                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                     No. 10-2802
                                    ____________

                               TIMOTHY MEL ABUIZ,
                                             Appellant
                                       v.

WARDEN WILLIAM BRENNAN; DEPUTY WARDEN NICHOLAS CONIGLIARO;
  SUSQUEHANNA COUNTY CORRECTIONAL FACILITY; SUSQUEHANNA
                          COUNTY
                        ____________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                           (D.C. Civ. No. 4:06-cv-1603)
                  District Judge: Honorable James F. McClure
                                  ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                  April 8, 2011
               Before: SLOVITER, FISHER and WEIS, Circuit Judges.

                          (Opinion Filed: September 7, 2011)
                                   ____________

                                      OPINION
                                    ____________

WEIS, Circuit Judge.

             Plaintiff Timothy Abuiz, proceeding pro se, appeals from the District

Court‟s May 28, 2009, partial grant of summary judgment and its May 27, 2010,

                                           1
judgment following a bench trial. We will affirm.

                                             I.

              Abuiz filed this lawsuit in the Middle District of Pennsylvania, based on

events that occurred between February and May 2005, when he was incarcerated at

Susquehanna County Correctional Facility (“SCCF”) in Montrose, Pennsylvania. The

complaint, which was construed as an action pursuant to 42 U.S.C. § 1983, named

William Brennan (prison warden during the time of the events at issue), Nicholas

Conigliaro (then-deputy warden), SCCF, and Susquehanna County as defendants. It

alleged unconstitutional conditions of confinement, withheld mail, racial segregation, and

denial of access to legal materials.

              The facts underlying the case are not in dispute. In February 2005, Abuiz,

then a pre-trial detainee, arrived at SCCF and was placed in a general population housing

unit. Several weeks later, a number of the cells in Abuiz‟s unit were flooded by

overflowing toilets. Prison authorities attributed the incident to the purposeful actions of

several inmates and locked down the facility for approximately 24 hours.

              Because Abuiz was believed to be involved with the vandalism and was

found with contraband items, he and another suspected inmate were transferred the

following day to separate cells in “A” Block, a unit used at times for pretrial and

disciplinary detention.

              Abuiz advised prison officials that the water pressure in his cell‟s sink

                                              2
faucet was low, and, as a result, he had no running water for drinking, brushing his teeth,

or washing his hands. He also complained that the overhead light in his cell was broken.

Despite his requests that prison personnel attend to these problems, they remained

unresolved during his time in that cell.

              After several weeks in A Block, Abuiz was transferred to a different unit in

the Susquehanna County facility and, months later, to another Pennsylvania prison.

              In 2006, at the outset of this action, Abuiz filed two motions for

appointment of counsel; he made a third attempt in 2007. A magistrate judge denied all

three motions after examining the factors set forth in Tabron v. Grace, 6 F.3d 147 (3d Cir.

1993). In May 2009, the District Court entered an order dismissing SCCF from the

action, granting summary judgment to Susquehanna County on all claims, and granting

summary judgment to the prison officials on the claims of withheld mail and denial of

access to legal materials.

              A bench trial on the remaining claims took place on February 4 and

February 8, 2010, with Abuiz -- who by then had been transferred to a prison in New

York state -- participating by telephone. On the second day of trial, Abuiz asked once

again that counsel be appointed to represent him. The District Court denied that request,

observing that “the . . . issue has been reviewed a number of times previously.”

               After post-trial submissions, the District Court held that the conditions in A

Block did not violate the Fourteenth Amendment. The Court also rejected the racial

                                              3
segregation claim, noting that Abuiz had offered no evidence of any policy to segregate

minority inmates. Accordingly, judgment was entered for the prison officials.

                Abuiz appeals from that judgment and from the earlier grant of summary

judgment to Susquehanna County. We review those decisions in that order.1

                                                II.

                Abuiz‟s principal brief lists ten trial-related issues, all of which are linked in

one way or another to the issue of whether the District Court abused its discretion in

failing to appoint counsel to represent Abuiz.2

                Several general propositions underlie a decision to appoint counsel in cases

of this nature. First, indigent litigants bringing civil suits under § 1983 “have no statutory

right to appointed counsel.” Tabron, 6 F.3d at 153. Second, a judge has “broad

discretion” in determining whether to appoint counsel for such litigants. See id. Where,

as here, the relevant facts have been found at trial rather than assumed or subjected to

speculation in pretrial proceedings, the District Court is owed a substantial degree of

deference in its exercise of discretion. See, e.g., DeJesus v. U.S. Dep‟t of Veterans

Affairs, 479 F.3d 271, 279 (3d Cir. 2007) (on review of bench trial judgment, “findings of




1
    We have jurisdiction pursuant to 28 U.S.C. § 1291.
2
 We exercise de novo review over questions of law but review findings of fact for clear
error. See Bear Mountain Orchards, Inc. v. Mich-Kim, Inc., 623 F.3d 163, 169 (3d Cir.
2010).
                                                4
fact shall not be set aside unless clearly erroneous[,] and due regard must be given to the

trial court‟s judgments as to the credibility of the witnesses”) (internal quotations

omitted). Finally, counsel should not be asked or directed to appear on behalf of a party

whose case is lacking in factual and legal merit. See Tabron, 6 F.3d at 157 & n.7.

               This Court has held that, when deciding whether to appoint counsel, a

threshold question is whether the litigant‟s case has arguable merit in law or fact. If this

preliminary showing is met, the following non-exclusive matters should be considered:

(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

it; (4) 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. Tabron, 6 F.3d at 155-57.

               As the District Court correctly noted in its earlier denials of the plaintiff‟s

motions for appointment of counsel, the Tabron opinion describes an inquiry as to

whether the underlying claims have arguable factual and legal merit. The record here

demonstrates that Abuiz‟s claims were lacking.

               The cell conditions described at trial may have been bothersome and

disagreeable. But, as Abuiz testified, while housed in A Block he was given three meals

a day and drinking water with his meals. After his first week-and-a-half in that unit, he

was also provided a gallon jug of potable water daily, along with juice and Kool-Aid. He

                                                 5
was permitted to leave his cell daily to shower3 and shave and was given regular

opportunities for exercise and recreation.

              He had sufficient light from his cell window and light fixtures in adjoining

areas to read and write when he sat near the front of his cell. Despite some

inconvenience, he was able to draft letters, complete forms, and work on puzzles. He was

not kept in darkness.

              These conditions, while irksome, were far removed from the type of

“genuine privation[ ] and hardship over an extended period of time” that is necessary for

a finding of constitutional deprivation. See, e.g., Bell v. Wolfish, 441 U.S. 520, 542

(1979); compare Ford v. Bd. of Managers of New Jersey State Prison, 407 F.2d 937, 940

(3d Cir. 1969) (conditions of solitary confinement, including limited food and lack of

running water, did not “even remotely approximate the barbaric conditions found to”

violate constitutional standards) (Eighth Amendment case). Abuiz‟s underlying claims

lack arguable merit in fact and law and thus do not survive the threshold Tabron inquiry.4

              Even if that hurdle had been surmounted, the remaining Tabron

considerations do not support appointment of counsel in this case. A thorough review of



3
  During his first week-and-a-half in A Block, Abuiz was permitted to leave his cell six
times to shower but twice refused to do so.
4
 Moreover, no evidence at trial, apart from the plaintiff‟s bald assertion, supported the
notion that prisoners were segregated based on race or skin color. For that reason,
Abuiz‟s Equal Protection claim fails the “arguably meritorious” test.
                                             6
the trial transcript demonstrates that Abuiz was capable of setting forth his claims and did

so adequately. The factual and legal issues tied to the claims were straightforward and

not overly complex; they were not dependent on in-depth factual investigation, but

instead were primarily based on personal observations made by Abuiz himself. A lawyer

was not required to explain an allegedly inadequate supply of running water or a faulty

light fixture.

                 There is, moreover, no indication in the record that Abuiz‟s “education,

literacy, prior work experience, . . . . [or] ability to understand English” hampered his

ability to present his case. Compare Tabron, 6 F.3d at 156 (discussing cases). To the

contrary, Abuiz testified at length in support of his position, cross-examined the

witnesses, made and argued objections, and even preserved issues for appeal.

                 That Abuiz presented his case by telephone was not ideal; however, it

proved to be a satisfactory alternative under the circumstances. Neither the prison

authorities of the State of New York (where he was being held at the time of trial) nor the

U.S. Marshals Service were able to transport Abuiz to Pennsylvania. Although the

district judge had tried to arrange for the trial to proceed via videoconference, the New

York authorities were either unable or unwilling to comply with that request.

                 The record does not demonstrate that Abuiz‟s inability to appear in person

substantially altered the presentation of his case, much less the outcome of the trial.

Abuiz had been provided a number of documents before the trial, and he discussed others

                                               7
during the trial itself.5 The transcript reveals that Abuiz was heard and understood by the

judge, defense counsel, and testifying witnesses, all of whom were courteous and

professional, mindful of the less-than-perfect circumstances under which plaintiff was

participating. Indeed, the Court gave this pro se litigant significant leeway to argue issues

and pursue lines of questioning that might well have been foreclosed to an attorney

appearing on his behalf.

              Finally, the trial did not depend a great deal on witness credibility. Based

on the District Court‟s opinion, it appears that expert testimony, though potentially

helpful in fleshing out a damages claim, was not necessary to establish either a claim of

racial segregation or the conditions of confinement in his A Block cell.

              District judges maintain “broad discretion to determine whether

appointment of counsel is warranted, and th[at] determination must be made on a case-by-

case basis.” Tabron, 6 F.3d at 157-58. Under the circumstances presented here, we

conclude that the District Court‟s denial of the motions to appoint counsel was not an

abuse of that discretion.

              Indeed, to find an abuse here would violate what we and other courts have

said on several occasions: that, given the scarcity of lawyers willing to take on pro bono




5
 While Abuiz claims that he requested subpoenas from the court for three witnesses, the
District Court said it never received the request and, in any event, the record shows that
Abuiz was able to obtain a fair amount of information during discovery.
                                              8
cases, courts should not seek to impose upon the bar representation in legal actions of

little or no merit. See id. at 157 (“[E]very 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”) (quoting Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d

Cir. 1989)).

               Accordingly, we affirm the District Court‟s denial of the plaintiff‟s motion

to appoint counsel. In addition, after careful review of the record, we find no merit to the

remaining trial-related issues Abuiz raises in this appeal, and we likewise affirm those

rulings.

                                             III.

               Abuiz also challenges the District Court‟s grant of summary judgment to

defendant Susquehanna County.6 “[A] municipality may be held liable for the conduct of

an individual employee or officer only when that conduct implements an official policy or

practice.” Hill v. Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006). For municipal

liability to attach, there “must be a „direct causal link between a municipal policy or

custom and the alleged constitutional deprivation . . . .‟” Jiminez v. All Am. Rathskeller,




6
 We exercise plenary review over that decision, and use the same standard applied by the
District Court. See Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d Cir.
2010).
                                              9
Inc., 503 F.3d 247, 249 (3d Cir. 2007) (quoting City of Canton v. Harris, 489 U.S. 378,

385 (1989)).

               For substantially the reasons given by the District Court, we agree that

Abuiz failed to establish any genuine issues of material fact regarding municipal liability.

Although Abuiz alleged that Susquehanna County had a policy of not adequately training

prison staff and of taking disciplinary action against prisoners even for actions allowed

under the prison‟s handbook, he never came forward with evidence linking those alleged

policies to his asserted injuries.

               Abuiz also asserts that if he had been able to present newly discovered

evidence, the evidence would have overcome the prison‟s motion for summary judgment.

This evidence, a February 15, 2005 letter from the Susquehanna County Jail Board to the

Pennsylvania Department of Corrections, apparently was never properly presented to the

District Court for consideration. Even if we could take the letter into account, it would

not aid Abuiz in his argument. None of the deficiencies related to the prison facility

outlined in the letter reflect an official policy of misconduct, and there is also no causal

link between any of the deficiencies and the alleged constitutional deprivations in Abuiz‟s

case. Accordingly, we hold that the District Court properly granted summary judgment to

Susquehanna County.

               The judgments entered by the District Court will be affirmed.




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