CALDWELL v. FOLINO et al

Filing 137

Memorandum ORDER denying 136 Motion for Judgment, Motion for Appointment of Counsel. Signed by Judge Maureen P. Kelly on 7/13/2011. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CLAY CALDWELL,
Plaintiff,
v.
SUPERINTENDENT LOUIS FOLINO,
et al.,
Defendants.

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Case No. 2:08-cv-00122
Magistrate Judge Maureen P. Kelly

MEMORANDUM ORDER
Clay Caldwell (APlaintiff@) has brought this civil rights suit against nine employees of the
Department of Corrections stemming from events that allegedly took place while he was
incarcerated at the State Correctional Institution at Greene. The case has proceeded through
discovery and cross-motions for summary judgment are currently pending.
Presently before the Court is Plaintiff’s “Petition for Judgment in the Plaintiff’s Motion
for Summary Judgment,” in which he argues that he is entitled to judgment as a matter of law
because Defendants’ Answer to the Complaint was untimely filed and that the changes in judges
assigned to his case have impeded the judgment. [ECF No. 136]. Citing to mistakes that he
has made litigating this case, Plaintiff ask that counsel be appointed to represent him in order to
expediting the pending proceedings.1
As this Court has previously set forth, section 1915(e)(1) gives the Court broad discretion
to determine whether 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

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The Court notes at the outset that this is Plaintiff’s sixth request for the appointment of counsel, [ECF Nos. 47, 57,
65, 107, 134], and that his fifth request was filed one week ago and denied only six days ago. [ECF Nos. 134, 135].
Moreover, Plaintiff filed a motion on May 3, 2001, asking the Court to expedite its ruling on his motion for summary

matter the district court should consider whether Plaintiff’s claim has arguable merit in fact or
law. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). See Tabron v. Grace, 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 v. Johnson, supra. “The 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 not be wasted on
frivolous cases.” Id. at 458.
The Court previously considered Plaintiff’s allegations as well as the six factors listed
above and determined that the appointment of counsel was not warranted. [ECF No. 107].
Specifically, the Court found that Plaintiff is an experienced pro se litigator, having filed at least
nine prisoner actions in the federal courts of Pennsylvania since 2006, and that the two discrete
legal issues remaining in the case are neither complex nor beyond Plaintiff’s ability to conduct
sufficient discovery. See e.g., ECF No. 104 (motion to compel). Indeed, not only is Plaintiff’s

judgment which was denied less than one week ago. [ECF Nos. 132, 135].

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equal protection claim fairly straight forward but his claim of sexual harassment may be
dismissible as being procedurally defaulted. The Court also found that while the case may well
turn on credibility determinations, that factor is relevant only to the extent that the case will go to
trial which, in the Court’s estimation, is highly unlikely. Finally, the Court has already found
that expert testimony is not likely to be needed and that Plaintiff therefore had not shown
entitlement to the appointment of counsel. Plaintiff has not offered any new arguments in
support of his motion for the appointment of counsel and, as such, his motion will be denied.
To the extent that Plaintiff complains that his case has been delayed and asks for an
expedited ruling on his motion for summary judgment, the motion will also be denied.
Notwithstanding the absence of any authority to support Plaintiff’s theory that the untimely filing
of an Answer to the Complaint entitles him to judgment as a matter of law, it is clear from the
record that any delay in filing the Answer was not only due to the unique procedural posture of
the case but has not resulted in any prejudice to Plaintiff. The record demonstrates that
Defendants filed a motion to dismiss in lieu of an Answer on September 15, 2008. [ECF Nos.
40, 41]. See Fed. R. Civ. P. 12(b). In a Memorandum Opinion and Order filed by this Court on
July 1, 2009, the Defendants’ motion to dismiss was granted in part and denied in part. The
Court also dismissed the only surviving claim sua sponte based on Plaintiff’s failure to exhaust
administrative remedies and closed the case. Plaintiff then appealed to the Court of Appeals for
the Third Circuit on July 17, 2009, [ECF Nos. 72, 75], which issued an Opinion on October17,
2010, vacating in part the previous orders entered by this Court, and remanding the matter for
further proceedings. [ECF No. 96]. Fourteen days later, on November 1, 2010, the Court
entered a Case Management Order setting deadlines for completing discovery and the filing of
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dispositive motions. [ECF No. 99]. No one, including Plaintiff, appeared cognizant of the fact
that an Answer to the Complaint had not been filed before the case was appealed fifteen months
earlier until counsel for Defendants was preparing a response to Plaintiff’s recently filed motion
for summary judgment. [ECF No. 119, n. 1]. Having completed the discovery process, and
having filed a motion for summary judgment on his own behalf as well as responded to
Defendants’ motion for summary judgment within a day of the Answer being filed it is difficult
to see how Plaintiff has been prejudiced.
Nor has Plaintiff demonstrated that he has been prejudiced by the recent reassignments of
his case to other judges. Plaintiff’s case was reassigned to Magistrate Judge Cathy Bissoon
following the unexpected death of Chief Magistrate Amy Reynolds Hay so that the case could
proceed until a new Magistrate Judge was appointed and any delay or prejudice to Plaintiff would
be avoided. The undersigned was appointed to replace Judge Hay on June 13, 2011, and exactly
one week later was assigned Plaintiff’s case. In the interim, discovery was conducted and
motions for summary judgment were filed. The motions have been placed on the undersigned’s
motions list according to the date it was filed and will be addressed in due course. Plaintiff’s
case therefore has proceeded according to schedule notwithstanding the two reassignments.2
Accordingly, this 13th day of July, 2011, upon consideration of Plaintiff’s “Petition for
Judgment in the Plaintiff’s Motion for Summary Judgment” [ECF No. 136], IT IS HEREBY
ORDERED that, to the extent that Plaintiff is asking the Court to expedite ruling on his motion
for summary judgment and has requested the appointment of counsel in order to expedite these

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Moreover, inasmuch as Plaintiff complains that the reassignments were made without his consent, it is well settled
that parties are not entitled to the judge of their choice but only to one that is impartial. Tai-Nan v. Wilson, 336
Fed. Appx. 256, 262 (3d Cir. 2009).

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proceedings, the motion is DENIED.
/s/ Maureen P. Kelly
United States Magistrate Judge

cc:

Clay Caldwell
EM-2163
S.C.I. Greensburg
165 SCI Lane
Greensburg, PA 15601-9103
All Counsel of record via CM/ECF

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