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Walthour v. Tennis

February 4, 2008

JOSEPH WALTHOUR, PLAINTIFF,
v.
FRANKLIN J. TENNIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

I. Introduction

Joseph Walthour commenced this civil rights action pursuant to 42 U.S.C. § 1983 on March 8, 2007, while confined at the State Correctional Institution at Rockview (SCI-Rockview), Pennsylvania. Named as Defendants are the following SCI-Rockview employees: Franklin J. Tennis, Facility Manager; Joel S. Dickson, Deputy Superintendent; Jeffrey Rackovan, Facility Manager Assistant and Grievance Coordinator; Harry Bower, Maintenance Shops Supervisor; John Stover, Foreman Maintenance Manager; and Barry Yarnell, Labor Foreman. Also named as a Defendant is Sharon M. Burks, Chief Grievance Officer for the Pennsylvania Department of Corrections. Plaintiff contends that Defendants were deliberately indifferent to his health and safety with regard to an incident that occurred on April 28, 2006, while Plaintiff was on "trash removal" job assignment at SCI-Rockview. Presently pending are motions filed by Plaintiff seeking the appointment of counsel in this case (Dkt. Entries 13, 27), as well as motions regarding the entry of default judgment (Dkt. Entries 15, 21). Also pending is Defendants' motion to dismiss the complaint (Dkt. Entry 17).*fn1

II. Background

Plaintiff alleges that on April 28, 2006, he and three other inmates reported to Defendant Yarnell for their inmate job assignment of outside clearance trash removal. A motor vehicle referred to by Plaintiff as a "jitney" is used to transport the inmate workers to the various trash collection sites around the prison to pick up the trash. The jitney, a steel-plated vehicle, has a trailer attached to it. Defendant Yarnell drives the jitney which pulls the inmates and trash on the trailer. Plaintiff states that the trailer has inadequate seating, no seatbelts and no brakes.

Plaintiff alleges that after loading trash on the trailer at one of the stops and taking his seat back on the trailer, Defendant Yarnell began driving the jitney/trailer toward a sliding gate. According to Plaintiff, as they were approaching the gate, it was already beginning to close. As he observed the gate closing, Yarnell immediately "accelerated the jitney to beat the sliding gate . . . at a speed of approximately 40-50 miles per hour." (Dkt. Entry 1, Compl. ¶ 21.) As the jitney drew closer to the gate, Yarnell began steering away from the gate to avoid hitting it. In doing so, Plaintiff states that he came into direct contact with the steel pole where the gate locks. As a result, Plaintiff suffered injury to his left thigh, back and right knee. The other inmate workers yelled to Yarnell to stop driving. Yarnell exited the jitney to examine the extent of Plaintiff's injuries. Plaintiff was thereafter assisted back onto the trailer and driven by Yarnell to the medical treatment building at the prison.

Plaintiff states that he was provided emergency medical treatment, which included x-rays, cleansing and dressing of the wounds, pain medication and ice. He further details the medical care he received from May 1, 2006 through December 13, 2006, which included further x-rays, MRIs, bone scans, examinations and physical therapy.

Plaintiff states that he filed a grievance on May 1, 2006, to Defendant Rackovan, with regard to Yarnell's deliberate indifference to his health and safety regarding the jitney incident. On May 16, 2006, a response to the grievance was issued by Defendant Stover. Plaintiff filed an appeal from this response to Defendant Tennis. He contends that an untimely response was received from Tennis on June 26, 2006. Plaintiff states that he completed the exhaustion of his administrative grievance by appealing to Defendant Burks on July 13, 2006.

Plaintiff asserts that Defendants were deliberately indifferent to his health and safety in that they knew the jitney/trailer vehicle was a potential threat to his well-being because it did not have brakes or seatbelts. He further contends that Defendant Yarnell was deliberately indifferent with regard to his operation of the vehicle, resulting in injury to Plaintiff. Plaintiff further contends that Defendants Rackovan, Stover and Burks were deliberately indifferent when they failed to rule in his favor with regard to the grievance and appeals therefrom he filed.

III. Discussion

A. Motions for Counsel

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. In this case, Walthour's complaint alleges deliberate indifference to his health and safety. The case is still at an early stage and a motion to dismiss the complaint is presently pending. Further, a ...


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