DESABETINO v. BIAGINI et al

Filing 34

MEMORANDUM ORDER denying without prejudice Plaintiff's 25 , 30 Motions to Appoint Counsel, and denying Plaintiff's 27 , 28 Motions for Default Judgment against Defendant Kelly. The Court's Order from 8/9/2016 requiring Plainti ff to respond to Defendant Kelly's motion to dismiss on or before 9/21/2016 remains in place. Plaintiff is advised that failure to respond to this motion will result in the motion being decided without the benefit of his response. Signed by Magistrate Judge Cynthia Reed Eddy on 8/23/2016. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICHARD DESABETINO,
Plaintiff,
v.
OFFICER SEAN BIAGINI, et. al,
Defendants.

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Civil Action No. 2:16-cv-341

United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM ORDER
On March 24, 2016, Plaintiff, who is presently being held at Allegheny County Jail and
proceeding pro se, filed this action under the 42 U.S.C. § 1983 asserting violations of the Fourth,
Eighth, and Fourteenth Amendments of the United States Constitution based on events that
allegedly occurred in the circumstances leading up to his arrest. Pending before the Court are
four motions filed by Plaintiff on August 15 and 16, 2016: two renewed motions to appoint
counsel (ECF Nos. 25, 30) and two motions for default judgment against Defendant Officer
William Kelly (ECF Nos. 27, 28). These motions will be denied.
On April 5, 2016, the Court denied Plaintiff’s initial motion to appoint counsel based on
the following:
This case has only been recently filed and it is not yet clear to the Court whether it
has any merit, either in fact or in law. It may present complex credibility
determinations but at the present stage it is too early to make that determination.
As a pro se litigant plaintiff will have the benefit of Haines v. Kerner, 404 U.S.
519 (1972) and its progeny, which provides that courts must liberally construe pro
se pleadings. Considering the severe shortage of attorneys with experience and
knowledge in this area of the law, who are also willing to take these cases pro
bono, it does not appear that this case merits a request by this court for counsel to
represent him pursuant to 28 U.S.C. § 1915(e) at this point in the litigation.
Additionally, this Court notes that Local Civil Rule 10.C indicates that "[a]bsent
special circumstances, no motions for the appointment of counsel will be granted
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until after dispositive motions have been resolved." Aside from all of the
circumstances surrounding every incarcerated litigant, Plaintiff has set forth no
special circumstances that warrant granting counsel at this time. Should the case
survive any dispositive motions and appear ready to proceed to trial, the Court
will reconsider this request. Accordingly, Plaintiff's Motion for Appointment of
Counsel under 28 U.S.C. § 1915(e) shall be denied.
(ECF No. 7). After reviewing Plaintiff’s renewed motions for appointment of counsel (ECF Nos.
25, 30), the Court concludes that its previous reasoning above is equally applicable here.1
Therefore, these motions will be denied without prejudice, and if the case survives dispositive
motions and appears ready to proceed to trial, the Court will reconsider this request at that time.2
The Court notes that the other two motions for default judgment (ECF Nos. 27, 28) are,
for all practical purposes, duplicative. On July 7, 2016, Defendant Kelly filed a motion for
extension of time to file a Response to Plaintiff’s Complaint, specifically noting that he wished
to respond by filing a motion to dismiss. (ECF No. 19 at ¶ 5). The Court granted this motion the
following day, stating that “Defendant Kelly’s Response (Answer or Motion) is due by
8/8/2016.” (ECF No. 20). Consistent with this Order, Defendant Kelly timely filed a motion to
dismiss on August 8, 2016. (ECF No. 21). Plaintiff’s motions for default judgment, however,
contend that by not filing an Answer like the other Defendants on or before August 8, 2016,
Defendant Kelly has violated the Court’s above Order. This argument is without merit.

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The Court also notes that on August 15, 2016, Plaintiff filed a notice that he was appealing this
previous Order (ECF No. 7) which denied his initial motion to appoint counsel to the United States Court
of Appeals to the Third Circuit. (ECF No. 26). However, an “order denying [a] motion for appointment
of counsel is not a final order or otherwise appealable at this time.” Wesley v. Sec’y Pa. D.O.C., 569
Fed. App’x 123, 125 (3d Cir. 2014) (citing Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984)
(holding that an order denying a motion for appointment of counsel may be reviewed only on appeal
from the final judgment)). Therefore, because final judgment has not been entered and the case remains
ongoing, the Court retains jurisdiction over this matter.
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Consequently, Plaintiff’s concern about presenting evidence, cross-examining witnesses, and dealing

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The plain text of the Court’s Order belies this position because it states that Defendant
Kelly could file an Answer or a Motion. Because Defendant Kelly filed a motion to dismiss, he
was not required under Rule 12 to also file an Answer. See Brown v. Interbay Funding LLC, 198
Fed. App’x 223, 225 (3d Cir. 2006) (“[T]he time period for filing an answer is altered when a
defendant files a motion under Rule 12.”) (citing Fed. R. Civ. P. 12(a)(4)). Moreover, the fact
that Defendant Kelly has defended against the claims in the complaint by filing a motion to
dismiss precludes the entry of default against him, given that Defendant Kelly has not “failed to
plead or otherwise defend” the claims asserted against him in the complaint. See Fed. R. Civ. P.
55(a) (emphasis added). Therefore, Plaintiff’s motions for default judgment are denied.
AND NOW, this 23rd day of August, 2016, IT IS HEREBY ORDERED that Plaintiff’s
Motions for Appointment of Counsel (ECF No. 25, 30) are DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motions for Default Judgment (ECF Nos.
27, 28) are DENIED.
IT IS FURTHER ORDERED that the Court’s Order from August 9, 2016 requiring
Plaintiff to respond to Defendant Kelly’s motion to dismiss remains in place. Therefore, Plaintiff
shall respond to this motion on or before September 21, 2016. Plaintiff is advised that failure
to respond to this motion will be result in the motion being decided without the benefit of
his response.
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

with conflicting evidence during a jury trial is premature.

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cc:

RICHARD DESABETINO
86050
950 2nd Ave.
Pittsburgh, PA 15219
All counsel of record via CM-ECF

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