Montevechi v. Wetzel et al

Filing 12

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 05/01/2015. (emksec, )

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

RAYMOND J. MONTEVECHI,
Plaintiff
v.
JOHN WETZEL, et al.,
Defendants

:
:
:
:
: CIVIL NO. 3:CV-15-0652
:
: (Judge Kosik)
:
:
MEMORANDUM

I.

Background
Plaintiff, Raymond J. Montevechi, commenced this civil rights action pursuant

to 42 U.S.C. § 1983, seeking damages for his confinement in prison beyond his legal
sentence. He was released from prison on January 7, 2014. He proceeds in forma
pauperis in this matter. Named as Defendants are individual employees of the
Pennsylvania Department of Corrections, the Pike County Correctional Facility and
the Pike County Board of Probation and Parole. Service of the complaint was
directed on April 16, 2015. (Doc. 8.) Presently pending is Plaintiff’s motion seeking
the appointment of counsel in this matter. For the reasons that follow, the motion will
be denied without prejudice.
II.

Discussion
Plaintiff sets forth the following reasons in support of his request for counsel:

(1) he is unable to afford an attorney; (2) his mental instability limits his ability to
litigate; (3) the issues are complex; (4) he suffers from migraine headaches and is
bipolar; (5) he is inexperienced and has limited knowledge of the law; and (6) a trial
is likely and he has been unable to obtain counsel. (Doc. 11.)
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).
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).

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The initial determination to be made by the court in evaluating the expenditure
of the “precious commodity” of volunteer counsel is whether the plaintiff’s case “has
some arguable merit in fact and law.” Montgomery, 294 F.3d at 499. Without
passing judgment as to the ultimate merits of Plaintiff’s claims, for the sole purpose
of this motion, the court will assume that the case has arguable merit in law and the
facts.
Upon successfully clearing the above hurdle, other factors to be examined are:
1. The plaintiff’s ability to present his or her 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 or her own behalf;
5. The extent to which a case is likely to turn on credibility
determinations; and
6. Whether the case will require testimony from expert witnesses.
Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-57).
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.
The pleadings submitted by Plaintiff so far are clearly written, cite to pertinent legal
authority, and detail the claims he desires to pursue. In fact, the complaint submitted
by Plaintiff is a 187-page typed comprehensive document containing a Table of

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Contents, Table of Authorities and relevant exhibits. It is evident in reviewing this
submission, as well as his motion for counsel, that Plaintiff is literate, intelligent and
fully capable of litigating this action on his own. Moreover, the legal issue involved
is not complicated. Because Plaintiff is not confined in prison, he clearly has the
ability to prepare his case, without the limitations he would face in prison, and the
health conditions alleged do not appear to limit his ability to litigate this action, as
evidenced by the filings on the docket. 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. This Court’s liberal construction of pro se
pleadings, Haines v. Keener, 404 U.S. 519 (1972), coupled with Plaintiff’s apparent
ability to litigate this action, weigh against the appointment of counsel. His pending
motion for counsel 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. An appropriate order will issue.

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