Harvey v. Haste et al

Filing 10

ORDER denying 9 Motion to Appoint Counsel Signed by Honorable William J. Nealon on 4/25/17 (ep)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
NORMAN HARVEY,
Plaintiff
v.
JEFFREY HASTE, et al.,
Defendants

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CIVIL ACTION NO. 3:CV-17-0549
(Judge Nealon)

ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On March 28, 2017, Norman Harvey, an inmate confined in the State
Correctional Institution, Dallas, Pennsylvania, filed the above captioned civil rights
action pursuant to 42 U.S.C. §1983. (Doc. 1, complaint). Currently pending before
the court is Plaintiff’s motion for appointment of counsel. (Doc. 9). 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). 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)
(2)
(3)
(4)
(5)
(6)

the plaintiff’s 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 claimant to pursue investigation;
the plaintiff’s capacity to retain counsel on his or here 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.

Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-57). In a non-

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precedential decision, Gordon v. Gonzalez, No. 04-04623, 2007 WL 1241583, at *2
n.4 (3d Cir. Apr. 30, 2007), the Third Circuit added two (2) other factors to be taken
into consideration: (1) the court’s willingness to aid the indigent party in presenting
his or her case; and (2) the available supply of lawyers willing to accept § 1915(e)
requests within the relevant geographic area.
As an initial matter, the complaint appears to have arguable merit.
However, Harvey fails to set forth circumstances warranting appointment of
counsel. Tabron, supra, at 155-56. In his pleadings, Harvey demonstrates the
ability to present comprehensible arguments. The legal issues in this case are
relatively simple and will not require expert testimony. Furthermore, despite his
incarceration, investigation of the facts does not seem beyond Harvey’s capabilities.
Finally, we note that this Court does not have a large group of lawyers at its
disposal to appoint as counsel in actions such as this, nor are we confident that we
could find an attorney who would represent this action in a pro bono capacity.
Based on the foregoing, it does not appear that Harvey will suffer prejudice
if forced to prosecute this case on his own. Furthermore, this court’s duty to
construe pro se pleadings liberally, Haines v. Kerner, 404 U.S. 519 (1972), coupled
with Plaintiff’s apparent ability to litigate this action, militate against the
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appointment of counsel. Hence, the court will deny Harvey’s motion for
appointment of counsel. In the event, however, that future proceedings demonstrate
the need for counsel, the matter may be reconsidered either sua sponte or upon
motion of Plaintiff.
NOW, THIS 25th DAY OF APRIL, 2017, IT IS HEREBY ORDERED
THAT Plaintiff’s motion for appointment of counsel, (Doc. 9) is DENIED.

/s/ William J. Nealon
United States District Judge