Hester v. Phelps et al

Filing 16

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 5/22/12. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CORNELL HESTER,
Plaintiff,

v.

Civ. No. 12-001-LPS

PERRY PHELPS, et aI.,
Defendants.

Cornell Hester, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

MEMORANDUM OPINION

May 22, 2012
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Cornell Hester ("Plaintiff'), filed this action pursuant to 42 U.S.C. § 1983

alleging violations of his constitutional rights. l (0.1.2) Plaintiff is incarcerated at the James T.
Vaughn Correctional Center ("VCC") in Smyrna, Delaware. He appears pro se and has been
granted leave to proceed in forma pauperis. (0.1. 9) The Court proceeds to review and screen
the Complaint pursuant to 28 U.S.C. § 1915 and § 1915A.

II.

BACKGROUND
The original Complaint named Defendants Warden Perry Phelps ("Phelps"), Officer

Tyson ("Tyson"), Officer Cain ("Cain"), and Employee's Inside Medication Window. 2 (0.1.2)
Plaintiff later filed a Memorandum of Law that added Defendants Officer Casey ("Casey"),
Officer Hedinger ("Hedinger"), Officer White ("White"), Lt. Endress ("Endress"), and Lt.
Savage ("Savage"). (0.1. 13) The Court construes the Memorandum of Law as an Amended
Complaint. 3
Plaintiff alleges that on December 23, 2011, he was wrongfully transferred from full
minimum status to the Medium High Housing Unit ("MHU"). Plaintiff was one program from
becoming a graduate that would have made him a role model inmate with full-minimum status.

IPursuant to 42 U.S.C. § 1983, a plaintiff must allege that some person has deprived him
of a federal right, and that the person who caused the deprivation acted under color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988).
2Defendant Employee's Inside Medication Window is mistakenly docketed as
Employee's Inside Medical Window. The Clerk of Court will be directed to correct the error.
3The Clerk of the Court will be directed to docket the Memorandum of Law at Docket
Item 13 as an Amended Complaint.
I

Plaintiff seeks transfer to the State of New Jersey, and this status would have allowed his
participation in the interstate compact process. Plaintiff did not receive any write-ups or charges
and, at the time of transfer, was told that it was an administrative move. 4 Plaintiff asked Savage
how he could be transferred when there was no rule violation and asked for a copy of any rules
violation, but Savage indicated that there were no charges.
MHU is a housing unit for problem inmates who have twelve to eighteen classification
points or higher. Plaintiff is the only person in MHU with five points. He alleges that he was
transferred because he wrote a letter to Phelps "about violating his interstate transfer." Plaintiffs
December 23, 2011 grievance states that the transfer occurred after he wrote the letter to Phelps
regarding the deprivation of his right to the interstate compact for transfer to New Jersey.
Plaintiffs application for a transfer was denied during an "in-house" classification hearing.
Plaintiff alleges that Tyson violated his constitutional rights when he handcuffed Plaintiff
and removed him to a higher security level. In addition, Tyson tried to verbally provoke Plaintiff
into a reaction to the transfer.
Plaintiff alleges that inmates housed in MHU are not provided the common necessities
for personal hygiene such as toilet paper, toothpaste, toothbrush, soap, washcloth, and towels. In
addition, he alleges that Cain and Hedinger deprived him of his personal property that was seized
upon order of Warden Phelps. Plaintiff informed Cain that he reeently had two wisdom teeth
removed and needed to take prescription medication on a daily basis. He told Cain and Hedinger
that the pain medication was with his personal property, but was advised that his medication and

4Recently the Institutional Base Classification Committee ("IBCC") approved the
decision to continue Plaintiff s housing assignment in MHU. CD.1. 11)

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personal property would not be returned. He was also told that he would not receive his property
until the next week. Plaintiff was ultimately without the pain medication for five days from
December 23,2011 until December 28, 2011. One evening Defendant Officer White saw
Plaintiff curled up in pain. In addition, the Medication Window at B-Building, A-6 left his
medication behind on three occasions and this resulted in an infection and abscesses in his
mouth. Following his transfer to MHU, for a five or six day period, Plaintiff had none of his
personal property, no change of underwear or prison clothing, and was not allowed his boots.
On Christmas morning, Plaintiff sought an emergency trip to the infirmary where he was
seen and he received medical attention. His mouth was infected and he was given another cycle
of medication. Plaintiff presented to the dentist on December 27,2011, and again received
treatment. According to Plaintiff, the dentist hid from him that two abscesses resulted from the
infection. Plaintiff was given liquid medication and additional antibiotics.
Plaintiff seeks compensatory and punitive damages and reinstatement to "full minimum
status." Plaintiff remains housed in MHU.

III.

LEGAL STANDARD
This Court must dismiss, at the earliest practicable time, certain informapauperis and

prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a
defendant who is immune from such relief. See 28 U.S.c. § 19l5(e)(2) (in forma pauperis
actions); 28 U.S.C. § 19l5A (actions in which prisoner seeks redress from governmental
defendant); 42 US.C. § 1997e (prisoner actions brought with respect to prison conditions). The
Court must accept all factual allegations in a complaint as true and take them in the light most
favorable to a pro se plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Phillips v.

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County ofAllegheny, 515 F.3d 224,229 (3d Cir. 2008). Because Plaintiff proceeds pro se, his
pleading is liberally construed and his Complaint, "however inartfully pleaded, must be held to
less stringent standards than fonnal pleadings drafted by lawyers." Erickson, 551 U.S. at 94
(internal quotation marks omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(l), a
court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal
theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327­
28; see also Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); Deutsch v. United States, 67
F.3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took
inmate's pen and refused to give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant to
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l) is identical to the legal standard used when ruling on Rule
12(b)(6) motions. See Tourscher v. McCullough, 184 F.3d 236,240 (3d Cir. 1999). However,
before dismissing a complaint or claims for failure to state a claim upon which relief may be
granted pursuant to the screening provisions of28 U.S.C. §§ 1915 and 1915A, the Court must
grant Plaintiff leave to amend his complaint, unless amendment would be inequitable or futile.
See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). When
detennining whether dismissal is appropriate, the Court conducts a two-part analysis. See
Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). First, the factual and legal

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elements of a claim are separated. See id The Court must accept all ofthe complaint's well­
pleaded facts as true, but may disregard any legal conclusions. See id at 210-11. The
assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the
elements of a cause of action supported by mere conclusory statements." Iqbal, 556 U.S. at 678.
Second, the Court must determine whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a "plausible claim for relief." Fowler, 578 F.3d at 211. In other
words, the complaint must do more than allege the plaintiffs entitlement to relief; rather, it must
"show" such an entitlement with its facts. Id A claim is facially plausible when its factual
content allows the Court to draw a reasonable inference that the defendant is liable for the
misconduct alleged. See Iqbal, 556 U.S. at 678. The plausibility standard "asks for more than a
sheer possibility that a defendant has acted unlawfully." Id "Where a complaint pleads facts
that are 'merely consistent with' a defendant's liability, it 'stops short of the line between
possibility and plausibility of 'entitlement to relief. ", Id (quoting Twombly, 550 U.S. at 570).

IV.

DISCUSSION
A.

Housing Assignment/Classification

Plaintiff claims the administrative transfer from minimum to medium security
classification violated his constitutional rights. It is well established that an inmate does not
possess a liberty interest arising from the Due Process Clause in assignment to a particular
custody level or security classification or a place of confinement. See Wilkinson v. Austin, 545
U.S. 209,221-22 (2005) (Constitution does not give rise to liberty interest in avoiding transfer to
more adverse conditions of confinement); Olim v. Wakinekona, 461 U.S. 238,245 (1983);

Meachum v. Fano, 427 U.S. 215, 224-25 (1976). The custody placement or classification of

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prisoners within the State prison system is among the "wide spectrum of discretionary actions
that traditionally have been the business of prison administrators rather than of the federal
courts." Meachum, 427 U.S. at 225. "'As long as the conditions or degree of confinement to
which [a] prisoner is subjected is within the sentence imposed upon him and is not otherwise
violative of the Constitution, the Due Process Clause does not in itself subject an inmate's
treatment by prison authorities to judicial oversight. '" Hewitt, 459 U.S. at 468 (quoting

Montanye v. Haymes, 427 U.S. 236,242 (1976)). See also Sandin v. Conner, 515 U.S. 472, 480
(1995). Therefore, Plaintiff can prevail under the Due Process Clause only if state law or
regulation has created a constitutionally-protected liberty interest in remaining free from
administrative detention. Here, however, neither Delaware law nor Department of Correction
regulations create a liberty interest in a prisoner's classification within an institution. See 11 Del.
C. § 6529(e).
In addition, state created liberty interests protected by the Due Process Clause are
generally limited to restraints on prisoners that impose an "atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life." Griffin v. Vaughn, 112 F.3d 703,
706 (3d Cir. 1997) (internal quotation marks omitted). In deciding whether a protected liberty
interest exists, a federal court must consider the duration of the disciplinary confinement and the
conditions of that confinement in relation to other prison conditions. See Mitchell v. Horn, 318
F.3d 523,532 (3d Cir. 2003). The United States Court of Appeals for the Third Circuit has held
that a state prisoner's confinement in administrative segregation for fifteen months did not
impose an atypical and significant hardship on the prisoner. See Griffin v. Vaughn, 112 F.3d 703,
706-09 (3d Cir. 1997); see also Mearin v. Vidonish, 450 F. App'x 100 (3d Cir. Nov. 3, 2011)

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(not published) (affirming that placement in administrative custody for periods of256 days and
343 days did not trigger a constitutionally protected liberty interest); Scerbo v. Lowe, 326 F.
App'x 652, 656 (3d Cir. May 1, 2009) (eighteen-month period of confinement in maximum
security custody did not implicate protected liberty interest); Young v. Beard, 227 F. App'x 138
(3d Cir. Mar. 20, 2007) (not published) (inmate sentenced to aggregate of 930 days in
disciplinary confinement without dayroom or telephone privileges did not constitute atypical and
significant hardship sufficient to trigger liberty interest); Brown v. Cunningham, 730 F.Supp. 612
(D. Del. 1990) (plaintiffs transfer from general population to administrative segregation, without
being given notice and opportunity to challenge it, was not violation of plaintiffs liberty
interest).
As Plaintiff notes, a transfer to MHU results in greater restrictions than a housing
assignment in minimum security. Regardless, the transfer from one classification to another did
not violate his due process rights. Accordingly, the decision to place Plaintiff in MHU cannot be
viewed as falling outside the scope of "the sentence imposed upon him [or] otherwise violative
of the Constitution." Plaintiff cannot state a claim for violation of a liberty interest created by the
Due Process Clause or State law with respect to his custody level classification. His due process
claim has no arguable basis in law or in fact and will be dismissed as frivolous pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).

B.

Transfer

Plaintiff appears to allege a violation of his constitutional rights because he was not
transferred to New Jersey pursuant to an interstate compact agreement. The Delaware Supreme
Court has recognized that prison officials have discretion to house inmates at the facilities they

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choose. See Walls v. Taylor, 856 A.2d 1067,2004 WL 906550 (Del. 2004) (table) (citing

Brathwaite v. State, No. 169,2003 (Del. Dec. 29,2003)). Furthermore, the United States
Supreme Court has held that an inmate has no due process right to be incarcerated in a particular
institution, whether it be inside the state of conviction, or outside that state. See Olim v.

Wakinekona, 461 U.S. 238, 251(1983). Plaintiffs claim fails as a matter of law. He has no
constitutional right to a transfer to the State of New Jersey.
This claim has no arguable basis in law or in fact and, therefore, will be dismissed as
frivolous pursuant to 28 U.S.c. §§ 1915(e)(2)(B) and 1915A(b)(1).
C.

Conditions of Confinement

Plaintiff alleges that he was subjected to unlawful conditions of confinement when he
was deprived of his personal property for a five or six day period and because housing in MHU
does not provide for the common necessities for personal hygiene.
A condition of confinement violates the Eighth Amendment only if it is so reprehensible
as to be deemed inhumane under contemporary standards or such that it deprives an inmate of
minimal civilized measure of the necessities oflife. See Hudson v. McMillian, 503 U.S. 1,8

(1992); Wilson v. Seiter, 501 U.S. 294, 298 (1991). When an Eighth Amendment claim is
brought against a prison official it must meet two requirements: (1) the deprivation alleged must
be, objectively, sufficiently serious; and (2) the prison official must have been deliberately
indifferent to the inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Deliberate indifference is a subjective standard in that the prison official must actually have
known or been aware of the excessive risk to inmate safety. See Beers-Capitol v. Whetzel, 256
F3d 120, 125 (3d CiT. 2001).

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Although the conditions in MHU may be harsher than those in minimum security, they do
not constitute a denial of "the minimal civilized measures of life's necessities." See, e.g.,
Williams v. Delo, 49 F.3d 442, 444-47 (8th Cir. 1995) (holding no Eighth Amendment violation
where prisoner was placed in strip cell without clothes, water in the cell was turned off and
mattress removed, and prisoner's bedding, clothing, legal mail, and hygienic supplies were
withheld). In addition, while Plaintiff claims he was denied certain amenities, he has named no
specific individual, nor has he alleged that prison officials knew of, and disregarded, an excessive
risk to his health or safety. See Beers-Capitol, 256 F.3d at 125. Plaintiff may find his conditions
of confinement uncomfortable, but they are no different than those afforded to other inmates who
are housed in MHU.
The allegations do not rise to the level of a constitutional violation. Therefore, the Court
will dismiss the claims as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2) (B) and 1915A(b)(1).

D.

Personal Property

Plaintiff alleges that Cain and Hedinger violated his constitutional rights when they
confiscated his personal property upon his transfer to MHU.
A prisoner's due process claim based on random and unauthorized deprivation of
property by a state actor is not actionable under § 1983, whether the deprivation is negligent or
intentional, unless there is no adequate post-deprivation remedy available. See Parratt v. Taylor,
451 U.S. 527,542 (1981), overruled on other grounds by, 474 U.S. 327 (1986); see also Hudson
v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff has available to him the option of filing a
common law claim for conversion of property. Inasmuch as Delaware law provides an adequate

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remedy for Plaintiff, he cannot maintain a cause of action pursuant to § 1983. See Hud'iOn, 468
U.S. at 535; Nicholson v. Carroll, 390 F. Supp. 2d 429,435 (D. Del. 2005).
The claim lacks an arguable basis in law or in fact and, therefore, will be dismissed as
frivolous pursuant to 28 U.S.C. §§ 1915(e)(2) (B) and 1915A(b)(l).

E.

Verbal Harassment

Plaintiff alleges that Tyson verbally abused him in an attempt to cause him to react to his
transfer to MHU. Verbal abuse of a prisoner, even of the lewd variety, is not actionable under 42
U.S.c. § 1983. See Aleem-X v. Westcott, 347 F. App'x 731 (3d Cir. Oct. 9, 2009) (not
published); Murray v. Woodburn, 809 F.Supp. 383, 384 (E.D. Pa. 1993); Prisoners' Legal Ass 'n
v. Roberson, 822 F.Supp. 185, 189 (D.N.J. 1993) (verbal harassment does not violate inmate's
constitutional rights); see also McBride v. Deer, 240 F.3d 1287,1291 (lOth Cir. 2001) (taunts
and threats do not constitute Eighth Amendment violation).
Plaintiffs claim of verbal abuse is not cognizable under § 1983. Therefore, the Court
will dismiss the claim as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l)

F.

Excessive Force

Plaintiff alleges excessive force occurred when he was handcuffed by Tyson upon his
transfer to MHU. The core judicial inquiry when a prisoner alleges that prison officers used
excessive force is not whether a certain quantum of injury was sustained, but rather whether force
was applied in a good-faith effort to maintain or restore discipline, or instead was applied
maliciously and sadistically to cause harm. See Wilkins v. Gaddy, _U.S._, 130 S.Ct. 1175
(2010). For an inmate to prevail on an excessive force claim he must prove two things: (l) that
he is incarcerated under conditions posing a substantial risk of harm, and (2) that the official

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knew of and disregarded an excessive risk to the inmate's health and safety. See Farmer, 511
U.S. at 834-38. As to the second requirement, which goes to the state of mind of the official, the
inmate must demonstrate "deliberate indifference" on the part of the officiaL Id. at 834. A
prison official is not liable merely because he exhibits an "ordinary lack of due care for the
prisoner's interests or safety." Whitley v. Albers, 475 U.S. 312, 319 (1986). Rather, the plaintiff
must demonstrate that the prison official acted or failed to act in spite of his or her knowledge of
a substantial risk of serious harm to the plaintiff. See Farmer, 511 U.S. at 842.
Plaintiffs allegations are not sufficient to state a claim. He does not characterize the
handcuffs as tight, refer to pain or even discomfort, or indicate any type of injury occurred when
he was handcuffed. Instead, he states that he was embarrassed. Even construing the facts in the
light most favorable to Plaintiff, as the Court must, it cannot be said that Tyson violated
Plaintiff s constitutional rights.
The allegations do not rise to the level of a constitutional violation. Therefore, the Court
will dismiss as frivolous the excessive force claim pursuant to 28 U.S.C. §§ 1915(e)(2) (B) and
1915A(b)(I).

G.

Retaliation

Plaintiff alleges that Warden Phelps retaliated against him after he sent Warden Phelps a
letter that criticized and complained that his constitutional rights were violated by the failure to
transfer him to New Jersey pursuant to an interstate compact.
"Retaliation for the exercise of constitutionally protected rights is itself a violation of
rights secured by the Constitution actionable under § 1983." White v. Napoleon, 897 F.2d 103,
111-12 (3d Cir. 1990). In screening this claim, the Court assumes, without deciding, that the

11

letter is a form of protected speech. It has long been established that the First Amendment bars
retaliation for protected speech. See Crawford-El v. Britton, 523 U.S. 574,592 (1998); Milhouse

v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981).
Proof of a retaliation claim requires Plaintiff demonstrate that: (1) he engaged in
protected activity; (2) he was subjected to adverse actions by a state actor; and (3) the protected
activity was a substantial motivating factor in the state actor's decision to take adverse action.

See Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (citing Mt. Healthy Bd. ofEduc. v.
Doyle, 429 U.S. 274, 287 (1977»; see also Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000)
(stating factfinder could conclude that retaliatory placement in administrative confinement would
"deter a person of ordinary firmness from exercising his First Amendment rights"). The
causation element requires a plaintiff to prove either: (1) an unusually suggestive temporal
proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of
antagonism coupled with timing to establish a causal link. See Lauren W ex reI. Jean W v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Krouse v. American Sterilizer Co., 126 F.3d 494,
503-04 (3d Cir. 1997). "[O]nce a prisoner demonstrates that his exercise of a constitutional right
was a substantial or motivating factor in the challenged decision, the prison officials may still
prevail by proving that they would have made the same decision absent the protected conduct for
reasons reasonably related to a legitimate penological interest." Rauser v. Horn, 241 F.3d 330,
334 (3d Cir. 2001). When analyzing a retaliation claim, courts consider that the task of prison
administrators and staff is difficult, and that the decisions of prison officials require deference,
particularly where prison security is concerned. See Rauser, 241 F.3d at 334.

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As discussed above, the Court assumes, without deciding, that the letter is a form of
protected speech. Hence, Plaintiff has met the first element of a retaliation claim. The
allegations in the Complaint also successfully satisfY the second and third prongs of the prima
facie test. Plaintiff s transfer to MHU may qualifY as adverse treatment for the purposes of a
retaliation claim. See Atkinson v. Taylor, 316 F.3d 257,270 (3d Cir. 2003) (prisoner's transfer to
administrative segregation qualified as adverse action). Additionally, Plaintiff has alleged
causation through the suggestive timing of the punishment he received subsequent to the letter he
wrote to the warden. Therefore, Plaintiff will be allowed to proceed with this claim.

H.

Medical Needs

The Complaint also contains several medical needs claims. Plaintiff alleges that, for a
five to six day period, Cain and Hedinger refused him access to pain medication necessary
because of recent dental work. He alleges that the Medication Window left his medication
behind three times and this resulted in an infection and abscesses. Finally, while not clear, it
appears that he alleges the medical department did not provide adequate care.
The Eighth Amendment proscription against cruel and unusual punishment requires that
prison officials provide inmates with adequate medical care. See Estelle v. Gamble, 429 U.S. 97,
103-05 (1976). In order to set forth a cognizable claim, an inmate must allege: (1) a serious
medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to
that need. See id. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A prison official
is deliberately indifferent ifhe knows that a prisoner faces a substantial risk of serious harm and
fails to take reasonable steps to avoid the harm. See Farmer, 511 U.S. at 837; Giles v. Kearney,

13

571 F.3d 318, 330 (3d Cir. 2009). A prison official may manifest deliberate indifference by
"intentionally denying or delaying access to medical care." Estelle, 429 U.S. at 104-05.
However, "a prisoner has no right to choose a specific form of medical treatment," so
long as the treatment provided is reasonable. See Lasko v. Watts, 373 F. App'x 196, 203 (3d Cir.
Apr. 12,2010) (not published) (internal quotation marks omitted). An inmate's claims against
members of a prison medical department are not viable under § 1983 where the inmate receives
continuing care but believes that more should be done by way of diagnosis and treatment,
including options available to medical personnel that were not pursued on the inmate's behalf.

See Estelle, 429 u.s. at 107. Moreover, allegations of medical malpractice are not sufficient to
establish a Constitutional violation. See White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir.

1990); see also Daniels v. Williams, 474 U.S. 327, 332-34 (1986) (negligence is not compensable
as Constitutional deprivation). Finally, "mere disagreement as to the proper medical treatment"
is insufficient to state a constitutional violation. See Spruill v. Gillis, 372 F.3d 218,235 (3d Cir.
2004).
Even when reading the Complaint in the most favorable light to Plaintiff, he fails to state
an actionable constitutional claim against the Medication Window, a non-person, and medical
personnel for deliberate indifference to a serious medical need. It appears, however, the Plaintiff
has stated a cognizable claim against Cain and Hedinger for denying him necessary pain
medication due to recent dental work
Therefore, the Court will dismiss the claims against the Medication Window and medical
personnel as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). Plaintiff will be
allowed to proceed against Cain and Hedinger on this claim.

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V.

REQUEST FOR SUBPOENA
Plaintiffs request for subpoena will be denied as premature. (0.1. 8) It is unclear why

Plaintiff wishes to subpoena Cain, Hedinger, Casey, and Tyson. Plaintiff also lists witnesses, but
again, it is unclear if he wishes to subpoena the witnesses. Regardless, discovery for parties and
non-parties shall be conducted in accordance with the Federal Rules of Civil Procedure.

VI.

REQUEST FOR COUNSEL
Plaintiff requests counsel on the grounds that: (1) counsel can perform a valuable

function; (2) issues can be more clearly identified with counsel; (3) counsel may help to expedite
an evidentiary hearing or make it unnecessary; (4) counsel will make better use of prehearing
discovery procedures; (5) Plaintiff does not have the ability to present his case; (6) Plaintiff is
unskilled in the law and the factual and legal issues are complex; (7) Plaintiff cannot obtain and
afford counsel on his own behalf; and (8) counsel would serve the best interests ofjustice in this
case. (0.1. 10)
Although a plaintiff does not have a constitutional or statutory right to an attorney,S a
district court may seek legal representation for a plaintiff who demonstrates "special
circumstances indicating the likelihood of substantial prejudice to [the plaintiff] resulting ...
from [the plaintiffs] probable inability without such assistance to present the facts and legal
issues to the court in a complex but arguably meritorious case." Tabron, 6 F.3d at 154.

5See Mallard v. United States Dist. Court for the S. Dist. ofIowa, 490 u.s. 296 (1989)
(stating § 1915(d) - now § 1915(e)( 1) - does not authorize federal court to require unwilling
attorney to represent indigent civil litigant); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)
(stating there is no right to counsel in civil suit).

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Factors to be considered by a court in deciding whether to request a lawyer to represent an
indigent plaintiff include: (1) the merits of the plaintiff s claim; (2) the plaintiff s ability to
present his or her case considering his or her education, literacy, experience, and the restraints
placed upon him or her by incarceration; (3) the complexity of the legal issues; (4) the degree to
which factual investigation is required and the plaintiff s ability to pursue such investigation;
(5) the plaintiffs capacity to retain counsel on his or her own behalf; and (6) the degree to which
the case turns on credibility determinations or expert testimony. See Montgomery v. Pinchak,
294 F.3d 492,498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56.
After reviewing Plaintiffs Request, the Court concludes that the case is not so factually
or legally complex that requesting an attorney is warranted. In addition, the filings in this case
demonstrate Plaintiff s ability to articulate his claims and represent himself. Thus, in these
circumstances, the Court will deny the Request for Counsel without prejudice to renew. (D.I. 10)

VII.

CONCLUSION
For the above reasons, the Court finds that Plaintiff has stated what appear to be

cognizable claims against Phelps, Cain, and Hedinger. The Court will dismiss the remaining
claims and Defendants as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(l).
The Court will deny as premature Plaintiffs Request for Subpoena (D.!. 8) and deny without
prejudice Plaintiffs Request for Counsel (D.I. 10).

An appropriate Order follows.

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