DiPietro v. The Department of Corrections and Its Employees Listed Herein et al

Filing 74

MEMORANDUM re pltf's Mtns to Stay 72 , 70 and to Appoint Counsel (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 9/6/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICODEMO DiPIETRO,
Plaintiff
vs.
THE DEPARTMENT OF
CORRECTIONS & ITS EMPLOYEES
LISTED HEREIN, et al.,
Defendants

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CIVIL NO. 1:CV-15-1137
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se plaintiff, Nicodemo DiPietro, an inmate at the state correctional

institution in Somerset, Pennsylvania, has filed a fourth motion for appointment of
counsel and an emergency motion to stay his deposition pending his appointment of
counsel. (Docs. 70 and 72). For the reasons that follow, both motions will be denied.

II.

Discussion
A.

DiPietro’s Fourth Motion for Counsel
The court has previously set forth the legal standard for evaluating a motion

for the appointment of counsel filed by an inmate proceeding in forma pauperis. We
relied upon that standard in denying DiPietro’s previous requests for counsel. See Docs.
20 and 60. We therefore will assume the parties’ familiarity with this standard and will not
repeat it here.

For the most part, DiPietro recites the same reasons in support of counsel
that we have already considered and rejected. DiPietro claims that he is untrained in the
law and has difficulty reading and writing without his prescription eyeglasses. (Doc. 71).
He argues that Defendants have declined his offers for settlement and he “does not know
[the] next stages of civil procedure and will be prejudiced” if not appointed counsel during
“final stages” of this civil action. (Id.) A review of the docket in this matter reveals that
DiPietro is not experiencing any difficulty preparing and filing documents with the court.
His uncorrected vision does not appear to be hampering his ability to file letters, motions
and briefs on a regular basis. More importantly, his filings are coherent and clearly
express his desires and needs to the court.
With respect to his lack of knowledge of “what comes next” in his civil
action, we have issued a scheduling order setting deadlines in early 2017 for the close of
discovery and the filing of dispositive motions. See Doc. 68. Presently DiPietro stands in
the shoes of every other pro se inmate litigant. Any concern over his own inexperience
as a litigant is unnecessary as his pro se pleadings are given a liberal construction by the
court. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Additionally, even though proceeding in forma pauperis, DiPietro has not demonstrated
that he lacks the capacity to retain pro bono counsel on his own behalf. Moreover, we
are not at the “final stages” of this action. DiPietro can consult the Federal Rules of Civil
Procedure to review what discovery tools are available to him and his obligations to
participate in his deposition. At this juncture, DiPietro appears sufficiently knowledgeable

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and equipped to understand and handle the litigation. His fourth motion for counsel will
be denied.

B.

DiPietro’s Motion for Emergency Stay of his Deposition
Plaintiff asks the court to stay his deposition pending the resolution of his

fourth motion for appointment of counsel. (Doc. 72). Although DiPietro does not state
when his deposition is scheduled, he claims he “will be greatly prejudiced by depositions
without legal assistance. Depositions probably involve complex legal issues unknown to
plaintiff.” (Id.) Plaintiff’s motion to stay his deposition on the basis of his motion for
counsel is now moot.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: September 6, 2016

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