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Daniels v. Kelchner

July 16, 2007

KEITH DANIELS, PLAINTIFF,
v.
DONALD KELCHNER, ET AL., DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

I. Background

Keith Daniels, an inmate at the State Correctional Institution at Smithfield (SCI-Smithfield), Pennsylvania, filed this civil rights complaint pursuant to 42 U.S.C. § 1983 on August 8, 2005. The matter proceeds on an amended complaint filed September 5, 2006. (Doc. 31.) Named as Defendants are the following employees at the State Correctional Institution at Camp Hill, Daniels' former place of confinement: Terrance T. Rosenberger, Lieutenant; Allan J. Webb, Sergeant; and correctional officers Ray W. Bloor, Larry Twigg, Jeffrey Alba, Walter Cousins, Anthony J. Alianiello and Derrick A. Zimmerman. Also named as a Defendant is John Amdrade, Hearing Examiner. In the amended complaint Plaintiff alleges that on August 13, 2003, while on his way for blood work, he was subjected to excessive force by Defendants. He claims that he was jumped on, choked, slammed into the ground, punched and kicked at first by Defendants Twigg and Bloor while the others failed to intervene, and thereafter by all of the Defendants, with the exception of Amdrade. He further alleges that he was denied medical treatment for his injuries and issued three (3) false misconduct reports and deprived of due process with regard to the hearings on the reports, all for the purpose of covering up the assault. He further contends that following the assault he was placed in the solitary confinement unit where he was deprived of food, sanitary conditions and legal/religious material.*fn1

Presently pending are Defendants' motion for enlargement of time within which to respond to Plaintiff's second discovery requests (Doc. 42), as well as Plaintiff's motion to compel (Doc. 45), motion for an Order directing Plaintiff to submit to a physical examination (Doc. 53) and third motion for the appointment of counsel (Doc. 60).

II. Discussion

A. Motion for Appointment of Counsel

Pending is Plaintiff's third request for the appointment of counsel in this case. The prior two motions were denied by the Court on December 1, 2005 and January 8, 2007. (Docs. 16, 44.) As the Court has previously stated, it is a well-established principle that prisoners have no constitutional or statutory right to appointment of counsel in a civil case. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). Yet, district courts have broad discretionary power to appoint counsel under 28 U.S.C. § 1915. 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). The United States Court of Appeals for the Third Circuit has stated that the appointment of counsel for an indigent litigant should be made when circumstances "indicate the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).

The initial determination to be made by the court in evaluating the expenditure of the "precious commodity" of volunteer counsel is whether the plaintiff's case "has some arguable merit in fact and law." Montgomery, 294 F.3d at 499. Although the amended complaint was filed some time ago, discovery has been taking place and dispositive motions have not yet been filed. As found in our earlier Memorandums, a weighing of the other pertinent factors militate against appointment of counsel at this time. Those factors are:

1. The plaintiff's ability to present his or her own case;

2. The difficulty of the particular legal issues;

3. The degree to which factual investigation will be necessary and the ability of the plaintiff to pursue the investigation;

4. The plaintiff's capacity to retain counsel on his or her own behalf;

5. The extent to which a case is likely to turn on credibility determinations; and,

6. Whether the case will require testimony from expert witnesses. Montgomery, 294 F.3d at 499, ...


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