UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN KENNETH JOHNSON, :

:

Plaintiff : No. 4:CV-05-0837

:

vs. : (Complaint Filed 04/27/05) 

:

: (Judge Muir)

DENNIS WIEDERHOLD, et al., :

:

Defendants :

ORDER

August 16, 2005 

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Plaintiff, an inmate presently confined in the

Schuylkill County Prison, Pottsville, Pennsylvania, filed

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

Presently before the court are plaintiff’s motions for

appointment of counsel (Doc. Nos. 17, 25). For the

following reasons, the court will deny the motions. 

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);

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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

on credibility determinations; and

(6) whether the case will require testimony from

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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, Johnson fails

to set forth circumstances warranting appointment of

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

Johnson 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 Johnson's capabilities. 

Based on the foregoing, it does not appear that Johnson

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 Johnson's motions for appointment of

counsel. In the event, however, that future proceedings

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demonstrate the need for counsel, the matter may be

reconsidered either sua sponte or upon motion of plaintiff.

IT IS HEREBY ORDERED that plaintiff's motions for

appointment of counsel (Doc. Nos. 17, 25) are DENIED. 

 s/Malcolm Muir

 

MUIR

United States District Judge

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