The opinion
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAWN WALEGA, : 3:21-CV-02006
:
Plaintiff, :
:
v. : (Magistrate Judge Schwab)
:
JUSTIN MACGREGOR, et al., :
:
Defendants. :
:
ORDER
December 16, 2021
Plaintiff Dawn Walega began this action by filing a complaint on November
29, 2021. The complaint concerns employment discrimination and names two
defendants: Justin MacGregor and William Browning. By a separate order, we
granted Walega’s application for leave to proceed in forma pauperis, and we
ordered the Clerk of Court to serve the complaint on the two named defendants.
On December 14, 2021, Walega filed a document titled “Case Brief.” See
doc. 5. Such a document is not a proper pleading. See Fed. R. Civ. P. 7(a) (listing
the pleadings allowed in a case). And while a brief is allowed, and in most cases
required, in support of a motion, here there is no pending motion to which
Walega’s Case Brief pertains. Further, Walega improperly asserts factual
allegations supporting her claims in this Case Brief. But the proper place for such
allegations is in a complaint. We note for Walega’s benefit, that at this time, she
may file an amended complaint without first seeking leave of court. See Fed. R.
Civ. P. 15(a) (providing that “[a] party may amend its pleading once as a matter of
course within: (A) 21 days after serving it, or (B) if the pleading is one to which a
responsive pleading is required [here, Walega’s complaint is one to which a
responsive pleading is required], 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier”).
In her Case Brief, Walega also requests the appointment of counsel. For the
following reasons, we will deny that request.
“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 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.
Here, the claims in this case concern employment discrimination, but from
the complaint, the exact nature of those claims is not clear. Nevertheless, we
assume for the sake of the current request for the appointment of counsel that the
claims have arguable merit. We note, however, that this case is in the early stages,
and we make no determination as to the merits. Our analysis of the other relevant
factors, however, leads us to conclude that counsel should not be appointed.
Walega states that she does not have a legal background. While we
understand that Walega as a pro se litigant with no legal background doubtless
faces some obstacles in this action, her filings thus far show that she understands
English, is literate, and can communicate effectively. At this point, we have no
reason to believe that she cannot present her own case, and she states that she is
prepared to proceed.
Further, given the unclear nature of the legal issues in this case, we cannot
say that they are overly difficult or complex. And if the case proceeds past the
motion-to-dismiss stage, Walega will have the opportunity to conduct discovery.
Further, it is too early to determine the role that credibility may play in this case,
but credibility generally is not an issue during the pretrial phases of a case. It is
also unlikely that expert testimony would be required in this case, at least as to
liability. Finally, given that Walega is proceeding in forma pauperis, we assume
that she cannot obtain counsel on her own.
Taking all the factors into consideration and given that this case is in a very
early stage, we will deny Walega’s request to appoint counsel at this time without
prejudice to re-examining this issue as this litigation progresses.
IT IS ORDERED that Walega’s request (doc. 5) for the appointment of
counsel is DENIED.1
S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge
1 Walega asks for assistance in registering for PACER. Directions for doing so are
available on PACER’s website: https://pacer.uscourts.gov/register-account/non-
attorney-filers-cmecf.