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Drummond v. Harry

United States District Court, Third Circuit

November 26, 2013

GERALD DRUMMOND, Plaintiff,
v.
LAUREL R. HARRY, et al., Defendants

MEMORANDUM

YVETTE KANE, District Judge.

Before the Court are Plaintiff Gerald Drummond's motions for the appointment of counsel (Doc. Nos. 6, 30) and motions for injunctive relief (Doc. Nos. 7, 13). For the reasons that follow, the motions for counsel will be denied without prejudice and the motions seeking injunctive relief will be denied as moot.

I. Background

Drummond and fellow inmate Michael Burkhart initiated this civil rights action pursuant to 42 U.S.C. § 1983 on July 11, 2013. Shortly thereafter, the Court granted a motion filed by Burkhart to withdraw as a plaintiff in this matter. (Doc. No. 19.) Named as Defendants are twenty-four (24) officials and employees at the State Correctional Institution at Camp Hill (SCI-Camp Hill), Pennsylvania, where Drummond was confined at the time of the alleged incidents. Drummond raises claims including verbal harassment and threats, mail interference, denial of yard and law library, food tampering, the issuance of false misconducts, retaliation and interference with his ability to pursue grievances. (Doc. No. 1, Compl.) He further alleges that Defendants incited other inmates to assault him, specifically by throwing human feces on him. (Id. at 16.)

Service of the complaint was directed, along with service of the pending motions for injunctive relief and Drummond's initial motion for counsel. (Doc. No. 17.) He also filed a second motion for counsel on November 1, 2013. These motions are presently before the Court for consideration.

II. Discussion

A. Motions for Counsel

In moving for the appointment of counsel Drummond argues that: (1) his case involves complex legal issues; (2) he is greatly limited in litigating the case due to his incarceration; (3) he has limited access to the law library and limited knowledge of the law; (4) he is unable to afford counsel; and (5) a trial in this case will likely involve conflicting testimony and an attorney is better equipped to present evidence and cross examine witnesses. (Doc. Nos. 6, 30.)

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 Drummond's 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 plaintiff ...

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