Fennell v. Wetzel et al
ORDER denying 6 Motion to Appoint Counsel. Signed by Honorable Matthew W. Brann on 7/5/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN WETZEL, ET AL.,
JULY 5, 2017
Robert Fennell an inmate presently confined at the Smithfield State
Correctional Institution, Huntingdon, Pennsylvania (SCI-Smithfield) filed this pro
se civil rights action pursuant to 42 U.S.C. § 1983. This Court previously issued
an Order directing Plaintiff to file an amended complaint. Although a proposed
amended complaint has not yet been submitted, Fennell has filed a motion for
Presently pending is Plaintiff’s request seeking appointment of counsel. See
Prisoners have no constitutional or statutory rights to appointment of counsel
in a civil case, However, this Court does have broad discretionary power to appoint
counsel under 28 U.S.C. § 1915(e)(1). Tabron v. Grace, 6 F.3d 147, 153 (3d Cir.
1993); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). 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 Third Circuit has similarly held that “[i]ndigent civil litigants possess
neither a constitutional nor a statutory right to appointed counsel.” Montgomery v.
Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citation omitted). Montgomery also
reiterated that the criteria developed in Tabron should be employed in addressing
the appointment of counsel question. In a non-precedential decision, Gordon v.
Gonzalez, No. 04-4623, 2007 WL 1241583 * 2 n. 4 (3d Cir. April 30, 2007), the
Third Circuit added that two other factors to be taken into consideration are: (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 geographical area.
Fennell’s pending request fails to set forth sufficient special circumstances
or factors that would warrant appointment of counsel at the present time. Tabron,
supra, at 155-56. In the pleadings submitted by Plaintiff to date, he has
demonstrated that he is capable of presenting comprehensible arguments.
Furthermore, this Court's liberal construction of pro se pleadings, Haines v.
Kerner, 404 U.S. 519 (1972), coupled with Fennell’s current ability to litigate this
action pro se, mitigate against the appointment of counsel. In addition, the legal
issues are relatively uncomplicated and the Court cannot say, at least at this point,
that Plaintiff will suffer substantial prejudice if he is forced to prosecute this case
on his own.
Therefore, Fennell’s motion for appointment of counsel will be denied. In
the event, however, that future proceedings demonstrate the need for counsel, the
matter may be reconsidered either sua sponte or upon a motion properly filed by
AND NOW, for the reasons set forth herein, IT IS HEREBY ORDERED
Plaintiff’s motion (Doc. 6) seeking appointment of counsel is
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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