Catanzaro v. Harned et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable A. Richard Caputo on 10/10/17. (dw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY P. CATANZARO,
BARBARA HARNED, et al.,
(MAGISTRATE JUDGE MEHALCHIK)
Plaintiff Anthony P. Catanzaro (“Plaintiff”) commended this action on August 21, 2017
asserting claims for abuse of process/malicious prosecution relating to an incident that occurred on
April 27, 2017 in the Luzerne County Court of Common Pleas Courthouse. (See Doc. 1, generally).
By Report and Recommendation dated September 22, 2017, Magistrate Judge Karoline Mehalchick
recommends that Plaintiff’s Complaint be dismissed without prejudice and without leave to amend.
(See Doc. 5, 6-7). Now before me is Plaintiff’s Motion to Appoint Counsel (Doc. 7). Additionally,
Plaintiff seeks an extension of time to file objections to the Report and Recommendation.
Plaintiff’s motion to appoint counsel will be denied without prejudice. A plaintiff in a civil
case has no constitutional or statutory right to counsel. Montgomery v. Pinchak, 294 F.3d 492, 498
(3d Cir. 2002). The Court does not have the authority to 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
person is governed by 28 U.S.C. § 1915(e)(1), which provides that the court “may request an attorney
to represent any person unable to afford counsel,” but the court cannot order the attorney to do so.
The Third Circuit Court of Appeals has cautioned that “courts should exercise care in appointing
counsel because volunteer lawyer time is a precious commodity and should not be wasted . . . .”
Parham v. Johnson, 126 F.3d 454, 458 (3d Cir. 1997).
A district court has broad discretion under 28 U.S.C. § 1915(e)(1) to decide to seek counsel
for a litigant, Montgomery, 294 F.3d at 498, and the decision can be made at any point in the
litigation. Id. at 503–04. As a threshold matter, the Court must assess whether the claimant's case
has some arguable merit in fact and law. Tabron, 6 F.3d at 155. If the plaintiff overcomes this initial
hurdle, the Court may then consider the following non-exhaustive list of factors when appointing pro
bono counsel: (1) the plaintiff's ability to present his own case; (2) the difficulty of the particular legal
issues; (3) the degree to which factual investigations 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. Id. at 155-157 & n. 5.
Plaintiff has not made a threshold showing for the appointment of counsel in this civil case.
Plaintiff asserts that he needs counsel because of his current physical condition. However, Plaintiff
must first demonstrate that his claim has some merit in fact and law. At this stage of the proceedings,
and further noting the Magistrate Judge’s recommendation that Plaintiff fails to state a claim upon
which relief can be granted, (see Doc. 5, 5-7), it is not clear that Plaintiff is able to do so. Thus,
appointment of counsel is not warranted at this time. If future proceedings demonstrate the need for
counsel, the matter may be reconsidered either sua sponte or pursuant to a properly filed motion.
Until then, I will deny Plaintiff's motion to appoint counsel. I will, however, grant Plaintiff an
extension of time to file objections to Magistrate Judge Mehalchick’s Report and Recommendation.
For the above stated reasons, Plaintiff’s motion to appoint counsel will be denied without
prejudice, but Plaintiff will be granted until October 31, 2017 to file objections to Magistrate Judge
Mehalchick’s Report and Recommendation (Doc. 5).
An appropriate order follows.
October 10, 2017
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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