Shaud v. Sugarloaf Township Supervisors et al

Filing 13

MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; Clerk of Court is authorized to ISSUE SUMMONS and pltf is authorized to serve complain upon dfts, Sugarloaf Township Supervisors, Tommy Brown, and John Hudson. Clerk of Court is directed to close case as to dfts, Judy James, Stanley Gorsky, Wilber Good, Sugarloar Township Fire Dept, James A. Schneider, Sharon Slusser, David Lupas, Danny O'Donnell, and Peter Paul Olszewski, Jr; DENYNG pltf's motion to appoint counsel 3 Signed by Honorable James M. Munley on 2/4/08 (sm, )

S h a u d v. Sugarloaf Township Supervisors et al

D o c . 13

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA WALTER M. SHAUD, Plaintiff : No. 3:07cv1212 : : (Judge Munley) : v. : : SUGARLOAF TOWNSHIP : SUPERVISORS, : JOHN HUDSON, : TOMMY BROWN, : JUDY JAMES, : STANLEY GORSKY, : WILBER GOOD, : SUGARLOAF TOWNSHIP FIRE : DEPARTMENT, : JAMES A. SCHNEIDER, : SHARON SLUSSER, : DAVID LUPAS, : DANNY O'DONNELL, : PETER PAUL OLSZEWSKI, JR., : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is plaintiff's motion for an appointed attorney and motion to proceed in forma pauperis. W e give the complaint an initial screening to d e te r m in e whether it should be served on the defendants. I. Background T h is complaint grows out of a series of disputes between the plaintiff and S u g a r lo a f Township, as well as between the plaintiff and his neighbor, Sharon

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S lu s s e r. Plaintiff contends that he received an out-of-court settlement after a T o w n s h ip police officer assaulted his wife in 1997, and that the township has re ta lia te d against him since that settlement by failing to enforce the laws fairly or p ro p e rly investigate complaints raised by the plaintiff about his neighbor's behavior a n d violations of Township ordinances. In addition, he has faced continual h a ra s s m e n t from his neighbor and her children, much of it related to his disability of p o s t-tra u m a tic stress disorder. Schlusser's children have allegedly shot plaintiff with a pellet gun, thrown and hit rocks onto plaintiff's property, had illegal bonfires, tre s p a s s e d , pointed guns at plaintiff's home, brought illegal weapons onto plaintiff's p r o p e rty and made obscene and rude comments to plaintiff. Their mother, Mrs. S c h lu s s e r, also allegedly made inappropriate comments about plaintiff's disability, s u g g e s tin g that he take an overdose of medication that would kill him. Plaintiff's pro se complaint, filed on July 3, 2007, alleges that the defendants h a ve violated a variety of plaintiff's rights. (See Doc. 1). The complaint does not m a k e specific allegations against particular parties, but contends that all defendants w e re involved in "at least one" of a series of improper acts.1 Those alleged acts in c lu d e d : aiding and abetting unlawful discrimination; malicious prosecution;

Plaintiff's complaint states that he brings the action pursuant to the Americans with Disabilities Act. The substance of his complaint, however, appears to address the alleged failure of the Township to protect his constitutional rights. Accordingly, we will also assume that he intended to bring his complaint under 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights under the color of state law. We have also turned to the documentation that plaintiff supplied in addition to his complaint for a fuller statement of the grounds for the action. 2

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re ta lia tio n ; harassment; public stalking; interference with plaintiff's right to enjoy his fa m ily home; threats of physical harm; due process violations; equal protection vio la tio n s ; causing physical harm; and conspiracy. Plaintiff also filed simultaneously w ith the complaint a motion to proceed in forma pauperis, a motion to have an a tto rn e y appointed, and several exhibits related to the events that gave rise to the c a s e and to complaints plaintiff filed with state agencies and courts. II. Jurisdiction B e c a u s e plaintiff brings his complaint pursuant to 42 U.S.C. § 1983 and the A m e ric a n s with Disabilities Act, 42 U.S.C. §§ 12101, et seq., we have jurisdiction p u rs u a n t to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all c ivil actions arising under the Constitution, laws, or treaties of the United States."). W e have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U .S .C . § 1367. III. Legal Standard U n d e r 28 U.S.C. § 1915(d), we are permitted "to consider whether an in forma p a u p e ris complaint is frivolous or malicious before authorizing issuance of the s u m m o n s and service of the complaint." Urrutia v. Harrisburg County Police Dept., 9 1 F.3d 451, 453 (3d Cir. 1996). We may "dismiss as frivolous claims based on an in d is p u ta b ly meritless legal theory and whose factual contentions are clearly b a s e le s s ." Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). We undertake such a n evaluation before service of the complaint. 3

IV . Discussion W e will address each of the defendants in turn. A . Immunity for Certain Defendants i. Judge O'Donnell T h e United States Supreme Court has been clear that "`judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, e ve n when such acts are in excess of their jurisdiction, and are alleged to have been d o n e maliciously or corruptly.'" Stump v. Sparkman, 435 U.S. 349, 355 (1978) (q u o tin g Bradley v. Fisher, 13 Wall. 335, 351 (1872)). This doctrine aims to keep ju d g e s independent from influence and protect them from intimidation by those who w o u ld use the threat of court action to influence the outcome of a proceeding. See P ie rs o n v. Ray, 386 U.S. 547, 554 (1967) (finding that "it is a judge's duty to decide a ll cases within his jurisdiction that are brought before him, including controversial c a s e s that arouse the most intense feeling in the litigants. His errors may be c o rre c te d on appeal, but he should not have to fear that unsatisfied litigants may h o u n d him with litigation charging malice or corruption. Imposing such a burden on ju d g e s would contribute not to principled and fearless decisionmaking but to i n t im i d a t io n . " ) . Judges enjoy this immunity for all actions, no matter how erroneous or m a lic io u s , so long as when the judge took "the challenged action he had jurisdiction o ve r the subject matter before him." Stump, 435 U.S. 356. See Mireles v. W a c o , 4

5 0 2 U.S. 9, 13 (1991) (holding that a judge accused of ordering deputies to use e xc e s s ive force to bring an attorney who failed to appear before the judge to a c o u rtro o m was immune because compelling attorneys to appear was a judicial fu n c tio n , regardless of whether the judge ordered the use of excessive force.). This d o c trin e applies in cases brought under Section 1983. See Dennis v. Sparks, 449 U .S . 24, 27 (1980) (holding that "judges defending against §1983 actions enjoy a b s o lu te immunity from damages liability for acts performed in their judicial c a p a c itie s ."). In any case, the key question in such cases is whether the judge's act w a s judicial in nature, and whether the judge acted within the bounds of her ju ris d ictio n . Plaintiff's complaints against Magistrate Judge O'Donnell all relate to his p e rfo rm a n c e of his duties as a judge. Plaintiff contends that Judge O'Donnell made d e c is io n s based on his relationship to parties to the litigation and on other corrupt m o tive s . Included in the papers plaintiffs filed are copies of complaints to the P e n n s ylva n ia Judicial Conduct Board regarding Magistrate Judge O'Donnell. These c o m p la in ts all point to what plaintiff considers improper behavior and motives behind th e Judge's decisions in cases involving plaintiff. Such decisions are all judicial in n a tu re and Defendant Judge O'Donnell enjoys immunity from suit for them. W e will a c c o rd in g ly dismiss the case against him. ii. Judge Olszewski F o r the same reasons that Magistrate Judge O'Donnell enjoys immunity from

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s u it for his judicial actions, Judge Olszewski also enjoys immunity in this case. The a lle g a tio n s against Judge Olszewski all concern his actions as the judge of a court of g e n e r a l jurisdiction. As such, he is immune from suit in this court and we will dismiss th e case against him. iii. Defendant Lupas 2 T h e United States Supreme Court has found that "in initiating a prosecution a n d in presenting the State's case, the prosecutor is immune from a civil suit for d a m a g e s under § 1983." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). See K u lw ic k i v. Dawson, 969 F.2d 1154, 1163-64 (3d Cir. 1992) (holding that "[t]he d e c is io n to initiate a prosecution is at the core of a prosecutor's judicial role [citations o m itte d ]. A prosecutor is absolutely immune when making this decision, even where h e acts without a good faith belief that any wrongdoing has occurred [citations o m itte d ]. Harm to a falsely-charged defendant is remedied by safeguards built into th e judicial system­probable cause hearings, dismissal of the charges­and into the s ta te codes of professional responsibility."). Here, plaintiffs' complaint is related to a s u it initiated by Defendant Lupas, the local prosecutor, against him. Lupas is im m u n e from suit over his actions in initiating that suit, and we will therefore dismiss th e case against him. iv. Township Solicitor James A. Schneider

Defendant Lupas has recently been elected to the Court of Common Pleas of Luzerne County, Pennsylvania. 6

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J a m e s A. Schneider served as Township solicitor during the period in q u e s tio n . Plaintiff's complaint and the documents filed with it contain no specific in fo rm a tio n or allegations related to Solicitor Schneider. To the extent, however, that p la in tiff's complaint with Solicitor Schneider has to do with his participation in the le g a l actions against him about which plaintiff complains, the defendant would be e n title d to immunity from suit for the same reasons that Defendant Lupas would. In a n y case, because plaintiff makes no allegations against Defendant Schneider, we fin d that plaintiff's complaint against him is frivolous and baseless, and will dismiss th e action against him. B . Defendant Slussser P la in tiff names Sharon Slusser in the lawsuit, identifying her as a "Sugarloaf T o w n s h ip Neighbor." Many of the allegations in the complaint and other d o c u m e n t a tio n provided by the plaintiff reference Defendant Slusser. These a lle g a tio n s include complaints that Slusser allowed her children to trespass on p la in tiff's property, permitted them to engage in threatening behavior towards p la in tiffs , tore down a no trespassing sign posted by the plaintiff, used threatening, s la n d e ro u s and abusive language towards plaintiff and made false statements to in ve s tig a to rs . W h ile these allegations certainly evidence years of animosity and c o n flic t between plaintiff and Defendant Slusser and her family, they do not provide th is court with jurisdiction to hear claims against her. W e have construed plaintiff's claims as before this court pursuant to 42 U.S.C.

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§ 1983, which provides a cause of action for plaintiffs whose civil rights are violated b y those acting under color of state law. From plaintiff's complaint, it is clear that D e fe n d a n t Slusser is not an employee of Sugarloaf Township, nor could she be fairly c o n s tru e d as a state actor. We will accordingly dismiss that portion of the complaint a g a in s t Defendant Slusser that alleges she violated plaintiff's constitutional rights u n d e r the color of state law, since plaintiff cannot raise such a claim against her. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (holding that "[t]o state a claim for relief in an action brought under § 1983, respondents must e s ta b lis h that they were deprived of a right secured by the Constitution or laws of the U n ite d States, and that the alleged deprivation was committed under color of state la w . . . the under-color-of-state-law element of § 1983 excludes from its reach `m e re ly private conduct, no matter how discriminatory or wrongful[.]'") (citations o m itte d ) . Any claim against her under Section 1983 would therefore be baseless, a n d we will dismiss it. P la in tiff also alleges a cause of action under the Americans with Disabilities A c t (ADA), 42 U.S.C. § 12101, et seq., which provides persons with disabilities p ro te c tio n against discrimination in public services, accommodations and e m p lo ym e n t. Here, Defendant Slusser does not employ the plaintiff and does not o p e ra te as a public entity; she therefore could only be liable under the act if she w e re a private individual offering a public service. See 42 U.S.C. § 12182 (e s ta b lis h in g that "[n]o individual shall be discriminated against on the basis of

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d is a b ility in the full and equal enjoyment of the goods, services, facilities, privileges, a d va n ta g e s , or accommodations of any place of public accommodation by any p e rs o n who owns, leases (or leases to), or operates a public accommodation.). Since defendant Slusser does not perform any sort of public service or provide a p u b lic accommodation, any claim by plaintiff against her under the ADA would be in d is p u ta b ly meritless. See, e.g., Emerson v. Thiel College, 296 F.3d 184, 189 (3d C ir. 2002) (holding that individual defendants could not be liable under the ADA u n le s s they "own, lease or operate . . . a place of public accommodation."); G o o n e w a rd e n a v. State of New York, 475 F. Supp. 2d 310, 322 (S.D. N.Y. 2007) (fin d in g that individual private defendants could not be named under the ADA b e c a u s e "they do not operate, own or lease a private entity which offers public a c c o m m o d a t io n . " ) . W e will accordingly dismiss Defendant Slusser from the case.

C. Township Board of Supervisors T h e material attached to plaintiff's complaint contains only one allegation of in a p p ro p ria te behavior on the part of the Board of Supervisors. In one of his c o m p la in ts to the Pennsylvania Human Rights Commission, plaintiff appears to a lle g e that the Board of Supervisors refused to investigate complaints, enforce o rd in a n c e s or address matters of concern to the plaintiff because of plaintiff's d is a b ility , post-traumatic stress disorder. While plaintiff's allegations on this matter a re not entirely clear, if appears that he has attempted to state a claim under the A m e ric a n s with Disabilities Act, as well as a class-of-one equal protection claim.

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U n d e r the "class-of-one" theory, a plaintiff may obtain relief for equal protection vio la tio n s "where the plaintiff alleges that she has been intentionally treated d iffe re n tly from others similarly situated and that there is no rational basis for the d iffe re n c e in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The Third Circuit has held that a plaintiff asserting a "class of one" claim "must allege th a t (1) the defendant treated him differently from others similarly situated, (2) the d e fe n d a n t did so intentionally, and (3) there was no rational basis for the difference in treatment." Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). Such a c la im , therefore, is neither clearly frivolous or baseless, and we will allow service of p ro c e s s to the Board of Supervisors so that plaintiff can pursue this cause of action. D. Sugarloaf Police Officers 3 i. Chief John Hudson P la in tiff alleges that Police Chief Hudson refused to investigate his claims that S lu s s e r's son shot at him, as well as plaintiff's claims that Slusser's children had tre s p a s s e d on his property. Plaintiff alleges that the police irrationally refused to e n fo rc e the laws based on an animus towards him. In some sense, this claim a m o u n ts to a substantive due process claim under the Fourteenth Amendment: p la in tiff alleges that defendants failed to enforce the law against his neighbor,

Plaintiff includes with his complaint a summary of an investigation by the Governor's Center for Local Government Services of the Sugarloaf Township Police Department. The report is wide-reaching and critical in evaluating the performance of the department. It does not, however, address the facts that gave rise to plaintiff's claim and therefore is not relevant to the instant decision. 10

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in ju rin g the plaintiff by depriving him of his right to be safe in his home. The United S ta te s Supreme Court has been clear, however, that "nothing in the language of the D u e Process clause itself requires the State to protect the life, liberty, and property o f its citizens against invasion by private actors." Deshaney v. W in n e b a g o County D e p t. of Social Servs., 489 U.S. 189, 195 (1989). In Deshaney, the Court found that the plaintiff could not bring a substantive due process claim against child welfare a g e n c ie s for failing to protect him from physical abuse by his father. See Id. at 196 (h o ld in g that "our cases have recognized that the Due Process Clauses generally c o n fe r no affirmative right to governmental aid, even where such aid may be n e c e s s a ry to secure life, liberty, or property interests of which the government itself m a y not deprive the individual.") . Similarly, a claim for substantive due process vio la tio n s cannot lie here, as plaintiff alleges that the neighbor violated the law and c a u s e d his injuries. Plaintiff appears to allege, however, that the reason motivating the police's u n w illin g n e s s to enforce the laws when he complained was animus towards him b e c a u s e of his disability, post-traumatic stress disorder. In effect, plaintiff is raising a "class of one" equal protection claim. He contends that the Chief and other police o ffic ia ls irrationally refused to enforce the laws because of their individualized a n im u s towards him. The United States Supreme Court has stated that "[o]ur cases h a ve recognized successful equal protection claims brought by a `class of one,' w h e re the plaintiff alleges that she has been intentionally treated differently from

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o th e rs similarly situation and that there is no rational basis for the difference in tre a tm e n t." Village of W illo w b ro o k v. Olech, 528 U.S. 562, 564 (2000); see also, H o ld e r v. City of Allentown, 987 F.2d 188, 197 (3d Cir. 1993) (finding that "it has long b e e n established that discriminatory enforcement of a statute or law by state and lo c a l officials is unconstitutional."). Accordingly, our generous reading of the facts in th is case leads us to the conclusion that plaintiff's equal protection claim against C h ie f Hudson is not baseless or frivolous, and we will allow service of the complaint o n that issue. iii. Patrolman Tommy Brown D o c u m e n ta tio n included with the complaint indicates that Police Officer T o m m y Brown responded to several calls at the plaintiff's home, including some that o c c u r re d as late as 2006. Plaintiff complains that Officer Brown refused to take a c tio n or to investigate complaints against plaintiff's neighbor. He also appears to a lle g e that this inaction was the result either of defendant's animus towards the p la in tiff because of his disability or in retaliation for plaintiff's earlier, settled lawsuit a g a in s t the Township. For reasons similar to those related to Police Chief Brown, w e find these allegations sufficient to overcome the low hurdle set by the IFP act. Plaintiff could conceivably produce evidence that he had been denied police p ro te c tio n on the basis of his disability; if he could show that other similarly situated p e rs o n s were treated differently, he could make out a "class of one" equal protection c la im . We will therefore allow the complaint to be served on Patrolman Brown.

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E . Township Officials i. Wilbur Good T h e complaint names W ilb u r Good as the Township's tax collector. His c o m p la in t to the Pennsylvania Human Relations Commission contends that on A u g u s t 23, 2000 Defendant Good, "without cause or notice, put our home up for s a le . Retaliation." (Complaint to the Pennsylvania Human Relations Commission (D o c . 4-3) (hereinafter "PHRC Complaint") at ¶ 9). This is the only mention of Good in the materials provided by the defendant. State law applies to §1983 claims when d e te rm in in g the appropriate statute of limitations "if it is not inconsistent with federal la w or policy to do so." W ils o n v. Garcia, 471 U.S. 261, 265 (1985). Pennsylvania la w requires that the plaintiff commence his action within two years of his injury. See 4 2 Pa. CONS. STAT .ANN. §5524(7) (establishing a two-year statute of limitations for "a n y . . . action or proceeding to recover damages for injury to person or property w h ich is founded on negligent, intentional, or otherwise tortious conduct"). Moreover, Pennsylvania courts have ruled that the statute of limitations begins to run in cases where an injury is ongoing "when the plaintiff knows, or reasonably should k n o w : (1) that he has been injured, and (2) that his injury has been caused by a n o th e r party's misconduct." Cathcart v. Keene Indus. Insulation, 471 A.2d 493, 500 (P a . Super. Ct. 1984). Plaintiff's claim against Defendant Good therefore accrued in 2 0 0 0 , when he became aware of the defendant's efforts to have his home sold. Since plaintiff did not file his complaint until 2007, his claim against Good is barred 13

b y the statute of limitations and therefore could not succeed. We will dismiss D e fe n d a n t Good from the case because plaintiff's claims against him are frivolous a n d without legal basis. ii. Judy James The complaint names Judy James as the Sugarloaf Township Secretary. Nothing in the complaint alleges any improper behavior from Defendant James, and none of the supporting material provided by the plaintiff contains any allegations against her. Any claim against her would therefore be baseless and frivolous, and we will deny the motion to proceed in forma pauperis as it pertains to Judy James. iii. Stanley Gorsky Plaintiff's complaint against Stanley Gorsky, a township zoning officer, alleges that in 2002 he failed to investigate properly a complaint plaintiff filed against his neighbor for unauthorized construction on her property. (PHRC Complaint at ¶ 13). Plaintiff complained about this policy in 2002. (Id. at ¶ 14). According to plaintiff, Gorsky failed to enforce the law. (Id. at ¶ 15). As with Defendant Good, plaintiff's claim against Defendant Gorsky accrued in 2002, and the statute of limitations has therefore run. We will therefore deny plaintiff's motion to proceed in forma pauperis as it relates to Defendant Gorsky and dismiss the case against him. F . Township Fire Department P la in tiff complains that the Township Fire Department and its chief refused to re s p o n d to his complaints in July 2006 about his neighbor's illegal trash burning near h is home. (See Plaintiff's Final PHRC Complaint, attached as Doc. 4-2 in group of

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e x h ib its to Plaintiff's Complaint (Doc. 1) at ¶¶ 33-35). We take this complaint against th e fire department as one alleging a violation of plaintiff's equal protection rights: he c o n te n d s that the Township Fire Department refused to enforce the laws in an equal fa s h io n because of a prejudice against him. For the same reasons that we allow s e r vic e of the complaint against police department officials, we would allow service o f the complaint against the Fire Department for an equal protection violation. W e note that here, however, plaintiff does not name allege any specific a c tio n s by any individual fire department officials and therefore appears to bring suit a g a in s t the Fire Department and its Chief as an entity without describing any official p o lic y or custom that led to the violation of his rights. Respondeat Superior liability is u n a va ila b le under Section 1983. Instead, "a local governing body can be held liable o n ly for an official policy or custom." San Filippo v. Bongiovanni, 30 F. 3d 424, 445 (3 d Cir. 1994). Under the standard first articulated in Monell v. Dept. of Soc. Servs., "lo c a l governing bodies . . . can be sued directly under §1983 . . . where, as here, the a c tio n that is alleged to be unconstitutional implements or executes a policy s ta te m e n t, ordinance, regulation, or decision officially adopted and promulgated by th a t body's officers." Monell v. Dept. of Soc. Servs. of the City of New York, 436 U .S . 658, 690 (1978). Thus, "[a] public entity . . . may be held liable for the violation o f a constitutional right under 42 U.S.C. § 1983 only when the alleged u n c o n s titu tio n a l action executes or implements policy or a decision officially adopted o r promulgated by those whose acts may fairly be said to represent official policy."

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R e itz v. County of Bucks, 125 F.3d 139, 144 (3d Cir. 1997). Liability exists when "`th e re is a direct causal link between a municipal policy or custom and the alleged c o n s titutio n a l deprivation.'" Brown v. Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir. 2 0 0 1 ) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Since plaintiff h a s not alleged that any particular policy or custom caused his deprivation, but m e re ly states that on one occasion unnamed members of the Fire Department did n o t put out a fire he claimed was illegal, any action against the Fire Department must fa il. Even under the most generous reading of the facts, plaintiff could not make out a claim that the fire department had a policy or custom of not responding to calls b a s e d on the mental-health status of the caller. We therefore find all claims against th e Fire Department frivolous and will dismiss the Department from the case. V . Motion to Appoint Counsel P la in tiff also seeks to have the court appoint counsel to represent him in this d is p u te . This is a civil matter, and the Third Circuit Court of Appeals has pointed out th a t "[i]ndigent civil litigants possess neither a constitutional nor a statutory right to a p p o in te d counsel." Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). Still, fe d e ra l law allows "district courts statutory authority to `request appointed counsel for in d ig e n t civil litigants.'" Id. (quoting 28 U.S.C. § 1915(e)(1)). In the Third Circuit, c o u rts have "`broad discretion' to determine whether appointment of counsel in a civil c a s e would be appropriate." Id. (citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1 9 9 3 )). The Court has laid out several factors for a court to consider in determining

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w h e th e r to appoint counsel. First, "[a]s a threshold matter, a district court must a s s e s s whether the claimant's case has some arguable merit in fact and law." Id. at 4 9 8 -9 9 . Next, a court must evaluate several factors, including "1. the plaintiff's a b ility 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 p la in tiff to pursue investigation; 4. the plaintiff's capacity to retain counsel on his or h e r own behalf; 5. the extent to which a case is likely to turn on credibility d e term in a tio n s , and 6. whether the case will require testimony from expert w itne s s e s .'` Id. at 499 (quoting Tabron, 6 F.3d at 155-57). Though these factors are n o t exhaustive, "courts should exercise care in appointing counsel because vo lu n te e r lawyer time is a precious commodity and should not be wasted on frivolous c a s e s ." Id. W e have found that some of the allegations in plaintiff's complaint allow him to c le a r the low hurdle for service of process in cases brought pursuant to the in forma p a u p e r is statute. Meeting that standard, however, does not entitle plaintiff to an a p p o in te d attorney. Applying the factors articulated in Tabron v. Grace, supra, we c o n c lu d e that appointing an attorney for plaintiff would be inappropriate. Given the vo lu m in o u s filings and argument offered by the plaintiff, we are persuaded that he c a n present his own case. Similarly, the case against the remaining defendants d o e s not appear particularly complex, and the legal standards for overcoming any d e fen s e s are quite familiar. The case will turn on the facts, and plaintiff will not have

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to articulate any novel legal theories to prevail. W h ile plaintiff's case will require s o m e investigation, plaintiff's filings indicate he has undertaken some of that in ve s tig a tio n already. In addition, the defendants are public officials, and the a va ila b ility of records and testimony from such officials is not in question. Plaintiff c o n te n d s that he lacks resources to retain an attorney, and that factor should weigh in his favor. The remaining factors, however, weigh against appointing an attorney: th e case will largely turn on the fact-finder's credibility determination, and untangling p la in tiff's dispute with the police and township will not require the assistance of e xp e rt witnesses. Finally, because the court is not convinced that plaintiff's a lle g a tio n s will ultimately have merit, we will decline to expend limited legal re s o u rc e s on appointing an attorney in this case. We will therefore deny the p la in tiff's motion on this point. V I. Conclusion F o r the reasons stated above, we will grant the plaintiff's motion to proceed in fo rm a pauperis in part and deny it in part. W e will also deny the plaintiff's motion to h a ve the court appoint an attorney to represent him.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA WALTER M. SHAUD, Plaintiff : No. 3:07cv1212 : : (Judge Munley) : v. : : SUGARLOAF TOWNSHIP : SUPERVISORS, : JOHN HUDSON, : TOMMY BROWN, : JUDY JAMES, : STANLEY GORSKY, : WILBER GOOD, : SUGARLOAF TOWNSHIP FIRE : DEPARTMENT, : JAMES A. SCHNEIDER, : SHARON SLUSSER, : DAVID LUPAS, : DANNY O'DONNELL, : PETER PAUL OLSZEWSKI, JR., : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AND NOW, to wit, this 4th day of February 2008, the plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) is GRANTED in part and DENIED in part, as follows: 1) The Clerk of Court is authorized to issue summons and the plaintiff is authorized to serve the complaint for the following defendants: a) Sugarloaf Township Supervisors b) Tommy Brown 19

c) John Hudson 2) The motion to proceed in forma pauperis is DENIED with respect to all other defendants. The Clerk of Court is directed to CLOSE the case with respect to the following defendants: a) Judy James b) Stanley Gorsky c) Wilber Good d) Sugarloaf Township Fire Department e) James A. Schneider f) Sharon Slusser g) David Lupas h) Danny O'Donnell, and i) Peter Paul Olszewski, Jr. In addition, plaintiff's motion to appoint counsel (Doc. 3) is hereby DENIED

BY THE COURT:

s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court

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