United States District Court, M.D. Pennsylvania
November 1, 2005.
ANTHONY P. CANTANZARO, Plaintiff
HON. JOHN COTTONE, ET AL., Defendants.
The opinion of the court was delivered by: A. CAPUTO, District Judge
Presently before the Court is Motion of Plaintiff Anthony P.
Catanzaro Pursuant to L.R. 83.34.1 for Appointment of Attorney in
Action. (Doc. 12.) The action is against a Lackawanna County of
Common Pleas Judge and three Judges of the Pennsylvania Superior
Court. The gist of the action is that Judge Cottone of the
Lackawanna County Court of Common Pleas conspired with the
President Judge to rule on the Masters Report in Plaintiff's
divorce action when a federal civil rights suit was pending
against Judge Cottone. Plaintiff alleges that Judge Cottone
should have recused himself, but instead retaliated against
Plaintiff by dismissing his objections to the Masters Report and
adopting the Master's recommendations. Plaintiff alleges that the
Pennsylvania Superior Court Judges violated Plaintiff's
constitutional rights when they affirmed Judge Cottone's
decision. He also alleges that the Pennsylvania Superior Court
Judges conspired in the violation of his constitutional rights.
In determining whether to appoint counsel for Plaintiff, I must
review the factors set forth in Tabron v. Grace, 6 F.3d 147,
(1993) cert. denied 510 U.S. 1196, 114 S.Ct. 1306 (1994).
First, I must determine whether the claim has arguable merit.
Id. at 155. In the instant matter, the Pennsylvania Superior Court reviewed
the action taken by Judge Cottone on the basis of a record which
reflected Plaintiff's claims for recusal. In so doing, the court
affirmed Judge Cottone and commented that all one had to do to
recuse a judge was to file a suit against that judge and claim
conflict of interest. (See Doc. 1 at ¶ 40.) So it is apparent
that Plaintiff's grievance concerning Judge Cottone was aired.
Moreover, the three judge panel of the Pennsylvania Superior
Court, defendants here, affirmed the adoption of the Master's
Report and Recommendation. Given the action by the appellate
court, there is not much room to argue that Judge Cottone failed
to act within his jurisdiction and within the ethics of the
judiciary. The Plaintiff's claim does not meet the arguable merit
analysis. But, assuming arguendo, there is arguably merit to the
Plaintiff's Complaint. The other factors are 1) the ability to
pay for counsel; 2) the ability to present the case pro se; 3)
whether the legal issues are complex; 4) whether a factual
investigation is required, and the ability of Plaintiff to
conduct such an investigation; 5) whether the case will turn on
credibility determinations; and, 6) whether expert testimony is
I will consider each of these factors in relation to the
1. Ability to Pay. Since Plaintiff has been granted in forma
pauperis status, he does not have the ability to pay for
2. Ability to Present the Case. A review of the Complaint
reveals a detailed, well written pleading which expresses the
Plaintiff's claim in depth. It contains legal citations and is
broken down as to claims. It gives every indication that
Plaintiff could present his own case. 3. Whether the legal issues are complex. The complaint seeks
relief based upon retaliation for the exercise of First Amendment
rights and the denial of due process and equal protection of the
law. Factually, it concerns Judge Cottone's failure to recuse
himself because of Plaintiff's suit against him and his
subsequent adverse ruling against Plaintiff in the divorce action
involving Plaintiff and his wife, thereby, says Plaintiff,
denying him due process and equal protection. The Complaint
further alleges denial of due process and equal protection
against the three judges on the panel of the Pennsylvania
Superior Court that affirmed Judge Cottone. The issues are not
complex since they involve whether or not the defendant judges
violated the Plaintiff's constitutional rights when they ruled
4. Need for a Factual Investigation. The facts are pretty
much known. Any factual investigation would involve finding out
whether there was communication between Judge Harhut, the
President Judge of Lackawanna County, and Judge Cottone, and
whether there were any communications between the judges of the
Pennsylvania Superior Court and the judges of the Lackawanna
County Court of Common Pleas. This is easily done by the
Plaintiff by discovery.
5. Whether the case will turn on credibility. It is unlikely
that the case will turn on credibility, but even if it did, in
all probability, the Plaintiff could present his case
effectively. Regarding Judge Cottone, the question of motive is
easily addressed and does not require extraordinary skill.
Plaintiff has not alleged any facts which would support his
contentions of conspiracy among the Defendants. Without such, his
statement of the existence of a conspiracy would be inadmissible
conjecture. Thus, the issue of conspiracy is not likely to turn
on a question of credibility. 6. Need for expert testimony. I can foresee no need for
Since the merits of Plaintiff's case are not strong, and since
the factors (all but one) argue against appointment of counsel,
the motion will be denied.
An appropriate Order follows. ORDER
NOW, this 1st day of November, 2005, IT IS HEREBY ORDERED
that the Motion of Plaintiff Anthony P. Catanzaro Pursuant to
L.R. 83.34.1 for Appointment of Attorney in Action (Doc. 12) is
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