The opinion of the court was delivered by: EDUARDO C. ROBRENO
Plaintiffs are Daryl Cook, an inmate at a state correctional institution, and his wife Juanita Cook, who is not incarcerated. The plaintiffs have filed a complaint under 42 U.S.C. § 1983 alleging that defendant James Boyd, a counselor at Graterford prison where plaintiff Daryl Cook ("Cook") was formerly housed, subjected Cook to cruel and inhuman punishment in violation of the Eighth Amendment, denied him his right to protect his family interests and his right to access to the courts without due process, and violated his right to equal protection under the laws when Boyd prohibited Cook from participating over the telephone in his daughter's custody hearing. As a corollary to these claims, the plaintiffs also assert that Juanita Cook, the child's stepmother, was deprived of her constitutional rights when her husband was prohibited from participating in the custody hearing.
Presently before the Court are Cook's and Boyd's cross motions for summary judgment. For the reasons that follow, the Court will deny Cook's motion for summary judgment and grant Boyd's motion.
On approximately August 4, 1994, Cook was transferred from the State Correctional Institution at Frackville to Graterford, where he was placed in a Restricted Housing Unit. On August 16, 1994, he received a misconduct report for unauthorized use of the telephone after reportedly disobeying a corrections officer's order to hang up the telephone. The following day, attorney James Alter, who was appointed by the Juvenile Court of Allegheny County to represent Cook's interest in a custody hearing involving Cook's daughter, telephoned Graterford to request that Cook be allowed to participate by telephone at the custody hearing. At this hearing, a determination as to whom to award custody of Cook's daughter was to be made in light of a petition by Children & Youth Services to place the child in foster care and to terminate the custodial rights of the child's biological mother. Boyd answered the call and informed Alter that Cook had received a misconduct report for unauthorized use of the telephone and that his telephone privileges had been suspended. As a result of not being able to take the call, Cook did not participate in the hearing. At the hearing the court awarded custody of Cook's daughter to Juanita Cook.
Cook filed the present pro se lawsuit seeking damages as a result of Boyd's actions and the Court permitted Cook to proceed in forma pauperis. Cook shortly thereafter filed an amended complaint, adding Juanita Cook as a plaintiff. Juanita Cook now seeks to proceed in forma pauperis. Both plaintiffs also seek appointment of counsel.
The standards by which a court decides a summary judgment motion do not change when the parties file cross motions. Southeastern Pennsylvania Transit Auth. v. Pennsylvania Pub. Utility Comm'n, 826 F. Supp. 1506, 1512 (E.D. Pa. 1993), aff'd, 27 F.3d 558 (3d Cir. 1994). Summary judgment may thus be granted only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on cross motions for summary judgment, a ruling court must consider the motions independently. Williams v. Philadelphia Hous. Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994). Accordingly, the evidence in each motion is viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The moving party bears the initial burden of pointing out the absence of genuine issues of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986), but once it has done so, the party opposing the motion cannot rest on its pleadings, see Fed. R. Civ. P. 56(e). Rather, the opposing party must come forward with facts showing that a genuine issue exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986).
The first issue the Court addresses is whether to permit Juanita Cook to proceed in forma pauperis. It appearing that Juanita Cook indeed cannot afford the filing fee, her motion to proceed in forma pauperis is granted. Her claim is dismissed as frivolous, however, as the Court concludes that the claim is "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989) (discussing 28 U.S.C.A. § 1915(d) (West 1966)). In order for plaintiff Juanita Cook to state a compensable claim under 42 U.S.C. § 1983 she must assert that "(1) . . . the conduct complained of was committed by a person acting under color of state law; and (2) [that] this conduct deprived [her] of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 537, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). Juanita Cook ...