Hernandez-Tirado v. Lowe et al

Filing 35

MEMORANDUM (Order to follow as separate docket entry) re 26 MOTION to Appoint Counsel filed by Jose A. Hernandez-Tirado.Signed by Honorable A. Richard Caputo on 10/27/15. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSÉ A. HERNÁNDEZ-TIRADO,

Plaintiff
v.
CRAIG LOWE, et al.,
Defendants

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CIVIL NO. 3:CV-14-1897
(Judge Caputo)

MEMORANDUM
I.

Introduction
On September 25, 2014, José A. Hernádez-Tirado, an inmate at the Pike

County Correctional Facility (PCCF), in Lords Valley, Pennsylvania, filed this pro se
civil rights action. On January 7, 2015, the court granted Mr. Hernádez-Tirado’s
request to file an amended complaint. On January 22, 2015, the same day Mr.
Hernádez-Tirado filed his Amended Complaint, he filed a second Motion for
Appointment of Counsel. (Doc. 26). Defendants have recently filed a motion to
dismiss the Amended Complaint. (Docs. 31-32).
In his Amended Complaint Mr. Hernádez-Tirado claims that CO Christensen
violated his First and Fourteenth Amendment rights when he issued him a retaliatory
misconduct after he filed grievances and reported the officer’s improper conduct to
his superior. He also claims CO Christensen used excessive force against him and
then denied him medical care when requested. Mr. Hernádez-Tirado also alleges

that CO Christensen and CO Barry discriminate against Hispanic and AfricanAmerican inmates and detainees. Lt. Campos, CC Wenzel and CO Vetrano are
named as defendants due to their role in the disciplinary review process. Warden
Craig Lowe is also named as a defendant. (Doc. 27, Am. Compl.)
The Court is considering Mr. Hernádez-Tirado motion for appointment of
counsel based on his indigent status, lack of legal training, and placement in a
segregated housing unit. (Doc. 26.)

II.

Standard of Review
Although prisoners have no constitutional or statutory right to the appointment

of counsel in a civil case, the court has broad discretionary power to appoint counsel
under 28 U.S.C. § 1915(e)(1); see also Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993).
In its decision, the Tabron Court announced the factors to be considered by a
district court when deciding whether to exercise its discretion and appoint counsel
for an indigent litigant in a civil case. Initially, the Tabron court noted that “... the
district court must consider as a threshold the merits of the plaintiff’s claim.” Tabron,
6 F.3d at 155. Next, if a claim has arguable merit, “[t]he plaintiff’s ability to present
his or her claim is, or course, a significant factor that must be considered in
determining whether to appoint counsel.” Id. at 156. “If it appears that an indigent
plaintiff with a claim of arguable merit is incapable of presenting his or her own case
... and if such a plaintiff’s claim is truly substantial, counsel should ordinarily be
appointed.” Id.

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In addition to the indigent plaintiff’s ability to present his or her case, Tabron
requires the district court to consider the following additional factors: (1) the difficulty
of the particular legal issues; (2) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue investigation; (3) the plaintiff’s
capacity to retain counsel on his own behalf; (4) the extent to which a case is likely
to turn on credibility determinations; and (5) whether the case will require testimony
from expert witnesses. Id. at 155-57. Moreover, it is noted that appointment of
counsel under § 1915(d) may be made by the court sua sponte at any point in the
litigation. Id. at 156.
Finally, the Tabron court acknowledges that “courts have no authority to
compel counsel to represent an indigent civil litigant,” id. at 157 n. 7, and caution
against the indiscriminate appointment of counsel in view of the limited supply of
competent attorneys willing to accept such assignments. Id. at 157.

III.

Discussion
Applying the relevant Tabron factors in this case, the appointment of counsel

is not warranted at this time.
Here, Mr. Hernádez-Tirado has demonstrated in the filing of his original
complaint, motion to amend his complaint and extensive amended complaint that he
has the ability to understand English and present his claims to the court. He has not
suggested he suffers from any impediment unusual to other pro se prisoners filing
civil actions before this court. Moreover, the issues involved in this case are not

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complex. To the contrary, this cases focuses on a misconduct that was issued in
retaliation for the exercise of Mr. Hernádez-Tirado’s First Amendment rights. Thus,
the factual scenario and law involved is straightforward. Finally, it is noted that Mr.
Hernádez-Tirado has not advised the court of any effort he has undertaken to obtain
counsel on his own.
To the extent that Mr. Hernádez-Tirado’s request for counsel is based on the
fact of his incarceration or his indigent status, these facts do not warrant the
appointment of counsel given this court's liberal construction of pro se pleadings.
Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
There is no evidence, at this early point in the litigation, that any prejudice will
befall Mr. Hernádez-Tirado in the absence of court appointed counsel.
Consequently, Mr. Hernádez-Tirado’s second request for counsel will be denied.
An appropriate Order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: October 27, 2015

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