Legrand et al v. Fenstermaker et al

Filing 64

MEMORANDUM AND ORDER denying 61 MOTION to Appoint Counsel filed by Antonio Hudson, 58 MOTION to Appoint Counsel filed by Vance Baker, 56 MOTION to Appoint Counsel filed by John Legrand. Signed by Magistrate Judge Martin C. Carlson on August 27, 2012. (kjn )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN LEGRAND, et al.,

:
:
:
:
:
:
:
:
:
:

Plaintiff
v.

ERIKA FENSTERMAKER, et al.,
Defendants.

Civil No. 3:12-CV-743

(Judge Kosik)
(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
This matter comes before the Court on requests to appoint counsel for the
plaintiffs, John Legrand, Vance Baker and Antonio Hudson, all of whom are pro se
litigants. (Docs. 56, 58, and 61.) The plaintiffs ask the Court to appoint counsel at the
outset of this litigation, prior to the filing of an answer or any informed assessment of
the merits of these claims. (Id.)
We appreciate the plaintiffs’ 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
1

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 we 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.
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 assess the
first benchmark standard we must address, the question of whether the plaintiffs’
claims have arguable legal merit. In our view, it would be inappropriate to appoint
counsel until we have the opportunity to conduct this merits analysis in this matter.
Moreover, while we understand that the plaintiffs doubtless face some obstacles in
bringing this action, to date the plaintiffs have demonstrated an ability to effectively
present this case. Furthermore, the actual investigation that the plaintiffs have to do is
minimal, since the pleadings show that the plaintiffs are fully aware of the bases for
2

these claims against the Defendants.
Taking all of these factors into account we DENY these requests to appoint
counsel (Doc. 56, 58, and 61), at this time without prejudice to re-examining this issue
as this litigation progresses.
SO ORDERED, this 27th day of August, 2012.

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

3