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, and seven (7) SCI-Muncy employees. Service of the complaint has been directed on Defendants. (Doc. No. 18.) Presently pending before the Court are Plaintiff's motion for appointment of counsel (Doc. No. 4) and motion for "injunctive relief" (Doc. No. 5). For the reasons that follow, both motions will be denied.
In the complaint Ball alleges that she was brought to the Restricted Housing Unit ("RHU") at SCI-Muncy on April 10, 2007, and is still confined there. She claims that Defendants refuse to transfer her to another prison out of state, preferably New Jersey, where she can "thrive" and be closer to her family. She states that since she has been housed in the RHU her physical and mental health have declined. For example, she alleges that she "smells things that are not there," constantly scrubs her hands, is worried, stressed and disoriented, is malnourished and has lost hair, and must deal with constant noise. Ball further contends that she has not seen her family in two (2) years. As relief she seeks monetary damages, a transfer to a prison in New Jersey and visits/calls with her family.
Plaintiff moves for the appointment of counsel in this action. (Doc. No. 26.) 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 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 ...