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 UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY MICHAEL CASTELLO, : CIVIL NO. 4:24-CV-1032 

 : 

Plaintiff, : 

 : 

 v. : (Magistrate Judge Carlson)

 : 

 : 

TYLER ARBOGAST, et al., : 

 : 

Defendants. : 

MEMORANDUM AND ORDER

Anthony Castello, a state prisoner, is suing several state police troopers 

alleging that they used excessive force in the course of his arrest. This matter 

comes before the Court on a request to appoint counsel for the plaintiff, a pro se 

litigant, and enter an order enjoining non-party prison officials to facilitate 

Castello’s access to discovery materials. (Doc. 35). 

Castello has not filed a brief in support of this motion. At the outset of this 

litigation, the plaintiff was placed on notice that: “Local Rule 7.5 requires that any 

party who files a motion shall be required to file a brief in support of that motion 

within fourteen (14) days of the filing of the motion.” (Doc. 6-1). Since Castello 

has not filed a brief in support of this motion, we will deem the motion to be 

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withdrawn without prejudice to renewal in a proper form. See, e.g., Salkeld v. 

Tennis, 248 F. App'x 341 (3d Cir.2007) (affirming dismissal of motion under Local 

Rule 7.5). 

In any event: 

[T]o the extent that [the plaintiff] seeks to enjoin non-parties in this 

litigation, he must make a particularly exacting showing. It is clear 

that “[a] non-party cannot be bound by the terms of an injunction 

unless the non-party is found to be acting ‘in active concert or 

participation’ with the party against whom injunctive relief is 

sought.” Elliott v. Kiesewetter, 98 F.3d 47, 56 (3d Cir. 1996) (citing 

Fed. R. Civ. P. 65(d)); Robertson v. Samuels, No. 3:13-CV-2500, 

2014 WL 347007, at *5 (M.D. Pa. Jan. 30, 2014), aff'd, 593 F. App'x 

91 (3d Cir. 2014). See Victor v. Moss, No. 1:20-CV-425, 2021 WL 

867582, at *4 (M.D. Pa. Jan. 6, 2021), report and recommendation

adopted sub nom. Victor v. Wetzel, No. CV 1:20-425, 2021 WL 

527483 (M.D. Pa. Feb. 12, 2021).

Cramer v. Bohinski, No. 1:22-CV-583, 2022 WL 16748604, at *2 (M.D. Pa. Nov. 7, 

2022). No such showing has been made here. Therefore, Castello is not entitled to 

enjoin these non-party prison officials.

Finally, while we appreciate the plaintiff’s on-going interest in securing 

court-appointed counsel, we also recognize 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). Instead, 28 

U.S.C. § 1915(e)(1) simply provides that “[t]he court may request an attorney to 

represent any person unable to employ counsel.” Under §1915(e)(1), a district 

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court’s appointment of counsel is discretionary and must be made on a case-by-case 

basis. Tabron, 6 F.3d at 157-58. In Parham, the United States Court of Appeals 

outlined the standards to be considered by courts when reviewing an application to 

appoint counsel pursuant to 28 U.S.C. § 1915(e)(1). In passing on such requests we 

must first:

[D]etermine[] that the plaintiff's claim has some merit, then [we] 

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 investigation; (4) the amount a 

case is likely to turn on credibility determinations; (5) whether the case 

will require the testimony of expert witnesses; [and] (6) whether the 

plaintiff can attain and afford counsel on his own behalf. 

Parham v. Johnson, 126 F.3d at 457. There is yet another practical consideration 

which must be taken into account when considering motions for appointment of 

counsel. As the United States Court of Appeals for the Third Circuit has aptly 

observed:

Finally, in addressing this issue, we must take note of the significant 

practical restraints on the district courts' ability to appoint counsel: the 

ever-growing number of prisoner civil rights actions filed each year in 

the federal courts; the lack of funding to pay appointed counsel; and the 

limited supply of competent lawyers who are willing to undertake such 

representation without compensation. We have no doubt that there are 

many cases in which district courts seek to appoint counsel but there is 

simply none willing to accept appointment. It is difficult to fault a 

district court that denies a request for appointment under such 

circumstances. 

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Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993). Mindful of this consideration it has 

been emphasized that volunteer lawyer time is extremely valuable. Hence, district 

courts should not request counsel under § 1915(d) indiscriminately. As the Court of 

Appeals for the Second Circuit has warned: “Volunteer lawyer time is a precious 

commodity. . .. Because this resource is available in only limited quantity, every 

assignment of a volunteer lawyer to an undeserving client deprives society of a 

volunteer lawyer available for a deserving cause. We cannot afford that waste.” 

Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Tabron v. Grace, 6 

F.3d 147, 157 (3d Cir. 1993). 

In this case our analysis of these factors leads us to conclude that counsel 

should not be appointed in this case at the present time. At the outset, appointment 

of counsel would be premature since we have not had the opportunity to further

consider the arguable merits of the plaintiff’s remaining claim. In any event, the 

issues in this case appear to be discrete and well-known to the plaintiff. Moreover, 

the plaintiff has thus far shown the ability to litigate his claims. 

Taking all of these factors into account we DENY this motion (Doc. 35), at 

this time without prejudice to re-examining these issues at the request of the 

plaintiff, or sua sponte, as this litigation progresses. However, IT IS ORDERED 

that defense counsel confer with the plaintiff to determine how the parties may 

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facilitate discovery in this matter, an issue that appears to have been hampered by 

the plaintiff’s custodial status. 

SO ORDERED, this 13th day of January 2025.

S/Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

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