The opinion of the court was delivered by: Thomas I. Vanaskie, Chief Judge Middle District of Pennsylvania
On May 31, 2005, Bernard Scott, an inmate presently housed at the Greene State Correctional Facility ("SCI-Greene") in Waynesburg, Pennsylvania, brought this civil rights action pursuant to 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. Scott alleges that while housed in the Restricted Housing Unit ("RHU") at the Mahanoy State Correctional Facility ("SCI-Mahanoy"), in Frackville, Pennsylvania, he was assaulted by corrections staff in retaliation for filing grievances, denied medical care for his injuries, given a false misconduct and placed in a "hard cell" where he was denied clothing and other necessities.*fn1 Named as defendants are the following SCI-Mahanoy Department of Corrections ("DOC") employees:
Tracey Mooney, R.N.; Corrections Officer ("CO") Griffith and CO Shovlin.
Presently pending is Plaintiff's Motion for Leave to File an Amended Complaint (Dkt. Entry 19) as well as Defendants' Motion to Strike (Dkt. Entry 21). The Motion to Strike will be construed as Defendants' brief in opposition to the Motion to File an Amended Complaint. Also pending are Scott's two motions for the appointment of counsel. (Dkt. Entries 17 and 23.) For the reasons set forth below, Scott's requests for counsel and his Motion to Amend will be denied.
Scott alleges that on March 16, 2004, he was housed in SCI-Mahanoy's RHU. On that day unnamed corrections officers came to his cell to advise him he had a medical appointment with an institutional physician, Dr. Modery. He was handcuffed behind his back and removed from his RHU cell. Scott alleges that, contrary to RHU policy, Scott's cell movement was not videotaped. Scott claims that he was taken to the RHU's triage room where he was physically assaulted by COs Griffith and Shovlin, as well as Nurse Mooney. Plaintiff asserts he was assaulted in retaliation for past grievances and lawsuits filed against unidentified corrections staff. Scott alleges that he was denied medical care for his injuries after the attack, and placed in a "hard cell" completely naked and without any personal hygiene items for an unspecified period of time. His request for an inmate grievance form was also denied. (Dkt. Entry 1, Exh. 1.) On April 29, 2004, Scott was transferred from SCI-Mahanoy to SCI-Greene.
The Court directed service of the Complaint, consistent with its screening Order, on June 14, 2005. (Dkt. Entry 9.) Defendants filed a Motion to Dismiss the Complaint based on the following grounds: (1) Scott's purported failure to exhaust administrative remedies with respect to the alleged March 16, 2004, retaliatory assault, or his receipt of two "false" misconducts issued to him that day; (2) the Eleventh Amendment; and (3) the failure to state a viable claim for relief in relation to his placement in SCI-Mahanoy's RHU after the March 2004 event. (Dkt. Entry 12.) Defendants have briefed their motion and filed supporting exhibits.*fn2
(Dkt. Entries 13 - 14). After Scott failed to file a brief in opposition to this motion or seek an enlargement of time to do so, the Court advised Plaintiff that, if he failed to file an opposition brief within the time given, Defendants' motion would be deemed unopposed and granted without a merits analysis. (Dkt. Entry 16.) Plaintiff then file a motion for appointment of counsel and a brief in opposition to Defendants' motion to dismiss which did not address the merits of the motion but again requested the appointment of counsel prior to being required to address defendants' potentially dispositive motion. (See Dkt. Entries 17 and 18.)
A. Requests for Appointment of Counsel
In Scott's Motions for Appointment of Counsel, he states that he is proceeding in forma pauperis because he is indigent and cannot afford private counsel to represent him in this matter.*fn3 (Dkt. Entries 17 and 23.) He further states that due to his incarceration and limited knowledge of the law he will be unable to conduct the necessary discovery to prove his case. (Dkt. Entry 23.) He notes that staff at SCI-Greene are interfering with his "personal mail; legal mail; and institutional house mail" to prevent him from communicating with the Court and his family. (Id.) Finally, he declares that he attempted to obtain legal assistance of three identified attorneys. Defendants did not file a response to Plaintiff's motion. Because I find the facts in the present case do not warrant appointment of counsel at this time, Scott's motions for counsel will be denied without prejudice.
A prisoner does not have a constitutional or statutory right to appointment of counsel in a civil case. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). Appointment of counsel is governed by 28 U.S.C. § 1915(e)(1), which provides that the court "may request an attorney to represent any person unable to afford counsel." See also Montgomery v. Pichak, 294 F.3d 492, 499 (3d Cir. 2002), citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). Further, the court has no funds to pay an attorney who may accept appointment (although attorney's fees are available under 42 U.S.C. § 1988 if a plaintiff becomes a "prevailing party" in the litigation). The United States Court of Appeals for the Third Circuit has stated that appointment of counsel for an indigent litigant should be made when circumstances indicate "the likelihood of substantial prejudice ...