Ali v. F.C.I Allenwood

Filing 37

MEMORANDUM (Order to follow as separate docket entry) re 10 MOTION to Appoint Counsel filed by Daryl Charles Ali. Signed by Honorable A. Richard Caputo on 8/31/17. (dw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DARYL CHARLES ALI,
Plaintiff
v.
FCI Allenwood, et al.
Defendants

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CIVIL NO. 3:CV-17-1171
(Judge Caputo)

MEMORANDUM
I.

Introduction
Presently before the court is plaintiff, Daryl Charles Ali's motion for appointment of

counsel. (ECF No. 10). For the reasons that follow the motion will be denied.

II.

Discussion
This is a civil action, not a criminal one. Hence the plaintiff has no constitutional or

statutory right to appointed counsel. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.
2002). Nor can the court compel a lawyer to represent an indigent plaintiff. Tabron v. Grace,
6 F.3d 147, 153 n.1 (3d Cir. 1993). Rather, representation for an indigent is governed by 28
U.S.C. § 1915(e)(1) which only provides that the court "may request an attorney to represent
any person unable to afford counsel." (emphasis added).
A district court has broad discretion under 28 U.S.C. § 1915(e)(1) in deciding whether
to seek counsel, Montgomery, 294 F.3d at 498, and the decision can be made at any point of

the litigation. Id. at 503-04 (“Either the Magistrate Judge or the District Court should have
recognized Montgomery's difficulties as they became increasingly apparent and, in light of
them, reconsidered Montgomery's motion for appointment of counsel.”).
The Third Circuit has provided guidance for the exercise of the district court’s discretion.
At the threshold, the court must decide whether the plaintiff’s case “has some arguable merit
in fact and law.” Id. at 499 (quoting Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997)).
A court need not appoint counsel “if the indigent’s chances of success on the merits are
extremely slim.” Id. at 500 (quoting Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir.
1986))(internal quotation marks and brackets omitted). If the threshold requirement is met, the
court then considers a number of factors established by the Third Circuit to determine whether
it is appropriate to request counsel for an indigent party. These factors include: (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. Tabron, 6 F.3d at 155-57.
“[V]olunteer lawyer time is a precious commodity, Montgomery, supra, 294 F.3d at 499,
so the district court’s “broad statutory discretion” should be exercised “discerningly.” Id. at 505
n.10. However, if the case “appears to have merit” and “most of the . . . Tabron factors have
been met, the Third Circuit “instruct[s]” that the district court “should make every attempt to

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obtain counsel.” Id. at 505 (quoting Parham, 126 F.3d at 461)(internal quotation marks
omitted).
The court has only recently directed service of Mr. Ali's Amended Complaint. Until the
Defendants respond, the Court will not be able to fully assess the threshold question of the
arguable factual and legal merit of Plaintiff’s claims for the purpose of appointing him counsel.
Mr. Ali's Amended Complaint and other filings have thus far been clearly worded and present
logical concise arguments. To the extent that Mr. Ali'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). Mr. Ali has not suggested why he cannot conduct
discovery on his own, like other pro se inmates. Although he notes he will need subpoenas
and request “video surveillance,” he does not suggest why he cannot obtain the requested
information through properly served discovery. (ECF No. 10.) At this point in the litigation,
there is no evidence that any prejudice will befall Mr. Ali in the absence of court-appointed
counsel. Consequently, his request for counsel will be denied.
An appropriate order follows.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge

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