Schreane v. Marr et al
Filing
70
MEMORANDUM (Order to follow as separate docket entry) re 64 MOTION to Appoint Counsel filed by Clarence D Schreane, 61 MOTION to Appoint Counsel filed by Clarence D Schreane.Signed by Honorable A. Richard Caputo on 3/30/17. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CLARENCE D. SCHREANE,
Plaintiff
v.
ROBERT MARR, et al.,
Defendants
:
:
:
:
:
:
:
:
:
CIVIL NO. 3:CV-15-1204
(Judge Caputo)
MEMORANDUM
I.
Introduction
On June 19, 2015, Clarence Schreane, a federal inmate housed at the
Lewisburg United States Penitentiary (USP Lewisburg), in Lewisburg, Pennsylvania,
filed this Bivens styled civil rights action pursuant to 28 U.S.C. § 1331.1 (ECF No. 1,
Compl.) Mr. Schreane combines several distinct claims in his Complaint which range
from interference with his receipt of magazines, denial of indigent legal postage,
issuance of a retaliatory incident report on February 20, 2014, and denial of medical
care while in ambulatory restraints for seven hours. Finally, he claims he was denied
due process at his disciplinary hearing related to the events that lead to the cell
extraction. (Id.)
Presently before the court are Mr. Schreane’s second (ECF No. 61) and third
(ECF No. 64) requests for appointment of counsel based on his indigent status,
1
No. 68.)
Mr. Schreane is currently housed at USP-Florence (High), in Florence, CO. (ECF
placement in a segregated housing unit, alleged inability to conduct discovery due to
his incarceration, the complexities of this case, and his lack of legal training. He
specifically notes that without assistance of counsel he will be unable to obtain
polygraphs of the defendants or the video tape of his February 20, 2014 cell extraction.
He believes both are needed to prove whether his or the Defendants’ version of the
facts as to his various claims are credible. (ECF No. 63.)
II.
Discussion
Although prisoners have no constitutional or statutory right to appointment of
counsel in a civil case, Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011), district
courts have authority to “request” pro bono counsel represent an indigent civil litigants
under 28 U.S.C. § 1915(e)(1). Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir.
2002) (citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). The Court's appointment
of counsel is discretionary and must be assessed on a case-by-case basis. Tabron, 6
F.3d at 157 - 58. Appointment of counsel may be made at any point in the litigation,
including sua sponte by the Court. Montgomery, 294 F.3d at 498.
The United States Court of Appeals for the Third Circuit, has stated that
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). But no part of the discussion in Smith-Bey of circumstances
-2-
warranting appointment of counsel should be interpreted to mean that “appointment is
permissible only in exceptional circumstances and that, in the absence of such
circumstances, the court has no discretion to appoint counsel.” Tabron, 6 F.3d at 155
(emphasis in the original).
The initial determination to be made by a 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. Upon successfully
clearing this threshold hurdle, other factors to be examined are:
(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 (6) whether the case will require
testimony from expert witnesses.
Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155 - 57). The list is not
exhaustive, nor is any one factor determinative. Tabron, 6 F.3d at 157.
The Court previously considered Mr. Schreane’s request for counsel and
determined that he had failed to set forth any special circumstances warranting the
appointment of counsel. (ECF No. 40.) The Court specifically found that, despite his
incarceration, investigation of the facts is not beyond his capabilities, he is familiar with
the facts of his case, and he demonstrates the ability to present comprehensible
arguments and to present his own case. (ECF No. 39.)
In his present motions for counsel, Mr. Schreane has not demonstrated any
need for the Court to reconsider the January 8, 2016 Memorandum and Order. First,
-3-
it is noteworthy that both of Mr. Schreane’s recent motions for counsel were filed after
he filed his opposition to Defendants’ pending motion to dismiss and motion for
summary judgment. Second, in his opposition materials, Mr. Schreane never alleges
that he is unable to respond to Defendants’ potentially dispositive motion without receipt
of the specific discovery he seeks appointed counsel to obtain for him; i.e. polygraphs
of various Defendants or the video footage of his February 2014 cell extraction. Finally,
the Court notes that in his materials in opposition to the Defendants’ motion to dismiss
and motion for summary judgment, Mr. Schreane states that “as a matter of record, [he
is] a litigator” who “stud[ies] the law,” and “has filed over 600 admin[istrative] remedies,
and ha[s] filed numerous civil actions within the court.” (ECF No. 44, p. 6.) He has the
ability to learn “and has continue[d] to challenge his ability to learn” while in prison. (Id.)
Clearly, Mr. Schreane does not lack the necessary communication or research skills
to represent himself in this matter.
Based on the foregoing, Mr. Schreane’s second and third requests for
appointment of counsel will be denied.
An appropriate Order follows.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: March 30, 2017
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?