Turner v. Lopez et al

Filing 26

MEMORANDUM AND ORDER RE: 24 MOTION to Appoint Counsel filed by Melvin Turner. The Court DENIES the request without prejudice to re-examining this issue as litigation progresses. Signed by Magistrate Judge Martin C. Carlson on 7/29/13. (pw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MELVIN TURNER,
Plaintiff
v.
RAFEL LOPEZ, et al.,
Defendants

:
:
:
:
:
:
:
:
:

Civil No. 3:13-CV-872
(Judge Mannion)
(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
This matter comes before the Court on a second request to appoint counsel for
the plaintiff, a pro se litigant. (Doc. 24.) Like Turner’s prior request, this motion is
filed at a time when there is pending before the Court a motion to dismiss this
complaint, a complaint whose legal merits have not been fully examined. 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
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 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.

2

Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993). Mindful of this consideration it has
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. 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 actual investigation that the

3

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. 24.), at this time without prejudice to re-examining this issue as this
litigation progresses.
SO ORDERED, this 29th day of July, 2013.

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

4