the appointment of counsel to
represent an indigent plaintiff seeking to certify a class. See Fed.R.Civ.P.
23(b)(1)(B), (b). Instead, they merely provide for the appointment of a single
attorney or group of attorneys to function as class counsel from those
attorneys already involved in the litigation. Id. Therefore, Fed.R.Civ.P. 23
does not provide the court with the authority to appoint counsel to represent
the plaintiff so that he can attempt to pursue the instant action as a class
action.
NOW, THEREFORE, IT IS ORDERED THAT:
the plaintiff’s motion for class certification and appointment of
counsel, (Doc. No. 3), is DENIED.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States Magistrate Judge

Dated: November 28, 2011
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