The opinion of the court was delivered by: (Judge Conner)
Presently before the court in the above--captioned matter is a motion to dismiss (Doc. 15), filed by defendants the City of Harrisburg, Detective Donald Heffner, and unknown police officers (collectively, where appropriate, "defendants"). Also before the court are motions for leave to proceed in forma pauperis (Doc. 19) and for appointment of counsel (Doc. 21), filed by plaintiff Antoine M. Black.
I. Factual and Procedural Background
The instant motion to dismiss comes before the court pursuant to Federal Rule of Civil Procedure 12(b)(6). Accordingly, the court will "accept all well-pleaded facts in the complaint as true and view them in the light most favorable" to Black. Carino v. Stefan, 376 F.3d 156, 159 (3d Cir. 2004).
Black is an adult male who, at the time the complaint was filed, resided in Harrisburg, Pennsylvania. The court has been apprised through later filings that Black is now incarcerated. (See Doc. 19). Defendant Heffner is a detective with the Harrisburg City Police Department. Black alleges that, on August 17, 2010, he was subject to an illegal search and seizure.
On August 3, 2010, Probation Officer Jenkins*fn1 reported as stolen a Harrisburg Police Department-issued .45 caliber Sigsaur handgun. Detective Heffner was assigned to investigate the claim of stolen equipment, and on or about August 16, 2010, he interviewed Brittany Harris. Harris claimed to be aware of the stolen gun because of media coverage of the incident, and claimed that she had overheard Black attempting to sell a gun that matched the description of the missing firearm. Harris claimed to know Black's birth date and the birth date of his son, his address, and his living arrangements.
Detective Heffner relied at least in part upon the information he received from Harris in supporting his application for a search warrant. Detective Heffner averred in his affidavit of probable cause that he expected a search of Black's residence to produce evidence of the stolen handgun. On or about August 17, 2010, officers of the Harrisburg Police Department executed a search warrant at Black's residence. Officers found no evidence of the stolen firearm, but seized currency in the amount of $13,940, found in a purse within the home, and $29,000 found in a Tastycake box on the third floor of the residence. No arrests were made, nor charges filed, and the currency, totaling $42,940, was placed into evidence. On March 10, 2011, Black received $28,980 of the seized currency after objecting to a forfeiture proceeding instituted by the Dauphin County District Attorney's Office. Black, represented by counsel, filed a complaint in this court on October 17, 2011, asserting claims under 42 U.S.C. §§ 1981 and 1983, alleging violation of the First, Fourth, Fifth, Thirteenth, and Fourteenth Amendments to the United States Constitution, and for violation of Article I, §§ 8 and 9 of the Pennsylvania Constitution.
Difficulties arose after the filing of the complaint. On February 9, 2012, Black's attorney Robert S. Mirin passed away. By order dated February 15, 2012, the court stayed proceedings for a period of 30 days to accommodate the appearance of new counsel, or, alternatively, to provide Black with the option to proceed pro se. (Doc. 3). On March 23, 2012, having not heard from him, the court entered an order directing Black to show cause within twenty days why the action should not be dismissed. (Doc. 4). Black responded by filing two motions, dated April 2 and 3, 2012, in which he claimed not to have received the court's first order directing him to enter appearance of new counsel or elect to proceed pro se. He elected to proceed pro se for the time being, but requested a 60 day extension in which to seek new counsel. The court granted Black's request for an extension on April 4, 2012. (Doc. 7). On June 5, 2012, Black notified the court through letter correspondence that he was having difficulty securing replacement counsel and would proceed pro se unless and until he could find a lawyer.
On October 5, 2012, the court issued another show cause order, directing Black to show cause why the case should not be dismissed for failure to serve the summons and complaint, issued to Black on June 5, 2012, within 120 days pursuant to Federal Rule of Civil Procedure 4(m). (Doc. 9). Black replied by letter correspondence on October 11, claiming not to have known that defendants had not yet been served, but that he had since served them. By order dated October 17, the court reissued the summons and directed the Clerk of Court to refer the summons and complaint to the United States Marshal for the Middle District of Pennsylvania, for service on defendants.
Defendants entered appearance of counsel on November 1, 2012, and the court issued a case management order on November 19, 2012. Defendants filed the instant motion to dismiss on December 13, 2012. Black responded by letter correspondence on January 10, 2013, though he presented no argument on his behalf. On March 7, 2013, Black informed the court that he was now incarcerated at SCI Camp Hill. That same day he moved for leave to proceed in forma pauperis. On March 13, Black moved for appointment of counsel in accordance with 28 U.S.C. § 1915(e)(1). He included a hand-written copy of the financial affidavit, stating that he was indigent.
The court has jurisdiction because the complaint presents a question of federal law, see 28 U.S.C. § 1331, and because Black alleges that he suffered a deprivation of his federally protected rights under color of state law, see 28 U.S.C. § 1343(a)(3).
The first issue the court must determine is whether Black is entitled to appointed counsel, and if so, what impact such a decision may have on ...