Talley v. PA Dept. of Corrections et al

Filing 68

ORDER denying 48 Motion to Appoint Counsel Signed by Magistrate Judge Karoline Mehalchick on 4/22/19 (ep)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
QUINTEZ TALLEY,
Plaintiff,

CIVIL ACTION NO. 3:16-CV-2074

v.

(MUNLEY, J.)
(MEHALCHICK, M.J.)

PA DEPT. OF CORRECTIONS, et al
Defendants

ORDER
This case involves a pro se plaintiff, Quintez Talley, who has filed the abovecaptioned civil rights action pursuant to 42 U.S.C. § 1983. Currently pending before the
court is Plaintiff’s second motion for appointment of counsel. (Doc. 48). For the following
reasons, the court will DENY the motion. Although prisoners have no constitutional or
statutory right to appointment of counsel in a civil case, Parham v. Johnson, 126 F.3d 454,
456-57 (3d Cir. 1997), the court has discretion to request “an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see also Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). Under §
1915(e)(1), the “court may request an attorney to represent any person unable to employ
counsel. The district court’s appointment of counsel is discretionary and must be made on a
case-by-case basis. Tabron, 6 F.3d at 157-58.
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). 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. If a plaintiff overcomes this threshold 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 claimant to pursue investigation; (4) the
plaintiff’s capacity to retain counsel on his or her own behalf; (5) the extent to
which the 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).
Additionally, another practical consideration must be taken into account when considering
a motion for appointment of counsel. As the Third Circuit has observed:
… we must take note of the significant practical restraints on the district
courts’ ability to appoint counsel: the ever-growing number of prisoner civil
rights actions filed each year in the federal courts; the lack of funding to pay
appointed counsel; and the limited supply of competent lawyers who are
willing to undertake such representation without compensation. We have no
doubt that there are many cases in which district courts seek to appoint
counsel but there is simply none willing to accept appointment. It is difficult
to fault a district court that denies a request for appointment under such
circumstances.
Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993).
Furthermore, this court’s duty to construe pro se pleadings liberally, Haines v. Kerner,
404 U.S. 519 (1972), coupled with Plaintiff’s continued apparent ability to litigate this
action, having survived defendants’ motion to dismiss and having been granted leave to
amend, weigh against the appointment of counsel. Hence, the court will DENY Plaintiff’s
motion for appointment of counsel. In the event, however, that future proceedings

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demonstrate the need for counsel, the matter may be reconsidered either sua sponte or upon
motion of Plaintiff.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Appointment of Counsel
(Doc. 48) is DENIED. If further proceedings demonstrate the need for counsel, the matter
will be reconsidered either sua sponte or upon motion of Plaintiff.

BY THE COURT:

s/Karoline Mehalchick
KAROLINE MEHALCHICK
United States Magistrate Judge

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