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Clay Caldwell v. Superintendent Louis Folino

December 13, 2010

CLAY CALDWELL, PLAINTIFF,
v.
SUPERINTENDENT LOUIS FOLINO;
LIEUTENANT M.A. PRICE; SGT. GAGNON; C.O. J. MILLER; C.O. LUKACHYK; C.O. TOPKA; C.O. SOKOL; JEFFREY A. BEARD, SECRETARY OF CORRECTION; AND LT. NORMAN, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Cathy Bissoon

Re ECF Nos. 94, 104, 105, 106 & 107

MEMORANDUM ORDER

The Court of Appeals for the Third Circuit remanded this case for this Court to consider two issues only:*fn1 1) Plaintiff‟s Eighth Amendment claim that he had been sexually harassed during pat down searches and 2) an equal protection claim, regarding the requirement that Plaintiff obtain a permit for his medicine bag and prayer feather to be kept in his cell whereas other inmates of other religious persuasions are not required to have such a permit in order to keep religious items in their cells. ECF No. 96-1 at 5 to 8.

Most recently Plaintiff has filed several motions which are the subject of this order.

First, Plaintiff filed a motion for reconsideration (ECF No. 94) of an earlier text order, dated September 29, 2010, which denied his previously filed motion for appointment of counsel. ECF No. 92. Plaintiff‟s Motion for Reconsideration is hereby DENIED. Although the reason originally given in the text order, dated September 29, 2010, for denying the motion for appointment of counsel, i.e., that the case was closed, is now no longer valid, given that the case has been reopened upon remand from the Court of Appeals, still, Plaintiff has not convinced the court that he is entitled to appointment of counsel to litigate these two very discrete issues.

In a related note, Plaintiff has also moved for leave to file a motion for appointment of counsel. *fn2 ECF No. 107. Section 1915(e)(1) gives the Court broad discretion to determine whether appointment of counsel is warranted, and that determination must be made on a case-by-case basis. Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir. 1993).

As a threshold matter the district court should consider whether Plaintiff‟s claim has arguable merit in fact or law. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). See Tabron v. Grace, 6 F.3d at 155. If the Court determines that the claim has some merit, the Court should then consider the following factors:

1. the plaintiff‟s ability to present his or her own case;

2. the complexity of the legal issues;

3. the degree to which factual investigation will be necessary and the ability of the plaintiff to pursue such investigation;

4. the amount the case is likely to turn on credibility determinations;

5. whether the case will require the testimony of expert witnesses; and

6. whether the plaintiff can attain and afford counsel on his own behalf.

Parham v. Johnson, supra. "The list of factors is not exhaustive, but instead should serve as a guidepost for the district courts. Correspondingly, courts should exercise care in appointing counsel because volunteer lawyer time is a precious ...


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