By letter dated November 14, 1973 (D 36), plaintiff informed the Court that on that same date Atty. David Wilderman and Mr. Otto Hoffman, a law student (both of Cumberland County Legal Services (D 32), met with him at Camp Hill but that he would not agree to their representation since they have never been associated in a suit against a government instrumentality and since they had declined to intervene when a guard allegedly served him a half portion of food.
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 challenging the constitutionality of the Pennsylvania Mental Health Act if that issue was reached by the Court.
A few days before the December 6th hearing, the Court contacted the president of the Dauphin County Bar Association to inquire whether there was some group, agency, or law firm which would offer to represent plaintiff without compensation. As a result of that inquiry, Mrs. Patricia Kemp agreed to meet with plaintiff to determine whether his case would merit the attention of the American Civil Liberties Union. Mrs. Kemp, in fact, conferred with plaintiff for about twenty minutes prior to the hearing and patiently made herself available for consultation by plaintiff throughout the entire proceeding.
At the hearing, the Court asked plaintiff whether he would accept the representation of Mrs. Kemp. After some equivocation,
plaintiff rejected the offer on the grounds that the state was not being compelled to pay for her services. Plaintiff also reaffirmed his previous rejection of the services of Mr. Isaac Pepp, Mr. David Wilderman and Mr. Otto Hoffman. Although plaintiff apparently suffered from the misconception that to accept such services would somehow prejudice his right to pursue his motion, I find and conclude that plaintiff, in spite of the reasons assigned by him, declined the services of attorneys contacted on his behalf because the state had not been placed under a court order to provide and pay for such services. From plaintiff's refusal to testify, from his attitude toward the Court, and from the expression of his legal theory, I am convinced that plaintiff has not pursued his motion as vigorously as he has in order to secure professional assistance, but rather to badger those charged with his care and custody.
Throughout the entire proceeding, plaintiff was unruly, disruptive and contemptuous. His responses to inquiries from the Court were evasive, argumentative, and deliberately equivocal and calculating. At the conclusion of the hearing, the Court addressed plaintiff with the following observation:
"And I think it should be noted for the record that in my mind you are a man of some substantial intelligence
and that you deliberately evade questions I pose to you because you don't want to be forced to give an answer on which the Court may be able to make a ruling. At this time I don't think you are interested in an adjudication of the issue, you are interested in extending this case just as long as you can."
I adhere to those observations today and conclude that, under the circumstances of this case, plaintiff is not entitled to the appointment of counsel in the manner requested. Every effort has been made to provide counsel for plaintiff, and since he has no desire to accept representation except upon his conditions, I see no reason why such efforts should continue ad infinitum.
Moreover, I am of the opinion that plaintiff's reliance upon Gilmore v. Lynch, supra, is misplaced. In the first place, the Court in Gilmore was specifically confronted with regulations promulgated by the California Bureau of Corrections which limited the number and titles of law books in state prison libraries. In the second place, the Court in Gilmore did not hold that a prisoner is automatically entitled to either an adequate law library or state-provided counsel. The main thrust of that decision is that the state may not prohibit a prisoner from utilizing whatever means are necessary for obtaining a fair hearing.
In the instant case, plaintiff has in no way been denied access to the courts. While it may be that the library facilities at Camp Hill offer meager fare for a prisoner or counsel substitute, plaintiff has been afforded ample opportunity to avail himself of the services of an attorney. Plaintiff, however, has declined those services solely because the state was not ordered to pay for them. Even if the Commonwealth were held to be under an affirmative duty to provide counsel for plaintiff, I do not believe it can be compelled to offer those services in the manner which plaintiff demands. See Page v. Sharpe, 487 F.2d 567 (1st Cir. 1973); Brown v. Sielaff, 363 F. Supp. 703 (W.D.Pa.1973); Hampton v. Schauer, 361 F. Supp. 641 (D.Col.1973); Lee v. Stynchcombe, 347 F. Supp. 1076 (N.D.Ga.1972); Cruz v. Hauck, 345 F. Supp. 189 (W.D.Tex.1972), rev'd. and remanded, 475 F.2d 475 (5th Cir. 1973); and cf. Noorlander v. Ciccone, 489 F.2d 642 (8th Cir. 1973); White v. Sullivan, 368 F. Supp. 292 (S.D.Ala.1973); Hooks v. Wainwright, 352 F. Supp. 163 (M.D.Fla.1972); Collins v. Schoonfield, 344 F. Supp. 257 (D.Md.1972).
Accordingly, plaintiff's motion to have the Commonwealth of Pennsylvania provide him with counsel will be denied.