1. In January 2005, Plaintiff contacted the Clerk’s Office in

Scranton inquiring about the status of his case in the Middle

District. A review of this court’s records by Kevin T. Calpin,

Operations Manager, revealed no records received involving

Plaintiff’s case. Plaintiff then supplied the Clerk’s Office

with a copy of the transfer order issued by the United States

District Court for the District of Columbia. Our Clerk’s Office

immediately contacted that Court by phone and requested the case

file. Mr. Calpin was told that the file would be sent. On March

9, 2005, the file having not been received, Mr. Calpin sent a

letter to the Clerk of Court of the United States District Court

for the District of Columbia requesting the file and also e-

(continued...)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LATCHMIE TOOLASPRASHAD, :

:

Plaintiff : No. 4:05-CV-168

:

vs. : (Complaint Filed 1/25/05)

:

BUREAU OF PRISONS, : (Judge Muir)

:

Defendant :

ORDER

August 24, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The Plaintiff Latchmie Toolasprashad filed a complaint

on July 30, 1999, in the United States District Court for the

District of Columbia. The complaint named as defendants the

Bureau of Prisons and thirteen officials and employees of that

agency. The case was filed in this court on January 25, 2005, as

a result of being transferred to this district by an order issued

on July 29, 2003, by the United States District Court for the

District of Columbia. Although the case was ordered transferred

in 2003, this court was not aware of the transfer order or case

until January, 2005, and did not receive the file in the case

until March 22, 2005.1

 The only claim that remains after being

Case 4:05-cv-00168-MM Document 24 Filed 08/24/05 Page 1 of 5
1. (...continued)

mailed the letter to that Court’s Operations Manager. 

2

transferred to this court is a claim for damages against the

Bureau of Prisons under the Privacy Act, 5 U.S.C. § 552a(g)(1)(C)

and 552a(g)(4). At the time the case was transferred there was a

pending motion for summary judgment filed by the Bureau of

Prisons. The Clerk of Court assigned responsibility for this

case to us but referred it to United States Magistrate Judge J.

Andrew Smyser for preliminary consideration.

On April 15, 2005, Magistrate Judge Smyser filed a 22-

page report recommending that the Bureau of Prisons’ motion for

summary judgment be granted and that the case be closed. On April

28, 2005, Plaintiff filed a motion for enlargement of time until

June 22, 2005, to file objections to that report. On April 29,

2005, we granted Plaintiff’s motion for enlargement of time.

On June 20, 2005, the Plaintiff filed a second motion

for enlargement of time. By order of June 21, 2005, we granted

Plaintiff an enlargement of time until July 18, 2005, to file

objections. On July 18, 2005, Plaintiff filed his objections to

the report of Magistrate Judge Smyser. Also, on July 18, 2005,

Plaintiff filed a document entitled “Plaintiff’s Motion for

Appointment of Counsel or In the Alternative An Amicus” and a

brief in support thereof. Defendant filed an opposition brief on

August 2, 2005. The motion became ripe for disposition on August

22, 2005, with the filing of Plaintiff’s reply brief.

Case 4:05-cv-00168-MM Document 24 Filed 08/24/05 Page 2 of 5
3

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 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

Case 4:05-cv-00168-MM Document 24 Filed 08/24/05 Page 3 of 5
4

the ability of the claimant to

pursue investigation;

(4) the plaintiff’s capacity to retain

counsel on his or her own behalf;

(5) the extent to which the case is

likely to turn 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, Plaintiff

fails to set forth circumstances warranting appointment of

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

Plaintiff demonstrates the ability to present comprehensible

arguments. The remaining 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 Plaintiff’s capabilities. 

Based on the foregoing, it does not appear that

Plaintiff 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. Plaintiff is an experienced pro se litigator. The

Case 4:05-cv-00168-MM Document 24 Filed 08/24/05 Page 4 of 5
5

complaint and additional pleadings in this case clearly

demonstrate that Plaintiff is capable of setting forth his

claims and legal arguments in a straightforward and clear

manner. He was able to present his case first in the United

States District Court for the District of Columbia and then

in the United States Court of Appeals for the District of

Columbia. In fact, Plaintiff was successful in obtaining a

remand of his Privacy Act claim to the District Court. 

Also, Plaintiff’s objections consist of 42 pages with 92

pages of supporting exhibits. As noted, there is only one

remaining claim is this case. That claim is whether

inaccurate information is contained in a memorandum which

was used by the Bureau of Prisons in its determination to

transfer Plaintiff to another institution. That claim is

not complex. Thus, the court will deny Plaintiff’s motion

for appointment of counsel. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

Plaintiff’s motion for appointment of counsel (Doc. 11)

is denied. 

 s/Malcolm Muir 

 ______________________________ 

 MUIR, U.S. District Judge

MM:gs

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