United States District Court, W.D. Pennsylvania
October 5, 2005.
GROVER L. BATTLE, JR., Plaintiff,
JACKIE MARQUARDT, Record Supervisor, KEVIN FUTATO, Records Specialist, ROBERT A. GREEVY, Assistant Counsel, Defendants.
The opinion of the court was delivered by: DONETTA AMBROSE, District Judge
MEMORANDUM AND ORDER
Presently before this Court are two renewed motions for the
appointment of counsel (Docket Nos. 51 & 57) filed by plaintiff,
which require the Court to determine whether or not, under the
facts and circumstances of this case, the Court should exercise
its discretion pursuant to 28 U.S.C. § 1915(e)(1) and request an
attorney to represent plaintiff in the prosecution of this
The plaintiff, Grover L. Battle, Jr., an inmate at the State
Regional Correctional Facility at Mercer, has presented a civil
rights complaint which he has been granted leave to prosecute
without prepayment of costs against Records Supervisor Jackie
Marquardt, Records Specialist Kevin Futato and Assistant Counsel
Robert A. Greevy. In his complaint, plaintiff alleges that he has
served his sentence in full and that defendants have conspired to
keep him incarcerated past his maximum sentence. These facts are
said to state a cause of action under the provisions of 42 U.S.C. § 1983.
These are plaintiff's third and fourth requests for the
appointment of counsel. He first petitioned this Court for the
appointment of counsel on May 4, 2004 (Docket No. 25). In a
Memorandum and Order dated May 11, 2004 (Docket No. 26),
plaintiff's request was denied. Plaintiff's second motion for the
appointment of counsel was filed on June 22, 2005, and denied in
a Memorandum Order dated June 27, 2005. Plaintiff has now filed
two new requests for counsel both of which were filed on
September 16, 2005 (Docket Nos. 51, 57). It does not appear,
however, that plaintiff is adding any new averments to those set
forth in his previous petition.
Therefore, for the reasons set forth in the Court's Memorandum
and Order dated May 11, 2004, and because consideration of the
factors set forth in Parham v. Johnson, 126 F.3d 454, 457 (3d
Cir. 1997), does not warrant the appointment of counsel in this
instance, we decline to exercise our discretion to appoint
counsel for plaintiff in the prosecution of this action. See
Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993).
An appropriate Order will be entered. ORDER
AND NOW, this 4th day of October, 2005,
IT IS ORDERED that plaintiff's renewed requests for the
appointment of counsel (Docket Nos. 51, 57) are hereby DENIED
IT IS FURTHER ORDERED that if plaintiff desires review of this
Order by the District Judge to whom this case is assigned he
must, within ten (10) days of this date, file an application with
the Clerk of Court. Failure to do so will waive the right to
appeal. Siers v. Morrash, 700 F.2d 113 (3d Cir. 1983).
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