Opinion
Civil Action No. 00-181J.
May 30, 2006
Memorandum Opinion and Order of Court
This matter comes before the Court on the Plaintiff's pro se Motion for Appointment of Counsel (Document No. 207). This case is scheduled for jury selection on September 11, 2006 with commencement of trial on September 18, 2006. The Plaintiff has proceeded pro se since the filing of this civil action and by Order of Court dated March 31, 2006, several of his claims survived a motion for summary judgment filed by the Defendants in this action. The Plaintiff seeks the appointment of counsel by the Court pursuant to 28 U.S.C. § 1915(e)(1).
In support of his motion, the Plaintiff asserts that he is unable to afford counsel, that he is untrained in the law, that the present civil action presents complex legal claims as well as complex medical issues requiring the use of expert testimony, his inability to investigate operative facts and to properly examine issues of credibility at trial, the merits of his case and the Plaintiff's own physical disabilities including Tourette's Syndrome, which can manifest itself in the Plaintiff through uncontrollable facial or body twitches and/or use of verbal obscenities (known as coprolalia), Attention Deficit Disorder and Attention Hyperactivity Disorder.
The Plaintiff requests the appointment of counsel. The Sixth Amendment and the Constitution generally do not guarantee a right to legal representation in civil actions, but only in criminal actions. Caruth v. Pinkney, 683 F.2d 1044, 1048 (7th Cir. 1982); Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980); U.S. v. Rogers, 534 F.2d 1134, 1135 (5th Cir. 1976); Securities and Exchange Commission v. Alan F. Hughes, Inc., 481 F.2d 401, 403 (2d Cir. 1973). Pursuant to 28 U.S.C. § 1915(e)(1), district courts have been given the general power to request that legal counsel represent an indigent party to a civil action, but this statute does not grant a district court the power to require an attorney to provide such representation. Mallard v. U.S. District Court for the S. Dist. of Iowa, 490 U.S. 296, 300-308, 109 S.Ct. 1814, 1818-1822, 104 L.Ed.2d 318, 326-330 (1989); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). 28 U.S.C. § 1915(e)(1) reads as follows: "The Court may request an attorney to represent any person unable to afford counsel."
The Third Circuit in Tabron analyzed the judicial authority to request counsel for indigent litigants previously found at § 1915(d), which is now found at § 1915(e)(1). The Third Circuit noted initially the discretionary power of a court to request representation as recognized in Mallard and then went on to recount the non-exhaustive factors that a district court should evaluate in determining to "appoint" counsel for an indigent party. Tabron, 6 F.3d 147, 153, 157. First, the Third Circuit sets forth a threshold question of whether the civil action possesses some "arguable merit in fact or law." Tabron at 155. If the case possesses merit, then a district court should consider various factors of the case including the party's ability to present his case in court based upon his literacy, education, and any past courtroom experience, the complexity of legal issues involved, the investigation necessary to pursue the case and the party's ability to conduct this investigation, the need for expert testimony and if credibility is in issue requesting counsel is preferable so that proper examination of witnesses may occur. Tabron at 155-156. Appointment of counsel by the Court can occur at any stage of the civil action and can be made by a court sua sponte. Tabron at 156. "[A]ppointment of counsel remains a matter of discretion." Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993) The Court will now turn to the threshold question of the merit of the Plaintiff's claims.
The Plaintiff presents to the Court for trial certain claims under the Americans with Disabilities Act and the Rehabilitation Act. The Court notes that in Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986), cited with approval by the Third Circuit in Tabron at 155, the Court of Appeals for the Second Circuit made the following observation:
`Even where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim.' As indicated above, this is already part of the law in this circuit, and it is a requirement that must be taken seriously. If mere bald assertions by an indigent, which technically put a fact in issue and suffice to avert summary judgment, required appointment of an attorney under § 1915(d), the demand for such representation could be overwhelming.
Some of the Plaintiff's claims survived summary judgment due to the existence of disputed facts that must be resolved by a jury, while other claims were not addressed by the Defendants under the applicable statutes, i.e., disciplinary actions of June 17, 1999 and November 4, 1999, Rehabilitation Act claims regarding medical allowances while in restrictive housing in SCI-Somerset, a subsequent request for transfer back to SCI-Laurel Highlands and the four Rehabilitation Act claims found in the Amended Complaint. See Memorandum Opinion dated March 31, 2006 (Document No. 194) pp. 23, 26, 27-28.
Generally speaking, the Plaintiff will have to demonstrate that the actions taken against him were taken because of his disability in order to establish claims under the Americans with Disabilities Act and Rehabilitation Act. A review of the summary judgment record presents very little evidence that the Defendants took action against the Plaintiff because of his disabilities and medical conditions. Furthermore, the Court's review of the available evidence does not demonstrate the existence of a case that proves the requested accommodations would not fundamentally alter the service provided by the Defendants under the applicable ADA standard. Clearly the Plaintiff bears the burden of proof and persuasion at trial. At this juncture, the Court cannot conclude that the Plaintiff's remaining claims have factual or legal merit sufficient to justify this Court to request representation for the Plaintiff from a member of this bar pursuant to 28 U.S.C. § 1915(e). Therefore, the Court's analysis must end at this threshold factor as set forth in Tabron. AND NOW, this 30th day of May, 2006, this matter coming before the Court on the Plaintiff's pro se Motion for Appointment of Counsel (Document No. 207), IT IS HEREBY ORDERED THAT said motion is DENIED.
MEMORANDUM ORDER ON PLAINTIFF'S EMERGENCY PETITION FOR ORDER OF THE COURT RE: LOGGING OF LEGAL MAIL FROM THE COURT
Plaintiff's present petition concerns his request that Defendant Department of Corrections ("DOC"), during the pendency of the above-captioned case, log all of Plaintiff's legal mail from this Court and Defendant DOC's counsel in the SCI-Laurel Highlands ("LH") Housing Unit Legal Mail Log Book ("HULMLB") prior to the delivery of such mail to Plaintiff by the SCI-LH unit correctional officers. (Doc. No. 187 at 1.)Plaintiff correctly notes that 37 Pa. Code § 93.2, and DC-ADM 803 are relevant to his request. DC-ADM 803 provides in relevant part:
VI. PROCEDURES
2.b. Control Number
(1) An attorney or court may seek advance permission from the Department's Office of Chief Counsel to use an attorney control number. If a control number is obtained and used as set forth below, mail from an attorney or court using the number shall be opened in the presence of the inmate.
(2) An attorney or court seeking a control number shall send a letter. . . .
(b) A letter from a court requesting a control number shall be on official letter head and shall be signed by any judge or chief non-judicial officer of the court (e.g., chief clerk). Although the request from the court need not contain a verification, the control number should be used only for mail the sender truly deems confidential.
. . .
(7) If the procedures set forth in Section VI. B.2.b. (1) through (6) above are followed, mail shall be opened for the first time in the presence of the inmate. If a control number does not appear on the envelope, the mail shall be treated as regular mail and opened in the mailroom. . . .
3. Mail that appears to be from a court, but bears no control number, shall be opened and inspected for contraband by the facility's mailroom staff in accordance with Section VI.D.1. of this policy. If no contraband is found, the contents shall be placed back into the envelope, which shall then be taped or stapled shut. Staff shall then deliver this court mail to the inmate in accordance with Section VI.B.2.b.(6) above, ensuring that a staff member hands the mail directly to the inmate. However, the delivering staff member need not re-open and re-inspect this court mail.
DC-ADM 803 (emphasis added).
37 Pa. Code § 93.2 provides in relevant part as follows: Section 93.2 Inmate Correspondence
. . .
(1) The Department may permit sealed mail to be opened in the presence of an inmate under the following conditions:
(iii) A court may direct delivery of court documents sealed from public disclosure to an inmate by specific order. The court's representative shall deliver the sealed documents and the specific court order to the facility. Under no circumstances will documents filed in a court of public record be delivered sealed to an inmate.37 Pa. Code § 93.2 (emphasis added).
Plaintiff contends that he does not challenge the above provisions, but objects only to the fact that Defendant DOC refuses to log his legal mail from this Court and from Defendant DOC's counsel into the HULMLB because such mail is deemed to be regular mail. Plaintiff notes that at the time of filing this Petition, he had several outstanding petitions and is awaiting the Court's Orders. Plaintiff continues that "it is my serious concern that the Court may issue its MJRR and or other Court Orders, and or Defendant's counsel may file motion w/copy to me for timely response and these legal documents may be trashed and never given to me by officers biased against me here. . . ." (Doc. No 187 at 6.)
A careful review of the record by this Court reveals that Plaintiff is receiving the Court's Orders. Plaintiff's outstanding motions at the time of filing the present Petition have now been ruled upon, and the record is clear that Plaintiff has received copies of these Orders as Plaintiff has filed responsive motions. For example, Judge Gibson entered an Order on March 27, 2006 regarding Plaintiff's Motion at Docket No. 185, entitled "Motion for Reinstatement of Failure to Accommodate Disabilities Claim" to which Plaintiff filed a Motion to Vacate on May 1, 2006. In addition, Judge Gibson entered on Order dated March 31, 2006 regarding an outstanding Motion for Summary Judgment to which Plaintiff responded on April 13, 2006. Finally, Judge Gibson entered an Order on April 20, 2006 regarding Plaintiff's Response filed on April 13, 2006 to which Plaintiff again responded on May 1, 2006. The record in this case is clear that Plaintiff is receiving his mail, and consequently, it is unnecessary for this Court to enter an Order altering the mail procedures presently in place at SCI-LH.
For the reasons discussed above, IT IS HEREBY ORDERED that Plaintiff's Emergency Petition for Order of the Court re: Logging of Legal Mail from the Court is DENIED.