Dolan v. Lowe et al

Filing 31

MEMORANDUM AND ORDER - 1. Plaintiffs motion to appoint counsel, (Doc. 23), is DENIED WITHOUT PREJUDICE. 2. Plaintiffs motion to be transferred to adifferent correctional facility, (Doc. 17), is DENIED AS MOOT.Signed by Honorable Robert D. Mariani on 4/27/15. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VINCENT PAUL DOLAN,

Plaintiff,

v.

3:14-cv-1436
(Judge Mariani)

CRAIG LOWE, et al.,
Defendants.

MEMORANDUM AND ORDER
On July 25,2014, Plaintiff, Vincent Paul Dolan, an inmate formerly confined at the
Pike County Correctional Facility, in Lords Valley, Pennsylvania, filed a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983. (Doc. 1). The complaint alleges that, while
incarcerated at the Pike County Correctional Facility, Plaintiff was denied freedom to
practice his choice of religion and that he was subjected to cruel and unusual punishment.
(ld.). The named Defendants are Craig Lowe, Warden at the Pike County Correctional

Facility; Robert McLaughlin, Assistant Warden at the Pike County Correctional Facility;
Erica Zaleck, Correctional Counselor; Terry Mooney, Correctional Counselor; and Sergeant
Frawley. (ld.).

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Presently pending before the Court are Plaintiffs motion to appoint counsel and
motion to be transferred out of the Pike County Correctional Facility. (Docs. 17,23). For
the reasons set forth below, the motions wi" be denied.

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MOTION TO APPOINT COUNSEL

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Although prisoners have no constitutional or statutory right to appointment of counsel
in a civil case, the Court has discretion Uto 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). The United States Court of Appeals for the Third
Circuit has stated that the appointment of counsel for an indigent litigant should be made
when circumstances indicate "the likelihood of substantial prejudice to him resulting, for
example, from his probable inability without such assistance to present the facts and legal
issues to the court in a complex but arguably meritorious case." Smith-Bey v. Petsock, 741
F.2d 22, 26 (3d Cir. 1984).
The initial determination to be made by the Court in evaluating the expenditure of the
"precious commodity" of volunteer counsel is whether the case has some arguable merit in
fact or law. Montgomery, 294 F.3d at 499. If a plaintiff overcomes this threshold hurdle,
other factors to be examined are:
(1)
(2)
(3)
(4)
(5)
(6)

the plaintiffs ability to present his or her own case;
the difficulty of the particular legal issues;
the degree to which factual investigation will be necessary and the

ability of the plaintiff to pursue investigation;

the plaintiffs capacity to retain counsel on his or her own behalf;
the extent to which the case is likely to turn on credibility

determinations; and

whether the case will require testimony from expert witnesses.
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Id. (citing Tabron, 6 F.3d at 155-57). The Third Circuit Court of Appeals added two other
factors to be taken into consideration: (1) the court's willingness to aid the indigent party in
presenting his or her own case; and (2) the available supply of lawyers willing to accept
section 1915(e) requests within the relevant geographic area. See Gordon v. Gonzalez,
232 Fed. Appx. 153 (3d Cir. 2007).
Assuming arguendo that the complaint has merit, Plaintiff fails to establish any
circumstances warranting the appointment of counsel. See Tabron, 6 F.3d at 155-56.

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Plaintiff bases his motion on the alleged complexity of the case, conflicting testimony in the
case (in the event of trial), his inability to investigate the facts, limited education, and

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inability to pay for an attorney. (Doc. 23). However, upon review, the legal issues herein

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are relatively simple and may not require expert testimony. Despite his incarceration,
investigation of the facts is not beyond Plaintiffs capabilities and he is familiar with the facts
of his case. Additionally, in his pleadings, Plaintiff demonstrates the ability to present

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comprehensible arguments and to present his own case.
It is also noted that this Court does not have a large group of attorneys who would

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represent this action in a pro bono capacity.

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Based on the foregoing, it does not appear that Plaintiff will suffer prejudice if forced
to prosecute this case on his own. The Court's duty to construe pro se pleadings liberally,
Haines v. Kerner, 404 U.S. 519 (1972), Riley v. Jeffes, 777 F.2d 143, 147-48 (3d Cir. 1985),

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coupled with Plaintiffs apparent ability to litigate this action, militate against the appointment
of counsel. Accordingly, the motion for appointment of counsel will be denied, however said
denial will be without prejudice. As the Court in Tabron stated,
[AJppointment of counsel under § 1915(d) may be made at any point in the
litigation and may be made by the district court sua sponte ... even if it does
not appear until trial (or immediately before trial) that an indigent litigant is not
capable of trying his or her case, the district court should consider

appointment of counsel at that point.
Tabron, 6 F.3d at 156-57. Therefore, in the event that future proceedings demonstrate the
need for counsel, the matter may be reconsidered either sua sponte or upon motion of

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Plaintiff.
II.

MOTION TO TRANSFER

Also pending before the Court is Plaintiffs motion to be transferred from the Pike

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County Correctional Facility due to the alleged retaliation he suffered at that facility. (Doc.
17). Since the 'filing of said motion, Plaintiff has been transferred out of the Pike County
Correctional Facility and is currently confined at the State Correctional Institution at
Graterford, Pennsylvania. See (Doc. 30, Notice of Change of Address dated February 10,

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2015). Thus, Plaintiffs motion for transfer to a different correctional facility will be denied as
moot as he has received the relief requested therein.
AND NOW, this d-.7it1 day of Apri" 2015, IT IS HEREBY ORDERED THAT:

1.

Plaintiffs motion to appoint counsel, (Doc. 23), is DENIED WITHOUT

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PREJUDICE.

2.

Plaintiffs motion to be transferred to a different correctional facility,
(Doc. 17), is DENIED AS MOOT.

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