Legrand et al v. Fenstermaker et al

Filing 136

MEMORANDUM AND ORDER - We DENY this request to appoint counsel (Doc. 135.), at this time without prejudice to re-examining this issue as this litigation progresses. We will, however, instruct the defendants to respond to Hudsons motion to reinstate this action, (Doc. 130.), on or before July 19, 2013. Hudson may then file a Reply Brief in support of this motion on or before August 2, 2013. Signed by Magistrate Judge Martin C. Carlson on July 8, 2013. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTONIO HUDSON,
Plaintiff
v.
FENSTERMAKER, et al.,
Defendants

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Civil No. 3:12-CV-743
(Judge Kosik)
(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
This matter comes before the Court on a request to appoint counsel for the
plaintiff, a pro se litigant. (Doc. 135.) Hudson makes this request in connection with
a motion to reopen this case, (Doc. 130.), which was previously reported to be settled
by the parties.
We appreciate the plaintiff’s interest in securing court-appointed counsel, but
also recognize that there is neither a constitutional nor a statutory right to counsel for
civil litigants. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997); Tabron v.
Grace, 6 F.3d 147, 153 (3d Cir. 1993). Instead, 28 U.S.C. § 1915(e)(1) simply
provides that “[t]he court may request an attorney to represent any person unable to
employ counsel.” Under §1915(e)(1), a district court’s appointment of counsel is

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discretionary and must be made on a case-by-case basis. Tabron, 6 F.3d at 157-58.
In Parham, the United States Court of Appeals outlined the standards to be considered
by courts when reviewing an application to appoint counsel pursuant to 28 U.S.C. §
1915(e)(1). In passing on such requests we must first:
“[D]etermine[] that the plaintiff's claim has some merit, then [we] should
consider the following factors: (1) the plaintiff's ability to present his or
her own case; (2) the complexity of the legal issues; (3) the degree to
which 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; [and] (6) whether the plaintiff can attain
and afford counsel on his own behalf.”
Parham v. Johnson, 126 F.3d at 457.
There is yet another practical consideration which must be taken into account
when considering motions for appointment of counsel. As the United States Court
of Appeals for the Third Circuit has aptly observed:
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 prisoner 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.
Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993). Mindful of this consideration it has
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been “emphasize[d] 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. We cannot afford that waste.’
Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1989).” Tabron v. Grace, 6 F.3d
147, 157 (3d Cir. 1993).
In this case our analysis of these factors leads us to conclude that counsel
should not be appointed in this case at the present time. At the outset, we believe that
we should defer any such decision until after we have had the opportunity to further
assess the first benchmark standard we must address, the question of whether the
plaintiff’s claims have arguable legal merit. Indeed, we note that it has been reported
that this case has settled. While Hudson has, after-the-fact expressed dissatisfaction
with this settlement, and has moved to reopen the case, (Doc. 130.), in our view it
would be inappropriate to appoint counsel until we have the opportunity to complete
this legal merits analysis in this matter. Moreover, while we understand that the
plaintiff doubtless faces some obstacles in bringing this action, to date the plaintiff
has demonstrated an ability to effectively present his own case. Furthermore, the
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actual investigation that the plaintiff has to do is minimal, since the pleadings show
that the plaintiff is fully aware of the bases for these claims against the defendants.
Taking all of these factors into account we DENY this request to appoint
counsel (Doc. 135.), at this time without prejudice to re-examining this issue as this
litigation progresses.
We will, however, instruct the defendants to respond to Hudson’s motion to
reinstate this action, (Doc. 130.), on or before July 19, 2013. Hudson may then file
a Reply Brief in support of this motion on or before August 2, 2013.
SO ORDERED, this 8th day of July 2013.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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