The opinion of the court was delivered by: Eduardo C. Robreno, J.
Before the Court is Plaintiff Hitham Abuhouran's ("Plaintiff") request for additional discovery and motion for appointment of counsel. For the following reasons, the Court will grant Plaintiff's request for discovery on a limited basis, but will deny Plaintiff's motion for appointment of counsel on the ground that Plaintiff possesses sufficient skill to competently pursue his claim pro se.
Plaintiff, a pro se prisoner, asserts tort and Bivens claims against the United States and seventeen employees of the Federal Bureau of Prisons (collectively, the "Defendants") for (1) alleged exposure to secondhand smoke based on the failure of the prison to provide adequate ventilation, place Plaintiff in the non-smoking unit, or enforce its non-smoking policy; and (2) violation of his First Amendment rights by requiring that his correspondence be in English only. Plaintiff alleges the following facts in support of his claim arising out of an "inadequate" ventilation system at Federal Detention Center ("FDC") Philadelphia. Plaintiff was transferred from Federal Correctional Institution ("FCI") Elkton to FDC Philadelphia on July 2, 2002. He was placed with a cellmate who smoked 3-4 packs of cigarettes every night. Plaintiff complained and was transferred to a cell that leaked when it rained. He complained again and was transferred to a cell occupied by another smoker. He complained again but was not transferred for several months. Plaintiff also made requests that the warden enforce various non-smoking policies that were ignored. He states that the prison was crowded beyond capacity and that the ventilation system was inadequate to deal with such a large prison population, particularly in light of the amount of smoking that takes place.
Plaintiff's claims are virtually identical to case No. 07-2465, which was filed with this Court and dismissed, and is currently on appeal. Plaintiff, however, asserts two additional causes of action in these proceedings. One, that he was subjected to "invidious discrimination" in violation of the Fifth Amendment. Two, that he was subjected to "invidious discrimination" when he was required to conduct correspondence in English only, in violation of the First Amendment (the "First Amendment Claim").
Plaintiff originally filed the instant case in the United States District Court for the District of Columbia on March 24, 2006. See Abuhouran v. Morrison, No. 06-0560 (D.D.C.). That court transferred the case to the Northern District of Ohio. See Abuhouran v. Morrison, No. 06-1207. The Ohio district court dismissed all of Plaintiff's claims arising out of his incarceration at FCI Elkton for failure to state a claim, and all of the claims arising out of his incarceration at FDC Philadelphia for failure to exhaust administrative remedies. On appeal, the Sixth Circuit affirmed the dismissal of the FCI Elkton claims, but remanded the FDC Philadelphia claims based on Jones v. Bock, 549 U.S. 199 (2007). By order dated November 30, 2007, the district court transferred the remaining claims to this Court, which docketed the case as 07-5513 on December 28, 2007. Plaintiff thereafter filed an amended complaint on February 14, 2008, and a first amended complaint on March 5, 2008. Defendants filed a motion for summary judgment on April 20, 2009.
On November 3, 2009, Plaintiff filed a response to Defendants' motion for summary judgment and requested additional fact discovery and appointment of counsel. Following a telephone conference, and in light of the pending parallel case in the Third Circuit, the Court dismissed Defendants' summary judgment motion as to all the counts in Plaintiff's complaint except for the First Amendment Claim. The Court further ordered Defendants to prepare a report as to what documents may be available in regard to Plaintiff's request for additional discovery (the "Discovery Report"), and that Plaintiff have an opportunity to object prior to a decision on whether additional discovery or the appointment of counsel was necessary. The Discovery Report also was to address whether depositions were necessary as to certain personnel, specifically the former warden at FCI Elkton, concerning the First Amendment Claim. On December 7, 2009, Defendants filed the Discovery Report, and on December 21, 2009, Plaintiff filed his objections.
II. REQUEST FOR ADDITIONAL DISCOVERY
Plaintiff has requested additional discovery in order to respond to Defendants' motion for summary judgment. Plaintiff requested that he be permitted to depose the following individuals: (1) "M. Azzam," a former health administrator at FCI Elkton concerning his medical condition; (2) "Dr. Mineti," a health director at FCI Elkton concerning his medical condition; (3) "Mr. Link," the SIS at FCI Elkton concerning the restrictions limiting Plaintiff to writing in English-only; (4) "Captain Fitzgerald," a prison official at FCI Elkton concerning the mail restrictions; and (5) Wardens R.L. Morrison and Mark A. Bezy concerning the mail restrictions.*fn1
As the Court's November 6, 2009 order expressly limited Plaintiff's request for discovery to his First Amendment Claim, it is only necessary to address Plaintiff's request for discovery as to witnesses who have information concerning the restrictions placed on Plaintiff's mail.
Defendants were instructed to produce a Discovery Report concerning the logistics of Plaintiff's request for discovery, particularly with respect to deposing the warden who imposed the mail restrictions. Defendants' Discovery Report posits that further discovery, including depositions, as to Plaintiff's First Amendment Claim is unnecessary as the restrictions on Plaintiff's mail were plainly valid. In other words, Defendants' position is that any discovery would be futile as Plaintiff's First Amendment Claim cannot proceed.
Regardless of the merits of Defendants' arguments, the instructions from the Court during the November ...