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October 26, 2005.


The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge


I. Introduction

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.

  II. Background

  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. ¶¶ 5-6.)

  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 ...

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