Marlon McDougall v. LIEUTENANT TYSON; NURSE FREELAND; GEO GROUP INC., Detention Center

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 24-3069
__________
MARLON MCDOUGALL,
Appellant
v.
LIEUTENANT TYSON; NURSE FREELAND; GEO GROUP INC., Detention Center
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 3:23-cv-00091)
Magistrate Judge: Honorable Keith A. Pesto
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2025
Before: KRAUSE, PHIPPS, and ROTH, Circuit Judges
(Opinion filed: June 2, 2026)
___________
OPINION*
___________
PER CURIAM
Marlon McDougall appeals pro se and in forma pauperis from the District Court’s
order granting summary judgment to the operator of an immigrant detainee processing
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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center for injuries he sustained while in its custody. We will vacate and remand with
instructions that the District Court reassess McDougall’s requests for counsel under the
appropriate standards.1
I.
McDougall was admitted to the United States in 1982 as a lawful permanent
resident. He was incarcerated from 2006 to 2022 following a conviction in Virginia.
Upon the completion of his sentence, the United States Department of Homeland
Security obtained custody of McDougall and initiated removal proceedings. McDougall
was detained at Moshannon Valley Processing Center (“MVPC”) in Clearfield County,
Pennsylvania, from August 2022 until April 2023. A preexisting injury (torn meniscus)
left him wheelchair-bound throughout his time at MVPC.
In May 2023, McDougall filed a complaint in the United States District Court for
the Middle District of Pennsylvania against The GEO Group, Inc., the company that
operates MVPC, and two of the facility’s employees, Lieutenant Tyson and Nurse
Freeland (given names unknown); the case was quickly transferred to the Western
District. McDougall did not identify a specific cause of action in the body of his
complaint, though he checked a box on the cover page identifying the basis for his claim
as “Civil Rights Action under 42 U.S.C. § 1983,” and he attached a separate page alerting
the Clerk’s Office that he was filing a “Civil Complaint for Prisoner Rights Violation,
Civil Rights.” See ECF Doc. 1 at 1, 7. The crux of McDougall’s complaint is that, in
1 We express no opinion on what the outcome of this inquiry should be.

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early April 2023, Tyson dropped him on the ground “outside [of] the sally-port of the
intake” at MVPC while attempting to move him from a wheelchair to a van that was
being used to transfer him and other detainees to Pike County Correctional Facility. See
id. at 4. McDougall, who was handcuffed at the time, claims that the fall “overstressed”
his injured meniscus and hindered his recuperation. See id. at 5.2
McDougall later supplemented his averments with his own declaration and that of
another detainee who witnessed the incident, both of which describe more clearly the
events leading to McDougall’s fall. After handcuffing McDougall, chaining him at the
waist, and shackling his feet, Tyson and two unnamed “officers” allegedly informed
McDougall that they were going to pick him up out of the facility-issued wheelchair and
put him in the van, which already was occupied by “6 or 8” other detainees. See ECF
Docs. 39-1, 39-2. McDougall protested that his medical records require that he be
transported in a handicap-accessible vehicle, as he had been every other time he left
MVPC, but Tyson supposedly denied knowing anything about that. McDougall says he
insisted that Tyson check his records to no avail. The three officers dropped McDougall
2 The complaint also includes a grievance about the wheelchair provided to
McDougall, the precise nature of which is difficult to discern. McDougall alleges that
Freeland took possession of the wheelchair he had been using upon his arrival at MVPC
the previous August and replaced it with one owned by the facility. See ECF Doc. 1 at 4.
He then says that, on the day of the incident, Tyson “attempted to retrieve a wheelchair”
that McDougall “desperate[ly] need[ed],” “claim[ing] that it belonged to the facility,” but
failed to return McDougall’s original wheelchair and dismissed his inquiry about it. See
id. (“Lt. Tyson, when informed of my original wheelchair being in the facility, stated that
he did not care where the wheelchair was.”).

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while carrying him to the vehicle, causing him to strike the ground and cry out in pain.
They then wheeled him back into the facility, where he purportedly received no treatment
for his injuries. He was driven to Pike County in a wheelchair-accessible vehicle a few
hours later. Once there, he claims he saw an emergency room doctor who told him he
had reinjured his knee3 and had four bulging discs in his back, which required 11 physical
therapy sessions “just to get back on track.” See id.
Significant here, throughout the litigation, McDougall repeatedly asked the
District Court4 to appoint counsel to assist him. See ECF Docs. 9, 22, 25, 38, 46.
Relying exclusively on Rule 10.C of the Western District’s Local Civil Rules—which
provides that, “[a]bsent special circumstances, no motions for appointment of counsel
will be granted until after dispositive motions have been resolved”—the court denied
each motion. See ECF Docs. 10, 27, 48 (concluding that McDougall’s confinement was
not a special circumstance); see also Doc. 40 (adding that McDougall’s lack of legal
training, limited education, and health issues did not prevent him from “present[ing] his
factual position clearly in [his] declaration”). McDougall independently solicited the
help of private counsel without success. See ECF Doc. 25 at 2-4 (identifying 10 law
firms contacted).
3 McDougall now refers to it as an ACL tear.
4 United States Magistrate Judge Keith A. Pesto, acting with the parties’ consent.
See 28 U.S.C. § 636(c).

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5
Given the uncertain nature of McDougall’s cause of action, GEO assumed he was
alleging deliberate indifference to medical needs and moved to dismiss the complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a Monell5
claim. The court denied the motion. It assumed that McDougall was alleging negligence
under Pennsylvania tort law, not a constitutional violation under Section 1983, and thus
could make out a claim against the company on a theory of respondeat superior. See
ECF Doc. 27 at 2-3.
GEO then moved for reconsideration, asserting that the court would lack
jurisdiction if McDougall’s complaint arose solely under Pennsylvania law because all
the parties “resid[e] in Pennsylvania.” See ECF Doc. 28 ¶ 2. The company urged the
court to construe the complaint as raising a constitutional claim for deliberate
indifference, which it maintained was deficient under Monell. The court granted GEO’s
motion in part and, to aid its jurisdictional assessment, directed McDougall to file a
document stipulating to his nationality, immigration status, domicile, the amount in
controversy, and whether he intended to proceed with his claims against Tyson and
Freeland.6 McDougall complied. He stipulated that he is a citizen of Guyana and a
permanent resident of the United States; that he was last domiciled in Washington, D.C.,
5 Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978).
6 The court gleaned from GEO’s website and litigation history that it is a Florida
company.

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before his incarceration; and that he sought more than $75,000 for his injuries. He also
agreed to voluntarily dismiss the individual defendants.
Because McDougall answered the court’s questions without challenging their
premise—i.e., that he had merely brought a standard negligence claim for which the court
needed to establish that it had diversity jurisdiction—the court and GEO proceeded as if
that was the only claim at issue. GEO did not contest jurisdiction, but instead sought a
second bite at dismissal because it believed McDougall had to file a certificate of merit
under Pennsylvania Rule of Civil Procedure 1042.3. The court denied the motion,
explaining that, unlike professional medical negligence claims, run-of-the-mill tort claims
like McDougall’s do not require certification. However, the court advised McDougall
that he might “need an expert to prove causation of some of his injuries.” See ECF Doc.
44 at 2.
The parties proceeded to discovery, during which McDougall moved for a hearing
and sought a subpoena for the surveillance footage of the incident and the names of the
two officers who assisted Tyson. The court denied his motions in February 2024, but
prompted GEO to consider the request as one for production and an interrogatory and to
respond to him directly. McDougall renewed his demand for the video and added a
request for the facility’s policies regarding transporting disabled individuals and for
statements from MVPC employees, he then moved to compel their production, GEO
rejoined that the motion was premature and that it had until the end of May to respond.
The court agreed and denied McDougall’s motion via docket order.

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McDougall filed a second motion to compel in mid-June because he had not yet
received the requested items. GEO responded that it had answered McDougall’s request
a few days before the deadline; it offered to resend its answers in the event he never
received them. The company attached a letter dated May 24, 2024, and addressed to
McDougall at Caroline Detention Facility in Bowling Green, Virginia, ostensibly
notifying him that its answers were enclosed.7 The court denied McDougall’s motion in
its September 24, 2024 opinion granting GEO’s motion for summary judgment, tersely
noting that, after GEO filed its response, the court had received “[n]othing further
indicating that [McDougall] did not receive the discovery.” See ECF Doc. 64 at 2.
Amidst the discovery imbroglio, GEO moved for summary judgment on the
grounds that McDougall failed to exhaust administrative remedies, sued the wrong party,
and proffered no evidence of his injuries or their cause. McDougall did not formally
respond to GEO’s motion; instead, he filed one of his own. Comprising just six
sentences without an accompanying brief or statement of facts, McDougall’s motion
pointed to the declarations and asserted that GEO possessed video evidence but had not
yet produced it in discovery. The court granted GEO’s motion and entered judgment in
its favor. Although it rejected the company’s first two grounds for relief, the court
ultimately agreed that McDougall had failed to present evidence of his injuries beyond
his allegations or competent proof linking them to the incident.
7 GEO’s answers do not appear in the record, and it is unclear whether it ever sent
McDougall a copy of the video he requested, or if one exists.

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McDougall filed an “objection” to the court’s decision, contending that he may not
have received discovery or responded to requests because he had changed facilities four
times that year, and reiterating that he could have produced medical records if he had
been appointed counsel. See ECF Doc. 67 at 1; see also ECF Docs. 33, 35, 47 (change-
of-address notices). The court construed McDougall’s filing as a motion to alter or
amend judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure and denied
it, telling him that he could seek review of the court’s orders denying him counsel from
this Court.
McDougall appeals. The parties were directed to address whether the District
Court abused its discretion in repeatedly denying McDougall’s motions for counsel
without considering the factors set forth in Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.
1993). They have dutifully complied.
II.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
denial of a motion to appoint counsel for abuse of discretion. See Houser v. Folino, 927
F.3d 693, 697 (3d Cir. 2019). Under 28 U.S.C. § 1915(e)(1), a court “may request an
attorney to represent any person unable to afford counsel.” As a threshold matter, the
court must consider whether the complaint has arguable merit. See Tabron, 6 F.3d
at 155. If so, the court must consider a number of additional factors, including the
complainant’s ability to present his own case, his ability to retain his own counsel, and

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the complexity of the legal issues. See id. at 155-56; Parham v. Johnson, 126 F.3d 454,
457 (3d Cir. 1997).
III.
McDougall challenges the District Court’s refusal to appoint him counsel. GEO
defends that decision8 and the court’s grant of summary judgment. It is not surprising
that the District Court granted GEO’s motion on this record. Setting aside whether
footage of the incident exists, it is undisputed that McDougall did not proffer competent
medical evidence substantiating his purported injuries or connecting them to his being
dropped. Those evidentiary shortcomings might be fatal to an appeal under normal
circumstances. But here they may simply have been the inevitable consequence of
compounding judicial error.
The District Court relied exclusively upon a local rule—Western District Local
Civil Rule 10.C—requiring a showing of “special circumstances” when it denied
McDougall’s requests for an attorney. The court did not mention, much less consider, the
8 GEO concedes that there may be “a conflict” between the Western District’s
local rule and the statute governing appointment of counsel for indigent defendants. See
C.A. Doc. 20 at 24. The company does not dispute that the District Court failed to
consider the Tabron factors, but rather suggests that McDougall “likely waived” his
challenge because he did not timely object under Federal Rule of Civil Procedure 72. See
id. at 18 n.6. Rule 72 requires a party to file objections to a magistrate judge’s orders on
non-dispositive matters within 14 days to preserve them for review by a district judge.
See FED. R. CIV. P. 72(a). The rule’s preservation requirements do not apply when
parties consent to a magistrate judge’s jurisdiction, as here. Magistrate Judge Pesto
rightly instructed McDougall that he could appeal the court’s adverse rulings on his
requests for counsel to this Court within 30 days pursuant to Rule 4 of the Federal Rules
of Appellate Procedure. McDougall has satisfied that jurisdictional prerequisite.

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factors enumerated by this Court in Tabron, in which we rejected conditioning
appointment of counsel upon proof of “exceptional circumstances.” See Tabron, 6 F.3d
at 155. The only factor the District Court assessed when denying McDougall’s first three
motions was the bare fact of his confinement. The court briefly listed McDougall’s
indigency,9 lack of legal training or education, and health issues when denying his fourth
motion, but found that his ability to “present his factual position clearly” in a declaration
outweighed these other limitations. See ECF Doc. 40. And the court merely referred
back to its previous orders in denying McDougall’s fifth motion, even though he
9 GEO asserts that McDougall “was not an indigent civil litigant” because he “was
not granted leave to proceed in forma pauperis” in the District Court. See C.A. Doc. 20
at 18. The District Court denied McDougall’s IFP petition in June 2023 on the grounds
that he had sufficient funds in his inmate account to cover the filing fee and costs of
service at that time. McDougall disputes the accuracy of that accounting in his brief to
this Court, and he has supplied us with more extensive documentation reflecting the
meager sums at his disposal in prison dating back to early 2024. In any event, the
District Court did not deny McDougall’s motions for want of proof of his poverty. And
the denial of IFP status is not dispositive on the question of indigency in connection with
a request for counsel; indeed, the standards are different for obvious reasons. Compare
28 U.S.C. § 1915(a), with id. § 1915(e)(1).
The company also contends that McDougall did not cite his indigency until his
fourth motion, and then “wholly abandoned” that argument in his fifth. See C.A. Doc. 20
at 18-20. To the contrary, McDougall cited his “very limited resources” as just “one of
the many” reasons he sought court-appointed counsel in his third motion, see ECF
Doc. 25 at 1, before reiterating his lack of income and inability “to afford counsel” in his
fourth motion, see ECF Doc. 38 ¶ 1. In his final request—a handwritten document just
three sentences long—McDougall professes that he is unsure how to present “a lot of
things” and “do[es] not want to mess this up.” See ECF Doc. 46. GEO characterizes that
pithy submission as the willful abandonment of an essential argument. We do not fault
McDougall for his brevity given the fate of his earlier, more fulsome requests. We have
reviewed the record in toto in resolving this appeal.

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presented a new circumstance—limited access to a law library—that the court had not
previously evaluated. See ECF Docs. 46, 48.
The District Court plainly did not consider certain “significant factors,” see
Tabron, 6 F.3d at 155-56, like the arguable merit of McDougall’s negligence claim,10
which is fairly straightforward, or the unusual constraints placed upon him as an
immigrant detainee, including his involuntary relocation to four detention facilities across
two States in less than a year. The court never discussed McDougall’s ability to pursue
an investigation, properly gather evidence, or comply with his own discovery obligations
despite recurring issues he raised about obtaining surveillance footage and identifying
witnesses. See id. at 156. Nor did the court weigh the likelihood that McDougall could
identify and secure an expert witness on his own, even after recognizing the necessity of
an expert “to prove causation” under the circumstances. See ECF Doc. 44 at 2; see also
Tabron, 6 F.3d at 156 (“[A]ppointed counsel may be warranted where the case will
require testimony from expert witnesses.”). In light of these omissions, we conclude that
the District Court abused its discretion in denying McDougall’s request for counsel.
Accordingly, we will vacate the District Court’s judgment and remand with
instructions to reconsider McDougall’s request under the proper standards.11
10 Like the District Court, we disagree with GEO’s contention that McDougall
“clearly brings only federal claims.” See C.A. Doc. 20 at 21 n.8. Whether McDougall
can state a claim under Section 1983 or Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), at the very least his complaint
encompasses a negligence tort under Pennsylvania law. The parties should seek
clarification of the applicable causes of action on remand.
11 Judge Phipps would affirm the District Court’s judgment on the grounds that

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McDougall did not challenge the Magistrate Judge’s order denying IFP status and,
without IFP status, McDougall had no claim to the appointment of counsel.

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