Opinion
CIVIL ACTION NO. 3:CV-13-2404
2013-10-07
JIM FLINT MCINTRYE, Plaintiff v. UNITED STATES OF AMERICA, et al., Defendants
(Judge Mannion)
(Magistrate Judge Blewitt)
MEMORANDUM
I. INTRODUCTION
On September 18, 2013, Plaintiff, Jim Flint Mclntrye, a prisoner with an undisclosed location, filed, pro se, this Bivens civil rights action pursuant to 28 U.S.C. § 1331 and Federal Tort Claims Act ("FTCA") claim in the United States District Court for the Middle District of Pennsylvania. (Doc. 1). Plaintiff also filed a Motion to proceed in forma pauperis. (Doc. 3). The Complaint raises an FTCA claim against the United States and due process and Eighth Amendment claims against the individual defendants in violation of the United States Constitution. (Doc. 1). As relief, Plaintiff requests damages in the amount "in no event less than $1, 5000,000.00. From the Defendants United States of America. And in no event less than $1, 750,000.00 from Defendants '2 thru 6.'" (Id.).
. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff's action falls within 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of al] civil actions arising under the Constitution, laws or treaties of the United States." (Emphasis added).
As Plaintiff indicates, this is a Bivens action since he seeks monetary damages from federal officials for alleged violations of his constitutional rights. See Oriakhi v. Wood, 2006 WL 859543, * 1, n. 1 (M.D. Pa.); Conway v. Lindsay, 2009 WL 1956282 (M.D. Pa.). Plaintiff also indicates that he is in the Special Management Unit ("SMU") at USPLewisburg. (Doc. 29).
On October 7, 2013, the Court issued an Order and granted Plaintiff's Motion for Leave to Proceed In Forma Pauperis. (Doc. 9). On September 18, 2013, Plaintiff also filed this instant Motion to Appoint Counsel (Doc. 6). We will now discuss Plaintiff's Motion to Appoint Counsel. (Id.).
II. DISCUSSION
Plaintiff states in his motion that he is unable to afford counsel. (Doc. 6, p. 1). Plaintiff also states that he is confined in an undisclosed unit and under an agreement that his security not be breached and his identity and location must be kept anonymous to the Courts by correspondence through the Inmate Monitoring Section in Washington, D.C.. (Id.). Plaintiff further states that because his mail goes through a third party mailing system, it will effect the time constraints of his filings and responses. (Id.). Plaintiff states that he will need expert and witness testimony in the trial phase of the action. (Id.). Plaintiff does not have a constitutional right to appointed counsel. The Court in Cordon v. Gonzalez, 232 Fed. Appx. 153, 156 (3d Cir. 2007), stated:
"[i]ndigent civil litigants possess neither a constitutional nor a statutory right to appointed counsel." Id. However, a district court does have discretionary authority to "request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). "If the district court determines that the plaintiffs claim has arguable merit in fact and law, the court should then consider a number of additional factors that bear on the need for appointed counsel." Fabron v. Grace, 6 F.3d 147, 155 (3d Cir.1993). Whether a district court chooses to request counsel depends on several factors, including: 1) the plaintiffs ability to present his or her own case; 2) the difficulty of the particular legal issues; 3) the degree to which factual investigation will be(Internal footnote omitted).
necessary and the ability of the plaintiff to pursue investigation; 4) the plaintiffs capacity to retain counsel on his or her own behalf; 5) the extent to which a case is likely to turn on credibility determinations; and 6) whether the case will require testimony from expert witnesses. Montgomery, 294 F.3d at 499 (citing Tabron v. Grace, 6 F.3d at 155-57). This list of factors is not exhaustive. Tabron, 6 F.3d at 157.
Further, "a district court has 'broad discretion' to appoint counsel." Id.
Based on these factors, we find that Plaintiff's Document 6 Motion for Appointment of Counsel should be denied. Plaintiff has clearly demonstrated an ability to present his own case based on his Complaint. (Doc. 1). Plaintiff's pleadings demonstrates that he can write proper English, present his arguments in an intelligent manner, and cite relevant law. Moreover, there are no difficult and complex legal issues involved in this case. Any factual investigation that the Plaintiff has to do is minimal, as it is clear based on his Complaint (Doc. 1) that Plaintiff is well aware of the basis of his claims. Additionally, it is does not appear that this case will require testimony from expert witnesses.
Plaintiff is proceeding in forma pauperis. (Doc. 9). Thus, even if Plaintiff does not have the financial resources and time to properly prepare his case, it is premature to say if this case will go to trial. Even if this case does go to trial, Plaintiff is responsible for his own costs in prosecuting his case, including the costs of discovery and assembling the facts. Simply because Plaintiff is pro se and allegedly lacks financial resources, does not entitle him to conduct his discovery free of charge or paid by the government. See Victor v. Lawler, 2010 WL 2326248, *3-*4 (M.D. Pa. 6-2-10)(the law is well-settled that pro se litigant must pay for the expenses involved in their civil actions); Copelin v. Rothermel, Civil No. 09-2336, M.D. Pa. This is also true even if the Plaintiff is proceeding in forma pauperis.
In Tabron v. Grace, 6 F. 3d 147, 159 (3d Cir. 1993), the Third Circuit Court stated that "[t]here is no provision for the payment by the government of the costs of deposition transcripts, or any other litigation expenses, and no other statute authorizes courts to commit federal monies for payment of the necessary expenses in a civil suit brought by an indigent litigant." See also Augustin v. New Century TRS Holding, Inc., 2008 WL 5114268 (W. D. Pa.)(Court denied request of indigent litigant who was proceeding in forma pauperis to direct the U.S. Marshal to serve subpoenas since no federal law existed authorizing court to order the payment of federal monies for the necessary expenses of a civil suit filed by an indigent litigant); Reynolds v. Katz, Civil No. 06-1400, M.D. Pa.
In Kerwin v. Varner, 2006 WL 3742738, *2 (M.D. Pa.), this Court denied an inmate Plaintiff's Motion to appoint a medical expert to assist with his case and stated that "we do not have the authority to appoint a medical expert or private investigator to act on behalf of [inmate] Kerwin." See also Atwell v. Lavan, 557 F. Supp. 2d 532, 557 (M.D. Pa.2008)(denial of inmate Plaintiff's request, in civil rights action, for subsidized copies and postage paid by prison staff did not amount to First Amendment claim of denial of access to the courts); Hodge v. U.S., 2009 WL 2843332, *4-*5(M.D. Pa.)(in forma pauperis Plaintiffs, including pro se inmates, are responsible for their litigation fees in civil actions); Tabron v. Grace, 6 F. 3d 147, 159 (3d Cir. 1993)(court had no authority to pay for Plaintiff's deposition transcript); Wilkerson v. U.S., Civil No. 07-2228 (M.D. Pa. 4-20-09)(court denied in forma pauperis Plaintiff's motion for independent medical exam). Thus, this Court has no authority to have government monies used to pay for Plaintiff's expenses in prosecuting his case. Also, the Court simply will not appoint Plaintiff an attorney so that the attorney will have to use his or her own money to prepare Plaintiff's case. The Court is aware of Plaintiff's use of the inmate monitoring system in order to file documents and respond. Thus, Plaintiff may prepare motions for extensions of time when needed to comply with a Court deadline. Thus, Plaintiff's motion for appointment of counsel is denied.
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THOMAS M. BLEWITT
United States Magistrate Judge