Brown v. Mace-Liebson et al
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 10/17/2016. (emksec, )
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CLINICAL DIRECTOR ELLEN
MACE-LIEBSON, et al.,
CIVIL NO. 3:14-CV-623
Presently before the court in the above civil rights matter filed pursuant to 28
U.S.C. § 1331, is Plaintiff’s renewed motion seeking the appointment of counsel in
this case (Doc. 108) and Defendant’s motion for enlargement of time nunc pro tunc
within which to submit supplemental discovery responses to Plaintiff (Doc. 109). For
the reasons that follow, the renewed motion will be denied without prejudice, and
Defendant’s motion will be accepted as timely and will be granted. The supplemental
discovery responses shall be served on Plaintiff by October 18, 2016.
Renewed request for counsel
In support of his renewed motion for counsel, Plaintiff basically asserts that he
is in need of counsel: (1) to conduct discovery; (2) because he is indigent, lacking in
anything but a basic legal understanding, and unable to obtain counsel; (3) his case
involves complex medical issues that only a medical expert obtained by counsel can
present to a jury; (4) the court has found his case to have merit; and (5) the Health
Services Staff has resisted discovery requests and fabricated medical records. (Doc.
As previously discussed, there is neither a constitutional nor statutory right to
counsel for civil litigants. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2001).
Congress has granted district courts the discretion to “request an attorney to represent
any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (noting that
appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) is “discretionary”). A
court’s discretionary authority to appoint an attorney to represent a civil litigant
(prisoner or non-incarcerated individual) only comes into play when the party is
proceeding within the terms of 28 U.S.C. § 1915, Proceedings In Forma Pauperis,
which necessarily implies the litigant’s indigent status, and is made on a case-by-case
basis. Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir. 1993). Plaintiff acknowledges
The current circumstances clearly do not warrant the appointment of counsel
for this inmate. It is clear that he can litigate this case on his own at the current time,
and there is no likelihood that he will be substantially prejudiced if forced to litigate
this action without the aid of an attorney. While it is true that the court has partially
denied Defendants’ motion to dismiss, and that this case proceeds against Defendant
Mace-Liebson, any concern with respect to a trial at this point is premature. See
generally Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).
Even assuming that the case has arguable merit in law and facts with respect to
Defendant Mace-Liebson, it is clear that Plaintiff is able to litigate this matter on his
own. He is able to present facts and arguments and has even recently been partially
successful with respect to a motion to compel he has filed. (Docs. 106, 107.) To the
extent Plaintiff believes his medical records have been “altered,” he has failed to
provide the court with any support for such speculation. As such, Plaintiff’s motion
fails to set forth any special circumstances or factors that would warrant the
appointment of counsel at this time. Tabron, 6 F.3d at 155-56. While Plaintiff would
clearly prefer to have an attorney appointed to prepare/submit his discovery requests,
he certainly is not entitled to it. Moreover, the court does not consume the expense of
discovery for indigent litigants. As such, it cannot be said, at least at this point, that
Plaintiff will suffer substantial prejudice if he is required to proceed with the
prosecution of this case on his own. Once again, this Court’s liberal construction of
pro se pleadings, Haines v. Kerner, 404 U.S. 519 (1972), coupled with Plaintiff’s
apparent ability to litigate this action, weigh against the appointment of counsel at
this time, and his pending renewed motion for counsel (Doc. 108) will be denied. If
future proceedings demonstrate the need for counsel, the matter may be reconsidered
either sua sponte or pursuant to a properly filed motion.
Defendant’s Nunc Pro Tunc Motion for Enlargement
Defendant Mace-Liebson has filed a nunc pro tunc motion seeking a short
enlargement of time (Doc. 109) within which to provide Plaintiff with supplemental
responses to discovery requests in accordance with this court’s Memorandum and
Order of September 29, 2016 (Docs. 106, 107). In support thereof, Defendant argues
that she is seeking the desired information from the Human Resources Department,
but has not yet received it. She also cites to a clerical error in the United States
Attorney’s Office explaining why the motion was not filed by October 13, 2016.
(Doc. 109 at ¶¶ 5, 6.)
Because the enlargement sought by Defendant is short, and the information is
to be provided to Plaintiff pursuant to a court order, the motion will be accepted as
timely filed and will be granted. Defendant shall provide the responsive information
to Plaintiff by October 18, 2016. An appropriate order follows.
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