SEASE v. CRESHNER et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
DELONTE SHAMIR SEASE, 	:
Plaintiff, 	:
:
v. 	: 	No. 26-cv-5853
:
DR. CRESHNER, et al., 	:
Defendants. 	:
MEMORANDUM
Joseph F. Leeson, Jr. 	October 15, 2026
United States District Judge
Plaintiff Delonte Shamir Sease, who is currently confined at SCI Phoenix, brings this pro
se action pursuant to 42 U.S.C. § 1983 alleging that prison officials violated his constitutional
rights. For the following reasons, the Court will grant Sease’s application to proceed in forma
pauperis and screen his Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). As explained below,
Sease’s Complaint will be dismissed in part. Sease will be permitted to file an amended
complaint or proceed with his claim that passes statutory screening.
I. 	FACTUAL ALLEGATIONS1
Sease was housed in a psychiatric observation cell (“POC”) at SCI Phoenix on January
29, 2026. (Compl. at 3-4.) During the second shift, he was told that he was going to be
transported back to the Restricted Housing Unit (“RHU”). Sease “informed c/o’s and Psych that
[he] was not mentally ready” to return the RHU (id. at 7) and that if they brought him there, he
“would kill [him]self” (id. at 5). Dr. Creshne asked Sease how he planned to do that, and Sease
1 The following allegations are taken from the Complaint (ECF No. 1). The Court adopts
the sequential pagination supplied by the CM/ECF docketing system.
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responded by showing him “weeks’ worth of psych meds” that he had “saved up” and by stating
that he “could also hang it up.” (Id. at 5.) Dr. Creshner told Sease he had to go to the RHU and
then walked away. (Id.) Sease spent the remainder of the second shift warning correctional
officers that he was going to kill himself if they tried to bring him back to the RHU. (Id.) At one
point, Nurse Shaefer gave Sease more psych meds. (Id.) Sease showed the meds to the
corrections officers so they could see that he “was no longer playing.” (Id.) CO Bishop and CO
Potoski watched as Sease then swallowed the psych meds and “walked off,” as Bishop stated that
Sease would need to “go to the ER to get [his] stomach pumped.” (Id.) After taking the
medication, Sease “began struggling to stay conscious and awake while [he] was calling out” to
officers. (Id.)
At some point thereafter, Sease was told to come to his cell door to be “cuffed up.” (Id.
at 5.) Sease “willfully” and “compliant[ly]” approached his cell door believing he was “going to
medical,” but when the corrections officers opened the door, Sease was “taken down by the
CERT team and hit with a shock shield.” (Id.) Sease’s back hit the hard part of his bed and
caused injuries. (Id.) Sease was “cuffed and shackled and dragged back to the RHU without
getting [his] stomach pumped.” (Id.) While at the RHU, he was “left to sit in a cell without
further medical attention throughout the night.” (Id.) Sease was later given two misconduct
reports by Lieutenant Ferrogine for “disobeying an order.” (Id.) Sease was seen by an
undisclosed medical provider the next morning whom he told he was having “severe stomach
pains” and a “[little] bit of lower pain.” (Id.) Sease was prescribed a laxative and pain
medication that he never received. (Id.)
On February 3, 2026, Sease submitted a grievance, which named Ferrogine, about the
alleged excessive force incident on January 29, 2026. (Id.) On February 19, 2026, while Sease
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was housed at the RHU, the cert team conducted cell searches. (Id.) Sease alleges that even
though he “complied with all orders at that time,” and even though nothing was found in his cell,
he received “another misconduct which stated that [he] refused to obey orders.” (Id.) The
misconduct was written by Ferrogine, who allegedly misstated that Sease refused to obey
“multiple orders to remove [his] cell window.” (Id.) Sease states that Ferrogine “lie[d]” on the
misconduct in retaliation for Sease filing a grievance about his involvement in the January 29th
incident. (Id.) Sease was “issued [Disciplinary Custody]” or DC-time” for each misconduct
report he received. (Id.)
Based on these allegations, Sease asserts Eighth Amendment deliberate indifference
claims, First Amendment retaliation claims, and Fourteenth Amendment due process claims. (Id.
at 2.) He names as Defendants Dr. Creshner, Lt. C. Ferrogine, Superintendent Joseph Terra,
Deputy Superintendent Charles Hensley, and Lisa Durrand. (Id. at 1-3.) For relief, Sease seeks
money damages. (Id. at 7.)
II. 	STANDARD OF REVIEW
The Court will grant Sease leave to proceed in forma pauperis because it appears that he
is incapable of prepaying the fees to commence this civil action.2 Accordingly, 28 U.S.C. §
1915(e)(2)(B) requires the Court to dismiss the Complaint if it is frivolous, malicious, fails to
state a claim for relief, or seeks relief from an immune defendant. Pursuant to §
1915(e)(2)(B)(ii), the Court must determine whether the Complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 566 (2007));
2 Since Sease is a prisoner, he will be obligated to pay the filing fee in installments in
accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).
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Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021). At the screening stage, the Court will
accept the facts alleged in a pro se complaint as true, draw all reasonable inferences in the
plaintiff’s favor, and ask only whether that complaint contains facts sufficient to state a plausible
claim. Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021), abrogation on other grounds
recognized by Fisher v. Hollingsworth, 115 F.4th 197 (3d Cir. 2024). As Sease is proceeding
pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir.
2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).
III. 	DISCUSSION
Sease asserts constitutional claims pursuant to § 1983, the vehicle by which federal
constitutional claims may be brought against state actors in federal court. “To state a claim
under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). In a § 1983 action, the
personal involvement of each defendant in the alleged constitutional violation is a required
element and, therefore, a plaintiff must allege how each defendant was involved in the events
and occurrences giving rise to the claims.3 See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1998).
3 Sease sues Defendants in both their individual and official capacities. (Compl. at 1-2.)
Official capacity claims against a defendant are indistinguishable from claims against the entity
that employs the defendant. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-
capacity suits . . . ‘generally represent only another way of pleading an action against an entity of
which an officer is an agent.’”) (quoting Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658,
690, n.55 (1978)). Thus, Sease’s § 1983 “official capacity” claims for damages against the
Defendants—all of whom are employed by the Pennsylvania Department of Corrections—are
really claims against the Commonwealth, which is shielded from such claims by Eleventh
Amendment immunity and, in any event, is not considered a “person” subject to liability under
§ 1983. See Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 309-10 (3d Cir. 2020) (“Eleventh
Amendment immunity bars actions for retroactive relief against state officers acting in their
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A. 	Defendants Against Whom No Personal Involvement Is Alleged
Sease names Superintendent Terra, Deputy Superintendent Hensley, and Lisa Durrand in
the Complaint but makes no substantive allegations concerning their involvement in the incidents
he describes. Any § 1983 claim against them is, therefore, not plausible because, as noted above,
a “defendant in a civil rights action must have personal involvement in the alleged wrongs” to be
liable. See Rode, 845 F.2d at 1207; see also Jutrowski v. Township of Riverdale, 904 F.3d 280,
290 (3d Cir. 2018) (“Each Government official, his or her title notwithstanding, is only liable for
his or her own misconduct.”) (quoting Iqbal, 556 U.S. at 677). Moreover, where there are
multiple events and defendants at issue, alleging personal involvement cannot be accomplished
by repeatedly and collectively referring to the “Defendants” as a group without clarifying the
specific basis for each Defendant’s liability. See Lawal v. McDonald, 546 F. App’x 107, 113 (3d
Cir. 2014) (agreeing with the district court that the repeated and collective use of the word
“Defendants” “fail[ed] to name which specific Defendant engaged in the specific conduct
alleged”).
To the extent that Sease names Terra and Hensley due to their high-ranking positions at
SCI Phoenix, this is also not sufficient to state a plausible claim. Generalized allegations that a
supervisory defendant is “in charge of” or “responsible for” a facility or their subordinates are
insufficient to allege personal involvement in an underlying constitutional violation. See Saisi v.
Murray, 822 F. App’x 47, 48 (3d Cir. 2020) (per curiam); Zigler v. Warren, No. 21-19474, 2022
official capacity.”); Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (explaining
that, “[b]ecause the Commonwealth of Pennsylvania’s Department of Corrections is a part of the
executive department of the Commonwealth, it shares in the Commonwealth’s Eleventh
Amendment immunity” and is also not considered a person for purposes of § 1983).
Accordingly, the Court will dismiss the official capacity claims. The rest of the Court’s analysis
will focus on the damages claims against the Defendants in their individual capacities.
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WL 903383, at *2 (D.N.J. Mar. 28, 2022) (“In simpler terms, a supervisor is not liable for the
unconstitutional conduct of his employees solely because he is a supervisor.”). Supervisors like
Terra and Hensley can only be found liable for the unconstitutional acts undertaken by their
subordinates in two scenarios. First, a supervisor may be liable if he or she, “with deliberate
indifference to the consequences, established and maintained a policy, practice or custom, which
directly caused [the] constitutional harm.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316
(3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015) (quoting
A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)
(alteration in original)). “Second, a supervisor may be personally liable under § 1983 if he or she
participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in the subordinate’s unconstitutional conduct.” Id.
“Failure to” claims, such as a failure to train, failure to discipline, or failure to supervise, are
generally considered a subcategory of policy or practice liability. Id. at 316-17.
Because Sease has made no allegations against Terra, Hensley, or Durrand, he has failed
to state plausible claims against them. Accordingly, all claims against these Defendants will be
dismissed. Sease will be permitted to submit amended claims if he can allege facts showing how
these Defendants were each personally involved in his alleged constitutional harm.
B. 	Claims against Dr. Creshner
Dr. Creshner is alleged to be a “Psych Dr. who prescribes medications and is in charge of
the Psych in the [POC].” (Compl. at 4.) It is not clear what constitutional claim Sease asserts
against Dr. Creshner, who is not described as having been involved in the alleged excessive force
committed by the cert team or the issuance of misconducts; rather, he is alleged to have refused
Sease’s request to stay in the POC cell and avoid transfer to the RHU. To the extent that Sease
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asserts an Eighth Amendment claim against Dr. Creshner, the claim is not plausible as pled.
To state a claim based on the failure to provide medical care, a prisoner must allege facts
indicating that prison officials were deliberately indifferent to his serious medical needs. See
Farmer v. Brennan, 511 U.S. 825, 835 (1994). A prison official is not deliberately indifferent
“unless the official knows of and disregards an excessive risk to inmate health or safety.” Id. at
837. Deliberate indifference has been found “where the prison official (1) knows of a prisoner’s
need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical
treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or
recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). “A
medical need is serious, . . . if it is one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would easily recognize the necessity for a
doctor’s attention.” Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347
(3d Cir. 1987) (internal quotations omitted). Deliberate indifference claims can be based on the
failure to provide adequate mental health services. DeJesus v. Delaware through Del. Dep’t of
Corr., 833 F. App’x 936, 940 (3d Cir. 2020) (citing Palakovic v. Wetzel, 854 F.3d 209, 227-29,
231-32 (3d Cir. 2017)).
Sease alleges that while housed in a POC cell on January 29, 2026, he warned Dr.
Creshner that he would harm himself if he was forced to go to the RHU. (Compl. at 5.) Sease
further alleges that Dr. Creshner asked Sease how he would harm himself, but then disregarded
Sease’s response, told Sease he had to go to the RHU, and walked away. (Id.) These facts do
not support a plausible Eighth Amendment claim for several reasons. First, Sease has not
specifically alleged that he suffers from a serious medical or mental health condition. He alleges
that he told “Psych” and corrections officers that he would attempt to take his life if they tried to
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move him from the POC unit, but he does not allege what medical or mental health conditions he
suffers from that required his confinement in a POC unit or otherwise required assistance from
Dr. Creshner. Moreover, while a “vulnerability to suicide” can qualify as a serious medical
need, the facts alleged must plausibly infer a “strong likelihood, rather than a mere possibility”
of suicide. Palakovic, 854 F.3d at 222. Absent more developed facts explaining the nature of
his medical or mental health needs, the Court cannot conclude that Sease has sufficiently alleged
the first element of the claim. 	Second, Sease does not plausibly allege how Dr. Creshner was
deliberately indifferent to his medical or mental health needs. Allegations that Dr. Creshner
refused Sease’s request to remain in the POC cell despite Sease’s threats to harm himself are not
suggestive of deliberate indifference, particularly because Sease alleges he had been receiving
some mental health treatment.4 See Palakovic, 854 F.3d at 228 (“Where a prisoner has received
some medical attention and the dispute is over the adequacy of the treatment, federal courts are
generally reluctant to second guess medical judgments and to constitutionalize claims which
sound in state tort law.” (citation modified)). Finally, Sease has not alleged how he was harmed
by Dr. Creshner’s actions. See DeJesus, 833 F. App’x at 940. Accordingly, the Court will
dismiss the Eighth Amendment claim against Dr. Creshner.5
4 The Court understands Sease to assert a claim for deliberate indifference to serious
medical needs and not a claim for failure to prevent suicide. See DeJesus, 833 F. App’x at 939
(explaining difference between two types of claims and stating that “to hold prison officials
liable for failure to prevent a suicide, a plaintiff must establish that: (1) the inmate had a
‘particular vulnerability to suicide, meaning that there was a strong likelihood, rather than a mere
possibility, that a suicide would be attempted;’ (2) the prison officials ‘knew or should have
known’ of that vulnerability; and (3) those officers ‘acted with reckless or deliberate
indifference’ to the inmate’s particular vulnerability” (quoting Palakovic, 854 F.3d at 223-24).
5 To the extent that Sease also asserts an Eighth Amendment claim based on allegations
that he was not sent to medical after swallowing “saved up” medication and never received the
laxatives and pain medication after he saw a provider the next day, the claims must also be
dismissed. Sease has not identified any Defendant who was personally involved in the alleged
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C. 	Claims against Ferrogine
The bulk of the allegations in the Complaint are asserted against C.O. Ferrogine. Sease
alleges that Ferrogine was the subject of his grievance concerning the January 29th excessive
force incident. (Compl. at 5.) He also alleges that Ferrogine gave him a misconduct for refusing
to obey orders during a cell search conducted on February 19, 2026, by the CERT members.
Ferrogine allegedly wrote in the misconduct that he “gave [Sease] multiple orders to remove
[his] cell window, which was a lie,” and that the misstatement was intended as “revenge” and to
“retaliate” against Sease for filing the grievance. (Id.) Sease received time in disciplinary
custody for the misconduct. Based on these allegations, the Court understands Sease to assert
Eighth Amendment excessive force claims, First Amendment retaliation claims, and Fourteenth
Amendment due process claims. The Court will address each claim in turn.
1. 	Excessive Force
The Eighth Amendment prohibits prison officials from unnecessarily and wantonly
inflicting pain in a manner that offends contemporary standards of decency. See Hudson v.
McMillian, 503 U.S. 1, 8-9 (1992). The key consideration in assessing an Eighth Amendment
excessive force claim is “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Id. at 7. Factors relevant to the
analysis include “(1) the need for the application of force; (2) the relationship between the need
and the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the
threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the
basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful
denial of medical care. Nor has he alleged any facts about harm or injury he suffered as a result
of the denial of care. See DeJesus, 833 F. App’x at 940.
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response.” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (internal quotation marks omitted).
Sease alleges that after swallowing “weeks’ worth” of “psych meds,” he was “taken
down by the CERT members and hit with a shock shield,” causing him to hit his back on the bed,
and then “dragged to the RHU.” (Compl. at 5.) Even assuming that Sease’s allegations support
a plausible inference that the force used against him on January 29th was objectively
unreasonable, he does not sufficiently allege how Ferrogine was specifically involved in the
incident. As noted above, an individual must be personally involved in violating a plaintiff’s
rights to be liable under § 1983. See Rode, 845 F.2d at 1207. Instead of describing what
Ferrogine did specifically to use unreasonable force against him, he instead groups the prison
officials together (e.g., “CERT team”), as participating in the alleged event, which is insufficient
to allege personal involvement. See Lawal, 546 F. App’x at 113 (concluding that the plaintiff’s
collective use of the word “Defendants” failed to adequately plead which specific defendant
engaged in the specific conduct alleged by the plaintiff). Accordingly, Sease has failed to allege
a plausible excessive force claim.6
2. 	First Amendment Retaliation
To state a plausible First Amendment retaliation claim, a prisoner must allege that: (1) he
engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to
deter a person of ordinary firmness from exercising his constitutional rights; and (3) the
constitutionally protected conduct was “a substantial or motivating factor” for the adverse action.
6 To the extent Sease intends to assert a claim for deliberate indifference to medical care
against Ferrogine based on allegations that he was denied medical care, including getting his
stomach pumped, after swallowing two weeks of “psych meds,” he does not state a plausible
claim for similar reasons. Sease has not alleged how Ferrogine was specifically involved in
denying him medical care. 	Moreover, as explained above, see supra at § III.B, Sease has also
not plausibly alleged that he suffers from a serious medical or mental health need.
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See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). As to the first element, a prisoner’s filing
of a lawsuit, grievance, or other complaint, or even expressing an intent to do so to prison
authorities, is constitutionally protected conduct. See Watson v. Rozum, 834 F.3d 417, 422-23
(3d Cir. 2016). As to the second element, an adverse action “is one sufficient to deter a person of
ordinary firmness from exercising his First Amendment rights,” and “need not be great in order
to be actionable; rather, it need only be more than de minimis.” Id. at 422 n.6, 423 (citation
modified). To satisfy the third element, a prisoner must allege a causal link between the specific
protected activity and the adverse action. See, e.g., Hammonds v. Headman, 645 F. App’x 149,
152 (3d Cir. 2016) (per curiam). The timing of the allegedly retaliatory behavior relative to the
constitutionally protected conduct may establish a causal link between the two for purposes of
establishing motivation. See Watson, 834 F.3d at 422; see also Oliver v. Roquet, 858 F.3d 180,
195 (3d Cir. 2017).
Sease alleges that he filed a grievance on February 3, 2026, about the alleged January 29,
2026 incident of excessive force involving Ferrogine. Sease further alleges that after being
subjected to a cell search on February 19, 2026, Ferrogine gave him a false misconduct report
stating that Sease did not obey orders during the search when he did. Sease claims that the false
misconduct report—which he received less than three weeks after his grievance, and which
resulted in him receiving time disciplinary custody as a punishment—was issued to “exact
revenge and retaliation against [Sease]” for filing the grievance. The allegations, as pled, state a
plausible First Amendment retaliation claim against Ferrogine. See Mitchell v. Horn, 318 F.3d
523, 530-31 (3d Cir. 2003) (“Mitchell’s allegation that he was falsely charged with misconduct
in retaliation for filing complaints against Officer Wilson implicates conduct protected by the
First Amendment.”). Accordingly, this claim may proceed past statutory screening.
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3. 	Due Process
The Court also understands Sease to assert a Fourteenth Amendment due process claim
against Ferrogine based on the time he spent in restricted housing for the “falsely written
misconducts.” (Compl. at 7.) The Fourteenth Amendment provides that no state shall “deprive
any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, §
1. It is well settled that prisoners have no inherent constitutional right to placement in any
particular prison, to any particular security classification, or to any particular housing
assignment. See Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005) (stating that the United States
Constitution itself does not give rise to liberty interest in avoiding transfers to more adverse
conditions of confinement). Rather, in the prison context, “[d]ue process protection for a state
created liberty interest is . . . limited to those situations where deprivation of that interest
‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.’” Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (quoting Sandin v. Conner,
515 U.S. 472, 484 (1995)). Moreover, “confinement in administrative or punitive segregation
will rarely be sufficient, without more, to establish the kind of ‘atypical’ deprivation of prison
life necessary to implicate a liberty interest.” Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir.
2002) (quoting Sandin, 515 U.S. at 486)).
“When considering whether an inmate’s placement in segregated housing triggers a
legally cognizable interest courts should consider: (1) the amount of time spent in segregation;
and (2) whether the conditions of segregation were significantly more restrictive than those
imposed on other inmates in segregation.” 	Allah v. Bartkowski, 574 F. App’x 135, 139 (3d Cir.
2014) (per curiam) (citing Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)). In Sandin, the
Supreme Court concluded that placement in disciplinary segregation for thirty days did not
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deprive the inmate of a protected liberty interest. See Sandin, 515 U.S. at 486. The United
States Court of Appeals for the Third Circuit has held that “[p]lacement in administrative
segregation for days or months at a time . . . do[es] not implicate a protected liberty interest.”
Arango v. Winstead, 352 F. App’x 664, 666 (3d Cir. 2009) (per curiam) (citing Torres v. Fauver,
292 F.3d 141, 150 (3d Cir. 2002)); see also Smith, 293 F.3d at 654 (finding no liberty interest
triggered by seven-month placement in disciplinary confinement).
Here, Sease alleges that he received time in disciplinary custody for at least two
misconduct reports he received. However, he does not allege when and for how long he spent in
disciplinary custody nor how the conditions of his confinement there were otherwise more
restrictive on him than on other inmates there. Without additional details, the Court is unable to
determine whether Sease’s confinement in disciplinary custody constituted the type of “atypical”
deprivation of prison life that would trigger due process protections. Accordingly, the facts as
pled, do not give rise to a plausible basis for a due process claim.
IV. 	CONCLUSION
For the foregoing reasons, the Court will grant Sease leave to proceed in forma pauperis
and dismiss his Complaint in part for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). The official capacity claims will be dismissed with prejudice. Sease’s First
Amendment retaliation claim asserted against Ferrogine may proceed to service. The balance of
the Complaint will be dismissed without prejudice. Sease may file an amended complaint if he
can allege additional facts to cure the deficiencies the Court has noted in the claims dismissed
without prejudice. Alternatively, he may proceed with his First Amendment retaliation claim
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against Ferrogine. In addition, Sease’s Motion for the Appointment of Counsel will be denied
without prejudice as premature.7
An appropriate order follows, which contains additional instructions as to amendment.
BY THE COURT:
/s/ Joseph F. Leeson, Jr._________
JOSEPH F. LEESON, JR.
United States District Judge
7 Pursuant to § 1915(e), the Court may request an attorney to represent an indigent
plaintiff in a civil action. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to
represent any person unable to afford counsel.”). Although district courts have broad discretion
to request counsel for indigent pro se litigants, appointment of counsel is not a statutory or
constitutional right of the litigant, but rather a privilege. See Brightwell v. Lehman, 637 F.3d
187, 192 (3d Cir. 2011) (citation omitted); see also Montgomery v. Pinchak, 294 F.2d 492, 498
(3d Cir. 2002). In determining whether to appoint pro bono counsel, the Court must first
consider, as a threshold matter, whether the plaintiff’s claim has “some merit in fact and law.”
Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If a court finds that the action arguably has
merit, it should then 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 investigation; (4) the amount a case is
likely to turn on credibility determinations; (5) whether the case will require the testimony of
expert witnesses; and (6) whether the plaintiff can attain and afford counsel on his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing Tabron, 6 F.3d at 155-56, 157 n.5).
This list is not exhaustive, nor is any one factor determinative. Id. at 458. Rather, the Tabron
factors should serve as a guidepost to ensure that courts will only appoint counsel in non-
frivolous matters. Id.
Here, at this early stage of the proceedings, before the Complaint has even been served,
the factors do not weigh in favor of appointing counsel. The claim that has passed statutory
screening does not appear to involve complex legal issues or require expert testimony.
Moreover, the Court is unable to assess the complexity of any amended claims Sease may file in
an amended complaint. Thus, Sease’s motion is premature and must be denied. However, Sease
may renew his motion should the case proceed to discovery.
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