United States District Court, W.D. Pennsylvania
JERON D. BROWN, Plaintiff,
EUGENE RIAZZI, JR., ORLANDO HARPER, JEFFERY MANNING, EDWARD BORKOWSKI, STEVEN STADTMILLER, JOHN DOE, Sued In their Official And Individual Capacities, Defendants.
FLOWERS CONTI CHIEF UNITED STATES DISTRICT COURT JUDGE
before the court in this case is a second motion for the
appointment of counsel filed by pro se plaintiff Jeron D.
Brown (“plaintiff”), with brief and exhibits in
support. (ECF Nos. 17-19.) This court previously denied
plaintiff's request for the appointment of counsel
because it had “substantial doubts” about the
merits of plaintiff's claims. (ECF No. 9.) The court
acknowledged, however, that some of the factors set forth in
Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993),
weighed in plaintiff's favor. The court instructed
plaintiff that he could renew his request if, after seeking
to obtain counsel on his own behalf, he was unable to retain
legal representation. (ECF No. 9 at 4.)
in his second motion for appointment of counsel informed the
court that he sent a letter to four different organizations
in an attempt to obtain counsel for this litigation. (ECF No.
18.) While the court commends plaintiff's efforts, he has
not otherwise convinced the court that his claims have
“arguable merit in fact and law.” Tabron,
6 F.3d at 155. The judicial defendants may be entitled to
absolute immunity. See Stump v. Sparkman, 435 U.S.
349, 355-56 (1978) (judges have absolute immunity under 42
U.S.C. § 1983 for their judicial acts); Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976) (prosecutors are
entitled to absolute immunity from liability under §
1983 for acts that are “intimately associated with
judicial phase of the criminal process”). The warden
defendant also may be entitled to absolute immunity.
Patterson v. Von Riesen, 999 F.2d 1235, 1240 (8th
Cir. 1993) (a prison warden is entitled to absolute immunity
for continuing to incarcerate prisoner in accordance with a
valid order of court). The John Doe public defender named in
the complaint most likely would not be considered a state
actor under § 1983 for his role in representing
defendant in criminal proceedings. Polk County v.
Dodson, 454 U.S. 312, 325 (1981) (“[A] public
defender does not act under color of state law when
performing a lawyer's traditional functions as counsel to
a defendant in a criminal proceeding.”). Under those
circumstances, the court still has substantial doubts about
the merits of plaintiff's claims, which weighs heavily
against appointment of counsel in this case. Some of these
immunity issues and other defenses have been raised in the
motions to dismiss pending before the court, which will be
decided by the court in due course. In light of the
court's doubts about the merits of this case at this
stage, however, it is not required to consider the other
Tabron factors, e.g., plaintiff's efforts to
retain counsel on his own behalf. Tabron, 6 F.3d at
155 (“If the district court determines that the
plaintiff's claim has arguable merit in fact and law, the
court should then consider a number of additional factors
that bear on the need for appointed counsel.).
second motion for appointment of counsel (ECF No. 17) will,
therefore, be denied without prejudice. Plaintiff is
reminded that his responses to the motions to dismiss pending
before the court are due within forty-five days of the entry
of the order accompanying this memorandum opinion. If
plaintiff's complaint survives the motions to dismiss, he
may once again renew his request for appointment of counsel.
appropriate order will be entered.
NOW, this 20th day of December, 2017, upon
consideration of plaintiff Jeron D. Brown's motion to
appoint counsel (ECF No. 17) and for the reasons set forth in
the accompanying opinion, IT IS HEREBY ORDERED that
plaintiff's motion is DENIED without prejudice.
 As this court previously explained,
plaintiff alleges that his rights under the United States
Constitution, the Uniform Criminal Extradition Act, and state
tort law were violated by defendants. Defendants are a
district magistrate, the warden of the Allegheny County jail,
two judges of the Allegheny County Court of Common Pleas, a
district attorney and a defense attorney. In essence,
plaintiff alleges that he was wrongfully confined for 235
days on a fugitive bond. The defendants who are judges and
the district attorney will be referred to as the
“judicial defendants” in this opinion.
 The United States Court of Appeals for
the Third Circuit in Tabron v. Grace, 6 F.3d 147 (3d
Cir. 1993) set forth the standard to be applied by district
courts when responding to a request for counsel pursuant to
the provisions of 28 U.S.C. § 1915(e)(1). The court of
appeals announced a series of factors that the trial court
should consider if the plaintiff's claims have arguable
merit to determine whether to appoint counsel. Id.
at 155-56. These factors include: (1) the plaintiff's
ability to present his or her own case; (2) the difficulty of
the particular legal issues; (3) the degree to which factual
investigation will be necessary and the ability of the
plaintiff to pursue investigation; (4) the plaintiff's
capacity to retain counsel on his or her own behalf; (5) the
extent to which a case is likely to turn on credibility
determinations, and; (6) whether the case will require
testimony from expert witnesses. Id. at 156.
 Plaintiff in his second motion for
appointment of counsel argues that defendants “cannot
raise the defense of absolute judicial immunity when
jurisdiction is only retained through compliance of The
Uniform Crim. Extradition Act procedural safeguards and its
limited periods for confinement[.]” (ECF No. 17 at 2.)
A review of the complaint, however, shows that plaintiff
complains about the actions of the judicial defendants
“arising from their official acts.” Pinho v.
Gonzales, 432 F.3d 193, 212 (3d Cir. 2005). The judicial
defendants, therefore, ...