The opinion
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEVEN PEREZ, : CIVIL NO.: 3:20-cv-01103
:
Plaintiff, : (Magistrate Judge Schwab)
:
v. :
:
OFFICER COLOMBO, et al., :
:
Defendants. :
ORDER
August 18, 2021
The plaintiff, Steven Perez, filed a motion for the appointment of counsel.
Doc. 33. For the following reasons, we will deny that motion.
“Indigent civil litigants possess neither a constitutional nor a statutory right to
appointed counsel.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002).
Yet 28 U.S.C. § 1915(e)(1) provides that the court may request an attorney to
represent an indigent litigant in a civil case. While the court has broad discretion to
request an attorney to represent an indigent civil litigant, Tabron v. Grace, 6 F.3d
147, 153 (3d Cir. 1993), it may not require an unwilling attorney to accept an
appointment in a civil case, Mallard v. U.S. District Court, 490 U.S. 296, 310
(1989).
“Appointing counsel for an indigent civil litigant is ‘usually only granted
upon a showing of special circumstances indicating 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.’” Parkell v. Danberg, 833 F.3d 313, 340 (3d Cir. 2016) (emphasis
in original) (quoting Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984)). But
“counsel should be appointed where an indigent plaintiff with a potentially
meritorious claim is not fully able to prosecute his or her own case in light of the
overall complexity of the case.” Shifflett v. Korszniak, 934 F.3d 356, 367 (3d Cir.
2019).
The United States Court of Appeals for the Third Circuit has “outlined a
two-step process” that the court should follow when deciding whether to ask an
attorney if he or she will accept the responsibility of representing a pro se plaintiff.
Houser v. Folino, 927 F.3d 693, 697 (3d Cir. 2019). First, as a threshold inquiry,
the court must consider whether the plaintiff’s case has some arguable merit in fact
and law. Montgomery, 294 F.3d at 498-99. Second, if the plaintiff overcomes this
threshold hurdle, the court should consider other factors including: (1) the plaintiff’s
ability to present his or her own case; (2) the complexity of the legal issues; (3) the
degree to which factual investigation will be required and the plaintiff’s ability to
2
pursue such investigation; (4) the degree to which the case is likely to turn on
credibility determinations; (5) whether the case will require testimony from expert
witnesses; and (6) whether the plaintiff can attain and afford counsel on his or her
own behalf. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). This list is not
meant to be exhaustive. Tabron, 6 F.3d at 157; see also Houser, 927 F.3d at 700
(“We have always emphasized that the Tabron factors are only a guidepost for
district courts in their exercise of the broad statutory discretion granted to them by
Congress. They are not exhaustive, nor are they each always essential.”). Rather,
the court must determine on a case-by-case basis whether the appointment of
counsel is warranted. Tabron, 6 F.3d at 158.
When considering motions for appointment of counsel, there are also practical
considerations that a court must consider, such as the large number of prisoner civil
rights cases; “the lack of funding to pay appointed counsel; and the limited supply of
competent lawyers who are willing to undertake such representation without
compensation.” Tabron, 6 F.3d at 157. Because volunteer lawyer time is limited
and extremely valuable, the court should not request counsel to accept an
appointment indiscriminately. Id. Thus, “[t]he scarcity of pro bono counsel is
important, even if it is not among the delineated Tabron factors.” Houser, 927 F.3d
at 700.
3
Here, analysis of these factors leads us to conclude that counsel should not be
appointed now. There is only one claim—Perez’s claim that Officer Colombo
kicked him in the foot. Doc. 34 at 2. For purposes of analyzing Perez’s motion for
the appointment of counsel, we assume that his claim is not without merit, especially
at this early stage of these proceedings.
Perez asserts that he cannot afford to pay an attorney and that his incarceration
limits his ability to litigate this case. Doc. 33 at 1. In particular, he notes COVID
restrictions, limited access to the law library, and his limited legal knowledge. Id.
While we understand that Perez as a pro se prisoner with limited education and skills
doubtless faces obstacles in this action, his filings thus far show that he understands
English, is literate, and can communicate effectively. He can present his own case.
In so concluding, we are cognizant of Perez’s contentions regarding COVID
restrictions. “While the Plaintiff notes that restrictions in the prison due to the
ongoing COVID-19 pandemic are limiting his ability to prepare his case, so too is
the pandemic challenging lawyers in this District in the practice of law.” In v.
Stroup, No. 1:19-CV-00224, 2020 WL 5424043, at *2 (W.D. Pa. Sept. 10, 2020).
And “[w]ith respect to Plaintiff’s concern regarding limited law library access, if he
requires extensions of time to respond to future pleadings and Orders requiring a
response, he may request such from the Court at the appropriate time.” Dudley v.
4
Brown, No. 1:19-CV-1157, 2020 WL 5258483, at *3 (M.D. Pa. Sept. 3, 2020).
Further, the legal issues in this case are not overly difficult or complex. As in
all cases, if the case goes to trial, credibility may be an issue, but at this point, we
cannot say that the case will be decided solely because of credibility. Further,
although credibility may be an important factor if this case proceeds to trial,
credibility generally is not an issue during the pretrial phases of the case. It is also
unlikely that expert testimony would be required in this case.
Taking all these factors into consideration, we will deny Perez’s motion to
appoint counsel at this time without prejudice to re-examining this issue as this
litigation progresses.
Accordingly, IT IS ORDERED that Perez’s motion (doc. 33) for the
appointment of counsel is DENIED.
S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge
5