CARLOCK v. WETZEL et al
MEMORANDUM OPINION & ORDER denying 18 plaintiff's appeal to 15 the Magistrate Judge's Order of June 15, 2017, which denied without prejudice plaintiff's motion for appointment of counsel. All as more fully set forth in the Memorandum Opinion and Order. Signed by Judge David S. Cercone on 7/17/17. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN WETZEL, Secretary of DOC;
MARK CAPOZZA, Superintendent of
SCI Pittsburgh; and SGT. HOYE, C/O,
Judge David Stewart Cercone
MEMORANDUM OPINION AND ORDER
Before the Court is an appeal (ECF No. 18)1 filed by Plaintiff Marquis Carlock
(“Carlock” or “Plaintiff”) requesting review of the magistrate judge’s Order dated June 15, 2017
(ECF No. 15) (the “Order”), which denied without prejudice Plaintiff’s motion for appointment
Upon review of the matters raised by Carlock, the Court concludes that the Order
appealed from is neither clearly erroneous nor an abuse of discretion. Therefore, Carlock’s
appeal will be dismissed.
Standard of Review
The Federal Magistrates Act, 28 U.S.C. §§ 631–639, provides two separate standards for
judicial review of a magistrate judge’s decision: (i) “de novo” for magistrate resolution of
dispositive matters, 28 U.S.C. § 636(b)(1)(B)-(C), and (ii) “clearly erroneous or contrary to law”
The Court has construed Plaintiff’s filing, which is entitled “Objections to Magistrate
Judge’s Determination,” as an appeal to the district court.
for magistrate resolution of nondispositive matters. 28 U.S.C. § 636(b)(1)(A). Accord FED. R.
CIV. P. 72(a), (b); Local Civil Rule 72.1(C)(2); see Cipollone v. Liggett Group, Inc., 785 F.2d
1108, 1113 (3d Cir. 1986).
The Order of June 15, 2017, was for a non-dispositive matter under 28 U.S.C. §
636(b)(1)(A) and, thus, will not be disturbed unless it is found to be clearly erroneous or contrary
to law. A finding is clearly erroneous “when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (citing
United States v. United States Gypsum Co., 333 U.S. 364 (1948)).
Upon review of the record in this matter, the Court finds that the decision of the
magistrate judge to deny without prejudice Plaintiff’s request for appointment of counsel was
neither clearly erroneous nor contrary to law.
As the magistrate judge explained, the Court has authority “to request an attorney to
represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added). In
Tabron v. Grace, the United States Court of Appeals for the Third Circuit announced the factors
that are to be considered by a district court in deciding whether to exercise its discretion and seek
counsel for an indigent litigant in a civil case. 6 F.3d 147, 153 (3d Cir. 1993), cert. denied, 510
U.S. 1196 (1994). Following Tabron, the first consideration by a district court should be
whether the plaintiff’s claim has “some merit in fact and law.” Parham v. Johnson, 126 F.3d 454,
457 (3d Cir.1997) (citing Tabron, 6 F.3d at 157).
The Court notes that this case is in its early stage, as Defendants only recently have filed a
responsive pleading. Given the early stage of the litigation, the Court agrees with the magistrate
judge that, while the case may ultimately present complex credibility determinations, at the
present stage it is too early to make any assessment regarding the same.
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 at this point in the
litigation that this case merits a request by this Court for counsel to represent him pursuant to 28
U.S.C. § 1915(e). Additionally, Plaintiff has made no showing that he has made any attempt to
retain counsel himself. Furthermore, 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.” Should the case survive any dispositive motions
and advance to the point where it is ready to proceed to trial, the Court will reconsider this
For all these reasons, the Court finds that Plaintiff has not shown that the magistrate
judge’s ruling was clearly erroneous or contrary to law. Accordingly, Plaintiff’s appeal is
It is so ORDERED on this 17th day of July, 2017.
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
175 Progress Drive
Waynesburg, PA 15370
(via U.S. First Class Mail)
Sandra A. Kozlowski
Pennsylvania Office of Attorney General
(via ECF electronic notification)
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