United States District Court, M.D. Pennsylvania
Plaintiff, George Buford, an inmate confined at the United States Penitentiary at Lewisburg ("USP-Lewisburg"), filed this mandamus action pursuant to 28 U.S.C. § 1361 with Bivens allegations. (Doc. 1, Compl.) Pending on the docket are numerous motions that will be addressed herein.
The Court has construed the Complaint to consist of Document 1 (Id.) and a supporting declaration submitted by Plaintiff (Doc. 10). The Complaint is entitled "Action to Compel an Officer of the United States to Perform his Duty - Title 28 U.S.C. § 1361." In his submission, Plaintiff states that he is experiencing difficulty with accessing the grievance procedure at USP-Lewisburg. Specifically, he references the problems he is having attempting to exhaust his administrative remedies with respect to the following issues: (1) obtaining special shoes for his diabetic foot neuropathy condition; (2) wild bird infestation in B-Unit; (3) treatment for his high blood pressure; (4) the denial of access to the Administrative Remedy Program; (5) the failure to treat respiratory irritant exposure; (6) the denial of the First Amendment; and (7) forced double-celling. While the Complaint does not contain a Statement of Claim section, wherein he provides the details of his claims, he does attach letters sent to various Defendants discussing these issues, which he claims were exhaustion attempts and which were ignored. (Doc. 1 at 16-37.) Plaintiff also filed a declaration in support of his Complaint, which mainly describes the bird infestation problem. (Doc. 10.)
Named Defendants include Bureau of Prisons employees, Harrell Watts, National Inmate Appeals Coordinator, and Michael Tafelski, the Northeast Regional Counselor. Also named are the Warden at USP-Lewisburg and the following USP-Lewisburg employees: Ron Hicks, Safety Director; Kevin Pigos, Clinical Director; Steve Brown, Health Services Administrator; John Adami, B-Unit Manager; Andrew Edinger, M.D.; Anna Zimmerman, B-Unit Case Manager; Autumn Cotterall; and Brent Tharp, B-Unit Counselor.
Plaintiff requests injunctive relief in the form of receiving his medical shoes and treatment for his hypertension. He also requests that Defendants eliminate the bird problem in Unit-B and house him in accordance with OPI ADM 1060.1 l(7)(c)(l)(a).
Service of the Complaint and supporting statement have been directed. Pending on the docket are numerous submissions by Plaintiff, including motions for injunctive relief (Docs. 13, 20), a motion for the appointment of counsel (Doc. 29), a motion for the extension of time to oppose summary judgment (Doc. 30), a motion seeking judicial review (Doc. 36), a motion for directed verdict (Doc. 37), a motion to take judicial notice (Doc. 35) and two documents labeled as "Affidavits." (Docs. 12, 21). Also pending is Defendants' motion for summary judgment (Doc. 28).
A. Motion for counsel
Plaintiff seeks the appointment of counsel in this action. In support thereof, he states that he was attacked in November of 2014, and has noticed some complications as a result thereof due to a hemorrhage he suffered, which affects his vision. As such, he claims that preparing his submissions is more difficult. (Doc. 29.)
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 these motions, the Court will assume that the case has arguable merit in law and the facts.
Upon successfully clearing the above hurdle, other factors ...