Tabron v. GraceTabron v. Grace
BECKER, Circuit Judge.
Appellant Harvey Tabron, a prisoner at the State Correctional Institution in Huntington, Pennsylvania, brought this suit under
The magistrate judge, see infra n. 2, declined to appoint counsel, stating that counsel may be appointed to represent an indigent civil litigant under
I. FACTS AND PROCEDURAL HISTORY
A. Background Facts
On March 21, 1989, Tabron, a prisoner at Huntington State Correctional Institution, was approached by Charles Evans, a fellow inmate, who offered to sell Tabron some marijuana cigarettes. Defendant Sgt. Francis Maskulyak, a prison guard, caught the two inmates with the marijuana and issued misconduct reports for both of them. According to Tabron‘s affidavit, Evans threatened Tabron with bodily harm in the presence of Sgt. Maskulyak if Tabron did not accept responsibility for the misconduct.
Later that evening, Tabron and Evans were called to the prison control area so that prison officials could review their misconduct reports and determine whether it was necessary to place them in temporary confinement prior to their respective misconduct hearings. Defendant Lt. James Grace, who was assigned to the control center that evening, decided not to place Evans and Tabron in pre-hearing confinement. Grace explained in his affidavit that the misconduct was a minor, nonviolent offense which normally does not require pre-hearing confinement. After sitting the two inmates down for thirty minutes of questioning and observation, Grace determined that, although they were angry with each other, there was no significant risk of physical threat or intimidation. According to Tabron‘s affidavit, however, Evans threatened him with bodily harm in the control center in the presence of Grace, Maskulyak, and an inmate named Donald Leonard. Grace and Maskulyak both deny that they heard Evans make any physical threats toward Tabron.
After the meeting in the control room, both Evans and Tabron were sent back to their respective cellblocks. Tabron states in his affidavit that at about 8 a.m. on the following morning there was a “heated confrontation” between him and Evans in the presence of Grace, during which Evans repeated his threats against Tabron. At about 10 a.m., Evans approached Tabron and attacked him with a razor blade attached to the end of a pin. According to Tabron‘s affidavit, defendant Officer Mary Perkins was present during the assault, but chose not to intercede. Inmate Leonard, who also was present during the assault, intervened and subdued Evans. Tabron suffered a laceration across his jaw that required 21 stitches, and a slash across the right side of his face that required 11 stitches.
After the assault, both Tabron (who had received medical treatment) and Evans were placed in temporary administrative custody under the normal prison procedures that follow a violent incident. At a hearing on the following day before defendants Director of Treatment Melvin Cooper, Deputy Warden Raymond Sobina, and Major James Price, Tabron was informed that he would remain in administrative custody pending investigation of the assault, again under standard prison procedures. Later that day, at a separate hearing on the marijuana misconduct, Tabron pled guilty to the charge of possessing contraband and was released from any disciplinary confinement for that offense. Tabron was also cleared of any responsibility for the Evans assault. The hearing examiner explained, however, that Tabron‘s administrative confinement would continue pending the investigation of the assault. Tabron was released from administrative confinement on March 30, 1989. At a separate hearing, Evans was found guilty of prison misconduct with respect to the assault, was given a 90-day period in lock-up, and was assessed medical costs.
B. Proceedings Before the District Court
In May 1989 Tabron brought this action pro se in the district court for the Middle District of Pennsylvania against the prison officials allegedly involved in the events surrounding the Evans assault and their supervisors. Tabron‘s complaint alleged the following: that defendants Grace and Maskulyak heard Evans threaten Tabron prior to the attack, but failed to take any measures to protect him; that defendant Perkins was present during the assault and deliberately refused to intercede; that, after the assault, Tabron was improperly placed in administrative segregation with the approval of defendants Cooper, Sobina, and Price; and that Huntington Superintendent Thomas Fulcomer, Deputy Superintendent Andre Domovich, Cooper, and Price, in their supervisory capacities, failed to prevent the assault and failed to discipline Grace, Maskulyak, and Perkins for their mishandling of the incident.
Pursuant to the local rules of the Middle District of Pennsylvania, see Middle District Rule 901, Tabron‘s case was assigned to a magistrate judge for pretrial proceedings. Tabron moved for appointment of counsel, see
During discovery, Tabron‘s lack of resources and his unfamiliarity with discovery rules and tactics put him at a significant disadvantage. The defendants took depositions of Tabron, Evans, inmate Leonard (who witnessed both the assault and the subsequent meeting in the prison control area), and an additional inmate who witnessed the assault. Tabron attended and participated in the depositions but could not afford copies of the transcripts. Also unable to afford to take his own depositions, Tabron sought written discovery. His first set of interrogatories was returned unanswered by the defendants because the six-month discovery deadline under Middle District of Pennsylvania Rule 406 had passed. Tabron moved for extension of the discovery deadline, but no action was taken on the motion, apparently because Tabron had failed to file a supporting brief. Two months after his first request for an extension, Tabron renewed his motion, and, in August 1990, the magistrate judge granted a 60-day extension. Tabron immediately served new interrogatories and document requests on the defendants. Six weeks later he served a second set of interrogatories.
Defendants answered 16 of the initial 40 questions in Tabron‘s first set of 44 interrogatories, objecting to the remaining 24 of those first 40 questions on the ground that they were not reasonably calculated to lead to the discovery of admissible evidence. Of the 16 questions within the initial 40 to which the defendants responded, the response to nine of them was: “Defendants are still gathering information relating to this interrogatory and will supplement this response.” Defendants never supplied supplementary responses to any of these questions. Defendants objected to all questions beyond the fortieth in the initial set of interrogatories and to all 98 questions in the second set on the ground that they exceeded the maximum number of 40 interrogatories per party permitted by Middle District Rule 402.8.
In February 1991, the magistrate judge entered an order requiring that all dispositive motions be filed within 60 days. Tabron thereupon filed three discovery-related motions: a request that the court order that he be provided with copies of the transcripts of the depositions taken by defendants, a motion to compel answers to his interrogatories, and a motion to compel responses to his document requests. Defendants responded to these motions and then moved for summary judgment.
Tabron responded to the defendants’ summary judgment motion, but did so without the benefit of most of the discovery information he sought and without copies of any deposition transcripts. Tabron‘s brief cited to the deposition testimony either from memory or by referring to pages of depositions that he had been allowed to inspect. Due to a misunderstanding between defendants’ counsel and the court reporter, Tabron did not receive a copy of his own deposition to read and sign, pursuant to
C. The District Court‘s Rulings
In September 1991, the magistrate judge filed a report and recommendation that each of Tabron‘s discovery-related motions be denied and that defendants’ motion for summary judgment be granted in its entirety. The magistrate judge found no statutory authority for the government to provide an in forma pauperis litigant with free copies of deposition transcripts. He concluded that Tabron‘s motion to compel compliance with his document requests was moot because defendants had offered to make arrangements for Tabron to review the requested documents. As for Tabron‘s motion to compel responses to his interrogatories, the magistrate judge found that defendants had properly refused to answer all interrogatories beyond the first 40, the maximum number permitted by the local rule. He also recommended that the court refuse to compel responses to the unanswered questions within the first 40 interrogatories because it found that those questions did not seek information relevant to the subject of the suit.
Finally, the magistrate judge recommended that summary judgment be granted in favor of all of the defendants. The report explained that the only evidence submitted by Tabron--his own affidavit detailing the events leading up to the assault and stating that Lt. Grace and Sgt. Maskulyak had heard Evans threaten Tabron prior to the attack--was not sufficient to create a genuine issue of fact that those defendants were “deliberately indifferent” to Tabron‘s safety, as must be shown to prevail in an Eighth Amendment claim alleging cruel and unusual punishment in a prison context. See Wilson v. Seiter, --- U.S. ----, ----, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991). With respect to Tabron‘s claim that Officer Perkins had deliberately failed to protect him during the attack, although the magistrate judge found a dispute of fact as to whether she was present at the scene of the assault, he concluded that this dispute was not material because, even if Perkins were present, Tabron had offered no evidence to show that her failure to intervene was done “maliciously or sadistically with the very purpose of causing harm,” as must be established to prevail in an Eighth Amendment challenge to the actions of a prison official in an emergency situation. Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986).
The magistrate judge found no basis for Tabron‘s claims that the supervisory defendants (Fulcomer, Domovich, Sobina, Cooper and Price) had violated his Eighth Amendment rights because there was no evidence that these defendants were present during the assault or were involved in the events leading up to it, and because liability under
The district court adopted the magistrate judge‘s report and recommendation with respect to each of Tabron‘s discovery-related motions, with the exception that the court ordered defendants to respond to two of Tabron‘s interrogatories that asked whether Evans had previously assaulted anyone at Huntington. After the defendants submitted negative responses to those two questions, the court adopted the remainder of the magistrate judge‘s report and recommendation and entered summary judgment in favor of defendants.
Tabron filed a timely notice of appeal, and the district court granted Tabron leave to proceed on appeal in forma pauperis. We have jurisdiction under
II. APPOINTMENT OF COUNSEL
The district court‘s authority to appoint counsel to represent an indigent litigant in a civil case derives from
The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.
Section 1915(d) gives district courts broad discretion to request an attorney to represent an indigent civil litigant. Such litigants have no statutory right to appointed counsel.1
The magistrate judge, acting under his authority to issue orders disposing of certain pretrial matters, see
Although the provision now appearing at
Because of the diverse nature of the cases in which motions to appoint counsel are made, we deem it inadvisable to establish any general standard as to when counsel should be appointed. The factors which courts have considered in making such decisions are available in the case law.
Id., at 478 (citation omitted).
Smith-Bey v. Petsock, 741 F.2d 22 (3d Cir.1984), is the only other case in which this court addressed the standards for appointment of counsel under
[T]he appointment of counsel for an indigent plaintiff in a civil case under
28 U.S.C. Sec. 1915(d) is discretionary with the court and is usually only granted upon a showing of special circumstances indicating the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but meritorious case.
Defendants point to this language in Smith-Bey as support for the magistrate judge‘s statement that appointment of counsel under
The defendants also rely on cases from other circuits which state that under
To the extent that these cases impose a substantive restriction on the district courts’ discretion to appoint counsel under
The Courts of Appeals for the Second and Seventh Circuits, rejecting the strict “exceptional circumstances” requirement applied in other circuits, have provided district courts with a set of general standards for appointing counsel in the context of
First, as the Seventh Circuit explained in Maclin, the district court must consider as a threshold matter the merits of the plaintiff‘s claim. “[B]efore the court is justified in exercising its discretion in favor of appointment, it must first appear that the claim has some merit in fact and law.” Maclin, 650 F.2d at 887 (quoting Spears v. United States, 266 F.Supp. 22, 25-26 (S.D.W.Va.1967)); see also Rayes v. Johnson, 969 F.2d 700, 703 (8th Cir.) (“The appointment of counsel should be given serious consideration if the [indigent] plaintiff has not alleged a frivolous or malicious claim and the pleadings state a prima facie case.“) (internal quotations and citations omitted), cert. denied, --- U.S. ----, 113 S.Ct. 658, 121 L.Ed.2d 584 (1992). If the district court determines that the plaintiff‘s 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.
The plaintiff‘s ability to present his or her case is, of course, a significant factor that must be considered in determining whether to appoint counsel. See Hodge, 802 F.2d at 61; Maclin, 650 F.2d at 888. Courts generally should consider the plaintiff‘s education, literacy, prior work experience, and prior litigation experience. An indigent plaintiff‘s ability to present his or her case may also depend on factors such as the plaintiff‘s ability to understand English, see Castillo v. Cook County Mail Room Dept., 990 F.2d 304 (7th Cir.1993) (instructing district court to appoint counsel on remand to represent indigent plaintiff who had difficulty with the English language), or, if the plaintiff is a prisoner, the restraints placed upon him or her by confinement, see Rayes, 969 F.2d at 703-04 (reversing denial of request for counsel where indigent prisoner was severely hampered in pressing his claims by conditions of confinement making him unable to use typewriter, photocopying machine, telephone, or computer). Where applicable, these factors should be considered.
If it appears that an indigent plaintiff with a claim of arguable merit is incapable of presenting his or her case, serious consideration should be given to appointing counsel, see, e.g., Gordon v. Leeke, 574 F.2d 1147, 1153 & n. 3 (4th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978), and if such a plaintiff‘s claim is truly substantial, counsel should ordinarily be appointed. The decision whether to appoint counsel will also be informed by a number of other factors, to which we now turn.
In conjunction with the consideration of the plaintiff‘s capacity to present his or her case, the court must also consider the difficulty of the particular legal issues. The court “should be more inclined to appoint counsel if the legal issues are complex.” Hodge, 802 F.2d at 61. As the Seventh Circuit stated in Maclin, “where the law is not clear, it will often best serve the ends of justice to have both sides of a difficult legal issue presented by those trained in legal analysis.” 650 F.2d at 889.
Other key factors are the degree to which factual investigation will be required and the ability of the indigent plaintiff to pursue such investigation. See Hodge, 802 F.2d at 61; Maclin, 650 F.2d at 887-88. More generally, the court may also consider the extent to which prisoners and others suffering confinement may face problems in pursuing their claims. Additionally, where the claims are likely to require extensive discovery and compliance with complex discovery rules, appointment of counsel may be warranted. See Rayes, 969 F.2d at 703 (reversing district court‘s denial of request for appointment of counsel in part because conditions of indigent prisoner‘s confinement severely disadvantaged him in discovery).
Similarly, when a case is likely to turn on credibility determinations, appointment of counsel may be justified. See Maclin, 650 F.2d at 888 (“[C]ounsel may be warranted where the only evidence presented to the factfinder consists of conflicting testimony.“). The Maclin court explained that when witness credibility is a key issue, “it is more likely that the truth will be exposed where both sides are represented by those trained in the presentation of evidence and in cross examination.” Id.; accord Hodge, 802 F.2d at 61; see also Manning v. Lockhart, 623 F.2d 536, 540 (8th Cir.1980) (holding that the district court abused its discretion in refusing to appoint counsel where claims were nonfrivolous and the question of fact turned on witness credibility). Along the same lines, appointed counsel may be warranted where the case will require testimony from expert witnesses. See Moore v. Mabus, 976 F.2d 268, 272 (5th Cir.1992) (district court erred in denying request for counsel to represent indigent civil litigant whose case required testimony from experts on HIV-AIDS management in prison environment).
Additionally, we emphasize that appointment of counsel under
Finally, in addressing this issue, we must take note of the significant practical restraints on the district courts’ ability to appoint counsel: the ever-growing number of prisoner civil rights actions filed each year in the federal courts; the lack of funding to pay appointed counsel; and the limited supply of competent lawyers who are willing to undertake such representation without compensation.6 We have no doubt that there are many cases in which district courts seek to appoint counsel but there is simply none willing to accept appointment.7 It is difficult to fault a district court that denies a request for appointment under such circumstances. We note, however, with cautious optimism, that more lawyers are taking on the responsibility of providing pro bono legal services to indigent litigants. Representation of indigent litigants is not only an important responsibility of members of the bar, but it also provides an excellent opportunity for newer attorneys to gain courtroom experience. In Mallard v. United States District Court, 490 U.S. 296, 310, 109 S.Ct. 1814, 1823, 104 L.Ed.2d 318 (1989), Justice Brennan wrote for the Court: “[I]n a time when the need for legal services among the poor is growing and public funding for such services has not kept pace, lawyers’ ethical obligation to volunteer their time and skills pro bono publico is manifest.” We encourage lawyers within this circuit to volunteer for such service, and we urge the district courts in this circuit to seek the cooperation of the bar in this regard.
We also emphasize that volunteer lawyer time is extremely valuable. Hence, district courts should not request counsel under
Volunteer lawyer time is a precious commodity.... Because this resource is available in only limited quantity, every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause. We cannot afford that waste.
Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1989).
The list of factors we have provided to guide district courts in determining whether to appoint counsel under
The magistrate judge in this case applied the incorrect standard for appointment of counsel and offered no other reasons for its denial of Tabron‘s request for counsel. Therefore, we will vacate the summary judgment order and will remand for the district court (or the magistrate judge) to reconsider Tabron‘s request for appointment of counsel in accordance with the standards set forth in this opinion.
A number of the factors we have recited are obviously relevant to Tabron‘s request for appointment of counsel. The discovery rules in the Middle District of Pennsylvania are complex and were difficult for Tabron to contend with. Tabron‘s lack of legal experience clearly put him at a disadvantage countering the defendants’ discovery tactics, such as the defendants’ failure to supplement their responses, as promised, to nine of the sixteen interrogatories to which they responded. Moreover, the case involves credibility determinations, since several witnesses dispute certain relevant facts. In addition, Tabron‘s incarceration may have limited his ability to engage in factual investigation. On the other hand, the legal issues in this case do not appear to be complex, and the applicable law is clear. Also, based on his papers, Tabron appears to be literate and reasonably capable.
At all events, the district court (or the magistrate judge) must decide the issue in the first instance, including the critical threshold determination of whether Tabron‘s case has arguable merit in fact and law. While we are inclined to think that it does, the district court is in a better position to make that judgment. If the court determines that counsel should be appointed, the court should then allow reasonable additional discovery. Since in such event the record on the merits may change, we do not address Tabron‘s other arguments at this time, except for the question of free copies of deposition transcripts, which we address for the guidance of the district court on remand.
III. REQUEST FOR FREE COPIES OF DEPOSITION TRANSCRIPTS
Tabron submits that, in light of his in forma pauperis status, the district court erred in refusing to grant his motion to obtain free copies of transcripts of the depositions taken by defendants.8 The district court, approving the recommendation of the magistrate judge, concluded that it had no authority under
The in forma pauperis statute,
In Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988), we rejected an indigent civil litigant‘s argument that the district court erred in refusing to have the government pay for an expert medical witness. We explained:
Congress has authorized the courts to waive the prepayment of such items as filing fees and transcripts if a party qualifies to proceed in forma pauperis.
28 U.S.C. Sec. 1915 . However, we have been directed to no statutory authority nor to any appropriation to which the courts may look for payment of expert witness fees in civil suits for damages.
Id., at 474; accord Tedder v. Odel, 890 F.2d 210, 212 (9th Cir.1989); McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir.1987), cert. denied, 485 U.S. 965, 108 S.Ct. 1236, 99 L.Ed.2d 435 (1988). Similarly, we conclude that there is no statutory authority for a court to commit federal funds to pay for deposition transcripts. Several other courts have similarly held. See In re Richard, 914 F.2d 1526, 1527 (6th Cir.1990) (Section 1915 “does not give the litigant a right to have documents copied and returned to him at government expense.“); Lewis v. Precision Optics, Inc., 612 F.2d 1074, 1075 (8th Cir.1980) (rejecting plaintiff‘s claim that the district court erred in not requiring the government to pay for deposition expenses or copies of records); Doe v. United States, 112 F.R.D. 183, 185 (S.D.N.Y.1986) (same); Toliver v. Community Action Commission to Help the Economy, Inc., 613 F.Supp. 1070, 1072 (S.D.N.Y.1985) (“[t]here [is] no clear statutory authority for prepayment of discovery costs pursuant to 1915 or otherwise“); Sturdevant v. Deer, 69 F.R.D. 17, 19 (E.D.Wis.1975) (Sec. 1915 does not authorize federal funds for the “cost of taking and transcribing a deposition“).
Tabron argues alternatively that, even if
We agree that, as part of the inherent equitable powers of the district court in supervising discovery, a district court may, under some circumstances, exercise its discretion to order an opposing party to pay for or to provide copies of deposition transcripts for an indigent litigant as a condition precedent to allowing that party to take depositions. Cf. Navarro de Cosme v. Hospital Pavia, 922 F.2d 926, 930 (1st Cir.1991) (holding that the district court order requiring each party to pay for its adversaries’ expenses in connection with the taking of depositions, was well within the broad latitude of the district court in managing discovery). However, the magistrate judge declined to do so here after finding that copies of the transcripts were not necessary for Tabron to make his case, at least at the summary judgment stage. He explained in his report that Tabron attended and participated in all of the depositions and therefore was able to take notes and compile information from the live testimony. Further, the magistrate judge noted that Tabron had not demonstrated in any of his papers why he needed copies of the transcripts to defend against defendants’ motion for summary judgment.
Given that, as a general rule, indigent litigants bear their own litigation expenses, at least initially,9 see Doe, 112 F.R.D. at 184, we cannot say that the district court‘s decision not to order defendants to provide Tabron with copies of the deposition transcripts was an abuse of discretion. Accordingly, we will affirm the court‘s denial of Tabron‘s motion to obtain copies of the deposition transcripts. Inasmuch as there may be additional discovery on remand, the principles we have announced should be of help to the district court on further rulings in the discovery area.
IV. CONCLUSION
For the foregoing reasons, we will vacate the judgment and remand the case to the district court for further proceedings consistent with this opinion.
Notes
We are prompted to address the appointment issue here, in spite of Tabron‘s failure to raise it before the district court, for several reasons. First, as we will explain, see infra, standards for appointment of counsel in a civil case under