The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
Plaintiff, David Bruce Darby, an inmate at the State
Correctional Institution in Graterford, Pennsylvania, commenced
this action pro se with a civil rights complaint filed pursuant
to the provisions of 42 U.S.C. § 1983. Named as Defendants are
Chambersburg Police Officer Michael A. Taylor, and Plaintiff's
Probation Officer Joseph McLaughlin. Plaintiff alleges that
Defendants illegally arrested and detained him on October 26,
2003, in violation of his Fourth Amendment rights. By order dated
March 25, 2005 (Doc. 40), McLaughlin was dismissed as a Defendant
from this case.
This matter comes before the Court on Taylor's motion for
summary judgment (Doc. 30) and Plaintiff's fifth motion for
appointment of counsel (Doc. 48). The motions are ripe for
disposition. For the following reasons, Defendant's motion for summary judgment will be granted and Plaintiff's motion for
appointment of counsel will be denied.
The facts are undisputed.*fn1 Defendant, Officer Michael
Taylor, is employed as a police officer in the Chambersburg,
Pennsylvania, Police Department. (Doc. 34 ¶ 3.) On October 23,
2003, at 1:00 a.m., Defendant and Patrolman Jakubic were in the
area of the parking lot of Dilly's Restaurant and Bar. (Id. ¶
4.) Defendant and Patrolman Jakubic had received an earlier tip
that Plaintiff was in the bar, in violation of the terms of his
probation (restriction on consumption of alcohol). (Id. ¶¶
As Defendant and Jakubic entered Dilly's parking lot, they
received a call from County Dispatch, informing them that Adult
Probation had made a check and could not find anything showing
that Plaintiff was not permitted to drink alcohol. (Id. ¶ 7.)
While in the parking lot area, Defendant and Jakubic observed
Plaintiff exiting the bar with another individual. (Id. ¶ 8.)
Defendant recognized the other individual as an off-duty police
officer. (Id. ¶ 9.) The officer gave an indication to Defendant
and Jakubic that he needed their assistance as he walked across the parking
lot with Plaintiff. (Id. ¶ 10.)
Defendant and Jakubic exited their patrol car and approached
Plaintiff. Defendant spoke to Plaintiff about his probation, and
inquired whether Plaintiff was prohibited from drinking alcohol
under the terms of his probation, as Jakubic spoke to the
off-duty officer. (Id. ¶ 11.) During the conversation,
Plaintiff kept his hands in the front pockets of his sweat pants.
(Id. ¶ 12.) Based upon past experience, Defendant and Jakubic
knew that Plaintiff was occasionally aggressive towards police
officers. (Id. ¶ 13.) Thus, a pat-down of Plaintiff was
conducted to check for weapons. (Id. ¶ 14.)
Defendant noticed that the cargo pocket on the left leg of
Plaintiff's sweat pants was open and bagging out. (Id. ¶ 15.)
Sticking out of the top of the pocket in plain view was a plastic
bag. Defendant observed a green leafy substance behind the bag.
(Id. ¶ 16.) Defendant asked Plaintiff what was in the bag.
Plaintiff reached into his pocket and shook the bag slightly and
removed an empty bag. In plain view, in the same pocket,
Defendant observed several smaller bags containing a green leafy
substance which, in Defendants experience as a police officer,
appeared to be marijuana packaged for sale. (Id. ¶ 18.) Based
upon Defendant's observations, Plaintiff was placed under arrest
and he was searched incidental to that arrest. (Id. ¶ 19.) During the search, twenty-two (22) plastic bags,
individually wrapped, were recovered from Plaintiff's pockets.
(Id. ¶ 20.) The contents of the bag field tested positive for
marijuana. (Id. ¶ 21.)
After Plaintiff was taken into custody, the off-duty officer
informed Defendant that Plaintiff had approached him in the bar
and offered to sell him marijuana. (Id. ¶ 22.) Plaintiff walked
out with the officer, claiming that he wanted to show the officer
what he had to sell. (Id. ¶ 23.)
Subsequently, Defendant prepared a criminal complaint and an
affidavit of probable cause, charging Plaintiff with the offense
of possession with intent to deliver a controlled substance.
(Id. ¶¶ 26, 28.) The criminal complaint alleged that Plaintiff
possessed twenty-two (22) packed bags of a green leafy substance
which field tested positive for the presence of THC/marijuana,
and Plaintiff attempted to sell this substance to another person.
(Id. ¶ 27.) The criminal complaint, approved by the District
Attorney and a District Justice, was served on Plaintiff at the
Franklin County Prison. (Id. ¶¶ 29-30.) Plaintiff filed a
counseled motion to suppress, which was denied by the Court.
(Id. ¶¶ 31-32.) Subsequently, Plaintiff pled nolle contendre
to the marijuana charge, and he was sentenced on December 22,
2004. III. Discussion
A. Appointment of Counsel
Currently pending is Plaintiff's fifth motion for appointment
of counsel. By Order of this Court dated January 21, 2004 (Doc.
11) Plaintiff's first motion for appointment of counsel (Doc. 5)
was denied; by Order of this Court dated July 27, 2004 (Doc. 28)
Plaintiff's second and third motions for appointment of counsel
were denied; and by Order of this Court dated August 18, 2005
(Doc. 46), Plaintiff's fourth motion for appointment of counsel
was denied. Plaintiff's current motion adds nothing to the
Court's analysis of this ...