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Washington v. Gilmore

United States District Court, W.D. Pennsylvania

June 25, 2019

JEROME JUNIOR WASHINGTON, Plaintiff,
v.
SUPERINTENDENT GILMORE, MR. HAMMER, PA-C; CHCA STEPHANIE WOOD, BSN MBA, CCHP; CHCA NICHOLSON, DIRECTOR MS. SMITH, ARE ALL BEING SUED IN HIS OR HER INDIVIDUAL CAPACITIES AND OFFICIA; CAPACITIES UNDER THE UNITED STATES DECLARED PENALTY OF PERJURY;, Defendants.

          MEMORANDUM OPINION

          JOY FLOWERS CONTI, SENIOR UNITED STATES DISTRICT COURT JUDGE

         I. Introduction

         Pending before the court in this prisoner civil rights action filed under 42 U.S.C. § 1983 (“§ 1983”) are objections (ECF Nos. 8, 47) to the magistrate judge's memorandum orders (ECF Nos. 6, 33), denying the motion to appoint counsel (ECF No. 4) and motion for preliminary injunction (ECF No. 10) filed by pro se plaintiff Jerome Junior Washington (“plaintiff”). The court conducted a de novo review of the complaint, plaintiff's motions, the responses filed by defendants, the magistrate judge's memorandum opinions and orders, and plaintiff's objections. For the reasons set forth in this opinion, plaintiff's objections to the magistrate judge's memorandum orders will be denied.

         II. Procedural History

         Plaintiff, who is a prisoner detained at State Correctional Institution Greene (“SCI Greene”), initiated this action on November 19, 2018, by filing a one-count complaint against employees of SCI Greene: “Superintendent Gilmore” (“Gilmore”), “Mr. Hammer” (“Hammer”), “CHCA Stephanie Wood” (“Wood”), “CHCA Nicholson” (“Nicholson”), and “Director Ms. Smith” (“Smith” and collectively with Gilmore, Hammer, Wood, and Nicolson, “defendants”). (ECF No. 3.) Plaintiff in the complaint sets forth a § 1983 claim against defendants for deliberate indifference to his serious medical needs in violation of the Eighth and Fourteenth Amendments to the United States Constitution. (ECF No. 3 at 1, 14.)

         On November 27, 2018, plaintiff filed a request for appointment of counsel. (ECF No. 4.) In a memorandum order dated November 30, 2018, the magistrate judge issued a memorandum order denying the motion to appoint counsel. (ECF No. 6.) The magistrate judge reasoned that this “case is very straightforward and does not present complex issues of fact.” (ECF No. 6 at 3.) On December 13, 2018, plaintiff filed objections, which this court will consider an appeal[1] of the magistrate judge's memorandum order, to the memorandum order. (ECF No. 8.)

         On January 18, 2019, the case was stayed in light of the shutdown of the federal government. (ECF No. 9.) On January 24, 2019, plaintiff filed an emergency motion for preliminary injunction. (ECF No. 10.) On February 21, 2019, the case was reopened because the government shutdown ended. (ECF No. 11.) On April 2, 2019, defendants filed an answer to the complaint. (ECF No. 18.) On April 22, 2019, Hammer and Smith filed a response in opposition to the motion for preliminary injunction. (ECF No. 23.) On the same day, Gilmore, Nicholson, and Wood filed a response in opposition to the motion for preliminary injunction. (ECF No. 24.) On May 7, 2019, the magistrate judge issued a memorandum order, which the court will treat as proposed findings of fact and conclusions of law, [2] denying the motion for preliminary injunction. (ECF No. 33.) On May 7, 2019, plaintiff filed an “objection” to the response in opposition to the motion for preliminary injunction filed by Gilmore, Nicholson, and Wood. (ECF No. 37.) On May 16, 2019, plaintiff filed an objection to the magistrate judge's memorandum order denying his motion for preliminary injunction. (ECF No. 47.)

         Plaintiff's objections to the magistrate judge's memorandum orders are now ripe to be decided by the court.

         III. Standard of Review

         The magistrate judge's memorandum order denying the motion to appoint counsel, which is a pretrial matter pending before the court, is subject to the standard of review set forth in 28 U.S.C. § 636(b)(1)(A). Section 636(b)(1)(A) provides: “A judge of the court may reconsider any pretrial matter under this subparagraph…where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” “Objections” to a magistrate judge's memorandum order under § 636(b)(1)(A) are considered an “appeal” to the district court judge.

         Plaintiff's motion for preliminary injunction is excluded from the matters which the magistrate judge may hear and determine in the first instance. 28 U.S.C. § 636(b)(1)(A). A magistrate judge, however, may “submit to a judge of the court proposed findings of fact and recommendations for the disposition, by the judge of the court, of any motion…[for injunctive relief].” 28 U.S.C. § 636(b)(1)(B). When objections to proposed findings of fact and recommendations have been filed under 28 U.S.C. § 636(b)(1)(B), the court must make a de novo determination of those portions of the report to which objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989); Fed.R.Civ.P. 72(b)(3). The court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(B).

         The court will consider in turn plaintiff's appeal of the magistrate judge's memorandum order denying the motion to appoint counsel and plaintiff's objections to the magistrate judge's proposed findings of fact and conclusions of law.

         IV. Motion to Appoint Counsel

         It is well established that an indigent litigant has no statutory right to appointed counsel. Tabron v. Grace, 6 F.3d 147, 153 (3d Cir.1993). Under 28 U.S.C. § 1915(e)(1), however, “[t]he court may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). Whether or not such a request is warranted is a matter of discretion and must be made on a case-by-case basis. Tabron, 6 F.3d at 157-58.

         In determining whether to request counsel, the United States Court of Appeals for the Third Circuit has set forth certain factors for the court to consider. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir.1997). As a threshold matter the district court should consider whether the plaintiff's claim has arguable merit in fact or law. Id. Once the court is satisfied that the claim has some merit, the court considers the following factors:

1. the plaintiff's ability to present his or her own case;
2. the complexity of the legal issues;
3. the degree to which factual investigation will be necessary and the ability of the plaintiff to pursue ...

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