UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

HUBERT FONT, :

:

Plaintiff : No. 4:CV-05-0277

:

vs. : (Complaint Filed 02/08/04)

:

: (Judge Muir)

PENNSYLVANIA STATE POLICE, :

et al., :

:

Defendants :

ORDER #2 of

May 20, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Plaintiff, Hubert Font, an inmate at the State

Correctional Institution, Albion, Pennsylvania, filed this

civil rights action pursuant to 42 U.S.C. § 1983. Presently

before the court is plaintiff’s motion for appointment of

counsel (Doc. No. 11). For the following reasons, the court

will deny the motion. 

Although prisoners have no constitutional or statutory

right to appointment of counsel in a civil case, Parham vs.

Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997), the court has

discretion to request “an attorney to represent any person

unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see also

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Montgomery vs. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002);

Tabron vs. Grace, 6 F.3d 147, 153 (3d Cir. 1993). The

United States Court of Appeals for the Third Circuit has

stated that appointment of counsel for an indigent litigant

should be made when circumstances indicate "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." Smith-Bey vs. Petsock, 741 F.2d

22, 26 (3d Cir. 1984).

The initial determination to be made by the court in

evaluating the expenditure of the “precious commodity” of

volunteer counsel is whether the plaintiff’s case has some

arguable merit in fact and law. Montgomery, 294 F.3d at

499. If a plaintiff overcomes this threshold hurdle, other

factors to be examined are:

(1) the plaintiff’s ability to present his or her

own case;

(2) the difficulty of the particular legal issues;

(3) the degree to which factual investigation will

be necessary and the ability of the claimant

to pursue investigation;

(4) the plaintiff’s capacity to retain counsel on

his or here own behalf;

(5) the extent to which the case is likely to turn

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3

on credibility determinations; and

(6) whether the case will require testimony from

expert witnesses.

Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-

57). 

Assuming, solely for the purpose of deciding this

motion, that the complaint has arguable merit, Font fails to

set forth circumstances warranting appointment of counsel.

Tabron, supra, at 155-56. In his pleadings, Font

demonstrates the ability to present comprehensible

arguments. The legal issues in this case are relatively

uncomplicated, encompass well-settled areas of the law and

will not require expert testimony. Furthermore, despite his

incarceration, investigation of the facts does not seem

beyond Font’s capabilities. 

Based on the foregoing, it does not appear that Font

will suffer prejudice if forced to prosecute this case on

his own. Furthermore, this court’s duty to construe pro se

pleadings liberally, Haines vs. Kerner, 404 U.S. 519 (1972),

coupled with plaintiff’s apparent ability to litigate this

action, militate against the appointment of counsel. Thus,

the court will deny Font's motion for appointment of

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counsel. In the event, however, that future proceedings

demonstrate the need for counsel, the matter may be

reconsidered either by the court sua sponte or upon motion

of plaintiff.

IT IS HEREBY ORDERED that plaintiff's motion for

appointment of counsel (Doc. No. 11) is DENIED. 

 s/Malcolm Muir

 

MUIR

United States District Judge

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