The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
Ian Quarles, an inmate currently confined at the State Correctional Institution at Smithfield (SCI-Smithfield), Pennsylvania, filed this civil rights action on October 19, 2007, pursuant to 42 U.S.C. § 1983. Named as Defendants are the following officials and employees at SCI-Smithfield: John Palakovich, Warden; Paul Smeal, Deputy Warden; Donald Reihart, Maintenance Manager; Richard Heaster, Unit Manager; and Correctional Officers Mochgat, Crum, Bigalow, and Workenger. Also named as Defendants are "John Doe Members" of SCI-Smithfield. Plaintiff complains that his constitutional rights were violated when on October 12, 2005, part of the ceiling in one of the prison showers came down upon him, allegedly causing injury to his head and back. As relief Plaintiff seeks compensatory and punitive damages. At the time Plaintiff filed his complaint, he also submitted a motion for appointment of counsel (Dkt. Entry 4). Also pending is Defendants' motion to dismiss the complaint. For the reasons that follow, the motion for counsel will be denied without prejudice and the motion to dismiss will be denied.
Plaintiff alleges that on October 12, 2005, the ceiling of shower #5 on Unit F-B at SCI-Smithfield fell on him while he was taking a shower. As a result, he claims to have suffered pain in his head, neck and back. He continues to receive medication for pain in his lower back. Plaintiff states that he reported the incident to Defendant Workenger. It is Plaintiff's belief that his injuries could have been prevented if the damaged ceiling had been repaired in response to earlier complaints from other inmates. Plaintiff further states that although a work order to have the shower ceiling repaired was eventually submitted to the Maintenance Repair Department by Defendant Workenger on October 2, 2005, the sagging ceiling had still not been repaired by October 12, 2005, the date he was injured.
Plaintiff alleges that because Warden Palakovich, Deputy Warden Smeal and Unit Manager Heaster are legally responsible for the welfare of the inmates in their care at SCI-Smithfield, they have violated his constitutional rights. He claims that all named Defendants had a duty to provide him with adequate care while in their custody and that they failed to promptly correct the unsafe condition which resulted in his injury.
II. Motion for Appointment of 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. Other pertinent factors pertinent to the determination as to whether counsel should be appointed 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 ...