Nunez v. Wertz et al

Filing 87

MEMORANDUM (Order to follow as separate docket entry) (PLEASE SEE MEMORANDUM FOR COMPLETE DETAILS). Signed by Honorable A. Richard Caputo on 10/19/17. (lh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FERNANDO NUÑEZ,
Plaintiff
v.
CO WERTZ, et al.,
Defendants

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CIVIL NO. 3:CV-14-0727
(Judge Caputo)

MEMORANDUM
I.

Introduction
Presently pending before the Court is Mr. Nuñez’s second motion for

appointment of counsel. (ECF No. 85.) For the reasons set forth below, the motion
will be denied.
II.

Discussion
Although prisoners have no constitutional or statutory right to appointment of

counsel in a civil case, the Court has discretion “to request an attorney to represent
any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); Parham v. Johnson,
126 F.3d 454, 456 – 57 (3d Cir. 1997); Montgomery v. Pinchak, 294 F.3d 492, 499
(3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). “Appointing counsel
for an indigent civil litigant is ‘usually only granted upon a showing of special
circumstances indicating the likelihood of substantial prejudice to him resulting, for
example, from his probable inability without such assistance to present facts and

legal issues to the court in a complex but arguably meritorious case.’” Parkell v.
Danberg, 833 F.3d 313, 340 (3d Cir. 2016) (quoting Smith-Bey v. Petsock, 741 F.2d
22, 26 (3d Cir. 1984)) (emphasis in original).
“[V]olunteer lawyer time is a precious commodity”, Montgomery, 294 F.3d at
499, so the decision to recruit counsel for an indigent prisoner should be exercised
“discerningly.” Id. at 505 n.10. The United States Court of Appeals for the Third
Circuit has provided guidance for the exercise of the district court's discretion in this
regard.

At the threshold, the court must decide whether the plaintiff's case “has

some arguable merit in fact and law.” Id. at 499. A court need not appoint counsel
“if the indigent's chances of success on the merits are extremely slim.” Id. at 500
(quoting Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986)) (internal quotation
marks and brackets omitted). If the threshold requirement is met, the Court then
considers a number of factors established by the United States Court of Appeals for
the Third Circuit to determine whether it is appropriate to request counsel for an
indigent party. These factors include:
(1)

the plaintiff's ability to present his own case;

(2)

the difficulty of the particular legal issues;

(3)

the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue
investigation;

(4)

the plaintiff's capacity to retain counsel on his own behalf;

(5)

the extent to which a case is likely to turn on credibility
determinations; and

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(6)

whether the case will require testimony from expert
witnesses.

Tabron, 6 F.3d at 155 - 57. The plaintiff’s ability to present a case is “[p]erhaps the
most significant” consideration and depends on factors such as “the plaintiff’s
education, literacy, prior work experience, and prior litigation experience … along
with a plaintiff’s ability to understand English …[and] the restraints placed upon a
prisoner plaintiff by confinement.” Montgomery, 294 F.3d at 501 (internal quotation
marks and citations omitted).
Here, Mr. Nuñez seeks the appointment of counsel based on his placement in
a level 5 housing unit, his on-going mental health issues, and a recent six day stay in
a Psychiatric Observation Cell (POC). Importantly, Plaintiff does not suggest his
mental health diagnoses are new. While he states he is “heavily medicated” for
psychiatric diagnoses “which make it difficult for him to concentrate and think”, his
communications and filings with the Court over the past three years do not bear
witness to the alleged impact of his mental health problems on his ability to
represent himself. Moreover, Mr. Nuñez’s argument that his “mental illnesses are
clearly disabilities under Title II of the Americans with Disabilities Act (ADA)” are
unsupported.
incapacity.

Plaintiff provides no medical evidence to support his mental
Again, his organized and coherent arguments in support of his

Complaint do not support a finding that Plaintiff cannot represent himself in this
matter due to his mental health issue or medications.

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Accordingly, Plaintiff’s second motion for appointment of counsel will be
denied.
An appropriate order will follow.

DATE: October 19, 2017

/s/ A. RICHARD CAPUTO
A. RICHARD CAPUTO
United States District Judge

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