United States District Court, M.D. Pennsylvania
Matthew W. Brann United States District Judge
Alfonso Percy Pew, an inmate currently confined at the State
Correctional Institution at Houtzdale (SCI-Houtzdale) in
Houtzdale, Pennsylvania, filed this pro se civil
rights action pursuant to 42 U.S.C. § 1983. The action
was originally filed in the Eastern District of Tennessee on
September 24, 2012, and transferred to this Court on October
3, 2012. The matter proceeds on an amended complaint.
September 3, 2014, ECF No. 61. Plaintiff asserts that he was
placed in a restraint chair that he refers to as a
“torture chair” for eight (8) hours while housed
at SCI-Smithfield on August 9, 2011, in violation of the
Eighth Amendment. All Defendants have been dismissed from
this action except Defendants Lois Harris and B.
O'Donnell, two registered nurses. March 14, 2014, ECF
Nos. 107, 108.
Plaintiff sought leave to file a second amended complaint,
leave was denied and Defendants' motion to dismiss the
second amended complaint was granted. August 24, 2016, ECF
Nos. 129, 130. Presently pending are numerous motions filed
by the Plaintiff in this case. The majority of the motions
are with respect to discovery. However, Plaintiff has also
filed other motions wherein he seeks the appointment of
counsel, the scheduling of a telephone conference with the
Court, and the issuance of an injunction.
scheduling order was issued directing that all discovery be
completed by the parties on or before November 28, 2016, and
any dispositive motions be filed on or before December 28,
2016. August 25, 2015, ECF No. 131. An answer to the amended
complaint with affirmative defenses was filed by Defendants
Harris and O'Donnell. September 15, 2016, ECF No. 133.
Several days later, Defendants moved to depose Plaintiff, and
this motion was granted. September 19, 2016, ECF No. 137.
Plaintiff filed an emergency motion to appoint counsel
claiming that he was confined in a mental health unit at
SCI-Greene, and was entitled to a lawyer because he was on
psychotropic medication and indigent, yet required to pay for
his own discovery materials. He claims that he is prejudiced
because he cannot afford discovery and is on narcotics.
September 22, 2016, ECF Nos. 138, 139.
also seeks reconsideration of the Court's Order issued
September 19, 2016, granting Defendants' request to
depose him. September 26, 2016, ECF No. 140. In support of
his motion for reconsideration, Plaintiff claims that because
he was not given an opportunity to oppose Defendants'
request and in light of his medical condition, he should be
appointed counsel to represent him at any deposition.
Id., ECF No. 141. His request for reconsideration
has been opposed by Defendants. October 11, 2016, ECF No.
motion to compel discovery was filed wherein Plaintiff seeks
the production of the following: (1) digital photos from the
date of the incident at SCI-Smithfield claiming that the
black and white ones he received are of poor quality; (2)
digital photos taken on February 29, 2012 by Daniel Zaremba,
R. N., which Plaintiff claims relate to the injuries he
suffered on the date of the incident; (3) Section 32 of the
Department of Corrections' Facility Security Procedures
Manual 6.3.1, which addresses the excessive use of force; and
(4) Section 33 of Procedures Manual 6.3.1, which addresses
the use of the restraint chair. September 26, 2016, ECF Nos.
143, 144. Defendants have opposed this motion. October 12,
2016, ECF No. 147.
thereafter filed a motion for an injunction to have his legal
property shipped to him at SCI-Dallas from SCI-Greene and a
motion to stay discovery or appoint counsel, due to his
transfer from SCI-Greene and lack of access to any legal
documents to conduct discovery. October 28, 2016, ECF Nos.
149-152. Defendants opposed the motion for injunction
claiming that Plaintiff's property was sent to him at
SCI-Dallas, and that he was provided the opportunity to
inventory it. As such, they argue that Plaintiff's motion
for injunctive relief is now moot. November 4, 2016, ECF No.
to Defendants' opposition, Plaintiff filed a combined
motion and brief requesting a telephone conference with the
Court in this matter. November 1, 2016, ECF No. 153. In this
filing, Plaintiff admits to having received his legal
property after he filed the motion for injunctive relief
referenced above, but now claims that Sergeant Bach and
others on the 2-10 shift on K-Block at SCI-Dallas confiscated
and destroyed the “carry on bag” he brought with
him to SCI-Dallas which contained the complete record in the
above case. Based on the foregoing, he seeks a phone
conference with the Court, as well as an injunction and
sanctions against Bach and the other unidentified SCI-Dallas
one week later, Plaintiff filed an emergency letter/
motion/brief requesting that the Court intervene to prevent
Sergeant Bach and an unidentified RHU Lieutenant from
declining to give his grievances to the Grievance Coordinator
at SCI-Dallas. November 9, 2016, ECF No. 156. Defendants
oppose this motion claiming that Plaintiff's legal work
from SCI-Greene was sent to SCI-Dallas where Plaintiff had
the opportunity to inventory it. They further argue that any
alleged denial of access to the courts by employees at
SCI-Dallas is not a proper basis for seeking injunctive
relief in this case. November 22, 2016, ECF No. 159.
notified the Court that he was transferred to SCI-Houtzdale
and complains about his conditions and his cell there.
November 21, 2016, ECF No. 157. He wants his motion construed
as a brief, and requests that the Court intervene to prevent
the guards from hurting him and to allow him medical access.
pending are a number of motions to compel filed by Plaintiff
wherein he seeks discovery from Defendants. He first seeks
information from Defendants with respect to the restraint
chair including any instructions, usage and safety warnings
pertaining to the chair. Plaintiff also seeks to know the
number of restraint chairs at SCI-Smithfield and their serial
numbers. In addition, Plaintiff would like to see all sets of
the digital photos which were taken of Plaintiff in the
restraint chair, and any photos taken after the incident at
SCI-Frackville by Daniel Zaremba. Plaintiff also seeks copies
of misconduct reports #B250271 and #B768039, and the related
DC-709s, and any ICAR records related to the smearing of
feces by Plaintiff in his cell. The later misconduct appears
to have been issued at SCI-Forest, and does not appear to be
related to any activity by Plaintiff occurring at
SCI-Smithfield. According to Plaintiff, Defendants are
withholding this discoverable evidence from him and he wants
it produced at SCI-Houtzdale. November 30, 2016, ECF Nos.
160, 162. Defendants have also opposed this motion. December
13, 2016, ECF No. 166.
next motion to compel deals with the production of medical
records to Plaintiff for the purpose of photocopying.
November 30, 2016, ECF No. 163. Plaintiff contends that he is
not being provided with access to make the photocopies of the
records that he needs or the means to choose the documents
that he needs to copy. He claims that he was only given one
(1) hour while at SCI-Greene while in restraints to view the
medical records, which consisted of numerous volumes. He
further argues that no date and time were established to
enable him to make copies.
motion to compel was filed wherein Plaintiff seeks the
production of documents requested on or about September 1,
2016. December 1, 2016, ECF No. 164. This motion seeks to
compel the medical records referenced above. Plaintiff
specifically refers to 13.2.1 Access to Health Care
Procedures Manual, Section 10 regarding Medical Orders for
Special Items and health care items receipts (DC-443) for a
scrotal support and a back brace Plaintiff received from
SCI-Rockview prior to his placement in the chair at
SCI-Smithfield. Plaintiff also claims he has not been allowed
access to photocopy the x-ray results and recommendations
made at SCI-Frackville and SCI-Rockview with respect to
steroids, neurontin, a scrotal support, a back brace and a
Tens Unit after he was in the “torture chair.”
(Id.) He further complains about “discoverable
evidence” that Defendants will not provide to inmates
Cooke, Robinson and Cramer with respect to the fact that they
were “let out” of the torture chair prior to
eight (8) hours. Plaintiff also seeks production of the 8
hour continuous camera footage from the cage camera that he
claims exists while he was in the restraint chair.
(Id.) Defendants have also opposed this motion
claiming that Plaintiff is not entitled to free copies of his
medical records, he cannot assert the claims of other
inmates, and it has not been determined if there is any
videotape footage from any overhead camera in the strip cage
on the date in question. December 14, 2016, ECF No. 167.
additional motions to compel were filed on December 22, 2016.
In the first motion, Plaintiff seeks the answers to a second
set of interrogatories he sent to Defendant Harris, a second
set of interrogatories he sent to Defendant O'Donnell,
and a Fourth Motion for Production of Documents wherein he
seeks the following from Defendants: (1) the Constant Watch
Policy; (2) the name of the Hostage Negotiator on duty when
Plaintiff was placed in the restraint chair; and (3) the
portion of the Hostage Negotiator Policy that addresses
negotiation with inmates prior to their placement in a
restraint chair. December 22, 2016, ECF No. 168. Plaintiff
attaches the discovery requests to his motion. (Id.
second motion filed on this date, Plaintiff again seeks
access to the documents he challenged in the motion to compel
filed on November 30, 2016, wherein he states he was in
restraints and only had one (1) hour to review the documents.
He claims that while Defendants claim he wants free copies,
he does not advance that argument, and is willing to pay for
any copies once he is permitted a proper amount of time to
review the documents. Although he is now at SCI-Houtzdale, he
seeks production of the same documents produced at
SCI-Greene, and merely wants more time to review the records.
December 22, 2016, ECF No. 169.
last filing appearing on the docket is Plaintiff's
“Open Letter Motion to the Court.” March 29,
2017, ECF No. 174. He requests that this document serve as
both a motion and a supporting brief. In the filing,
Plaintiff states that defense counsel sent him a letter on
February 28, 2017, stating that Plaintiff would receive the
relevant documents he previously reviewed at SCI-Greene from
the Assistant to the Superintendent at SCI-Houtzdale to
review, including the medical records and any DC-440 forms.
Plaintiff claims that he did not receive any DC-440 forms. He
also complains that he did not receive the February 2012
Incident Report and photos from Nurse Daniel Zaremba taken at
SCI-Frackville regarding the injuries he sustained in the
Appointment of Counsel
initially sought the appointment of counsel in this case on
November 9, 2012, and it was subsequently denied without
prejudice. July 24, 2013, ECF No. 26. A motion seeking
reconsideration of the Court's Order was also denied.
January 16, 2014, ECF Nos. 42, 43. Plaintiff later filed a
motion “to relate case and alternative to appointment
of counsel”, but this motion was also denied. August 4,
2014, ECF Nos. 59, 60. Plaintiff filed an emergency motion
for counsel due to his mental illness and the psychotropic
medication and PREA Therapy counseling he is receiving.
September 22, 2016, ECF 138. He filed this motion while
confined at SCI-Greene, and states that he resides in the
Diversionary Treatment Unit (“DTU”) with serious
mental health issues. He further alleges that he is receiving
weekly PREA therapy counseling, and is being treated with
psychotropic medication. As a result of the foregoing, he
claims that he will be prejudiced if forced to litigate this
matter on his own.
previously stated, although prisoners have no constitutional
or statutory right to appointment of counsel in a civil
case, the Court has discretion to request
“an attorney to represent any person unable to afford
counsel.” The United States Court of Appeals for the
Third Circuit has stated that 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 ...