Thomasson v. Koehn et al

Filing 26

ORDER denying 23 Motion to Appoint Counsel without prejudice. Signed by Honorable A. Richard Caputo on 6/27/12 (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS GUY THOMASSON,
Plaintiff
v.
J. KOEHN, et al.,
Defendants

:
:
:
:
:
:
:
:
:

CIVIL NO. 3:CV-11-2392
(Judge Caputo)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
The pro se plaintiff, Thomas Guy Thomasson, a federal inmate housed at
USP-Canaan, in Waymart, Pennsylvania, has filed a motion for appointment of
counsel. In this civil rights case, Mr. Thomasson alleges, inter alia, that he was
placed in the Segregated Housing Unit (SHU) at USP-Canaan in retaliation for his
questioning the Bureau of Prison’s calculation of his sentence. He also claims
defendants assaulted him and inflicted physical injuries for which he was denied
medical treatment all in violation of his Eighth Amendment rights.
In support of his motion for appointment of counsel, Mr. Thomasson alleges
that he is unable to afford private counsel, he knows little about the law, and has
limited access to legal materials as he is housed in administrative segregation. He

also claims that he has unsuccessfully attempted to obtain counsel on his own and
that he believes should this case go to trial, counsel would be better suited to
present evidence and cross examine witnesses. (Doc. 23, Mot. for Counsel). For
the reasons that follow the motion 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:
1.
2.
3.

4.
5.

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;

-2-

6.

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
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.
This case is in its procedural infancy. In the near future defendants will either
challenge the legal basis of the complaint or file an answer. It is not until these
matters are resolved will the Court be able to examine the threshold question of the
arguable factual and legal merit of Mr. Thomasson’s claims for the purpose of
appointing him counsel. There is no evidence, at this point, that any prejudice will
result in the absence of counsel, especially given the very early procedural posture
of this case. 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 at this early stage of the
proceedings, 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
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
-3-

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

27th

DAY OF JUNE, 2012, IT IS HEREBY

ORDERED THAT Mr. Thomasson’s Motion for Appointment of Counsel (Doc. 23) is
DENIED without prejudice.

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

-4-