Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-19-2006
Woodham v. Sayre Bor Pol Dept
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4212
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4212
JAMES C. WOODHAM,
Appellant
v.
SAYRE BOROUGH POLICE DEPARTMENT;
SAYRE BOROUGH; DAN REYNOLDS, Sayre
Borough Police Department
On appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 02-cv-01951)
District Judge: Honorable Malcolm Muir
Submitted Under Third Circuit LAR 34.1(a)
March 3, 2006
Before: McKEE, FUENTES and NYGAARD, Circuit Judges
(Filed: May 19, 2006 )
OPINION OF THE COURT
PER CURIAM
James C. Woodham filed this civil rights suit pro se pursuant to 42 U.S.C. § 1983,
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alleging that Sayre Borough Police Sergeant Dan Reynolds violated his constitutional
rights.1 Woodham was arrested in his home in 2002 by a task force composed of local
and state law enforcement officers, including Sergeant Reynolds. Woodham claims that
after he had been taken to jail, Reynolds broke down the back door of his house and
allowed Woodham’s ex-girlfriend, Lorraine Pearsall, to enter the residence and remove
nearly all of his personal property, in violation of his Fourth Amendment right to be free
from unreasonable searches and seizures. The Magistrate Judge determined that
Woodham’s claim against Reynolds was supported by sufficient evidence to withstand
Reynolds’s motion for summary judgment and recommended that the case proceed to
trial. The District Court adopted this recommendation and set the case for trial before a
jury.
At the same time he filed his complaint, Woodham filed motions in the District
Court seeking permission to proceed in forma pauperis and for the appointment of
counsel pursuant to 28 U.S.C. § 1915(e)(1). The Magistrate Judge granted Woodham’s
motion to proceed in forma pauperis but denied his counsel motion without prejudice to
its renewal later in the proceedings. Woodham subsequently renewed his counsel motion
seven times, and each request was denied. Consequently, Woodham, who was
incarcerated throughout the litigation, represented himself up to and during trial.
1
Woodham also named Sayre Borough and its police department in his complaint;
however, all claims against these two defendants were dismissed early in the proceedings.
2
Woodham lost his case before the jury, and his motion for a new trial was denied by the
District Court. Woodham filed this timely appeal, again proceeding pro se.
Woodham argues that the District Court erred in denying his eight motions for the
appointment of counsel, as well as his motions for a continuance, to amend the complaint,
and for a new trial. With the exception of the motion to amend the complaint, we hold
that Woodham’s motions should have been granted by the District Court. Accordingly,
we will vacate the judgment, reverse the denial of these motions, and remand.
Motions for the appointment of counsel
Although an indigent civil litigant has neither a constitutional nor a statutory right
to counsel, 28 U.S.C. § 1915(e)(1) provides that a “court may request an attorney to
represent any person unable to afford counsel.” Parham v. Johnson, 126 F.3d 454, 456-
57 (3d Cir. 1997). As appointment of counsel is discretionary, we review the District
Court’s decision to deny counsel for abuse of discretion. See id. (internal citation
omitted).
Our review is guided by the familiar framework set forth in Tabron v. Grace, 6
F.3d 147, 155 (3d Cir. 1993), which first requires a court to consider the threshold
question of whether the litigant’s case has arguable merit in fact or law. After this
criterion is met, a court should consider the following factors: (1) the plaintiff’s ability to
present his case; (2) the difficulty of the legal issues; (3) the degree to which factual
investigation will be necessary and the plaintiff’s ability to pursue such investigation; (4)
3
the plaintiff’s ability to retain counsel on his own; (5) the extent to which the case is
likely to turn on credibility determinations; and (6) whether the case will require expert
testimony. Id. at 155-57.
In Woodham’s case, the threshold issue of arguable merit is presumptively
established, as the claim against Reynolds survived summary judgment and the case
proceeded to trial. Therefore, we must determine the extent to which the six Tabron
factors are present.
Tabron factors 1 and 2: The Plaintiff’s ability to present his case and the
difficulty of the legal issues.
In considering a plaintiff’s ability to present his case, a court should consider the
plaintiff’s education, literacy, prior work experience, prior litigation experience, the
plaintiff’s ability to understand English, and the plaintiff’s restraints due to confinement.
Montgomery v. Pinchak, 294 F.3d 492, 501 (3d Cir. 2002). Knowledge of trial procedure
and evidentiary rules are key factors in a successful presentation. See Parham, 126 F.3d
at 459. Complexity of the legal issues - factor two - must be considered in conjunction
with the plaintiff’s ability to present his case. See Montgomery, 294 F.3d at 502.
Throughout his counsel motions, Woodham asserted that his limited education,
lack of litigation experience, and incarceration all severely hampered his ability to present
his case. Woodham asserted that he had a “5.9 grade reading skill level” and attached
documentation to that effect from the prison’s education staff. He claimed that he lacked
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knowledge of discovery procedures (such as filing interrogatories and taking depositions)
and had difficulty “articulating well enough for his sobpoena’s [sic] to be issued.”
Woodham emphasized that he had no experience in trial advocacy or presentation of
evidence, could not adequately present his voir dire questions, and did not know how to
respond to objections raised by opposing counsel. Woodham also asserted that he lacked
experience questioning witnesses, especially hostile witnesses, which he was certain to
encounter during this particular trial.
Despite Woodham’s extensive descriptions of his incompetence as a litigator, the
District Court determined that Woodham’s case was not particularly complicated and that
he had shown that he was able to litigate it on his own. The District Court’s perception of
Woodham’s ability appears to have been based on his persistence in filing counsel
motions and other pleadings. However, a plaintiff’s ability to file and respond to motions
does not translate to an ability to present his own case. See Parham, 126 F.3d at 459.
Indeed, as Woodham aptly put it, “[the] filing of papers is one thing and presenting a case
in court is quite another.” See Eighth Counsel Motion, filed August 11, 2004, at 2.
Given his limited education and literacy, lack of litigation experience (of heightened
importance since his case would be tried before a jury), and incarceration, we find that
Woodham’s circumstances fulfill Tabron’s first two factors.
Tabron factor 3: The Plaintiff’s ability to pursue necessary factual
investigation.
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A court should consider a prisoner-litigant’s inability to gather facts relevant to the
proof of his claim and should be sensitive to his discovery difficulties. Montgomery, 294
F.3d at 503-04 (citing Tabron, 6 F.3d at 156). Woodham conducted all of his litigation
while incarcerated and, therefore, had limited ability to investigate the facts supporting
his claim, all of which occurred outside the prison and outside of his presence. Without
counsel, Woodham was unable to depose Reynolds or any other potential witnesses,
including four individuals who submitted sworn statements that they saw Reynolds on or
near Woodham’s property during Pearsall’s raid.
While the bulk of Woodham’s discovery problems may have stemmed from
limitations imposed by his incarceration, he also had difficulties dealing with opposing
counsel. In one example, on July 1, 2003, Woodham wrote to the District Court to
complain that opposing counsel had deposed him at the prison without providing any
advance notice, as required by Federal Rule of Civil Procedure 30(b). See also Fed. R.
Civ. P. 30(a)(2) (requiring a party to seek leave from the court to depose a prisoner). The
Magistrate Judge’s law clerk responded by informing Woodham that no action would be
taken on his letter, because the letter did not comply with the Federal Rules. Woodham’s
letter should have been liberally construed, however. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972) (pro se litigants’ pleadings should be held to a less stringent standard
than pleadings from attorneys). Woodham later moved for an extension of the discovery
period because Defendants had not provided him with the transcripts of his June 26,
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2003, deposition until August 21, 2003 – over one month after the discovery deadline had
expired. The Magistrate Judge denied Woodham’s motion without any explanation. On
appeal, Reynolds argues that Woodham’s discovery difficulties were his own fault and
that, therefore, he was not prejudiced by the court’s refusal to appoint counsel. We agree
that Woodham’s attempts to conduct discovery were woefully ineffective. However, this
fact weighs in favor of, not against, the appointment of counsel. See Montgomery, 294
F.3d at 503-04.
Tabron factor 4: The Plaintiff’s ability to retain counsel.
As with the arguable merit threshold, this factor is presumptively fulfilled, because
Woodham was granted permission from the District Court to proceed in forma pauperis.
Tabron factor 5: The extent to which the case is likely to turn on credibility
determinations.
If it appears that the case will be “solely a swearing contest” and will rely heavily
on credibility determinations, this should weigh in favor of appointing counsel. Parham,
126 F.3d at 460; Tabron, 6 F.3d at 156. In his fifth counsel motion, Woodham argued
that counsel should be appointed because his case hinged on the jury’s assessment of both
his and Reynolds’s credibility. In support, Woodham cited to Maclin v. Freake, 650 F.2d
885 (7 th Cir. 1981) (per curiam) and Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).
The District Court rejected Woodham’s arguments, stating that its consideration of
counsel motions is governed by Tabron v. Grace and that Woodham had not met the
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criteria set forth in Tabron. As credibility determinations constitute a distinct Tabron
factor and as Tabron’s discussion of this factor cited to both Maclin and Hodge, we find
the District Court’s statement to be error. Given that credibility determinations were
paramount in Woodham’s case, Tabron’s fifth factor is clearly present.
Tabron factor 6: The need for expert testimony.
This factor is not implicated, as there is nothing in the record indicating the need
for expert testimony in this case.
As Woodham’s case had arguable merit, was set for trial, and presented most of
the Tabron factors, the District Court should have appointed counsel for Woodham. See
Parham, 126 F.3d at 461. We recognize that this may not have been apparent when
Woodham filed his first two counsel motions. However, after the case had been set for
trial and Woodham’s discovery problems became evident, the District Court had several
more opportunities and ample reason to grant Woodham’s motion. Under the
circumstances, the District Court’s repeated denials of Woodham’s motions were not
consistent with the sound exercise of discretion.
Motion for a continuance
Continuance of trial is a matter of discretion with the trial court and will not be
disturbed unless a clear abuse of discretion has been shown. Fontana v. United Bonding
Ins. Co., 468 F.2d 168, 169-70 (3d Cir. 1972) (per curiam). An unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable request for delay is an abuse of
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discretion. Amarin Plastics, Inc. v. Maryland Cup Corp., 946 F.2d 147, 151 (1 st Cir.
1991).
On the day of trial, Woodham orally moved for a continuance in order to subpoena
three potential witnesses whose identities he had just discovered from a police dispatch
report. Woodham had subpoenaed police records from Sayre Borough Police Chief
Kevin Guinane. The District Court granted Woodham’s motion to compel, in part, and
ordered Guinane to provide Woodham with a copy of relevant police records either on or
before the first day of trial. Woodham claims that, although he received the subpoenaed
documents on the day jury selection took place, he did not receive them at the courthouse
during jury selection and was, therefore, unable to request the District Court to issue
subpoenas for the potential witnesses while he was at the courthouse.2 Once back at the
prison, the timing restrictions for outgoing inmate mail, combined with the upcoming
Labor Day holiday, effectively prevented Woodham from filing a motion requesting
subpoenas, or a continuance, any earlier than the morning of the trial itself. The
transcripts of the pre-trial hearing on Woodham’s continuance motion show that
Woodham’s attempt to explain this was disastrous.
During the brief hearing, Woodham fumbled as he attempted to explain to the
2
Woodham’s only viable method of having subpoenas issued for these witnesses
was pursuant to 28 U.S.C. § 1915(d), which requires “officers of the court” to serve
process and issue subpoenas for witnesses in cases brought by litigants proceeding in
forma pauperis.
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District Judge that he needed a continuance in order to subpoena several police officer
witnesses whose identities he had only recently discovered and, further, that he had only
recently discovered their identities because the police dispatch report was delivered to
him at such a late date. When questioned by the District Judge, Woodham became
increasingly tongue-tied as he tried to respond, until the District Judge asked opposing
counsel for an explanation of the basis for Woodham’s motion. Opposing counsel replied
that it appeared that Woodham was seeking to amend his complaint “again” by reinstating
his claim against the police department. See Hearing Trn. at 3. At this point, Woodham’s
argument for a continuance was supplanted by opposing counsel’s suggestion that
Woodham was attempting to amend his complaint at the last minute.3 Noting that it was
“24 seconds before 10:00,” the District Court ended the hearing by denying the motion to
amend and ordering the trial to begin. The transcript makes it clear that, in this three-
minute hearing, Woodham was unable to focus the District Court’s attention on his
continuance motion, much less make a coherent supporting argument.
Woodham argues that the police dispatch report constitutes “overwhelming proof”
of his claim. While we disagree with this characterization, our review indicates that the
information contained in the report was highly relevant and may well have led to the
discovery of relevant, admissible evidence. The report, which was generated when
3
Woodham did file a written motion to amend his complaint that morning.
However, it is clear from the transcript that obtaining a continuance was his primary goal.
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Woodham’s sister and mother called the police dispatcher from Woodham’s residence,
states that Pearsall had been told by two police officers that she could remove property
from Woodham’s house. Although the identity of the officers who allegedly gave this
permission is not provided, police officers Burlingame and Keir are identified as having
confirmed that the permission was given. Importantly, the report also states that
Woodham’s sister and mother called the police because, when they arrived at Woodham’s
house, they discovered that Lorraine Pearsall “had taken the good things by this point.”
See Informal Brief, Exhibit 2b. There is no mechanical test for evaluating a court’s
decision to deny a continuance; rather, such an evaluation “must be found in the
circumstances present in every case, particularly in the reasons presented to the trial judge
at the time the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589-90 (1964). In
light of the circumstances surrounding Woodham’s receipt of the dispatch report and its
apparent relevance to his claim, we hold that the District Court’s denial of Woodham’s
request for a continuance was an abuse of discretion.
Motion to amend the complaint
In his pre-trial motion to amend his complaint, Woodham sought to reinstate the
Sayre Borough Police Department as a defendant, based solely on the information in the
police dispatch report. As that information does not support reinstatement of the police
department, we find no abuse of discretion in the District Court’s denial of this motion.
See Lewis v. Curtis, 671 F.2d 779, 783 (3d Cir. 1982).
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Motion for a new trial
We review the District Court’s ruling on the motion for a new trial for abuse of
discretion. See Brennan v. Norton, 350 F.3d 399, 430 (3d Cir. 2003). A new trial should
only be granted when the error or defect complained of affects the substantial rights of the
parties. See Fed. R. Civ. P. 61; Brennan, 350 F.3d at 430 (new trial should not be granted
unless the verdict is contrary to the weight of the evidence or when a miscarriage of
justice would result if the verdict were to stand).
Woodham’s motion for a new trial focused on the denial of his counsel and
continuance motions. The District Court rejected Woodham’s arguments, holding that his
“eleventh-hour request” for a continuance had been properly denied. The District Court
also held that Woodham had failed to identify what information from the police dispatch
report would have been useful to him. We conclude, however, that Woodham’s motion
for a new trial both sufficiently describes the information contained in the dispatch report
and explains that the untimely delivery of the report prevented him from filing his
continuance motion any sooner. Because the District Court’s denial of Woodham’s
counsel motions and continuance motion constituted trial errors which affected
Woodham’s substantial rights, his motion for a new trial should have been granted. See
Fed. R. Civ. P. 61; Citron v. Aro Corp., 377 F.2d 750, 753 (3d Cir. 1967).
For the foregoing reasons, we will vacate the judgment entered by the District
Court; reverse its denials of Woodham’s motions for counsel, for a continuance, and for a
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new trial; and remand to the District Court with instructions that it appoint counsel for
Woodham and hold a new trial.
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