CONSENTINO v. WINGARD et al

Filing 66

MEMORANDUM OPINION & ORDER denying MOTION to Appoint Counsel filed by RANDY CONSENTINO 63 . The deadline for responding to the pending Motion for Summary Judgment is hereby EXTENDED. No further extensions will be granted. Said Response shall be filed on or before January 19, 2018. Defendants shall file a reply brief on or before January 29, 2018. Signed by Magistrate Judge Cynthia Reed Eddy on 1/3/18. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RANDY CONSENTINO,
Plaintiff,
v.
UNIT MANAGER WINGARD, et al
Defendants.

)
)
)
)
)
)
)
)

Civil Action No. 3: 15-cv-00269
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM ORDER
Plaintiff has requested that the Court appoint counsel (ECF No. 63). Plaintiff’s
application for leave to proceed in forma pauperis was granted on November 21, 2017 (ECF No.
64).
This is not the first time Plaintiff has requested the appointment of counsel His first
motion was filed on March 8, 2016 (ECF No. 15), before any defendant had been served. The
motion was denied without prejudice that same day, and Plaintiff was informed that “should the
case survive any dispositive motions and appear ready to proceed to trial, the Court will
reconsider this request.” (ECF No. 16).
Plaintiff filed his second motion for appointment of counsel on April 12, 2017 (ECF No.
54). The motion was denied without prejudice on April 13, 2017 (ECF No. 55) for the reasons
stated in the Court's previous order (ECF No. 16), noting that the request could be reconsidered
if this case proceeds past dispositive motions. Plaintiff was instructed that if he “would like to
request a brief stay of this action while he seeks private counsel, he should inform the Court by
filing a Motion for Stay for a reasonable period of time for the purpose of seeking private

1

counsel.” (ECF No. 55)
On June 23, 2017, Defendants filed a motion for summary judgment, to which plaintiff
has not responded, despite having been ordered to do so twice: first, by Order dated June 23,
2017 (ECF No. 60) and second, on November 21, 2017 (ECF No. 65).1
At issue now is Plaintiff’s third Motion to Appoint Counsel (ECF No. 63).
Legal Standard
Initially, the Court begins from the established premise that “indigent civil litigants
possess neither a constitutional nor a statutory right to appointed counsel.” Gordon v. Gonzalez,
232 F. App’x 153, 156 (3d Cir. 2007) (quoting Montgomery v. Pinchak, 294 F.3d 492, 498 (3d
Cir. 2002). However, in some instances the need for representation is great and district courts
are granted broad discretion to request the appointment of attorneys for indigent civil litigants.
28 U.S.C. § 1915(e)(1). The court’s decision whether to appoint counsel is to be given wide
latitude and will only be overturned if its ruling is clearly an abuse of discretion. Tabron v.
Grace, 6 F.3d 147, 155 (3d Cir. 1993), cert. denied, 510 U.S. 1196 (1994). In Tabron, our court
of appeals established the framework for determining whether the appointment of pro bono
counsel is warranted. Id. at 158.
Before applying the Tabron factors, as a threshold matter, the court must first determine
if the Plaintiff’s claim has arguable merit in fact and law. Id. at 155. Upon a favorable finding,
the court then proceeds to consider the factors enunciated in Tabron, and discussed in this
Court’s previous Orders, which include: (1) the plaintiff’s ability to present his own case; (2)
the difficulty of the particular legal issues; (3) the degree to which factual investigation will be

1

Out of an abundance of caution, the Court has included herewith a copy of the Case Management Order dated
February 21, 2017 (ECF No. 49) in which we explained the requirements of responding to a motion for summary
judgment. In accordance with that Order Defendants have filed a notice that it has provided the records concerning
the incident(s) herein. (ECF No. 50).

2

necessary and the ability of the plaintiff to pursue investigation; (4) the plaintiff’s capacity to
retain counsel on his own behalf; (5) the extent to which a case is likely to turn on credibility
determinations; and (6) whether the case will require testimony from expert witnesses.
Montgomery, 294 F.3d at 499 (quoting Tabron, 6 F.3d at 155-56). This list is not exhaustive, nor
is any one factor determinative. Parham v. Johnson, 126 F.3d 454, 458 (3d Cir. 1997).
The Court of Appeals for the Third Circuit has also emphasized, “that volunteer lawyer
time is extremely valuable” and for that reason, “district courts should not request counsel under
§ 1915[(e] indiscriminately.” Tabron, 6 F.3d at 157. Finally, “we must take note of the
significant practical restrains on the district courts’ ability to appoint counsel: the ever-growing
number of prisoner civil rights actions filed each year in the federal court; and the limited supply
of competent lawyers who are willing to undertake such representation without compensation.”
Id.
Discussion
As discussed supra, as an initial matter, this Court must first determine whether
Plaintiff’s Complaint is meritorious. When evaluating the merit of a pro se plaintiff’s complaint,
courts traditionally give “greater leeway where they have not followed the technical rules of
pleading and procedure.” Tabron, 6 F.3d at 154; see also Haines v. Kerner, 404 U.S. 519, 520
(1972). For purposes of this Opinion only, the Court will assume, without deciding, that
Plaintiff’s case has merit in both fact and law. Consequently, the Court will proceed upon the
analytical course charted in Tabron.
(A) Plaintiff’s Ability to Present His Own Case
The ability of a plaintiff to present his own case is arguably the most significant of the
Tabron factors. Montgomery, 294 F.3d at 501. This determination is based on several criteria

3

including plaintiff’s education, literacy, prior work experience, prior litigation experience, ability
to understand English and restraints placed on him by incarceration (i.e., access to resources such
as a typewriter, telephone and computer). Tabron, 6 F.3d at 156; see also Parham v. Johnson,
126 F.3d at 459. However, it is not necessary that Plaintiff have the skills and expertise of a trial
lawyer; only that he possess the baseline abilities to adequately present his case. See Gordon v.
Gonzalez, 232 F. App’x 153, 157 (3d Cir. 2007) (the decision point is not whether plaintiff is a
trial lawyer).
In his motion, Plaintiff says nothing about his abilities to present his case. His filings to
date have been coherent and appropriate.

The Court observes that Plaintiff has actively

litigated his claims and has demonstrated a basic understanding of his claims and the relevant
law. Based solely on Plaintiff’s ability to litigate his claim thus far, the Court finds this factor
weighs against appointment of counsel.
(B)

The Difficulty of the Particular Legal Issues

Where cases involve complicated legal issues, courts should be “more inclined to appoint
counsel.” Tabron, 6 F.3d at 156. This will benefit all parties involved. Parham, 126 F.3d at
459. Courts also consider “the proof going towards the ultimate issue and the discovery issues
involved.” Id. Plaintiff has demonstrated his ability to understand his claims, through his
various submissions to this Court, particularly by responding to Defendants’ Motions to Dismiss.
Accordingly, this factor weighs against Plaintiff, as the Court does not find the case
presents complex legal issues.
(C)

The Necessity and Ability of the Plaintiff to Pursue Factual Investigation

Courts must consider the extent of factual investigation necessary to prosecute acclaim
and the ability of the indigent plaintiff to pursue the investigation. Tabron, 6 F.3d at 156.

4

Situations which are “likely to require extensive discovery and compliance with complex
discovery rules” gravitate toward the appointment of counsel. Id. The Court notes that
discovery in this case has ended, and any factual investigation pertaining to Plaintiff’s claims
appear straightforward. Plaintiff was a party to the incidents from which his claims arise, and he
is thus familiar with the facts of the case. He has provided exhibits in support of his claims,
which include his grievance and appeals documentation as well as relevant medical records (ECF
No. 53), and has been provided relevant records by the Defendants. Courts have found that
Plaintiff’s first-hand knowledge of events decreases his burden regarding factual discovery. See
Gonzalez v. Passaic Cnty. Prob., Civ. No. 04-3001, 2005 WL 2077294, at *7 (D. N.J. Aug. 25,
2005). The investigative needs of the Plaintiff appear to be have been minimal.
(D)

Plaintiff’s Capacity to Retain Counsel on his Own Behalf

Plaintiff, who a prisoner at the time of the filing of this action, is no longer incarcerated.
Without the constraints of institutional incarceration Plaintiff has the ability to retain qualified
counsel. Such cases as this may be deemed to be sufficiently meritorious such that counsel
would agree represent a former inmate on a contingency fee basis. Accordingly, this factor
weighs against the Plaintiff’s request for appointment of counsel.
(E)

The Extent To Which This Case is Likely to Turn on Credibility Determinations

Cases where adjudication relies solely on credibility determinations favor the
appointment of counsel. Lasko v. Watts, 373 F. App’x 196, (3d Cir. 2010). Regarding the
credibility determination factor, “[w]hile the case ultimately may have relied upon credibility, it
is difficult to imagine a case that does not. Thus, when considering this factor courts should
determine whether the case was solely a swearing contest.” Parham, 126 F.3d at 460. At this
juncture this case does not appear to be exclusively a swearing contest. Consequently, at present,

5

this factor does not favor the appointment of counsel.
(F)

Expert Witness Testimony

The necessity of cross examining expert witnesses may favor the appointment of counsel.
Tabron, 6 F.3d at 156. However, the appointment of counsel is not necessary in every case
warranting expert testimony. Lasko, 373 F. App’x at 202. At this stage, the necessity for expert
witness testimony is uncertain and any predictions by the Court would be premature. Thus, in
this case, the Court finds that this factor neither weighs in favor nor against appointing counsel.
Conclusion
On balance, the Tabron factors weigh against granting Plaintiff’s third motion for
appointment of counsel. Considered in light of the admonition of the Court of Appeals that
volunteer counsel time is extremely valuable, and should not be appointed indiscriminately, the
Court must deny Plaintiff’s application. 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." See also Parkell, 2016 WL
4375620 at *16 (quoting Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984) (“Appointing
counsel for an indigent civil litigant is ‘usually only granted upon a showing of special
circumstances ….’” Aside from all of the circumstances surrounding every litigant, Plaintiff has
set forth no special circumstances that warrant granting counsel at this time. The Court notes,
however, that pursuant to the authority granted by 28 U.S.C. § 1915(e), the Court retains the
discretion to appoint counsel at any point in the litigation sua sponte.

Should the case survive

Defendants’ dispositive motion and appear ready to proceed to trial, the Court will reconsider
this request. Accordingly, Plaintiff's Motion for Appointment of Counsel under 28 U.S.C. §
1915(e) shall be denied.

6

AND NOW, this 3rd of January, 2018 IT IS HEREBY ORDERED that Plaintiff's
Motion to Appoint Counsel (ECF No. 63) is DENIED without prejudice.
IT IS FURTHER ORDERED THAT the deadline for responding to the pending
Motion for Summary Judgment is hereby EXTENDED. No further extensions will be granted.
Said Response shall be filed on or before January 19, 2018. Plaintiff's Response to the Motion
for Summary Judgment must comply with the Local Rules for the Western District of
Pennsylvania as detailed in the Case Management Order (ECF No. 49), a copy of which is
enclosed herewith. Plaintiff is advised that failure to comply with this Order will result in the
Motion for Summary Judgment being decided without the benefit of his Response
IT IS FURTHER ORDERED THAT Defendants shall file a reply brief on or before
January 29, 2018.

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

RANDY CONSENTINO
121 Maplewood Drive
Dover, PA 17315
Record counsel via CM-ECF electronic filing

7