United States District Court, M.D. Pennsylvania
TONY L. MUTSCHLER, Plaintiff,
BRENDA L. TRITT, et al., Defendants.
EDWIN M. KOSIK, District Judge.
Plaintiff, Tony L. Mutschler, filed this civil rights action pursuant to 42 U.S.C. § 1983, wherein he alleges Eighth Amendment violations against current and/or former employees at the State Correctional Institution at Frackville ("SCI-Frackville"), his current place of confinement. Presently before the court for consideration are Plaintiff's motions for hearing (Doc. 3), for appointment of counsel (Doc. 23), and to quash subpoenas served by Defendants to obtain records necessary to respond to the complaint (Doc. 18).
Plaintiff claims that beginning on or about May 10, 2014, he has been subjected to unsanitary and unhealthy conditions of confinement, as well as denied adequate medical care in violation of the Eighth Amendment. (Doc. 1, Compl. at 6.) Named as Defendants are the following SCI-Frackville employees: Brenda Tritt, Facility Manager; Mr. Miller and Mr. Kovlchik, Deputy Superintendents; Ms. Stanisheski, Medical Department Supervisor; Dr. Harewood, prison doctor; and Lieutenant Manbeck, Head of the Restrictive Housing Unit ("RHU"), where Plaintiff is confined.
Plaintiff alleges that he is 95% incontinent. The other 5% of the time he is unable to "release" at all, and requires a catheter. He claims that Defendant Harewood, M.D., has cut his medical supply in half and denies him an adequate number of diapers. He also asserts that his pain medications have been stopped. (Id. at 4.) He contends that Defendants allow the urine-soaked diapers to pile up in his cell. Because he is confined in the RHU, he is dependant on Defendants to open the "pie hole" for removal of his trash. He further alleges that he is forced to wear the urine-soaked diapers for long periods of time or be forced to walk around naked for which he would be disciplined. He claims that removing the soiled diapers would result in the soiling of his clothing and bedding. (Id.)
Plaintiff claims that Defendant Stanisheski is aware of these conditions because she signs off on the grievances he files. Defendant Manbeck is aware because he makes the daily rounds in the RHU. According to Plaintiff, Defendant Tritt has stated that she does not want to hear about his conditions, and Defendants Miller and Kovlchik have seen what is taking place "with there (sic) own eyes". (Id. at 5.)
Plaintiff also alleges that he is being denied adequate medical treatment for arthritis in his back, shoulder and hips, and for carpal tunnel syndrome in both wrists. Defendant Harewood has told him to purchase aspirin in the commissary, but Plaintiff states that he is allergic to aspirin. Based on the foregoing, he seeks declaratory, injunctive, compensatory and punitive relief.
A. Motion for counsel
Plaintiff has filed a motion for counsel. (Doc. 23.) In support thereof, he claims that he has little money and currently sells food to earn money. He also states that he is involved in litigating another civil action at this time, as well as his criminal case. He argues that the issues involved in this action are complex, that counsel for Defendants are using words that he does not understand, and that discovery will be necessary in this case. Plaintiff further claims that mental strain is affecting his ability to litigate this action on his own.
There is neither a constitutional nor statutory right to counsel for civil litigants. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2001). Congress has granted district courts the discretion to "request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1)(Noting that appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) is "discretionary"). A court's discretionary authority to appoint an attorney to represent a civil litigant (prisoner or non-incarcerated individual) only comes into play when the party is proceeding within the terms of 28 U.S.C. § 1915, Proceedings In Forma Pauperis, which necessarily implies the litigant's indigent status, and is made on a case-by-case basis. Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir. 1993).
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. Without passing judgment as to the ultimate merits of Plaintiff's claims, for the sole purpose of ...