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Ball v. SCI-Muncy

October 27, 2010


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


This civil rights action pursuant to 42 U.S.C. § 1983 was filed by Dawn Marie Ball, an inmate currently confined at the State Correctional Institution at Cambridge ("SCI-Cambridge"), Pennsylvania. While eighteen (18) Defendants were named in the complaint, only the Northampton County Sheriffs and Jennifer Eiswerth, an SCI-Muncy employee, remain in this action.*fn1 Ball seeks monetary damages for the violation of her First Amendment right of access to the courts. Presently pending are motions filed by Ball for the appointment of counsel (Doc. No. 42), for injunctive relief (Doc. No. 40), and for an order to allow her to interview and retrieve declarations (Doc. No. 51).*fn2 For the reasons that follow, Ball's motions will be denied.


Plaintiff's alleges that on January 22, 2008, the Northampton County Sheriffs came to SCI-Muncy to take her to a hearing in the Northampton County Court of Common Pleas. While she claims that she saw the sheriffs, as well as made inquiries to SCI-Muncy staff members regarding when she would be leaving with the sheriffs, the sheriffs ultimately left the prison without her. SCI-Muncy employees informed Plaintiff that all they knew was that the sheriffs received a phone call and had to leave, but would return at a later time for her.

Afterward, Plaintiff made an inquiry to Defendant Eiswerth about the matter. Eiswerth acknowledged that the Sheriffs had come for her, but informed her they would return for her the following day in an older vehicle because they had heard Plaintiff urinated outside of her door. Plaintiff claims that Eiswerth confirmed to the Sheriffs that she had engaged in this behavior. Eiswerth later told Plaintiff that it was a staff member, and not the Sheriffs, who told her they would return for Plaintiff the following day. Based on the foregoing, Plaintiff claims that Eiswerth obstructed her efforts to go with the Sheriffs on January 22, 2008.

Plaintiff thereafter wrote to various staff members about the matter, but they were without knowledge of what transpired. She claims that other Defendants gave her other excuses as to why the Sheriffs had left without her. Plaintiff also wrote to the "county court clerk twice, the judge once, [her] lawyer twice and the sheriffs' office twice" sometime at the end of February of 2008, when she was allowed a pen. She never received a response until March 17, 2008. On this date her attorney informed her that an appeal she had filed was heard in her absence on January 25, 2008, and was dismissed. Counsel informed Plaintiff that the Sheriffs testified under oath that Plaintiff refused to go with them and that she ". . . screamed protests and threatened the well being of the Sheriffs and ripped [her] uniform." (Id., at 3.) Plaintiff claims that this never occurred, and that she was prepared to go with the Sheriffs that day.

Plaintiff further alleges that in the January 28, 2008 letter written by her attorney, that she did not receive until March 17, 2008, she was instructed to contact him if she wished to challenge the denial of her appeal. The appeal period, however, expired on February 25, 2008, prior to the time she claims to have received the letter. She also contends that she was not allowed pens or envelopes until the end of February. Based on the foregoing, Plaintiff seeks monetary damages for the violation of her rights under the First Amendment due to the obstruction of her access to the courts by Defendants.

On January 29, 2009, the Court granted a motion to dismiss the complaint filed by Defendant Freedberg. (Doc. No. 30.) In addition, a motion filed on behalf of the Corrections Defendants was granted in part and denied in part. The motion was granted to the extent that all claims set forth against Defendants SCI-Muncy, SCI-Muncy Records Department, Chamberlain, Torma, Shepler, Shaffer, Blessing, Pinard, Skiro, Bitler, Nichols, Gair, Wolford, George, Griner and Baver were dismissed. The motion was denied with respect to the access to the courts claim set forth against Defendant Eiswerth in her individual capacity. Eiswerth was directed to file a response to the complaint within twenty (20) days. Further, Plaintiff was directed to show cause why Defendant Northamption County Sheriffs should not be dismissed from this action on the basis of failure to prosecute.*fn3

On February 5, 2009, Plaintiff filed an appeal from this Court's January 29, 2009 Memorandum and Order to the United States Court of Appeals for the Third Circuit. (Doc. No. 32.) During the pendency of the appeal Plaintiff filed the above-referenced motions with this Court, as well as numerous letters and other documents. In addition, Defendant Eiswerth filed an answer to the complaint on February 26, 2009 (Doc. No. 37).*fn4 On January 8, 2010, Defendant Northampton County Sheriffs filed a motion to dismiss the complaint (Doc. No. 61). A brief in support of the motion has also been filed (Doc. No. 62.) On February 3, 2010, Plaintiff filed her opposition to the motion (Doc. No. 63).


A. Motion for Appointment of Counsel

Plaintiff requests the appointment of counsel in this case. (Doc. No. 42.) In support of her moton, she claims that she is continually obstructed in her efforts to litigate this action by the employees at SCI-Muncy. She also claims that due to her indigence and confinement, she is unable to question witnesses and conduct necessary discovery without an attorney. She further claims that her confinement in segregation limits her ability to access the law library.

There is neither a constitutional nor a statutory right to counsel for civil litigants. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). Instead, 28 U.S.C. § 1915(e)(1) simply provides that "[t]he court may request an attorney to represent any person unable to employ counsel." Under § 1915(e)(1), a district court's appointment of counsel is discretionary and must be made on a case-by-case basis. Tabron, 6 F.3d at 157-58. In Parham, the United States Court of Appeals for the Third Circuit outlines the factors to be considered by courts when reviewing an application to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1). In passing on such requests, the Court must first: "[D]etermine [] that the plaintiff's claim has some merit, then [we] should consider the following factors: (1) the plaintiff's ability to present his or her own case; (2) the complexity of the legal issues; (3) the degree to which factual investigation will be necessary and the ability of the ...

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