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Bailey v. McMahon

March 19, 2009

DEMETRIUS BAILEY, PLAINTIFF,
v.
MELISSA MCMAHON, ET AL., DEFENDANTS



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

MEMORANDUM

This civil rights action pursuant to 42 U.S.C. § 1983 proceeds on an amended complaint filed by Demetrius Bailey ("Plaintiff"), an inmate incarcerated at the State Correctional Institution at Greene, Pennsylvania. Named as Defendants are numerous Department of Corrections officials and employees at the State Correctional Institution at Huntingdon.*fn1 Also named as Defendants are Prison Health Services ("PHS") and Angela Auman, a physician's assistant employed by PHS. The claims in the amended complaint include the denial of access to the courts, denial of use of the law library, inadequate access to the commissary system, unsanitary health conditions, assault and inadequate medical care. Presently before the Court is a motion to dismiss the amended complaint filed by PHS and Auman (Doc. No. 36), as well as Plaintiff's motion for counsel (Doc. No. 49).*fn2

I. BACKGROUND

Plaintiff complains of numerous incidents that allegedly took place at SCI-Huntingdon, his former place of confinement. Plaintiff claims that he was denied access to the courts, including the use of the law library, an adequate paging system, legal assistance and legal materials. He also complains that he was denied adequate medical and mental health treatment and basic hygiene items, and that he was subjected to abuse, torture and health hazards.*fn3 In addition, he maintains that the grievance system at the prison is unconstitutional, and that the commissary system is inadequate. He also sets forth a claim of retaliation. The majority of these claims are set forth against the Corrections Defendants.*fn4

With regard to Defendants PHS and Auman, Plaintiff specifically alleges the following. He claims that PHS entered into a contract with the Corrections Defendants whereby PHS employed inadequate, untrained medical staff who would perform their jobs by doing whatever prison staff employees told them to do. Defendants Auman and Showalter are alleged to have denied Plaintiff medical treatment for his chronic skin infection/disease from which he has suffered for years. According to Plaintiff, this condition causes him to suffer itching, burning, peeling and bleeding. He maintains that the medical staff does not know how to treat this condition, and that they will not pay for outside care. Plaintiff filed a grievance with regard to this matter on March 28, 2007 (#182853), but the grievance and all related appeals were denied.

Plaintiff further alleges that he has a hiatal hernia with a hole in the lining of his stomach and that Auman, Showalter and PHS will not provide surgery for his condition. As a result, Plaintiff contends that he vomits after ingesting cold water and foods. He further complains that he has been denied treatment by Auman, Showalter and PHS for gastroesophageal reflux disease (GERD), which causes him to belch and regurgitate, irritates his throat and makes swallowing difficult. He claims he is being denied a proper diet for his condition, as well as an appointment with a specialist. A grievance regarding this issue filed on April 2, 2007 (#183329), and appeals therefrom have been denied. Based on the foregoing, Plaintiff seeks monetary, declaratory and injunctive relief.

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. In reviewing a motion to dismiss, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)(quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002). Although the court is generally limited in its review to the face of the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1997); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Although the moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2007), the plaintiff has an obligation to allege facts sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (internal citations omitted). Furthermore, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, Id. at 1960. When evaluating a motion to dismiss, a court need not "credit a complaint's 'bald assertions' or 'legal conclusions.'" Evancho v. Fisher, 423 F.3d 347, 354-55 (3d Cir. 2005). Finally, when a plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face," Twombly, 127 S.Ct. at 1960, the complaint should be dismissed.

III. DISCUSSION

A. Motion for Counsel

Prior to resolving the motion to dismiss filed by Defendants PHS and Auman, the Court will address Plaintiff's request for the appointment of counsel in this action. 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. Plaintiff sets forth numerous allegations against the Defendants. Two of the sixteen Defendants have filed a motion to dismiss that Plaintiff has opposed. Plaintiff also successfully requested the entry of default against the Corrections Defendants in this matter when they failed to respond to the amended complaint. Although said Defendants have filed a motion to set aside default, Plaintiff has submitted objections thereto, and an opposing brief. Clearly, the record gives every indication that Plaintiff has the capability to continue litigating this action without the assistance of counsel. He has filed an amended complaint, ...


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