change in law, should such change become known to him.
C. Wrongful Retaliation
Plaintiff claims that Defendants retaliated against him for exercising his constitutional rights in challenging the parole process. Defendants argue that Plaintiff has failed to allege the necessary elements of a § 1983 wrongful retaliation claim.
Our Court of Appeals recently stated that "case law has ... established that a state may not bar parole in retaliation for a prisoner's exercise of his constitutional rights." Burkett, 89 F.3d at 140 (citing cases).
No Third Circuit precedent explicitly defines the elements of a § 1983 retaliation claim in the parole context. Generally, however, a party claiming unconstitutional retaliation must allege that the constitutionally protected conduct was a substantial or motivating factor influencing the alleged retaliation and said retaliation would not have occurred but for the protected conduct. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); cf. Blizzard v. Hastings, 886 F. Supp. 405, 409 (D.Del. 1995)("in order to prevail on a claim of retaliation, a prisoner must demonstrate by a preponderance of the evidence that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals")(adopting Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994)(per curiam)).
We agree with Defendants and find Plaintiff's allegations woefully inadequate, even considering his pro se status. Liberally construing the phrase "constitutional rights," we infer that Plaintiff is referring to his rights of free speech and access to the courts. As Defendants rightly note, however, Plaintiff makes no allegations concerning if and what they knew about his parole process challenges, when they knew it, or how it affected any decisions they made. In short, Plaintiff alleges no facts that support his bare assertion that Defendants wrongfully retaliated against him for exercising his constitutional rights. Leave to amend is denied without prejudice accordingly. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).
III. Appointment of Counsel
At paragraph 3 of his original Motion to Alter or Amend Judgment (Document No. 21), Plaintiff states that he "does not the [sic] funds for materials, attorney fees and other items to adequately present his claim, and wishes for the appointment of counsel." This plea appears to be a Motion for the Appointment of Counsel pursuant to 28 U.S.C. § 1915(d). The request for counsel was not mentioned even once, however, in the six page, single-spaced memorandum (Document No. 23) that Plaintiff submitted subsequently in support of the instant motion. This leaves us with some doubt as to whether Plaintiff does in fact desire the appointment of counsel. Such a request pursuant to § 1915(d) is not a matter to be taken lightly, given "the limited supply of competent lawyers who are willing to undertake such representation without compensation." See Tabron v. Grace. 6 F.3d 147, 157 (3d Cir. 1993). It can also be a difficult legal question, requiring a balancing of several factors. Id. at 155-58. We are unwilling to undertake this analysis and, potentially, to appoint counsel in the absence of a clear indication that Plaintiff does in fact desire such a result. We therefore deny the request without prejudice and grant Plaintiff leave to file the appropriate motion should he desire.
For the foregoing reasons, we grant in part Plaintiff's motion to reconsider our December 10 Order dismissing the instant action with prejudice. Upon reconsideration, we find that Plaintiff's due process and equal protection claims should not be dismissed pursuant to Rule 12(b)(6). In addition, we deny without prejudice Plaintiff's motions for leave to amend and for the appointment of counsel. An appropriate Order follows.
AND NOW, this day of April, 1997, upon consideration of Plaintiff's Motion to Alter or Amend Judgment (Document Nos. 19 and 23), and Defendants' response thereto (Document No. 22), it is hereby ORDERED in accordance with the attached Memorandum that the Motion is GRANTED in PART and DENIED in PART as follows:
(1) the Order dated December 10, 1996 granting Defendants' Motion to Dismiss in its entirety is VACATED;
(2) Defendants' Motion to Dismiss (Document No. 11) is DENIED as to the substantive due process and equal protection claims alleged in Count I and Defendants shall file an Answer to these claims within twenty (20) days of the date of entry of this Order;
(3) Defendants' Motion to Dismiss is GRANTED as to Counts II and IV and Counts II and IV are DISMISSED with prejudice;
(4) Leave to file an Amended Complaint is DENIED without prejudice; and
(5) Plaintiff's request for the appointment of counsel pursuant to 28 U.S.C. § 1915(d) is DENIED without prejudice.
BY THE COURT:
J. CURTIS JOYNER, J.