Batista v. Harris et al
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 11/17/17. (lh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CAPT. HARRIS, et al.,
CIVIL ACTION NO. 3:CV-17-1983
Presently before the Court is Mr. Batista’s motion for appointment of counsel
pursuant to 28 U.S.C. § 1915(e)(1). (ECF No. 4). For the reasons set forth below,
the motion will be denied.
Plaintiff Jose Batista, a state prisoner currently incarcerated at the Smithfield
State Correctional Institution (SCI-Smithfield), in Huntingdon, Pennsylvania, brings
the instant pro se civil rights action, pursuant to 42 U.S.C. § 1983 alleging a variety
of Eighth Amendment claims against several staff members of his former institution,
Mr. Batista alleges that in April 2016, while house in SCI-
Huntingdon’s Restricted Housing Unit (RHU), Defendants used excessive force
when they extracted him from his cell after he refused to remove a towel from his
door window if he could not speak to his psychologist or psychiatrist.
physically assaulted during the cell extraction and then placed in an observations
cell for approximately eleven (11) days. During a portion of this time he was denied
clothing, running water, and medical/mental health care.
Standard of Review
Although prisoners have no constitutional or statutory right to the appointment
of counsel in a civil case, the Court has broad discretionary power to appoint
counsel under 28 U.S.C. § 1915(e)(1); see also Tabron v. Grace, 6 F.3d 147 (3d Cir.
In its decision, the Tabron Court announced the factors to be considered by a
district court when deciding whether to exercise its discretion and appoint counsel
for an indigent litigant in a civil case. Initially, “the district court must consider as a
threshold the merits of the plaintiff’s claim.” Tabron, 6 F.3d at 155. Next, if a claim
has arguable merit, “[t]he plaintiff’s ability to present his or her claim is, or course, a
significant factor that must be considered in determining whether to appoint
counsel.” Id. at 156. “If it appears that an indigent plaintiff with a claim of arguable
merit is incapable of presenting his or her own case ... and if such a plaintiff’s claim
is truly substantial, counsel should ordinarily be appointed.” Id.
In addition to the indigent plaintiff’s ability to present his or her case, Tabron
requires the district court to consider the following additional factors: (1) the difficulty
of the particular legal issues; (2) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue investigation; (3) the plaintiff’s
capacity to retain counsel on his own behalf; (4) the extent to which a case is likely
to turn on credibility determinations; and (5) whether the case will require testimony
from expert witnesses. Id. at 155 - 57. However, while these factors are meant to
guide the Court in making its determination, they are not exhaustive and the Court
may consider any other factor it deems relevant. Id. at 157. Moreover, it is noted
that appointment of counsel under § 1915(d) may be made by the court sua sponte
at any point in the litigation. Id. at 156.
Finally, district “courts have no authority to compel counsel to represent an
indigent civil litigant,” id. at 157 n. 7, and courts are cautioned against the
indiscriminate appointment of counsel in view of the limited supply of competent
attorneys willing to accept such assignments. Id. at 157.
Applying the relevant Tabron factors in this case, the appointment of counsel
is not warranted at this time.
This case is in its procedural infancy. The Court has recently screened Mr.
Batista’s Complaint and directed the Clerk of Court to forward it to the Defendants.
Defendants will either challenge the legal basis of the Complaint or file an answer.
Until then, 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
To the extent that Mr. Batista’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).
In addition, Mr. Batista’s
concerns over his limited mastery of the English language does not appear to be
hampering his ability to effectively communicate his claims as set forth in the
Complaint or his other filings with the Court. While Mr. Batista suffers from various
chronic medical conditions and stress, as well as considers himself legally
“handicapped” as defined by the Americans with Disability Act, he offers no
documentation in support that his defined “handicapped” prevents him from
advancing his claims as a pro se litigant.
There is no evidence, at this early point in the litigation, that any prejudice will
befall Mr. Batista in the absence of court appointed counsel. Consequently, Mr.
Batista’s request for counsel will be denied without prejudice.
proceedings demonstrate the need for counsel, the matter may be reconsidered,
either sua sponte or upon a motion properly filed.
An appropriate Order follows.
Date: November 17, 2017
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
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