United States District Court, M.D. Pennsylvania
Larry Joe Collins, Plaintiff, Pro se, Terre Haute, IN.
For Warden B. A. Bledsoe, D. Hudson, Associate Warden, Lt. J. Flemming, Lt. R. Johnson, Lt. T. Johnson, S. Prutzman, C.O. Gemberling, R. Casillo, C. Lytle, B. Gaston, Correctional Officer S. Hicks, Kevin Pigos, Gregory George, Bryan Walls, Defendants: Timothy Judge, U.S. Attorney's Office - Prisoner Litigation Unit, Scranton, PA.
Plaintiff, Larry Joe Collins, filed the above Bivens civil rights action pursuant to 28 U.S.C. § 1331 alleging incidents that occurred while Plaintiff was confined at the United States Penitentiary, Lewisburg, Pennsylvania. The matter proceeds on a lengthy amended complaint wherein fourteen (14) USP-Lewisburg officials and employees are named as defendants and numerous allegations are set forth. On September 30, 2014, the court issued a Memorandum and Order adopting in part, and declining to adopt in part, the Report and Recommendation of Magistrate Judge Thomas M. Blewitt with respect to a motion to dismiss, and/or, in the alternative, motion for summary judgment. (Doc. 70.)
In the Magistrate Judge's Report, Defendants' motion was granted with respect to all claims except the May 4, 2011 excessive force claim against Defendant Fleming. The court adopted the Recommendation with respect to granting Defendants' motion to dismiss regarding the following: (1) Plaintiffs request for specific amounts of monetary damages was stricken from the amended complaint; (2) Plaintiffs request for declaratory judgment was dismissed; (3) Plaintiffs verbal harassment, conspiracy and filing of false reports claims were dismissed; and (4) Plaintiffs claims for money damages regarding the May 4, 2011 incident, which calls into question the veracity of Incident Report #2158647 and the validity of his disciplinary conviction, were dismissed.
However, the Magistrate Judge's Recommendation with respect to the motion for summary judgment filed by Defendants Bledsoe, Pigos and Hudson based on respondeat superior was not adopted. The motion was denied without prejudice to renew following a period of discovery. The Recommendation with respect to Defendants' motion for summary judgment on the Eighth Amendment excessive force, conditions of confinement and medical care claims and for qualified immunity was also not adopted, and the motion was also denied without prejudice to be renewed following a period of discovery. (Docs. 70, 71.)
On October 14, 2014, Defendants filed an answer to the claims remaining in the amended complaint. (Doc. 72.) On October 16, 2014, a scheduling order was issued imposing a discovery deadline of December 14, 2014, and a dispositive motions filing deadline of January 14, 2015. (Doc. 73.) Presently pending are Plaintiffs motions for the appointment of counsel (Doc. 74), to amend the scheduling order (Docs. 77, 80) and for funds for expert witnesses (Doc. 78).
A. Motion for Counsel
Plaintiff seeks counsel because he is without funds to hire an attorney, his case is complex, counsel is needed to conduct discovery (obtain witnesses, view videotapes and documents submitted to the court), and because Plaintiff lacks legal knowledge. (Doc. 74.)
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 plaintiffs case " has some arguable merit in fact and law." Montgomery, 294 F.3d at 499. Without passing judgment as to the ultimate merits of Plaintiff s claims, for the sole purpose of ...