The opinion of the court was delivered by: Judge Kosik
Margie McLaughlin, an inmate confined at the State Correctional Institution at Muncy (SCI-Muncy), Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter proceeds on an amended complaint consisting of three (3) documents - the original complaint, exhibits thereto and an amended document filed on December 28, 2006. (Docs. 1, 10 and 34.) Presently pending are Plaintiff's motions for a temporary restraining order (Doc. 38), for counsel (Doc. 46) and for default judgment (Docs. 48, 57). Also pending is Defendants' motion for enlargement of time to file one answer on behalf of all Defendants (Doc. 51).
In the original complaint filed on July 14, 2006 (Doc. 1), McLaughlin names as Defendants SCI-Muncy employees Karen L. Fultz, Deputy Facilities Manager, and Correctional Officers Brittain and Gondeiro. The claims set forth against these Defendants include denial of access to the courts and retaliation. On October 4, 2006, the court construed exhibits filed by McLaughlin on July 27, 2006 to be a supplement to her complaint. Thereafter, Defendants filed a motion to dismiss the complaint. Following Defendants' filing, Plaintiff submitted a document entitled "Amended Complaint" which simply listed ten (10) new defendants she wished to include in this lawsuit, but failed to set forth any claims against them.
On December 15, 2006, the court denied without prejudice the motion to dismiss filed by the original three (3) Defendants, and afforded Plaintiff the opportunity to file one all-inclusive amended complaint setting forth her claims against all Defendants. On December 28, 2006, an amended complaint was submitted. It lists the ten (10) new Defendants Plaintiff attempted to include in her filing of November 21, 2006, and this time set forth claims against them. The claims all revolve around Plaintiff's allegations of denial of access to the courts, retaliation and other claims arising from the overall alleged hostile environment she is being subjected to by the employees at SCI-Muncy. The complaint, however, failed to include the three (3) original Defendants when it listed the defendants in the amended complaint. There were, however, references to the original Defendants in the body of the amended complaint with regard to the new claims added.
A motion to dismiss the amended complaint on this basis was thereafter filed by the original Defendants. Plaintiff opposed the motion stating that she fully intended to keep the original 3 Defendants and the claims against them in this action. On July 2, 2007, the court issued a Memorandum and Order denying the motion to dismiss the amended complaint by the original Defendants, and construing the amended complaint to consist of the original complaint, the supplements thereto and the amended complaint filed on December 28, 2006.*fn1 Service of the standing amended complaint was directed on the new Defendants (all DOC employees and most employed at SCI-Muncy), and the original Defendants were directed to respond to the complaint within twenty (20) days. (Doc. 44.)
On July 10, 2007, Plaintiff moved for the appointment of counsel and filed a brief in support thereof. (Doc. 46.) On July 23, 2007, a motion for default judgment, brief and supporting affidavit were also filed. (Docs. 48-50.) On the same date, Defendants filed a motion seeking an extension of time of twenty (20) days to respond to Plaintiff's motion for temporary restraining order and a stay on their obligation to answer the amended complaint so that one answer on behalf of all Defendants could be filed at one time. (Doc. 51.) A brief in support of the motion was also filed. (Doc. 52.) Plaintiff opposed the extension in a brief filed on August 10, 2007 (Doc. 53).
On October 1, 2007, a waiver of service was returned on behalf of the newly added Defendants. (Doc. 54.) On October 15, 2007, an answer to the complaint was filed on behalf of all Defendants. (Doc. 56.) A second motion for default was submitted by Plaintiff on October 18, 2007. (Doc. 57.) Defendants filed their opposition to Plaintiff's motion for temporary restraining order on October 23, 2007. (Doc. 59.)*fn2
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. Procedurally, the instant case is still in the early stages, despite having been commenced over a year ago. Further, a weighing of the ...