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Pelino v. Gilmore

United States District Court, W.D. Pennsylvania

August 13, 2019

VITO A. PELINO, Plaintiff,
v.
ROBERT GILMORE, MICHAEL ZAKEN, and STEPHEN DURCO, Defendants.

         Re: ECF No. 60

          Vito A. Pelino, All counsel of record via CM/ECF

          David Stewart Cercone, District Judge

          MEMORANDUM ORDER

          Maureen P. Kelly, Magistrate Judge

         Plaintiff Vito A. Pelino ("Plaintiff), an inmate at the State Correctional Institution at Greene ("SCI-Greene"), has presented a civil rights complaint which he has been granted leave to prosecute in forma pauperis. ECF Nos. 2, 39. In this action, Plaintiff claims that Defendants violated his Fourth Amendment right to bodily privacy by "implement[ing] a policy of video-recording strip searches of inmates going to, and coming from contact visits, and while using the bathroom." ECF No. 39 ¶ 8.

         Presently before this Court is Plaintiffs Motion for Appointment of Counsel, ECF No. 60, which requires the Court to determine whether, under the facts and circumstances of this case, the Court should exercise its discretion pursuant to 28 U.S.C. § 1915(e)(1) and request an attorney to represent Plaintiff in the prosecution of this action.

         In considering a motion for the appointment of counsel, the Court must determine whether to request counsel to represent this indigent litigant under the provisions of 28 U.S.C. § 1915(e)(1), fully recognizing that if successful counsel may be entitled to recover fees under the provisions of Section 1988 of Title 42, United States Code. Section 1915(e)(1) gives the Court broad discretion to determine whether the 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 the plaintiffs claim has arguable merit in fact or law. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997); see also Tabron. 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, 126 F.3d at 457. "This 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 commodity and should ...


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