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Pew v. Harris

United States District Court, M.D. Pennsylvania

January 16, 2014

ALFONSO PERCY PEW, Plaintiff,
v.
R.N. L. HARRIS, et al., Defendants.

MEMORANDUM

EDWIN M. KOSIK, District Judge.

This matter proceeds on a civil rights complaint filed pursuant to 42 U.S.C. § 1983 by Alphonso Percy Pew. At the time, he was confined at the State Correctional Institution at Frackville, Pennsylvania. He has since been transferred to SCI-Rockview. Named as Defendants are individuals Pew designates as Registered Nurses Harris and O'Donnell, who appear to be employees at SCI-Frackville at the relevant time. Also named as a Defendant is Corizon, Inc., the medical service provider for certain Pennsylvania correctional institutions, including SCI-Frackville. Presently pending before the court are Pew's motions to amend/correct the complaint (Doc. 28) and for reconsideration of the denial of appointment of counsel (Doc. 36.) For the reasons that follow, the motion to amend/correct will be granted and the motion for reconsideration will be denied.

I. Background

Service of the complaint was directed on Defendants on October 10, 2012. (Doc. 7.) Corizon waived service and thereafter filed a motion to dismiss the complaint. Corizon's motion was granted, and said Defendant dismissed from this action on July 24, 2013. (Doc. 26.)

Service of the complaint was returned unexecuted with respect to Defendants Harris and O'Donnell in that the Waivers were mailed to Corizon, Inc. Thereafter, counsel for Corizon, Inc. notified the court that Harris and O'Donnell were not Corizon employees. (Doc. 13.) As such, an order was issued directing Pew to provide the court with addresses where said Defendants could be served. (Doc. 26.) In the same order, a motion seeking the appointment of counsel filed by Pew was also denied without prejudice. On August 1, 2013, Pew sent a letter to the court providing the address of the Pennsylvania Department of Corrections in Mechanicsburg, Pennsylvania, for service of the Waivers on Defendants Harris and O'Donnell. On the same date, Pew also filed a motion seeking to amend/correct his original complaint. (Doc. 28.)

On August 5, 2013, an order was issued directing the United States Marshal to serve the Defendants at the new address provided by Pew. (Doc. 31.) On August 7, 2013, Pew filed a motion seeking reconsideration of the denial of his request for counsel. (Doc. 36.) On August 16, 2013, the Waivers of Service were again returned unexecuted. (Doc. 40.) In reviewing the docket, it appears the United States Marshal inadvertently re-served the complaint on Defendants at the Corizon, Inc. address. (Id.)

At the present time, service has not yet been achieved on the two remaining Defendants (Harris and O'Donnell). In addition, Pew's motions to amend/correct the complaint and for reconsideration of the denial of counsel are pending before the court.

I. Allegations in the Original Complaint

The claims asserted in the complaint took place at SCI-Frackville where Pew maintains that Defendants refused to stop the approval/authorization of his placement in the torture chair, and would not intervene to stop its use. He claims Defendants approved the use of the torture chair for periods of eight (8) hours, thereby depriving him exercise from his neck to his spine for the period of time he was in the chair. He further alleges that the straps from the chair cut his flesh. He claims that he has sciatica nerve and disc issues, as well as cardio disease, and therefore should not have been placed in the chair. He alleges that he filed a grievance (#380655) with respect to this issue. As relief, he requests that the chair stop being used and also seeks monetary damages.[1]

II. Motion for Reconsideration on Denial of Counsel

In his motion for the appointment of counsel, Pew claimed that: (1) he is unable to afford counsel; (2) he cannot litigate this case on his own because he only receives 8 envelopes each month; and (3) he has been diagnosed with mental illness and is mentally unstable. (Docs. 14, 15.)

In addressing his request, the court advised Pew that 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 the motion, the ...


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