The opinion of the court was delivered by: Chief Judge Kane
Plaintiff Dawn Marie Ball ("Ball") is an inmate confined at the State Correctional Institution at Muncy (SCI-Muncy), Pennsylvania. She files this civil rights action pursuant to 42 U.S.C. § 1983 wherein she names as Defendants Jeffrey Beard, Secretary at the Pennsylvania Department of Corrections ("DOC"), seven (7) SCI-Muncy employees*fn1 and Jill Cicero, Associate Court Administrator for the Court of Common Pleas of Northampton County Pennsylvania. In the complaint, Ball alleges that Defendants denied her access to the courts when she was prevented from participating in a phone hearing due to her confinement in the Restricted Housing Unit. Presently before the Court for consideration are Plaintiff's motion for counsel (Doc. No. 4), motion for injunctive relief (Doc. No. 5) and request for default (Doc. No. 30). The Court will also address the motion to dismiss filed by Defendant Cicero (Doc. No. 16). The Corrections Defendants have also filed a motion to dismiss which will be addressed by the Court is a separate Memorandum and Order to be issued in due course. (Doc. No. 27).
In the complaint Ball alleges that on March 20, 2009, she was suppose to participate in a court hearing by phone with regard to the issue of paternity testing. She claims that Defendant Hartman came to her door and said that someone had called Hartman about the hearing. Hartman informed them that Ball was not permitted to take the call because she was confined in the RHU. (Doc. No. 1, Compl. at 2.) Hartman refused to inform Plaintiff of the name of the person that called. Plaintiff contends that this obstructed her access to the courts, and that she had previously informed Hartman about the call on March 9, 2009, and March 16, 2009. Ball further contends that Defendants Shepler and Nicholas were told about the phone hearing on March 10, 2009 and March 17, 2009, and had informed Plaintiff that they would "find out about it," but never did so. (Id.) Plaintiff also claims to have informed Defendant Gridley about the hearing on March 20, 2009, and Defendant Lamas on March 23, 2009, but each refused to look into the matter. Ball is suing Defendant Beard because "he is the policy maker of the prison." (Doc. No. 1, Compl. at 3.)
Ball alleges that Hartman informed her she would have to wait until she was no longer confined in the RHU to make a collect call to the courts. Ball contends that because she will be confined in the RHU until she "maxes out" in 2014, it will be too late to pursue the paternity issue because her son turns eighteen (18) years old in two (2) years. She further maintains that because the court called to set up the hearing, and she was unable to do so, her paternity case was dismissed. (Id.)
As relief, Ball seeks monetary damages in the amount of $5,000,000.00, in addition to the payment by Defendants of all child support from February 24, 1993 until the time her son graduates from college. She also seeks injunctive relief to the extent that Defendants allow her to make a phone call to reschedule her hearing, as well as be prevented from any further obstruction of her right to access the courts.
Plaintiff moves for the appointment of counsel in this action. (Doc. No. 4.) In support of her request she claims that she (1) is unable to afford counsel; (2) has limited access to the law library; (3) is refused writing supplies by staff; (4) has difficulty understanding and comprehending matters; (5) will be unable to meet court-imposed deadlines; and (6) believes trial will be likely in this action. (Doc. No. 4.)
Although prisoners have no constitutional or statutory rights to appointment of counsel in a civil case, Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997), district courts have broad discretionary power to appoint counsel under 28 U.S.C. § 1915(e)(1). Montgomery v. Pinchak, 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. Without passing judgment as to the merits of Ball's claims, for the sole purpose of this motion the Court will assume that the case has arguable merit in law and the facts.
Next, upon successfully clearing the above hurdle, other factors to be examined are:
1. The plaintiff's ability to present his or ...