Binsack v. Lackawanna County District Attorney's Office et al

Filing 26

MEORANDUM and ORDER DENYING MOTION to Appoint Counsel filed by Scott J. Binsack, Sr. Signed by Honorable James M. Munley on 9/18/08. (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA SCOTT J. BINSACK, SR., Plaintiff : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : No. 3:08cv1166 (Judge Munley)

v. LACKAWANNA COUNTY DISTRICT ATTORNEY'S OFFICE, D.A. ANDREW JARBOLA, D.A. EUGENE TALERICO, A.D.A. COREY KOLCHARNO, A.D.A. MARYANNE GRIPPO, A.D.A. PAUL PETERSON, BRIAN KOSCH, District Attorney Detective, JOHN R. COLAN, III, District Attorney Detective, JOHN & JANE DOE, District Attorney Detectives and Prosecutors, JEROME SEBASTIANELLI, GARRET STEVER, DAVID KUTNEY, MICHAEL McCARTY, Vice President, Bank of America, HARRIS CUTLER, Owner, Phillip G. Ball & Co., MICHAEL H. ROTH, Esq., BOROUGH OF CLARKS SUMMIT, CLARKS SUMMIT BOROUGH POLICE DEPARTMENT, LOUIS J. VITALE, JR., Police Chief, OFFICER ROBERT SHEDLOCK, FRANK J. SANTAMAURO, Esq.,

EUGENE KELLEY, Esq., : TIMES SHAMROCK : COMMUNICATIONS, : LAWRENCE K. BEAUPRE, : DAVID FALCHEK, : ROSEMARY DAVIS, : COUNTY OF LACKAWANNA, : JOHN FALCON, : BRITTANY JULIAN, : P.J. WALTER CARLSON, : LACKAWANNA COUNTY PRISON, : WARDEN JANINE M. DONATE, : DEPUTY WARDEN TIM BETTI, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is the plaintiffs' motion for appointment of counsel (Doc. 5) in the instant civil-rights action. Background T h is case arises out of plaintiff's arrest and criminal indictment by Defendant L a c k a w a n n a County District Attorney's Office in July 2007. Plaintiff, who operated a s a large contractor building expensive homes in the area around Scranton, P e n n s ylva n ia , alleges that certain business associates and law enforcement officials c o n s p ire d to achieve "the alleged and wrongful arrest and incarceration of Plaintiff, th e public and financial debilitation of Plaintiff, the illegal takeover of Plaintiff's c o rp o ra tio n s and the assets thereof, and the illegal seizure and closure of Plaintiff's o ffic e , and thus, the complete and utter financial destruction thereof [sic] said

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c o rp o ra te entities." (Complaint (Doc. 1) at ¶ 63). Plaintiff filed the instant complaint and motion for leave to proceed in forma p a u p e ris on June 19, 2008. Count I of the complaint raises due process and equal p ro te c tio n claims against the Lackawanna County prosecutors, detectives and b o ro u g h officials. Plaintiff alleges unlawful arrest and malicious prosecution, as well a s improper search and seizure of his personal and business property. He also c o n te n d s that the defendants conspired to commit these constitutional violations. Count II raises claims against the non-governmental defendants for conspiring with th e prosecutors and borough officials to deprive him of his constitutional rights. Count III raises alleges that the Lackawanna County District Attorney's office and A s s ista n t District Attorneys within that office failed to provide proper training to e m p lo ye e s , and that these failings led to a violation of plaintiff's rights. Count IV, ra is e d against Lackawanna County, the Clarks Summit Police Department, the B o ro u g h of Clarks Summit and its Police Chief, alleges a similar failure-to-train claim a g a in s t those entities. Count V alleges that Lackawanna County, the Lackawanna C o u n ty Prison, and the W a rd e n and Deputy W a rd e n of that prison failed to provide a d e q u a te training to officers and employees. This lack of training, plaintiff contends, le d defendants to fail to provide proper public access to hearings and arraignments. Count VI brings a malicious prosecution/wrongful use of proceedings claim against th e prosecutors and borough officials. Count VII is an intentional or negligent in flic tio n of emotional distress claim against all of the defendants. Count VIII is a

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s ta te -la w false arrest and false imprisonment claim. In Count VIII, plaintiff alleges th a t all of the defendants defamed him by publicizing his arrest. Count IX brings a to rt claim for false light based on public statements about the plaintiff. Plaintiff raises a common law conspiracy claim against all the defendants in Count X. The c o m p la in t seeks $42 million in actual damages, in addition to punitive damages, in te re s t, costs and attorney's fees. Jurisdiction B e c a u s e plaintiff brings his complaint pursuant to 42 U.S.C. § 1983, we have ju ris d ic tio n pursuant to 28 U.S.C. §1331 ("[t]he district courts shall have original ju ris d ic tio n of all civil actions arising under the Constitution, laws, or treaties of the U n ite d States."). W e have supplemental jurisdiction over the plaintiff's state law c la im s pursuant to 28 U.S.C. § 1367. D i s c u s s io n P la in tiff requests that the court appoint him counsel because his case is c o m p le x and he lacks the funds to obtain counsel himself. The law provides that the c o u rt may request an attorney to represent a party unable to employ counsel. 28 U .S .C . § 1915; Local Rule of Civil Procedure 83.34.1-83.34.4. The United States C o u rt of Appeals for the Third Circuit has delineated the following factors to consider in determining whether counsel should be appointed to a pro se civil litigant: 1) w h e th e r the plaintiff's claim contains arguable merit; 2) whether the pro se litigant h a s demonstrated the ability to present his own case; 3) the difficulty of the particular 4

le g a l issues; 4) the degree to which a factual investigation will be required and the a b ility of the indigent plaintiff to pursue such investigation; and 5) the extent to which th e case is likely to turn on credibility determinations. Tabron v. Grace, 6 F.3d 147, 1 5 6 (3d Cir. 1993). The Tabron court further noted that significant practical re s tra in ts temper the court's ability to appoint counsel and that volunteer lawyer time is a precious commodity. Because volunteer lawyer time is limited, every a s s ig n m e n t of a volunteer lawyer to an undeserving client deprives society of a vo lu n te e r lawyer for a deserving cause. Id. at 157. The first of the factors outlined in Tabron­whether the claims have arguable merit­weighs heavily against the plaintiff. Plaintiff brings a variety of claims against b o th private actors and government officials. Many of these claims relate to p la in tiff's 2007 arrest, a charge which has not yet been resolved. Any claims for m a lic io u s prosecution or false arrest­as well as other constitutional claims related to th e prosecution­cannot be raised before this court until the criminal prosecution e n d s in plaintiff's favor. Those claims therefore clearly lack merit. Similarly, any c la im s against judicial officials and prosecutors for their actions in bringing about p la in tiff's arrest and prosecution most likely cannot survive the various doctrines of im m u n ity that apply to such cases. Plaintiff also appears to bring civil rights c o m p la in ts against non-state actors, which also lack merit and would also be quickly d is m is s e d . W h ile the court offers no ruling on the ultimate merit of plaintiff's claims, th e court finds them dubious at best.

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T h e second of the Tabron factors also weighs against appointing counsel for th e plaintiff. Plaintiff's complaint, more than 100 pages in length, is lucid and o rg a n iz e d , and plaintiff makes relevant allegations and cites to applicable law. W h ile n o t a model of concise legal drafting, the complaint presents plaintiff's claims in a m a n n e r that allows the court to evaluate them and the defendants to answer them. Further, plaintiff has sent the court several letters addressing the status of his case. (See Docs. 21, 23-24). In those letters, plaintiff insists to the court that he u n d e rs ta n d s the applicable law. Though plaintiff contends that he cannot work on h is case because he is presently incarcerated and lacks access to adequate re s o u rc e s to research his case, the court concludes that he is able to address the re le va n t legal issues with the resources he has. W h a te v e r the ultimate merit of his a lle g a tio n s , plaintiff has demonstrated the ability to present his own case. The third factor outlined in Tabron similarly counsels against appointing c o u n s e l. The matter is not exceedingly complex. The legal standards for plaintiff's c la im s of malicious prosecution, false arrest, unlawful search and seizure, municipal lia b ility and various state-law torts are well-established and relatively straightforward. Plaintiff need not research obscure or esoteric legal doctrines in order to understand w h a t he must prove to prevail in his case. He simply needs to address the s ta n d a rd s commonly used in federal civil rights suits. Plaintiff's complaint already d e m o n s tra te s that he understands the law associated with his claim, and that law is

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the re fore not too complex for him to address without the assistance of a lawyer.1 T h e amount of factual investigation in the case will also not be extensive and n o t require the intervention of an experienced attorney to conduct. The key to p la in tiff's federal claims will be demonstrating that he was wrongly charged and p ro s e c u te d . To do so, he must first prove that the prosecution against him ended in h is favor. Providing proof of that fact will be simple; plaintiff himself knows if he has b e e n acquitted or the charges dropped. Assuming that plaintiff could show that his c a s e ended in his favor, the investigation in the case would not be exceedingly d iffic u lt; plaintiff could easily gain access to public records such as police reports and c o u rt testimony as he sought to establish that he had been wrongfully accused. The fo u rth Tabron factor, the amount of factual investigation required, also weighs a g a in s t appointing counsel. T h e court finds the fifth factor­the extent to which the case will turn on c re d ib ility determinations­also to weigh against appointment of counsel. If plaintiff w e re actually to bring to trial his claims of conspiracy, malicious prosecution, false a rre s t, and unlawful search and seizure, the outcome would largely turn on whether a jury believed defendants' explanations for the decisions to prosecute the plaintiff. Plaintiff also points to the sheer size and number of defendants named in the complaint as evidence that the case is exceedingly complex and requires counsel. In examining the complaint, however, the court concludes that many of these defendants could not be liable, and that the complaint is not nearly as complex as its length would imply. Furthermore, to allow a plaintiff appointed counsel simply because he files a long, factually detailed complaint that names dozens of superfluous defendants would be to encourage pro se plaintiffs to clog the court system with bloated filings in their attempt to justify appointed counsel. 7
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S u c h a case does not require plaintiff to engage expert witnesses, prepare elaborate d ire c t or cross examinations based on complicated factual material or construct d e ta ile d exhibits. Plaintiff need only identify for the jury implausibilities and in c o n s iste n c ie s in witnesses' statements and testimony and convince a jury not to b e lie ve those witnesses. Those types of credibility determinations do not require a p p o in te d counsel. A ll five of the Tabron factors therefore weigh against the plaintiff, and the court w ill deny plaintiff's motion for appointment of counsel.2 Given the scarcity of a va ila b le volunteer representation for pro se clients, the court will not expend the c o u rt's limited resources on this case. The case does not appear to have even a rg u a b le merit, and the plaintiff has demonstrated an ability to advance his interests w ith o u t the assistance of counsel. An appropriate order follows.

Plaintiff's motion for appointment of counsel also included a motion for service of the complaint by U.S. Marshalls. Because plaintiff also filed a motion to proceed in forma pauperis, the court delayed ruling on this motion until it determined whether to grant plaintiff in forma pauperis status or dismiss his case as frivolous and indisputably meritless. The plaintiff has now informed the court that he intends to pay the required filing fee. The court will wait to rule on plaintiff's motion for special service until after plaintiff submits the required filing fee. 8

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA SCOTT J. BINSACK, SR., Plaintiff : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :
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No. 3:08cv1166 (Judge Munley)

v. LACKAWANNA COUNTY DISTRICT ATTORNEY'S OFFICE, D.A. ANDREW JARBOLA, D.A. EUGENE TALERICO, A.D.A. COREY KOLCHARNO, A.D.A. MARYANNE GRIPPO, A.D.A. PAUL PETERSON, BRIAN KOSCH, District Attorney Detective, JOHN R. COLAN, III, District Attorney Detective, JOHN & JANE DOE, District Attorney Detectives and Prosecutors, JEROME SEBASTIANELLI, GARRET STEVER, DAVID KUTNEY, MICHAEL McCARTY, Vice President, Bank of America, HARRIS CUTLER, Owner, Phillip G. Ball & Co., MICHAEL H. ROTH, Esq., BOROUGH OF CLARKS SUMMIT, CLARKS SUMMIT BOROUGH POLICE DEPARTMENT, LOUIS J. VITALE, JR., Police Chief,

OFFICER ROBERT SHEDLOCK, : FRANK J. SANTAMAURO, Esq., : EUGENE KELLEY, Esq., : TIMES SHAMROCK : COMMUNICATIONS, : LAWRENCE K. BEAUPRE, : DAVID FALCHEK, : ROSEMARY DAVIS, : COUNTY OF LACKAWANNA, : JOHN FALCON, : BRITTANY JULIAN, : P.J. WALTER CARLSON, : LACKAWANNA COUNTY PRISON, : WARDEN JANINE M. DONATE, : DEPUTY WARDEN TIM BETTI, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 18th day of September 2008, the plaintiff's motion for a p p o in tm e n t of counsel (Doc. 5) is hereby DENIED.

BY THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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