IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ADRIAN S. HOLMES, :

 :

Plaintiff, : CIVIL NO. 4:10-CV-1043

 :

v. : (Judge McClure)

 :

WARDEN BLEDSOE, et al., :

 :

 Defendants. :

MEMORANDUM and O R D E R

June 17, 2010

Plaintiff Adrian S. Holmes (“Plaintiff” or “Holmes”), an inmate presently

confined at the United States Penitentiary at Lewisburg (“USP Lewisburg”) in

Lewisburg, Pennsylvania, commenced the above action pro se by filing a Complaint

under the provisions of 28 U.S.C. § 1331. (Rec. Doc. No. 1.) Named as Defendants

are Warden Bledsoe, Captain B. Trate; Special Investigative Agent (“SIA”) Perrian;

Assistant Warden Young; the Regional Director of the Northeast Regional Office of

the Federal Bureau of Prisons (“BOP”); and General Counsel at the BOP Central

Office. (See id. at 1, 2 § III.) 

 In his Complaint, Holmes alleges that Defendants Bledsoe, Trate, Perrian, and 

Young set him up to be viciously attacked by “The Force Team” at USP Lewisburg on

March 1, 2010 and then denied him medical treatment for the injuries he sustained as

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a result of that attack. (See id. § IV.) Holmes claims that Defendants have not

responded to the administrative remedies he has filed regarding his claims. (See id. §

II ¶ B.) Service of the Complaint was directed by Order dated May 24, 2010. (Rec.

Doc. No. 6.)

Presently before the Court are two motions filed by Plaintiff in which he

requests the appointment of counsel and requests the Court to order the production of

discovery from Defendants. These motions are disposed of below.

I. MOTION TO APPOINT COUNSEL

The Court recognizes that there is neither a constitutional nor a statutory right 

to counsel for civil litigants. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.

1997); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). Notwithstanding this lack of

a constitutional or statutory right to appointed counsel, in a civil case, 28 U.S.C. 

§ 1915(e)(1) provides that “[t]he court may request an attorney to represent any

person unable to employ counsel.” A district court’s appointment of counsel pursuant

to this statute is discretionary and must be made on a case-by-case basis. Tabron, 6

F.3d at 157-58.

In Tabron, the United States Court of Appeals for the Third Circuit first

outlined with specificity the applicable standards to be considered by courts upon an

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application to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1). Id. at 155-57. In

Parham, the Third Circuit identified the following guidelines for appointing counsel

to indigent civil litigants:

As a preliminary matter, the plaintiff’s claim must have

some merit in fact and law. If the district court determines

that the plaintiff’s claim has some merit, then the district

court should consider the following factors:

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

(2) the complexity of the legal issues;

(3) the degree to which factual investigation will be

necessary and the ability of the plaintiff to pursue such

an investigation;

(4) the amount a case is likely to turn on credibility

determinations;

(5) whether the case will require the testimony of

expert witnesses;

(6) whether the plaintiff can attain and afford counsel

on his own behalf.

Parham, 126 F.3d at 457 (citation omitted). In a more recent, non-precedential

decision, Gordon v. Gonzalez, 232 Fed. Appx. 153, n.4 (3d Cir. Apr. 30, 2007), the

Third Circuit Court of Appeals added that two other factors to be taken into

consideration are: (1) the court’s willingness to aid the indigent party in presenting his

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or her case; and (2) the available supply of lawyers willing to accept 

§ 1915(e) requests within the relevant geographical area.

In his motion, Holmes states that he requests counsel because he is not able to

retain counsel on his own; he is unable to investigate by talking to individuals who are

directly or indirectly involved; and he is confined within the Special Management

Unit (“SMU”) at USP Lewisburg where he is in lock-down. (See Rec. Doc. No. 8.) 

While we are mindful of the difficulties Holmes faces as an inmate in litigating his

case, he has not set forth sufficient circumstances to warrant appointment of counsel at

this time. Holmes has demonstrated an ability to effectively present his own case in

that he was able to articulate his claims in his Complaint. In addition, this case does

not appear to present difficult and complex legal issues. Furthermore, while Holmes

is concerned about his ability to investigate, the actual investigation that he would

need to perform appears to be minimal in that the pleadings show that he is fully

aware of the bases for his claims against the Defendants. Finally, while the case may,

in part, turn on credibility determinations, the case likely will not require extensive

expert witness testimony. Taking all of these factors into account, we believe that the

application of these factors weighs against the appointment of counsel at this time. 

However, denial of Holmes’ motion will be without prejudice to re-examining this

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issue as this litigation progresses.

II. MOTION FOR DISCOVERY

Holmes has filed a “Motion for Discovery” in which he requests that this Court

order the production of various documents by Defendants. (Rec. Doc. No. 9.)

Holmes’ motion is both premature and procedurally incorrect. Defendants have not

yet entered their appearances in this action. After service on all Defendants has been

accomplished and entries of appearance are made, the correct procedure for Holmes to

follow to request discovery is to serve his requests on counsel for Defendants. It is

not necessary for him to file these requests with the Court. In the event that a dispute

arises in the course of discovery, it then would be proper for Holmes to file a motion

to compel discovery with the Court. Accordingly, Holmes’ motion will be denied as

premature. Consequently, 

IT IS HEREBY ORDERED THAT:

1. Plaintiff’s motion to appoint counsel (Rec. Doc. No. 8) is DENIED

without prejudice.

2. Plaintiff’s motion for discovery (Rec. Doc. No. 9) is DENIED as 

premature.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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