Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pew v. Harris

United States District Court, M.D. Pennsylvania

April 11, 2017

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

          MEMORANDUM

          Matthew W. Brann United States District Judge

         Plaintiff, 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.

         While 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.

         I. BACKGROUND

         A 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.

         Plaintiff 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. 146.

         A 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.

         Plaintiff 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.[1] 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. 155.

         Prior 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 employees.

         Approximately 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.

         Plaintiff 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.

         Also 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.

         The 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.

         A third 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.

         Two 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. at 2-5.)

         In the 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.

         The 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 torture chair.

         II. DISCUSSION

         A. Appointment of Counsel

         Plaintiff 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.

         As previously stated, although prisoners have no constitutional or statutory right to appointment of counsel in a civil case[2], the Court has discretion to request “an attorney to represent any person unable to afford counsel.”[3] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.