CARTER v. WINTRUBA et al

Filing 10

ORDER denying 4 Motion to Amend/Correct without prejudice; denying 9 Motion to Appoint Counsel without prejudice. Signed by Magistrate Judge Cynthia Reed Eddy on 7/25/2013. (mjl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON L. CARTER,
Plaintiff,
v.
POLICE OFFICER WINTRUBA, et al.,
Defendants.

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Civil Action No. 2: 13-cv-00806
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM AND ORDER
On June 13, 2013, Jason L. Carter, a prisoner presently incarcerated at the Allegheny
County Jail in Pittsburgh, Pennsylvania, filed a Motion for Leave to Proceed In Forma Pauperis
(ECF No. 1), which included a Motion for Appointment of Counsel that was docketed as an
Exhibit to the Motion for IFP status (ECF No. 1-5), pursuant to the Civil Rights Act of 1871, 42
U.S.C. §1983. Plaintiff asserts that various police officers of the Boroughs of Homestead and
West Homestead, Pennsylvania, unlawfully arrested him in violation of the Fourth Amendment
in retaliation for exercise of his First Amendment rights during a vehicle search, illegally
detained and strip searched him at the police station without justification, and denied him due
process and equal protection guaranteed by the Fourteenth Amendment. Plaintiff also claims the
police officers conspired to violate his civil rights, and that the Boroughs are liable for the
violations because of their failure to train and supervise their police officers.
On July 17, 2013, Plaintiff filed an Authorization permitting withdrawal of prison
account funds to pay filing fee, and an Amended Motion for Appointment of Counsel (ECF No.
4). Plaintiff’s application for leave to proceed in forma pauperis was granted on July 23, 2013,
and service has not yet been made. On July 23, 2013, Plaintiff’s original Motion for Appointment
of Counsel at (ECF No. 1-5) was filed by the Clerk of Court at (ECF No. 9). In his motions for
appointment of counsel, Plaintiff lists the attorneys he has contacted to represent him, and
requests this Court to appoint a named attorney or, alternatively, another member of the

Pennsylvania Bar.
In the case of Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), the Court of Appeals for the
Third Circuit identified standards to be considered by the district courts in exercising their
discretion whether to "appoint" counsel pursuant to 28 U.S.C. § 1915. The court recognized that
there are significant practical restraints on the district court's ability to "appoint" counsel: the
ever-growing number of prisoner civil rights actions filed each year in the federal courts; the lack
of funding to pay appointed counsel; and the limited supply of competent lawyers who are
willing to undertake such representation without compensation. 6 F.3d at 157. The court also
recognized that there are many cases in which district courts seek to appoint counsel but there is
simply no one willing to accept appointment. The court stated:
[T]he frequent unwillingness of lawyers to accept appointment in such
cases is not only a function of the time pressures lawyers face in trying to earn
a living in an increasingly competitive field, but also by circulating knowledge
of the indignities that some lawyers have been subjected to by certain litigants,
including verbal and written abuse, excessive demands and complaints, and
malpractice suits. We trust the district judges will be sensitive to such
problems in making discretionary decisions in this area.
Id. at 157, n.7.
The court further recognized that volunteer lawyer time is extremely valuable and
“precious commodity,” and cautioned district courts not to request counsel indiscriminately,
stating that “[b]ecause this resource is available in only limited quantity, every assignment of a
volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a
deserving cause. We cannot afford that waste.” Id. at 157. Finally, the court emphasized that
"appointment" of counsel remains a matter of discretion and the decision must be made on a
case-by-case basis.
2

Tabron identified standards to be considered by the district courts in exercising their
discretion whether to "appoint" counsel pursuant to 28 U.S.C. § 1915(d) [now subsection (e)].
First, the Court must consider the merits of the plaintiff's claim. It should not appoint counsel
unless it appears that the claim has some merit in fact and law. Tabron, 6 F.3d at 155. Other
factors a court should consider include the plaintiff's ability to present his or her case; the
plaintiff's education, literacy, prior work experience, prior litigation experience, ability to
understand English; restraints placed upon him or her by confinement; whether the claim is truly
substantial; the difficulty or complexity of the legal issues; the degree to which factual
investigation will be required and the ability of the indigent plaintiff to pursue such investigation;
the extent to which prisoners and others suffering confinement may face problems in pursuing
their claims; whether the claims are likely to require extensive discovery and compliance with
complex discovery rules; whether the case is likely to turn on credibility determinations; whether
the case will require testimony from expert witnesses; and whether an indigent plaintiff could
retain counsel on his or her own behalf.
This case has only been recently filed and it is not yet clear to the Court whether it has
any merit, either in fact or in law. It may present complex credibility determinations but at the
present stage it is too early to make that determination. As a pro se litigant plaintiff will have the
benefit of Haines v. Kerner, 404 U.S. 519 (1972) and its progeny, which provides that courts
must liberally construe pro se pleadings. Considering the severe shortage of attorneys with
experience and knowledge in this area of the law, who are also willing to take these cases pro
bono, it does not appear that this case merits a request by this court for counsel to represent him
pursuant to 28 U.S.C. § 1915(e) at this point in the litigation.
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Additionally, this Court notes that Local Civil Rule 10.C indicates that "[a]bsent special
circumstances, no motions for the appointment of counsel will be granted until after dispositive
motions have been resolved." Aside from all of the circumstances surrounding every incarcerated
litigant, Plaintiff has set forth no special circumstances that warrant granting counsel at this time.
Should the case survive any dispositive motions and appear ready to proceed to trial, the Court
will reconsider this request.
Accordingly, Plaintiff's Motion and Amended Motion for Appointment of Counsel under
28 U.S.C. § 1915(e) shall be denied.1
AND NOW, this 25th day of July, 2013;
IT IS HEREBY ORDERED that Plaintiff's Motion to Appoint Counsel (ECF No. 9)
and Amended Motion for Appointment of Counsel (ECF No. 4) are DENIED without prejudice.
IT IS FURTHER ORDERED that the parties are allowed fourteen (14) days from this
date to appeal this order to a district judge pursuant to the Local Rules for Magistrate Judges.
Failure to appeal within fourteen (14) days shall constitute waiver of the right to appeal.

s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

cc:

Jason L. Carter, No. 91382
Allegheny County Jail
950 Second Avenue
Pittsburgh, PA 15219

1

The Court is aware that Rule 17(c)(2) of the Federal Rules of Civil Procedure provides an alternate authority for
appointing counsel in limited circumstances, none of which are present in the instant action. See Powell v. Symons,
680 F.3d 301 (3d Cir. 2012).

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