UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ELIAS JIMENEZ, :

:

Plaintiff : No. 4:CV-05-1029

:

vs. : (Complaint Filed 05/19/05) 

:

: (Judge Muir)

YORK CITY POLICE DEPT., et al.,:

:

Defendants :

ORDER

June 3, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Plaintiff, Elias Jimenez, an inmate at the York County

Jail, York, 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.

4). 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 Montgomery vs. Pinchak, 294 F.3d 492,

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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 her own behalf;

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(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, Jimenez

fails to set forth circumstances warranting appointment of

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

Jimenez 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 Jimenez' capabilities. 

Based on the foregoing, it does not appear that

Jimenez 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

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appointment of counsel. Thus, the court will deny Jimenez

motion for appointment of counsel. In the event, however,

that future proceedings 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 motion for

appointment of counsel (Doc. No. 4) is DENIED. 

 s/Malcolm Muir 

 

MUIR

United States District Judge

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