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Freeman v. Dep't of Corrections

December 11, 2008

JAMES FREEMAN, PLAINTIFF,
v.
DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

I. Background

James Freeman, an inmate confined at the State Correctional Institution at Coal Township ("SCI-Coal Township"), Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 3, 2007. Along with the complaint, Plaintiff filed a supporting affidavit.*fn1 (Dkt. Entry 2). Named as Defendants are the Pennsylvania Department of Corrections ("DOC"), and the following nine (9) SCI-Coal Township employees: Joseph J. Piazza, Superintendent; Lieutenants Jordan and Moyer; Correctional Officers Studlack, Bowers, Fornwald and Lahr; Lisa Shay Kerns-Barr, Hearing Examiner; and Ms. McCathy, Medical Administrator. While not specifically identified in the caption, the complaint also sets forth claims against John Doe, Nurse, and Jane Doe, Physician's Assistant/Doctor. Plaintiff sets forth claims of retaliation, excessive force, denial of procedural due process, false misconduct reports, and the denial of medical care. Service of the complaint and supporting affidavit was directed on February 20, 2008. (Dkt. Entry 9.) Requests for Waivers of Service were sent to Defendants on February 27, 2008, and returned by Defendants on March 11, 2008 and March 21, 2008. (Dkt. Entries 10, 11.) An answer to the complaint was filed on behalf of all Defendants on May 15, 2008. (Dkt. Entry 20.) On May 23, 2008, Plaintiff filed a reply to the answer.*fn2 Presently pending in this matter are the following motions filed by Plaintiff: motion for a jury trial (Dkt. Entry 14); motion for counsel (Dkt. Entry 15); motion for default judgment (Dkt. Entry 17); motion for service of documents (Dkt. Entry 19); motion for leave to file an amended complaint (Dkt. Entry 22); and motion for order compelling discovery (Dkt. Entry 28).

II. Discussion

A. Motion for Jury Trial Demand

Plaintiff has submitted a "motion for demand of jury trial." Pursuant to Fed. R. Civ. P. 38(b), a party may demand a jury trial by serving the other parties with a written demand, which may be included in a pleading, no later than ten (10) days after the last pleading directed to the issue is served. In his complaint, Plaintiff does request a trial by jury. (Dkt. Entry 1, Compl. at unnumbered p. 13.) Because the request for jury trial is not reflected on the docket sheet, the Clerk of Court will be directed to make the appropriate notation, and the motion for a jury trial will be dismissed as moot.

B. Motion for Appointment of Counsel

Plaintiff also requests the appointment of counsel in this matter. In support of his motion, he argues that he is a "layman to the law," and will need to gather much evidence for trial, including films, documents, and expert witnesses. He further argues that he has no money to make copies or purchase envelopes. (Dkt. Entry 15.)

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, Plaintiff's complaint alleges multiple claims, including retaliation, excessive force, denial of procedural due process, and inadequate medical care. The case is still at an early stage. In fact, a motion to amend the standing complaint is currently pending. Further, a weighing of the other pertinent factors militates 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 ...


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