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SILO v. COMMISSIONER OF PENNSYLVANIA BUR. OF CORRE

April 4, 1974

Jerome SILO
v.
COMMISSIONER OF PENNSYLVANIA BUREAU OF CORRECTION and Ernest S. Patton, Supt.


Nealon, District Judge.


The opinion of the court was delivered by: NEALON

NEALON, District Judge.

 In this civil rights action, the sole question to be decided at this time is whether plaintiff Jerome Silo, an inmate in the State Correctional Institution at Camp Hill, is constitutionally entitled to have the Commonwealth of Pennsylvania provide him with legal counsel, subject to his approval or rejection. The thrust of plaintiff's theory is that since the Camp Hill facility purportedly does not have an adequate legal library, he is not only entitled to have the state retain counsel for him in order to assist him in seeking redress of his grievances, Gilmore v. Lynch, 319 F. Supp. 105 (N.D.Calif.1970), aff'd. sub nom. Younger v. Gilmore, 404 U.S. 15, 92 S. Ct. 250, 30 L. Ed. 2d 142 (1970); Hooks v. Wainwright, 352 F. Supp. 163 (M.D.Fla.1972), but that he must also be free to reject counsel provided by the state. Plaintiff further insists that the counsel he selects must be paid on a fee basis by the state.

 An evidentiary hearing was held before this Court on December 6, 1973, in order to explore the legal and factual underpinnings of plaintiff's theory. For the reasons stated below, I now conclude that plaintiff is not entitled to have the state provide him with counsel under the conditions specified by him. At that hearing, the Court also sought to determine whether there was any basis underlying an avalanche of allegations filed by plaintiff in which he complained, among other things, that he was being subjected to cruel and unusual punishment and that he was being pinpointed for execution. Over a host of objections, the Court repeatedly requested plaintiff to produce whatever evidence he had to support his application for a temporary restraining order. Plaintiff called one witness, James Ballard Hakanson, but his testimony fell far short of supporting plaintiff's claims of abuse and maltreatment. Accordingly, the application for a temporary restraining order was denied.

 Because of the nature of this case, I deem it appropriate to trace plaintiff's motion for the appointment of counsel from its inception to the December 6th hearing.

 On August 22, 1973, plaintiff filed his first motion to compel the state to provide him with counsel. (Document 4) By order of September 4, 1973, plaintiff's motion was denied (D 7), but upon reconsideration, this Court, by order of September 20, 1973, directed the parties to brief the issue. (D 13). On October 13, 1973, plaintiff, in his second motion for the appointment of counsel, stated that "Silo wants the record to unmistakably show that he unequivocally wishes to set this precedent in this instant case and wishes to alert Judge Nealon to the fact that his honor has denied motion to 'appoint'." (D 18) In that motion, plaintiff further suggested that the Court should establish guidelines in order to preclude the possibility of a conflict of interest in having the state select an attorney for him.

 On November 3, 1973, at the request of the Pennsylvania Deputy Attorney General, Marc Kapustin, Esq., Atty. Isaac Pepp, Assistant Defender, Defender Association of Philadelphia, attempted to interview plaintiff at Camp Hill but Silo refused to speak with him. (D 32) By letter dated November 5, 1973, (attached to D 31), plaintiff informed the Court that he had previously spoken with Mr. Pepp on July 20, 1970, at which time he formed the opinion that he would not trust Mr. Pepp to challenge the constitutionality of the Pennsylvania Mental Health Act. Plaintiff also emphasized that he "needs a lawyer with a track record of independence who has in the past represented such suits."

 In a letter addressed to the Court and filed on November 14, 1973, (D 34), plaintiff stated in part:

 
"The State does not have an adequate law library available to me. This does not mean I am entitled to a 'GOVERNMENT AGENCY ATTORNEY', merely. I should be able to telephone a number of private attorneys and find someone with a 'track record' of suing government agencies on behalf of a prisoner and winning such suits. In other words I am entitled to select an attorney but this cannot be feasible without free and liberal access to telephone calls (a large number) until I contact an attorney of my choice. The attorney should submit to me in advance a retainer bill for his services and the State should pay. This must be the 'penalty' that the State must and should pay under Gilmore.
 
"Only in a dictatorship country could I conceive of the shocking occurrences happening to some one as it's obviously happening in my case. Marc Kapustin, with the Aid and ABETTING of the law clerk of the district court judge in my action, -- has been selecting under the 'AEGIS OF GOOD FAITH OF THE COMMONWEALTH' -- 'OEO' attorneys to talk to me, and ' free to the State ' -- parties such as defender association lawyer Isaac Pepp. The question of such attorneys being qualified or appropriate is a question that must be considered irrelevant or moot." (emphasis in the original)

 In a document filed November 14, 1973 (D 37), plaintiff reiterated his position that he should be able to call an attorney of his choice with a "fee generating case" and that such an attorney should not be associated with a government agency, such as legal aid or a defender association. Finally, upon being informed of the December 6th hearing, plaintiff threatened not to testify and to remain mute unless he were afforded the assistance of counsel of his choice.

 In addition to the above, on October 3, 1973, plaintiff, threatened with an immediate transfer to Farview State Mental Hospital for an evaluation, requested Court to contact Atty. David Ferleger of the Mental Patient Civil Liberties Project (D 22). In response, my law clerk called Mr. Ferleger who declined to enter an appearance on behalf of plaintiff. Mr. Ferleger, however, did indicate a desire to file an amicus brief ...


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