UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

STEVEN ALLAN SHAWLEY, :

:

 Plaintiff : No. 4:CV-04-1189

:

vs. : Removal Petition Filed 6/02/04

:

CLINTON COUNTY, et al., : (Judge Muir)

:

Defendants : 

ORDER

January 18, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Plaintiff Steven Allen Shawley is an inmate at the State

Correctional Institution at Frackville, Pennsylvania, and he is

proceeding in this matter pro se. All pre-trial matters and

motions except that treated in this order have been resolved. On

November 17, 2005, Shawley filed a motion for appointment of

counsel in which he represents that he 

is currently being treated for a mental condition and is

receiving 400 milligrams of seraquill [sic] that makes it

hard to concentrate and hinder[s] his abilities to conduct a

proper jury selection and a trial.

(Motion to Appoint Counsel, p. 4) Also on November 17, 2005,

Shawley filed a separate motion requesting that his trial be

postponed for three months because of various reasons, including

his mental condition and the treatment for that condition. 

On November 21, 2005, we issued an order in which we, inter

alia, 1) granted Shawley’s motion to continue the case by placing

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1. Shawley actually entitled the document he filed on December

22, 2005, as “Plaintiff’s Supplemental Motion and Brief for the

Appointment of Counsel.” Despite its title, that document should

be construed strictly as a brief. 

2. The November 21, 2005, brief was apparently filed before the

Defendants received our order of November 21, 2005. By order

dated November 22, 2005, we required the Defendants to file an

additional opposition brief after Shawley had filed a supporting

brief.

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it on our March, 2006, trial list, and 2) established a briefing

schedule with respect to Shawley’s motion to appoint counsel.

On December 22, 2005, Shawley filed a brief and exhibits in

support of his motion to appoint counsel.1

 On November 21, 2005,

and January 3, 2006, the Defendants filed opposition briefs.2

Shawley filed his reply brief on January 13, 2006, thereby

ripening for disposition his motion to appoint counsel.

As we stated in our two orders denying Shawley’s prior

motions to appoint counsel to represent him, although pro se

parties have no constitutional or statutory rights to appointment

of counsel in a civil case, a court does have broad discretionary

power to appoint counsel under 28 U.S.C. § 1915(d). Tabron v.

Grace, 6 F.3d 147, 153, 155-157 (3d Cir. 1993), cert. denied, 114

S.Ct. 1306 (1994); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir.

1981). 

The factors listed in Tabron include 1) an evaluation of the

merits of the claims at issue, 2) the plaintiff’s ability to

present the case in light of his or her educational literacy,

Case 4:04-cv-01189-MM Document 98 Filed 01/18/06 Page 2 of 7
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experience, and restraints imposed by incarceration, 3) the

complexity of the legal issues, 4) the degree to which a factual

investigation is necessary and the degree to which the plaintiff

is capable of performing the investigation, and 5) the degree to

which the case turns on credibility determinations or expert

testimony. Tabron 6 F.3d at 155-56.

In considering such a motion, the Court of Appeals for the

Third Circuit has also stated that an indigent litigant should be

appointed counsel only 

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.

Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984). With that

standard in mind, we turn to the merits of Shawley’s motion to

appoint counsel.

As a threshold matter we note that the vast majority of the

arguments raised in Shawley’s pending motion were considered and

rejected in our order of July 15, 2005, in which we denied one of

Shawley’s prior motions to appoint counsel. For the reasons

stated in that order, we summarily find the arguments initially

presented in Shawley’s prior motion, and repeated in his current

motion, to be without merit. In this order we will consider only

the contentions made by Shawley for the first time in his pending

motion for counsel.

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The first such argument is that the issues in this case are

complex. Shawley’s only two claims to be tried by a jury are

that some of the Defendants unlawfully denied Shawley access to

legal materials, and that some of the Defendants allowed Shawley

to be injured in an altercation with another inmate. We are of

the view that the issues relating to those claims are not

sufficiently complex to justify the appointment of counsel.

Shawley next argues that the limitations placed upon his

ability to copy and mail documents justifies the appointment of

counsel. He is apparently allowed copying and mailing expenses

up to $10.00 per month. We have accommodated Shawley by

continuing this case to the March, 2006, trial list so that he

may anticipate and meet the costs associated with trying this

case. In the light of that continuance, Shawley has not shown

any prejudice by the limitations discussed in his motion.

He next asserts that he “has no way of locating witnesses to

take depositions or obtain affidavits or subpoena them for

trial.” (Motion to appoint counsel, p. 3) We note that the

discovery deadline has passed; no depositions may be taken at

this point.

Shawley further contends that his incarceration limits his

ability to investigate the facts. Shawley was afforded a full

opportunity to conduct discovery for such an investigation. He

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provides no reason to believe that his efforts to perform

discovery were improperly hindered in any manner.

Shawley next asserts that he “has been diagnosed as a

paranoid schizophrenic/delusional disorder ... [and he] suffers

from audio hallucinations ....” (Brief in support of motion to

appoint counsel, p. 1) The documents Shawley filed in support of

his motion indicate that he is being treated by a psychiatrist,

who has prescribed seroquel. The diagnosis specified on a

memorandum to Shawley from his psychiatrist is actually

“Delusional Disorder, rule out Schizophrenia.” (Brief in support

of motion to appoint counsel, Exhibit C) 

In their opposing briefs, the Defendants point out that the

only side effects from Shawley’s medication, as noted by his

psychiatrist, are “sedation, weight gain, increased lipids and

high blood sugar.” (Brief in support of motion to appoint

counsel, Exhibit C) The psychiatrist further notes that Shawley

“should be transported with his medications.” (Id.) 

We are of the view that the sedation caused by Shawley’s

medication is not a sufficiently severe side-effect to justify

the appointment of counsel in this case. In the event that

Shawley’s medication greatly impairs his ability to proceed at

trial, any potential prejudice may be avoided by allowing a break

in the proceedings.

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After applying all of the factors set forth in Tabron to the

facts of this case, we are of the view that Shawley will not be

substantially prejudiced by presenting his case to a jury without

the assistance of an attorney. We will deny Shawley’s motion to

appoint counsel to represent him.

In closing, we note a comment by Shawley “that the

Defendants have never moved for summary judgment.” (Motion to

appoint counsel, p. 4) On November 30, 2004, we issued an order

in which we set March 1, 2005, as the deadline for filing

dispositive motions. However, on March 1, 2005, the factual

record had not been firmly established because a number of

discovery disputes remained pending. It is possible that the

Defendants did not file a summary judgment motion for that

reason. In their brief opposing Shawley’s motion for appointment

of counsel, the defendants represent that 1) Shawley’s access to

courts claim is without merit because the criminal convictions at

issue were vacated on appeal, and 2) with respect to the assault

which forms the basis of Shawley’s only other claim, the

defendants deny “the existence of culpable conduct on the part of

any defendant.” (Brief opposing motion to appoint counsel, p. 5)

We will establish a new deadline for the filing of summary

judgment motions, and will continue this case to allow time for

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the briefing and resolution of any such motion, if one is filed.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Shawley’s motion for appointment of counsel (Document

91) is denied.

2. Any party may, by February 15, 2006, file a motion for

summary judgment. A supporting brief shall be filed

with any such motion. All subsequent briefs shall be

filed in accordance with the court’s local rules.

3. If a summary judgment motion is filed by February 15,

2006, this case will automatically be continued to the

May, 2006, Trial List.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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