UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JONATHAN GADRA, : CV. No. 4:10-CV-236

 :

 Plaintiff :

: (Judge Muir)

 v. :

: (Magistrate Judge Carlson)

C.O. 1 EISWERTH, et al., :

:

Defendants :

MEMORANDUM AND ORDER

This matter comes before the Court on a request for an order appointing

counsel for the Plaintiff, a pro se litigant. (Doc. 7) The Plaintiff, a state inmate, has

asked the Court to appoint counsel at the outset of this case before Gadra has even

completed the paperwork necessary to proceed in forma pauperis. 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.

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The exercise ofthis discretion, however, is guided by certain basic principles. Gordon

v. Gonzalez, 232 F. App’x. 153, 156 (3d Cir. 2007), 

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

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.

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Our initial analysis of these factors suggests that counsel should not be

appointed in this case at the present time. At the outset, we believe that we should

defer any such decision until after we have had the opportunity to assess the first

benchmark standard we must address, the question of whether the Plaintiff’s claims

have arguable merit. In our view, it would be inappropriate to appoint counsel until

we have the opportunity to conduct this threshold merits analysis. 

Moreover, while the Plaintiff doubtless faces some obstacles in bringing this

action, to date the Plaintiff has demonstrated an ability to effectively present his own

case, advancing his claims in a clear, concise, and intelligent manner. In addition, this

case does not appear to present difficult and complex legal issues. Furthermore, the

actual investigation that the Plaintiff has to do is minimal, since the pleadings show

that the plaintiff is fully aware of the bases for these claims against the Defendants. 

Finally, while the case may, in part, turn on credibility determinations between

Plaintiff and others, 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.

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Accordingly, for the foregoing reasons we will DENY this request to appoint

counsel (Doc. 7), at this time without prejudice to re-examining this issue as this

litigation progresses.1

SO ORDERED, this 11th day of February, 2010.

S/Martin C. Carlson 

United States Magistrate Judge

To the extent that the Plaintiff is also asking for an order directing access to

1

prison law libraries, we will defer any further action on this request until the

Defendants are served, and retain counsel, in this case. Deferring action in this

way will no prejudice the Plaintiff since he will still have ample opportunity to do

legal research on these claims, once the Defendants are served and represented by

counsel.

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