Nicholas Malfitano Apr. 13, 2016, 9:13am


PHILADELPHIA -- A federal appeals court has determined the U.S. District Court for the Middle District of Pennsylvania did not err or abuse its discretion when it denied six requests for appointment of counsel for a man who alleged excessive force against his arresting officers.

On March 14, U.S. Court of Appeals for the Third Circuit Judge D. Michael Fisher affirmed the judgment of the district court in denying appellant Michael Fletcher’s requests for counsel. (Though Fletcher represented himself at trial, a pro bono program from Philadelphia firm Schnader Harrison Segal & Lewis provided Fletcher with counsel in this instant proceeding.)

On Dec. 3, 2009, Fletcher was arrested in response to a domestic incident involving a gun in his possession and shots fired, among other charges. Four Harrisburg police officers -- appellee Edward Grynkewicz and Robert Fleagle, Uriah Aviles, and Robert Fegan -- arrived in response to the shots and placed Fletcher in custody.

Fletcher claimed he was tased three times when being placed under arrest, while Grynkewicz claimed he only fired his taser at Fletcher twice. The officers then took Fletcher to the hospital, where he was treated for various conditions, including PCP intoxication, alcohol intoxication and respiratory failure.

In December 2011, Fletcher filed a civil rights lawsuit against the four officers who arrested him, alleging they used excessive force during the arrest. During the litigation that followed, Fletcher, who was proceeding in forma pauperis, requested on six different occasions that counsel be appointed for him.

Fletcher made his last request about a month and a half before trial, and each request was denied. Shortly before trial, Fletcher voluntarily dismissed three of the four defendants -- all the officers except for Grynkewicz. After testimony from both Fletcher and the officers involved, the jury returned a verdict finding that Grynkewicz had not used excessive force in arresting Fletcher.

Fletcher summarily appealed.

Before using the factors established in Tabron v. Grace to determine whether to grant a request for appointment of counsel, Fisher said the district court was correct in denying Fletcher’s attempts for same.

“The judges below uniformly concluded, however, that, at the time of each request, the Tabron factors did not weigh in favor of appointing counsel for Fletcher. Their denials of Fletcher’s requests for appointment of counsel did not rest upon a clearly erroneous finding of fact, and we therefore find no abuse of discretion,” the judge wrote.

Fisher said Fletcher was able to present his own case of non-complex legal issues, with little investigation being necessary and without needing expert testimony, and, at the time, without credibility of the various accounts of the incident being a factor in his favor.

Fisher said the only factor that weighed in Fletcher’s favor was his inability to retain counsel of his own, but “that Fletcher was unable to find a lawyer to represent him does not, on its own, justify the appointment of counsel.”

Fisher ruled the district court’s discretion in this matter was correct, based on the case’s factors and merits.

“Considering all of these factors, we conclude that the judges below did not abuse their broad discretion in denying Fletcher’s requests for appointment of counsel. Fletcher demonstrated his ability to manage the litigation of this straightforward case that involved little discovery and required no experts,” the judge ruled.

“At the point in time when each request was made, the judges below did not abuse their discretion in finding that the Tabron factors did not weigh in favor of appointing counsel.”

The appellant is represented by Christian D. Sheehan of Vinson & Elkins in Washington D.C. and Nancy Winkelman of Schnader Harrison Segal & Lewis in Philadelphia.

The appellee is represented by Christine E. Munion of William J. Ferren & Associates in Blue Bell.

U.S. Court of Appeals for the Third Circuit case 14-3692

U.S. District Court for the Middle District of Pennsylvania case 1:12-cv-00086

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com.

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