IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HENRY UNSELD WASHINGTON : Civil No. 4:08-CV-1283

:

 Plaintiff :

: (Judge Jones)

 v. :

: (Magistrate Judge Carlson)

JAMES GRACE, et al. :

:

Defendants. :

MEMORANDUM AND ORDER

This matter comes before the Court on a request that we appoint counsel for the

Plaintiff, an inmate and pro se litigant. (Doc.35.) 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. The exercise of this

discretion, however, is guided by certain basic principles. Gordon v. Gonzalez, 232

F. App’x. 153, 156 (3d Cir. 2007), 

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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.

In this case our 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

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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. 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.

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

counsel (Doc. 35), at this time without prejudice to re-examining this issue as this

litigation progresses.

SO ORDERED, this 15 day of July, 2010.

th

S/Martin C. Carlson 

United States Magistrate Judge

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