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Collins v. Walsh

August 9, 2010

FREDERICK COLLINS, PLAINTIFF,
v.
JEROME WALSH, ET AL., DEFENDANTS



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

MEMORANDUM

I. Background

On October 6, 2009, Frederick Collins ("Collins"), an inmate at the State Correctional Institution at Dallas (SCI-Dallas), Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983. Along with the complaint, Collins submitted a document entitled "Statement of Facts" (Doc. No. 4), which has been construed as part of the complaint. Named as defendants are Pennsylvania Department of Corrections ("DOC") employees Jeffery Beard, Secretary and Dorina Varner, Chief Grievance Officer. Also named are the following SCI-Dallas employees: Jerome Walsh, Superintendent; Vincent Mooney, Deputy Superintendent; Rebecca Mooney, Program Supervisor; Ann Chiampi, School Principle; Lieutenant Patterson; and Correctional Officers Bath, Romonoski and Salsman. In the complaint, Collins alleges that on June 8, 2009, Defendant Salsman requested oral sex from him. Collins states that he called a sexual harassment hotline to report the incident. He claims that he also filed a grievance that was later denied by Defendant Paterson. Following the incident, Collins alleges that he was retaliated against for calling the hotline when he was issued a false misconduct for fighting with an unknown inmate. Following a hearing, he was found guilty of the misconduct and sanctioned to 30 days in the Restricted Housing Unit ("RHU"). While in the RHU, Collins claims that Defendant Bath and other RHU officers subjected him to cruel and unusual punishment. He claims that the conditions were so bad that another inmate committed suicide. As relief, Collins seeks monetary damages.

Service of the complaint was directed on December 8, 2009, and waivers of service have been submitted on behalf of all Defendants. (Doc No. 16.) On February 16, 2010, Defendants filed a motion to dismiss the complaint. (Doc. No. 14.) A brief in support of the motion was also submitted. (Doc. No. 15.) Presently pending are motions filed by Collins seeking the appointment of counsel (Doc. No. 8), to amend the complaint (Doc. Nos. 18, 20), and for extension of time to oppose Defendants' motion to dismiss (Doc. No. 19).

II. Discussion

A. Motion for Counsel

Shortly after initiating this action Collins filed a motion seeking the appointment of counsel. (Doc. 8.) In the motion, he states that he does not have knowledge of the law and cannot afford to hire an attorney. He also claims that he fears imminent injury from the SCI-Dallas administration because he has filed this action.

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. For purposes of this motion, the Court will assume that Collins' 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 ...


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