Opinion
Civil Action No. 05-2775.
July 7, 2005
MEMORANDUM AND ORDER
Neftali Ramos Reyes, an inmate at House of Corrections — Philadelphia, seeks to bring a 1983 civil rights action in forma pauperis and asks this Court to appoint him a lawyer. Reyes's in forma pauperis motion is granted, consistent with the financial requirements of The Prison Litigation Reform Act of 1995 (PLRA), and his request for appointed counsel is denied without prejudice.
Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996); see also 42 U.S.C. § 1997e.
The decision whether to grant or deny a motion to proceed in forma pauperis rests in the discretion of the district court. Jones v. Zimmerman, 752 F.2d 76, 78 (3d Cir. 1985). The purpose of 28 U.S.C. § 1915 "is to provide an entre, not a barrier, to the indigent seeking relief in the federal court." Souder v. McGuire, 516 F.2d 820, 823 (3d Cir. 1975). The Supreme Court has held a plaintiff need not "be absolutely destitute to enjoy the benefit of the [ in forma pauperis] statute." Adkins v. E.I. DuPont de Nemours Co., 335 U.S. 331, 339, 69 S.Ct. 85, 93 L.Ed. 43 (1948). Rather, it is sufficient for a plaintiff to show he is "unable to pay the costs of his suit." Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989). Reyes is a prisoner with little income, earning $45 per month working in the prison's kitchen. He also pays $300 per month in financial support for his dependent son. Considering Reyes's financial circumstances, his motion to proceed in forma pauperis is granted.
The PLRA establishes certain financial requirements for prisoners who are attempting to bring a civil action in forma pauperis. Reyes has already submitted a certified copy of his inmate trust fund account statement for the six month period immediately preceding the filing of his complaint. This Court will use this statement to determine how the $250 filing fee will be paid. 28 U.S.C. § 1915(a)(2). After reviewing the statement, this Court will "collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of (A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint. . . ." 28 U.S.C. § 1915(b)(1).
Reyes's account statement for the six-month period immediately preceding the filing of his complaint shows average monthly deposits of $41.17, which is significantly higher than his average monthly balance for the same time period. Based on this financial information, an initial partial filing fee of $8.23 is assessed. The Superintendent, or other appropriate official, is directed to deduct $8.23 from Reyes's inmate account when such funds become available. The funds must be forwarded to the Clerk of the United States District Court for the Eastern District of Pennsylvania. After payment of the initial partial filing fee, Reyes is required to make monthly payments of 20 percent of the preceding month's income credited to Reyes's prison account. The appropriate prison official shall forward payments from the prisoner's account to the Clerk of the Court each time the amount in the account exceeds $10 until the filing fees are paid. 28 U.S.C.A. § 1915(b)(2).
Reyes may not have known when he brought this action that he must pay the filing fee, and even if the full filing fee or any part of it has been paid, this Court must dismiss the case if it finds the action is: 1) frivolous or malicious; 2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). If this Court dismisses the case for any of these reasons, the Act does not permit the prisoner to get his filing fee back.
Reyes also asks this Court to appoint him counsel. Indigent civil litigants possess neither a constitutional nor a statutory right to appointed counsel. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). This Court is, however, permitted to request an attorney to represent a party unable to employ counsel. 28 U.S.C. § 1915. This Court, in determining whether counsel should be appointed to a pro se civil litigant, must consider: 1) whether plaintiff's claim contains arguable merit; 2) whether plaintiff has demonstrated the ability of presenting his own case; 3) the difficulty of the particular legal issues; 4) the degree to which a factual investigation will be required and the ability of the indigent plaintiff to pursue such investigation; 5) the extent to which the case is likely to turn on credibility determinations; 6) whether the case will require the testimony of expert witnesses; and 7) whether the plaintiff can attain and afford counsel on his own behalf. Parham, 126 F.3d at 457-58; see also Tabron v. Grace, 6 F.3d 147, 156 (3d Cir. 1993). This Court should also be mindful of other considerations such as, lack of funding to pay appointed counsel, limited supply of competent lawyers willing to do pro bono work, and the value of lawyers' time. Tabron, 6 F.3d at 157-58.
Reyes recently filed this complaint and has not served Defendants. The factual and legal issues in this case have not been developed, making it difficult to assess Reyes's motion in light of the Parham/Tabron factors. Reyes, furthermore, provides minimal reasoning to support his motion to appoint counsel. Reyes merely states, "I request counsel for the reasons that, I am incarcerated . . . [and] I do not have any outside financial income." Considering these circumstances, Reyes's motion to appoint counsel is denied without prejudice.
Reyes is capable of presenting his claims at this early stage. Reyes has, without assistance of counsel, filed his complaint, a motion to proceed in forma pauperis, and a motion to appoint counsel. "If a case, as it develops, reveals itself to be legally or factually more complex than the complaint had indicated, a district court could reconsider a previous decision to deny appointed counsel. In sum, an order denying appointed counsel is one that a district court ordinarily would expect to reassess and revise in response to events occurring `in the ordinary course of litigation.'" Holt v. Ford, 862 F.2d 850, 852 (11th Cir. 1989) (quoting Moses H. Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 12 n. 14, 103 S.Ct. 927, 935 n. 14 (1983)) (internal citation omitted). This Court is cognizant issues may arise in the course of this litigation which may substantiate Reyes's request for counsel. Appointment of counsel under 28 U.S.C. § 1915(e)(1) may be made at any point in the litigation and the Court may make such appointment sua sponte. Tabron, 6 F.3d at 156. If and when that occurs, this Court will consider a renewed motion for appointment of counsel. Accordingly, this Court enters the following:
ORDER
____ And now, this 7th day of July, 2005, Plaintiff's Motion to Proceed In Forma Pauperis (docket #4) is GRANTED consistent with the payment requirements discussed above. Plaintiff's Motion to Appoint Counsel (docket #3) is DENIED without prejudice.