Opinion
CIVIL ACTION NO. 19-3300
11-22-2019
TODD ALLEN v. CHAD SMITH, et al.
MEMORANDUM KEARNEY, J.
Todd Allen sued a variety of Montgomery County law enforcement professionals and defense lawyers alleging violations of his civil rights and state law claims. Judge Kelly dismissed his complaint for failing to state a claim but granted Mr. Allen leave to file an amended complaint against certain defendants no later than November 29, 2019. Mr. Allen moves for appointment of counsel. Upon random reassignment, we now deny Mr. Allen's motion without prejudice as we do not have a pleading to review.
ECF Doc. Nos. 6, 10.
Although Congress in 28 U.S.C. § 1915(e)(1) permits us to appoint counsel in civil rights cases for indigent prisoners, our Court of Appeals emphasizes "volunteer lawyer time is extremely valuable," and "district courts should not request counsel . . . indiscriminately." "Civil litigants have no constitutional or statutory right to appointed counsel." Nevertheless, Congress has provided "[t]he court may request an attorney to represent any person unable to afford counsel," granting us "'broad discretion' to determine whether appointment of counsel in a civil case would be appropriate."
Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993).
Houser v. Folino, 927 F.3d 693, 697 (3d Cir. 2019) (citing Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002)).
Montgomery, 294 F.3d at 498 (quoting Tabron, 6 F.3d at 153).
Under our Court of Appeals' guidance in Tabron, we undertake a two-step inquiry. First, we must consider the merits of the claim, deciding whether it has "arguable merit." If so, we then consider a non-exhaustive list of factors, including (1) the plaintiff's ability to present his or her own case; (2) the complexity of the legal issues; (3) the degree to which the factual investigation will be necessary and the ability of the plaintiff to pursue such investigation; (4) the extent to which the case is likely to turn on credibility determinations; (5) whether the case will require the testimony of expert witnesses; and (6) the plaintiff's ability to retain and afford counsel. These same factors apply to first and subsequent requests, regardless of the stage of the case, and we "should consider the Tabron guideposts that may be relevant . . . at the time and stage of the litigation that the request is made." Our Court of Appeals cautions "courts should exercise care in appointing counsel because volunteer lawyer time is a precious commodity and should not be wasted on frivolous cases."
Houser, 927 F.2d at 697 (citing Tabron, 6 F.3d at 155).
Id. (citing Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997); Tabron, 6 F.3d at 155-56).
Id. at 700.
Montgomery, 294 F.3d at 499 (cited in Houser, 927 F.3d at 700). --------
We do not have a complaint. We cannot yet determine whether Mr. Allen's claims have arguable merit. We cannot turn to the remaining Tabron factors yet. We will have a better idea after review of motions to dismiss and close of the pleadings.
We deny Mr. Allen's Motion in the accompanying Order without prejudice.