Wilson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DAVID MARK WILSON,

Plaintiff, CIVIL ACTION NO. 3:26-CV-00057

v.

CONNOR HARRISON,

ASSISTANT DISTRICT

(LATELLA, M.J.)

ATTORNEY, et al.,

Defendants.

MEMORANDUM

Plaintiff filed three Motions requesting that the Court appoint

counsel in this matter. In support of those motions, Plaintiff alleged,

among other things, that he is not competent. Based upon that

allegation, we were required to undertake an analysis pursuant to

Federal Rule of Civil Procedure 17(c). New information indicates that

Plaintiff has been deemed competent by a different court. Accordingly,

we are satisfied that we may conclude our Rule 17(c) inquiry. Further,

we find no basis to appoint counsel at this stage of the litigation.

Accordingly, for the reasons set forth herein, we will deny Plaintiff’s

motions without prejudice to his ability to again request the

appointment of counsel at a later time, if necessary.

I. Procedural Background

Plaintiff filed a Complaint on January 13, 2026 against

Defendants Assistant District Attorney Connor Harrison, Judge

Michael J. Barrasse, (“Judge Barrasse”), Bernard Brown, Judge James

Gibbons (“Judge Gibbons”) and District Attorney Brian Gallagher (“DA

Gallagher”). (Doc. 1). Judge Barrasse and Judge Gibbons filed

executed waivers of service on February 18, 2026. (Docs. 8, 9). On

February 25, 2026, Plaintiff filed a Motion to Appoint Counsel. (Doc.

11). On March 9, 2026, he filed a Motion for an Order Requiring the US

Marshals Service to Serve Summons and Complaint (“Motion for

Service”). (Doc. 13). March 16, 2026, we entered a Memorandum and

Order granting, in part, Plaintiff’s Motion for Service. (Docs. 15, 16).

On March 19, 2026, Judge Barrasse and Judge Gibbons filed a Motion

to Dismiss. (Doc. 18). Plaintiff filed a second Motion to Appoint

Counsel and supporting brief on March 23, 2026. (Doc. 19, 20).

Plaintiff filed a Motion for Extension of Time for Service of Process on

March 23, 2026 (Doc. 21) which we granted on March 25, 2026 (Doc.

22).

On March 25, 2026, we entered a Memorandum and Order in

response to Plaintiff’s averments in in his Motion for the Appointment

of Counsel indicating that he had been deemed incompetent. That

information triggered our duty to conduct an analysis pursuant to

Federal Rule of Civil Procedure 17(c). Accordingly, we entered an Order

on March 25, 2026 directing Plaintiff to provide to the Court for in

camera review any documentation from a public agency or court of

record that he has been adjudicated incompetent, or (2) documentation

from a medical provider that the type of mental illness for which he is

being treated renders him legally incompetent, to the extent such

documentation exists. (Docs. 23, 24).

Judge Barrasse and Judge Gibbons filed a brief in support of their

Motion to Dismiss on March 30, 2026. (Doc. 25). On April 7, 2026, in

accordance with our March 25, 2026 Order, Plaintiff submitted

documentation for in camera review regarding his competency.

Plaintiff filed a request for an extension of time to respond to the

Motion to Dismiss on April 13, 2026 (Doc. 26) which we granted on

April 17, 2026 (Doc. 27). Plaintiff filed a Second Motion for Extension of

Time to File Brief In Opposition (Doc. 28) on April 17, 2026, which we

denied as moot on May 6, 2026. (Doc. 33). Plaintiff file a Second

Motion for U.S. Marshals Service (Doc. 32) on May 4, 2026.

On May 11, 2026, he filed his third Motion to Appoint Counsel

(Doc. 34) together with a supporting brief (Doc. 35), again raising the

issue of competency. DA Gallagher filed an executed waiver of service

on May 18, 2026. (Doc. 37). On that same date, he filed a Motion to

Dismiss and supporting brief. (Docs. 38, 39).

On June 9, 2026, we entered an additional Order relating to our

Rule 17(c) analysis. (Doc. 42). In that Order, we noted that the

documentation that Plaintiff provided to the Court for in camera review

indicated that Plaintiff underwent a competency examination in

December 2024 and was deemed incompetent to proceed to trial. At

that time, a Court Order from the Lackawanna County Court of

Common Pleas directed Plaintiff to be transported to the Norristown

State Hospital for restoration of competency. However, additional

documentation submitted by Plaintiff indicated that as of April 26,

2025, Plaintiff had not been transported to that facility due to his

failure to cooperate with necessary preadmission testing. The

documentation also indicated that a status conference was scheduled for

February 26, 2026 in the Lackawanna County Court of Common Pleas

regarding Plaintiff’s competency. Accordingly, we Ordered Plaintiff to

provide the Court with an update regarding his current competency,

including, to the extent such documentation exists, any transcript or

order from the February 23, 2026 status conference in the Lackawanna

County Court of Common Pleas regarding Plaintiff’s competency; and to

the extent Plaintiff was not transferred to Norristown State Hospital,

an explanation as to why such transfer did not occur. (Doc. 42). On

August 14, 2026, Defendant Brown filed a Motion to Dismiss and

supporting brief. (Docs. 44, 45). Plaintiff filed a Motion for Extension of

Time to Respond to Defendant Brown’s Motion to Dismiss on August 24,

2026 (Doc. 46) and filed a response in opposition on September 8, 2026

(Doc. 47). Plaintiff did not file any response to our June 9, 2026 Order

requesting additional information relating to the current status of his

competency.

II. Legal Standard

In this Memorandum, we consider the application of Federal Rule

of Civil Procedure 17(c) as well as the standard for appointment of

counsel.

A. Federal Rule of Civil Procedure 17(c)

Federal Rule of Civil Procedure 17(c)(2) provides that:

[a] minor or an incompetent person who does not

have a duly appointed representative may sue by

a next friend or by a guardian ad litem. The

court must appoint a guardian ad litem—or issue

another appropriate order—to protect a minor or

incompetent person who is unrepresented in an

action.

Fed. R. Civ. P. 17(c)(2). While Rule 17(c)(2) imposes a mandatory

obligation upon the courts, there is “no suggestion which factors should

trigger the court’s duty of inquiry as to whether the individual at issue

is competent.” Powell v. Symons, 680 F.3d 301, 303 (3d Cir. 2012).

Accordingly, “responsibility for Rule 17 appears generally to be left to

the discretion of the district courts.” Id.

The Third Circuit has instructed that “a district court need not

inquire sua sponte into a pro se plaintiff’s mental competence based

upon a litigant’s bizarre behavior alone, even if such behavior may

suggest mental incapacity.” Id. at 307. Rather, the duty of inquiry

involves a determination of whether there is “verifiable evidence of

incompetence.” Id. For instance, the Third Circuit clarified that a

district court would abuse its discretion if it failed to consider whether

Rule 17(c) applied “[i]f a court were presented with evidence from an

appropriate court of record or a relevant public agency indicating that

the party had been adjudicated incompetent, or if the court received

verifiable evidence from a mental health professional demonstrating

that the party is being or has been treated for mental illness of the type

that would render him or her legally incompetent.” Id. (quoting Ferrelli

v. River Manor Health Care Center, 323 F.3d 196, 201 (2d Cir. 2003)). A

district court “must satisfy its duty of inquiry before it proceeds to

determine if Rule 17 applies.” Id.

A district court must invoke Rule 17 consider whether to appoint a

representative for an incompetent person when there is “verifiable

evidence of incompetence.” Mondelli v. Berkeley Heights Nursing and

Rehabilitation Center, 1 F.4th 145, 149 (3d Cir. 2021). Verifiable

evidence of incompetence includes (1) “evidence from an appropriate

court of record or a relevant public agency indicating that the party had

been adjudicated incompetent,” or (2) “evidence from a mental health

professional demonstrating that the party is being or has been treated

for mental illness of the type that would render him or her legally

incompetent.” Id. (quoting Powell v. Symons, 680 F.3d 301, 303 (3d Cir.

2012)). The decision as to whether to appoint a representative “rests

with the sound discretion of the court.” Richards v. Duke University,

166 F. App’x 595, 598 (3d Cir. 2006).

“While Rule 17(c) does not provide a standard for determining

competency, Rule 17(b) provides that the capacity of a party to sue or be

sued shall be determined by the law of the party's domicile.” Tejada v.

DelBalso, No. 3:18-cv-01096, 2018 WL 6047081, *1 (M.D. Pa. Nov. 19,

2018) (citing Richards v. Duke Univ., 166 Fed. App'x 595, 598 (3d Cir.

2006) (per curiam)); see also Fed. R. Civ. P. 17(b). Under Pennsylvania

law, an “incapacitated person” is defined as “an adult whose ability to

receive and evaluate information effectively and communicate decisions

in any way is impaired to such a significant extent that the person is

partially or totally unable to manage financial resources or to meet the

essential requirements for physical health and safety.” Id. (citing Pa. R.

Civ. P. 2051); see also Powell v. Symons, 680 F.3d 301, 308 n.6 (3d Cir.

2012). “The purpose behind appointing a guardian is to protect the

interests of the incompetent person, not the defendants.” Richards, 166

F. App'x at 599. Appointment of a guardian ad litem is inappropriate

where the purportedly incompetent party is “clearly able to protect [his

or] her interests in [the] litigation” and “understand the meaning and

effect of the legal proceedings [he or she] has instituted.” Id. (brackets

in original) (quoting another source).

B. Motion to Appoint Counsel

Neither the Supreme Court nor the Third Circuit has recognized a

constitutional right to counsel for civil litigants. Parham v. Johnson,

126 F.3d 454, 456–57 (3d Cir. 1997). Civil litigants likewise lack a

statutory right to appointed counsel. Id. (citing Tabron v. Grace, 6 F.3d

147, 153 (3d Cir. 1993)). Despite the lack of a constitutional right to

counsel, 28 U.S.C. § 1915(e)(1) provides that “[t]he court may request an

attorney to represent any person unable to employ counsel.” Such

appointment is discretionary,

In considering whether to appoint counsel for a litigant in a civil

case, the court should first consider whether a plaintiff’s claims have

some merit in fact in law. Id. If so, the court should go on to consider

non-exhaustive factors, which should serve as a “guidepost,” 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

necessary and the ability of the plaintiff to pursue

such investigation; (4) the amount a case is likely

to turn on credibility determinations; (5) whether

the case will require the testimony of expert

witnesses; (6) whether the plaintiff can attain

and afford counsel on his own behalf.

Id. Additionally, we are cognizant of the Third Circuit’s directive that

courts should not request counsel under Section 1915(d)

indiscriminately. Tabron, 6 F.3d at 157. We must be mindful of “the

significant practical restraints on the district courts’ ability to appoint

counsel: the ever-growing number of prisoner civil rights cases 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.” Tabron, 6 F.3d

at 157.

III. Discussion

We will first proceed with our analysis under Rule 17(c) and then

turn to Plaintiff’s Motions to Appoint Counsel.

A. Rule 17(c) Analysis

As noted earlier, Plaintiff indicated in his Motion to Appoint

Counsel that he was deemed incompetent. (Doc. 19). Accordingly, our

duty to conduct a Rule 17(c) analysis was triggered. While Plaintiff

provided documentation in response to our Order regarding his

competency for in camera review, the documentation was insufficient to

enable us to reach a conclusion regarding Plaintiff’s current

competency. More specifically, we noted that the documentation

indicated that Plaintiff was deemed incompetent in December 2024 and

ordered to be transferred to Norristown State Hospital for the

restoration of competency. However, the documentation indicated that

as of April 2025, Plaintiff had still not been transferred to that facility

and Plaintiff’s current competency status was unclear. Accordingly, we

sought additional information from Plaintiff. (Doc. 42). Plaintiff did

not provide any additional information in response to that Order.

“If—as here—'there has been a legal adjudication of incompetency

... that is brought to the court’s attention, [Rule 17] is brought into

play.’” Wright v. Wenerowicz, No. 2:14-CV-00245, 2018 WL 1081982, at

*3 (E.D. Pa. Feb. 28, 2018) (citing Powell v. Symons, 680 F.3d 301, 307

(3d Cir. 2012) (quoting Hudnall v. Sellner, 800 F.2d 377, 385 (4th Cir.

1986)). Competency is determined by reference to state law, and

“[u]nder Pennsylvania law ... once a person is adjudicated incompetent,

[he] is deemed incompetent ‘for all purposes until, by court order, the

status of incompetency is lifted.’” Id. at 308 (quoting Syno v. Syno, 594

A.2d 307, 310 (Pa. Super. Ct. 1991)).

A review of the criminal docket in the Lackawanna County Court

of Common Pleas case indicates that on May 22, 2026, Plaintiff was

“found to be competent.”1 It appears Plaintiff pled nolo contendere to a

count of recklessly endangering another person. Because the status of

incompetency was lifted by the Court of Common Pleas in Lackawanna

County, we are satisfied that Plaintiff’s competency has been restored.

We further add that Plaintiff has filed numerous motions to the docket

suggesting that he is capable of representing his own interest in this

litigation. Accordingly, there is no basis to appoint a representative for

plaintiff pursuant to Fed. R. Civ. P. 17(c).

B. Appointment of Counsel

At this juncture we do not find it necessary to appoint counsel.

We reach this conclusion after proceeding through the analysis set forth

in Parham. 126 F.3d at 457. As an initial matter, we must consider

1 Courts are permitted to take judicial notice of docket entries filed in

separate litigation proceedings. See, e.g., Mar. Elec. Co. v. United Jersey

Bank, 959 F.2d 1194, 1200 (3d Cir. 1991), reh'g granted and opinion

vacated (Jan. 10, 1992), opinion reinstated on reh'g (Mar. 24, 1992);

FCS Cap. LLC v. Thomas, 579 F. Supp. 3d 635, 647 (E.D. Pa. 2022).

whether Plaintiff’s claims have some merit in fact or law. Parham, 126

F.3d at 456. While we note that each Defendant has now filed a Motion

to Dismiss, for the sake of completeness, we will assume arguendo, that

Plaintiff’s claims have some merit in fact or law and proceed with our

analysis.

First, we find that Plaintiff has sufficiently presented his case.

Plaintiff organized the statement of facts in 41 separate paragraphs and

included 4 distinct legal claims, identifying which Defendants each

claim is raised against. (See Doc. 1).

As to the second factor, while Plaintiff argues that this is a

complex case, we are not persuaded that the legal issues are so complex

as to warrant the appointment of counsel. The contours of the

constitutional claims raised by Plaintiff are well-established.

The third factor considers the degree to which a factual

investigation will be necessary and the ability of the plaintiff to pursue

such investigation. While discovery may be necessary in this matter,

Plaintiff has established that he is able to advocate for himself and

raise issues with the Court when necessary. We are satisfied that

Plaintiff will be able to pursue any investigation required to pursue his

claims.

The fourth factor considers to what extent the case will turn on

credibility determinations. Credibility may be an issue with respect to

some of the claims raised by Plaintiff, but before even commencing

discovery, Plaintiff appended 33 exhibits to his Complaint. Accordingly,

it appears as though there will be additional evidence relevant to

Plaintiff’s claims.

Regarding the fifth factor, at this time, it is not clear that

Plaintiff’s claims will require expert support.

As to the final factor, it does not appear that plaintiff can attain

and afford counsel on his own behalf. Plaintiff states that he is indigent

and we have no reason to doubt the veracity of his allegations. (Doc. 20

at ¶ 11). While this factor may weigh in favor of appointment of

counsel, on balance, consideration of the Parham factors weighs against

appointment of counsel at this time. Accordingly, Plaintiff’s Motions to

Appoint Counsel (Docs. 11, 19, 34) will be denied without prejudice to

Plaintiff to request appointment of counsel again if necessary at a later

time. An appropriate order follows.

BY THE COURT:

/s/ Leo A. Latella

LEO A. LATELLA

United States Magistrate Judge