The opinion of the court was delivered by: Chief Judge Kane
Cyrus R. Sanders ("Sanders") is an inmate currently confined at the Dauphin County Prison ("DCP"), Harrisburg, Pennsylvania. He initiated this civil rights action pursuant to 42 U.S.C. § 1983 with respect to incidents occurring at DCP. Named as Defendants in the original complaint were DCP employees Warden DeRose, Correctional Officers Rose and Hewitt, and Counselor "Jill." Also named were the Dauphin County Prison and "Unknown Officers." Preliminary screening of the complaint by the Court revealed deficiencies which precluded service in its original form.*fn1 As such, on March 1, 2011, the Court provided Sanders with the opportunity to file an amended complaint in this action. On March 16, 2011, an amended complaint was filed. (Doc. No. 14.) Presently pending is Defendants' motion to dismiss the amended complaint (Doc. No. 23). The Court will also address Sanders' motion for the appointment of counsel (Doc. No. 48).
I. Allegations of the Amended Complaint
In the amended complaint, Sanders again names as Defendants the Dauphin County Prison, Warden DeRose, Officers Rose and Hewitt and Counselor Jill. In addition, he names DCP Officers Bryant, Creighton, Carnazzo, Steward and Orosz. He also names the DCP Prison Board, Board Solicitor Mr. Lavery, Prison Board Chairman Mr. Haste, Dauphin County Solicitor Mr. Tully and the Dauphin County Commissioners. He further names the several groups of Doe Defendants including "Unknown Officers," "Unknown Doe Guards," "Unknown Intake Counselors," and "Unknown Mailroom/Law Library Staff." (Doc. No. 14.)
In the amended complaint, Sanders once again sets forth the same claims included in his original complaint involving various incidents occurring at the Dauphin County Prison beginning in October of 2009. These claims include the denial of access to the courts with respect to being deprived envelopes, paper, pencils and access to the law library resulting in the loss of appellate rights in a Bradford County court case. Also alleged are claims that six (6) pieces of incoming mail were seized on November 9, 2009, by unknown prison mail personnel in violation of a prison policy that Sanders claims does not exist.*fn2 Sanders was unable to have someone retrieve the mail from the prison because he has no family. Upon his transfer on December 30, 2009, he claims DCP staff refused to provide him with his "contraband mail."*fn3 He alleges that Defendants Carnazzo, Steward, DeRose, the DCP Prison Board, Dauphin County solicitors, and the unknown mail personnel unlawfully seized and retained his mail.
Also contained in the amended complaint are allegations of excessive force with respect to an incident that occurred on October 26, 2009, when Defendant Rose allegedly beat Sanders following a block shakedown and rookie training drill. According to Sanders, Defendant Bryant searched his cell and then Rose escorted him back to his cell and told him to "get naked." After he did so, Rose and other unknown officers assaulted him by punching, slamming and twisting him. He states that he was thereafter choked and beaten again by Rose and an unknown officer. Two additional unknown officers held him in the air and twisted him. Defendants Creighton, Bryant and other unknown officers failed to intervene to stop the assaults. As a result of this conduct, Sanders claims he suffers from nose bleeds and pain in his neck, shoulders, toes and elbow. He further alleges that this type of behavior against the inmates is a continuing practice at DCP as evidenced by the volume of complaints filed against DCP officers. As a result, Defendants DeRose, DCP Prison Board members, and the Dauphin County Commissioners and Solicitor have actual knowledge but refuse to address these problems.
Sanders further alleges that he was issued a false misconduct by Rose for disruptive behavior following the 10/26/09 incident. He claims that he was denied due process with respect to the misconduct in that he was never notified of the misconduct until the time of the hearing and had no opportunity to present witnesses and gather evidence. He also claims that Defendants Hewitt and Jill conspired to preside over the bogus hearing and based the finding of guilt on the self-serving misconduct report that had been issued. He claims he was subjected to extreme sanctions in the form of 60 days disciplinary custody, and suffered atypical hardship when he was denied access during that time to the law library and phone.
The final count contained in the amended complaint is with respect to the denial of an adequate grievance procedure. Sanders claims that the grievance procedure at DCP fails to provide a process to address problems in that it is complicated, time-consuming and is expensive for indigent inmates. He further maintains that Defendants DeRose, the Prison Board members and the Dauphin County Solicitor and Commissioners are deliberately indifferent in that they fail to remedy the problems raised in grievances in that they take no action against the prison staff for their conduct. Sanders seeks injunctive, compensatory and punitive relief.
Sanders seeks the appointment of counsel in this action. (Doc. No. 48.) In support thereof, he contends that he does not have adequate access to the prison law library and no access to case law/citings, suffers from post-traumatic stress syndrome, was a manual laborer prior to incarceration with no litigation experience, and will not be afforded the same credibility as correctional officers at trial.
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. In the instant case, there is presently pending a motion to dismiss the amended complaint filed by Defendants. However, for purposes of ...