Opinion
Civil Action No. 2: 14-cv-00634
10-22-2014
JOSEPH R. FILBERT, Plaintiff, v. WESTMORELAND COUNTY PRISON, Defendant.
United States Magistrate Judge
Cynthia Reed Eddy
ORDER
On October 20, 2014, Plaintiff filed a "Motion to Introduce Social Security Administration Records for [Proof] of Prior Mental Disability" (ECF No. 25). The Court will consider this motion as a renewed Motion for Appointment of Counsel.
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). The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, however, the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See also Powell v. Symons, 680 F.3d 301, 307 (3d Cir. 2012) (holding that a district court must conduct a sua sponte Rule 17 inquiry only if there is some "verifiable evidence" of incompetence (not just mental illness), such as a judicial determination that the individual is not competent to stand trial in a criminal proceeding or that he suffers from a mental illness of the type that would render him or her legally incompetent.)
The United States Court of Appeals for the Third Circuit in Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), identified factors to be considered by the district courts in exercising their discretion whether to appoint counsel pursuant to 28 U.S.C. § 1915(d) [now subsection (e)]. First, the Court must consider the merits of the plaintiff's claim. It should not appoint counsel unless it appears that the claim has some merit in fact and law. Tabron, 6 F.3d at 155. Other factors include the plaintiff's ability to present his or her case; the plaintiff's education, literacy, prior work experience, prior litigation experience, ability to understand English; restraints placed upon him or her by confinement; whether the claim is truly substantial; the difficulty or complexity of the legal issues; the degree to which factual investigation will be required and the ability of the indigent plaintiff to pursue such investigation; the extent to which prisoners and others suffering confinement may face problems in pursuing their claims; whether the claims are likely to require extensive discovery and compliance with complex discovery rules; whether the case is likely to turn on credibility determinations; whether the case will require testimony from expert witnesses; and whether an indigent plaintiff could retain counsel on his or her own behalf. Id.
Evaluation of the likelihood of success is difficult at such an early stage in this proceeding.
This Court has denied Plaintiff's earlier request for appointment of counsel (ECF No. 15). However, in light of the difficulties that have arisen since then, the Court now finds that appointment of counsel will best serve to move this matter forward and will grant Plaintiff's renewed motion for appointment of counsel (ECF No. 25).
AND NOW, this 22nd day of October, 2014:
IT IS ORDERED that pursuant to 28 U.S.C.§1915(e)(1) and the order of court dated March 24, 1999, entered pursuant to the resolution of the Board of Judges of the United States District Court for the Western District of Pennsylvania In re: Funding of Plan for the Appointment of Counsel in Select Pro Se Prisoner Civil Rights Actions (Miscellaneous No. 99-95), the Clerk of Court, on behalf of the Allegheny County Bar Foundation of the Allegheny County Bar Association is directed to request a lawyer to consider entering an appearance on behalf of the plaintiff in the above-captioned case;
IT IS FURTHER ORDERED that the Clerk of Court is directed to provide counsel with a copy of the most current complaint and answers and shall provide counsel with any additional pleadings or documents as requested by counsel;
IT IS FURTHER ORDERED that this matter shall continue to be placed in administrative suspense pending appointment of counsel, at which point the case will be reopened.
/s Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc: JOSEPH R. FILBERT
33924068-N-5
P.O. Box 879
Ayer, MA 01432
(via U.S. Postal Service, First Class Mail)
Trent A. Echard
Strassburger McKenna Gutnick & Gefsky
(via CM/ECF electronic notification)