Chen v. Holt et al

Filing 7

MEMORANDUM AND ORDER - IT IS ORDERED that the plaintiff's Motion 4 to Appoint Counsel is DENIED at this time without prejudice to re-examining this issue as this litigation progresses. Signed by Magistrate Judge Martin C. Carlson on 9/18/12. (rc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WHITEY-TAMATUMUA CHEN,

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Plaintiff
v.

WARDEN RONNIE HOLT, et al.,
Defendants

Civil No. 3:12-CV-1817

(Judge Nealon)
(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. 4.) The Plaintiff has asked the Court to appoint
counsel at the outset of this litigation, prior to the service of the Plaintiff’s complaint
or any informed assessment of the merits of his claims. (Id.)
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
discretionary and must be made on a case-by-case basis. Tabron, 6 F.3d at 157-58.
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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.
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 Plaintiff’s
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 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 actual investigation that the Plaintiff has to do

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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. 4.), at this time without prejudice to re-examining this issue as this
litigation progresses.
SO ORDERED, this 18th day of September 2012.

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

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