Johnson v. McVey
MEMORANDUM (Order to follow as separate docket entry) re 12 MOTION to Appoint Counsel filed by Reginald Johnson.Signed by Honorable Matthew W. Brann on 11/1/2013. (ch1)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CATHERINE C. MCVEY
Civ. No. 4:13-CV-01244
November 1, 2013
Before the Court is pro se Plaintiff Reginald Johnson’s Motion to Appoint
Counsel, filed on July 17, 2013 (ECF No. 12). Johnson’s underlying action against
the Pennsylvania Board of Probation and Parole’s Chairperson, Catherine McVey,
was filed on May 7, 2013 (ECF No. 1). Johnson purports to state two claims in his
complaint: 1) that he is entitled to relief because the Lycoming County District
Attorney’s Office allegedly filed its response to his state court habeas corpus
petition ten (10) days late, and as a result, default judgment should have been
entered against that Office;1 and, 2) that he is entitled to relief because, when
Johnson contends the District Attorney’s response was due to be filed on or before
January 30, 2012, but that it was actually filed on February 9, 2012.
considering his petition, the Pennsylvania Supreme Court issued a “per curiam”
opinion, which Johnson argues could not have properly been issued because
Justice Joan Orie Melvin was absent from the proceeding due to her own legal
travails. Johnson seeks monetary damages in the amount of $7,000,000. The
Court has previously issued an Order Adopting the Report and Recommendation of
Magistrate Judge Susan E. Schwab Granting Plaintiff’s Motion for leave to
proceed in forma pauperis, but Dismissing the Action as lacking merit (ECF No.
11). The Court now considers Johnson’s Motion to Appoint Counsel to continue
The United States Code provides, in pertinent part, that “[t]he court may
request an attorney to represent any person unable to afford counsel.” 28 U.S.C. §
1915(e)(1). Nevertheless, “[t]he Supreme Court has not recognized nor has the
court of appeals found a constitutional right to counsel for civil litigants.” Parham
v. Johnson, 126 F.3d 454, 456 (3d Cir. 1997). Nor is there a statutory right to
counsel for civil litigants. Id.
Rather, the statute “gives district courts broad discretion to determine
whether appointment of counsel is warranted, and the determination must be made
on a case-by-case basis.” Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).
Moreover, “counsel is normally appointed in civil cases for indigent parties only
‘upon a showing of special circumstances indicating the likelihood of substantial
prejudice to the indigent litigant.’” Shipman v. Rochelle, CIV. A. 3:11-1162, 2013
WL 1624290, at *1 (M.D. Pa. Apr. 15, 2013) (Mannion, J.) (quoting Maisonet v.
City of Philadelphia, 06-CV-4858, 2007 WL 1366879, at *4 (E.D. Pa. May 7,
2007) (McLaughlin, J.)). A district court’s decision is “reviewable by a court of
appeals for abuse of discretion,” so it is “desirable for the district court to explain
the reasons for its decision.” Id.
Under the applicable analysis for this issue established by the United States
Court of Appeals for the Third Circuit, the court should first “determine that the
plaintiff’s claim has some arguable merit in law and fact.” Seawright v. Kyler,
CIV.A. 1:02-1815, 2006 WL 709118, at *2 (M.D. Pa. Mar. 13, 2006) (Conner, J.).2
If the plaintiff’s claim lacks merit, the judge may deny the request for counsel
That threshold is not met in this case. Ordinarily, when it is met, the court should look
to six factors that guide the judge’s discretionary determination:
(1) the plaintiff’s ability to present his or her own case; (2) the
complexity of the legal issues; (3) the degree to which the factual
investigation will be necessary and the ability of the plaintiff to
pursue such investigation; (4) the amount a case is likely to turn on
credibility determinations; (5) whether the case will require the
testimony of expert witnesses; (6) whether the plaintiff can attain
and afford counsel on his or her own behalf.
Shipman, 2013 WL 1624290, at *1 (quoting Benchoff v. Yale, 11-CV-1106, 2012 WL 4061218
(M.D. Pa. 2012) (Caputo, J.); Tabron, 6 F.3d at 158–59); see also Parham, 126 F.3d at 458.
without proceeding further in the analysis. See id.
Plaintiff’s First Claim Lacks Merit
The Court now considers whether Johnson’s first claim—that the District
Attorney’s failure to file a timely response in his state court habeas corpus action
entitles Johnson to default judgment in this Court—is meritorious in law or fact.
The Court construes this as a claim under 42 U.S.C. § 1983, because it necessarily
implies that an individual acted under color of state law to deprive Johnson of
“rights, privileges, or immunities secured by the Constitution and laws.” See 42
U.S.C. § 1983; Monroe v. Pape, 365 U.S. 167, 173–74 (1961).
To the extent that this Court’s granting of Johnson’s request for default
judgment would call into question his criminal conviction, his claim is barred by
the favorable termination rule established in Heck v. Humphrey, 512 U.S. 477,
486–87 (1994). In that case, Justice Scalia articulated the rule, stating:
to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
Johnson has not made any showing or alleged any facts whatsoever that his
conviction or sentence has been reversed on direct appeal, expunged, declared
invalid, or called into question by a federal court. Moreover, the rule further
prohibits entering “judgment in favor of the plaintiff [that] would necessarily imply
the invalidity of his conviction or sentence,” which it would in this case. Id. at 487.
As such, the merits of Johnson’s first claim would be barred by the favorable
termination rule. See id.
Additionally, this Court lacks subject matter jurisdiction to provide Johnson’s
requested relief. As Judge Rodriguez, writing for the Third Circuit, elucidated, “a
district court is precluded from entertaining an action, that is, the federal court lacks
subject matter jurisdiction, if the relief requested effectively would reverse a state
court decision or void its ruling.” Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d
181, 192 (3d Cir. 2006).
In this case, the Pennsylvania Supreme Court affirmed a lower court ruling
denying Johnson’s petition for writ of habeas corpus in a decision he now seeks to
challenge. See Commonwealth Court of Pennsylvania v. Johnson, 65 A.3d 384 (Pa.
2013). If this Court entered a default judgment in connection with the habeas
petition in that action, it would effectively void the state court’s ruling in
contravention of established law. See Taliaferro, 458 F.3d at 192. Therefore,
Johnson’s claim lacks merit and this Court need not examine this issue further to
deny him the requested appointment of counsel. See Seawright, 1:02-1815, 2006
WL 709118, at *2.
Plaintiff’s Second Claim Lacks Merit
Turning to Johnson’s second claim, the Court finds that it also lacks merit.
Johnson alleges that he is entitled to relief because the Pennsylvania Supreme Court
affirmed a lower court decision denying his habeas corpus petition in a “per
curiam” opinion, when that court could not properly issue a per curiam opinion
because one justice was not present. The phrase “per curiam” is defined as, “[b]y
the court as a whole.” BLACK’S LAW DICTIONARY 1251 (9th ed. 2009) Further, a
“per curiam opinion” is defined as “[a]n opinion handed down by an appellate
court without identifying the individual judge who wrote the opinion.” Id. at 1201.
The Pennsylvania Supreme Court does state in its Internal Operating
Procedures that “[a] per curiam order shall indicate if a Justice did not participate in
the consideration or decision of the matter.” PA. SUP. CT. INTERNAL OPERATING
PROCEDURE 3(C)(5). Elsewhere in the Procedures, however, it expressly provides
that “[n]o substantive or procedural rights are created,” by the Supreme Court’s
rules. PA. SUP. CT. INTERNAL OPERATING PROCEDURE 1.
This Court is unaware of any other law or relevant precedent, binding or
persuasive, that provides a cause of action for this claim. Even if Johnson could
provide support for his contention, such claim may be barred by the harmless error
rule. See, e.g., Chapman v. California, 386 U.S. 18, 24 (1967). Moreover, to the
extent this claim is construed as an action under 42 U.S.C. § 1983, the Justices of
the Pennsylvania Supreme Court are entitled to absolute immunity in the
performance of their judicial function. Mireles v. Waco, 502 U.S 9, 11–12 (1991);
Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). As a consequence, Johnson’s
second claim also lacks merit.
As Johnson does not state a claim with any legally cognizable merit, his
request for appointed counsel is denied. The Court need not pursue the analysis
An appropriate Order follows.
BY THE COURT:
s/Matthew W. Brann
Matthew W. Brann
United States District Judge
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