Millbrook v. United States Of America et al

Filing 115

ORDER conditionally granting Millbrook's motion to appt cnsl 110 , noting if cnsl canot be found to rep pro se pltf this order will be revoked & pltf will be req'd to proceed w/out cnsl, directing Clrk of Ct to fwd docs to pro bono chair of MDPA Chapter of FBA, directing pro bono chair to w/in 60 days of this order to notify court in writing whether volunteer atty will enter an app on behalf of pltf, & noting nothing in this order shall alter or amend pretrial case mgmt ddls established by separate order of this date. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 4/25/16. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KIM LEE MILLBROOK,

:
:
Plaintiff
:
:
v.
:
:
UNITED STATES OF AMERICA, et al., :
:
Defendants
:

CIVIL ACTION NO. 3:12-CV-421
(Chief Judge Conner)

ORDER
AND NOW, this 25th day of April, 2016, upon consideration of the motion
(Doc. 110) to appoint counsel by pro se plaintiff Kim Lee Millbrook (“Millbrook”),
wherein Millbrook asserts that his present incarceration and limited knowledge
of the law will severely inhibit his ability to investigate and prepare his case prior
to trial, that this litigation involves complex legal and factual disputes that will be
challenging for a pro se litigant to present at trial, and that he is unable to afford
counsel, (id.), and it appearing that “[i]ndigent civil litigants possess neither a
constitutional nor a statutory right to appointed counsel,” Montgomery v. Pinchak,
294 F.3d 492, 498 (3d Cir. 2002) (citing Parham v. Johnson, 126 F.3d 454, 456-57 (3d
Cir. 1997)), but that Congress authorizes courts to “request an attorney to represent
any person unable to afford counsel” on a pro bono basis if circumstances compel
that result, see 28 U.S.C. § 1915(e)(1), and the court obliged to assess, as a threshold
matter, whether the moving litigant’s claim has “arguable merit in fact and law,”
Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993), and finding that Millbrook has
satisfied this requirement by successful prosecution of his claim to this juncture,

and, turning to consideration of the remaining factors pertinent to appointment
inquiries, to wit: the litigant’s ability to present a case or defense, the complexity
of the legal issues, the degree of factual investigation required, whether the case
requires expert witness testimony, and whether the litigant can otherwise afford
to retain counsel, see Parham, 126 F.3d at 457, the court finding that, although the
substance of plaintiff’s remaining statutory claim is not uniquely complex, trial of
this matter will involve the presentation of conflicting testimony, to likely include
Millbrook’s own testimonial account, which will most efficiently proceed with the
assistance of counsel trained in the law and rules of evidence, and the court noting,
in conclusion, that § 1915(e) “gives district courts broad discretion to determine
whether appointment of counsel is warranted,” and that “the determination must
be made on a case-by-case basis,” Tabron, 6 F.3d at 157-58, and concluding that the
circumstances of this case warrant appointment of pro bono counsel if available, it is
hereby ORDERED that:
1.

Millbrook’s motion (Doc. 110) to appoint counsel pursuant to 28 U.S.C.
§ 1915(e)(1) is conditionally GRANTED.

2.

If counsel cannot be found to represent the pro se plaintiff, this
conditional order appointing counsel will be revoked, and plaintiff will
be required to proceed in this matter without counsel.

3.

The Clerk of Court is directed to forward: (i) a copy of this order, (ii)
Millbrook’s complaint (Doc. 1), and (iii) the memorandum opinion
(Doc. 88) and order (Doc. 89) granting in part and denying in part
defendants’ motion (Doc. 63) for summary judgment to the pro bono
chair of the Middle District of Pennsylvania Chapter of the Federal Bar
Association.

2

4.

Within sixty (60) days of the date of this order, the pro bono chair of
the Middle District of Pennsylvania Chapter of the Federal Bar
Association shall notify the court in writing whether a volunteer
attorney will enter an appearance on behalf of plaintiff.

5.

Nothing in this order shall alter, amend, or otherwise supersede the
pretrial case management deadlines established by separate order of
today’s date.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania