Robinson v. Phelps et al
MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 5/21/13. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GREGORY F. ROBINSON,
WARDEN PERRY PHELPS,
) Civ. No.13-497 -SLR
Gregory F. Robinson, James T. Vaughn Correctional Institution, Smyrna, Delaware,
Pro Se Plaintiff.
Dated: May J\, 2013
Plaintiff Gregory F. Robinson ("plaintiff'), is an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware, who proceeds pro se and has been
granted in forma pauperis status. He filed this complaint pursuant to 42 U.S.C. § 1983
claiming violations of his constitutional rights. 1 (D.I. 3) In addition, plaintiff requests
counsel. (0.1. 5)
II. STANDARD OF REVIEW
This court must dismiss, at the earliest practicable time, certain in forma
pauperis 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.
§ 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner
seeks redress from a governmental defendant); 42 U.S.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.
Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus,
551 U.S. 89, 93 (2007). Because plaintiff proceeds prose, his pleading is liberally
construed and his complaint, "however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at
94 (citations omitted).
When bringing a § 1983 claim, 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. West v. Atkins, 487 U.S. 42, 48 (1988).
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)(1), 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; Wilson v. Rackmi/1, 878 F.2d 772, 774 (3d Cir.
1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995)
(holding frivolous a suit alleging that prison officials took an 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)(1) is identical to the legal standard used when
ruling on Rule 12(b)(6) motions. Tourscherv. McCullough, 184 F.3d 236,240 (3d Cir.
1999) (applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a claim
under§ 1915(e)(2)(8)). However, before dismissing a complaint or claims for failure to
state a claim upon which relief may be granted pursuant to the screening provisions of
28 U.S.C. §§ 1915 and 1915A, the court must grant plaintiff leave to amend her
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 At/. Corp. v. Twombly, 550 U.S. 544
(2007). 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."
/d. at 1949. When determining whether dismissal is appropriate, the court conducts a
two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First,
the factual and legal elements of a claim are separated. /d. The court must accept all
of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.
/d. at 210-11. Second, the court must determine whether the facts alleged in the
complaint are sufficient to show that plaintiff has a "plausible claim for relief." 2 /d. at
211. In other words, the complaint must do more than allege plaintiff's entitlement to
relief; rather it must "show" such an entitlement with its facts. /d. "[W]here the wellpleaded facts do not permit the court to infer more than a mere possibility of
misconduct, the complaint has alleged - but it has not shown - that the pleader is
entitled to relief." Iqbal, 556 U.S. at 678 (quoting Fed. R. Civ. P. 8(a)(2)).
A. Excessive Force/Failure to Protect
Plaintiff raises several claims of excessive force and failure to protect. For an
inmate to prevail on an excessive force claim or failure to protect claim, he must prove
two things: (1) that he is incarcerated under conditions posing a substantial risk of
harm; and (2) that the official knew of and disregarded an excessive risk to the inmate's
health and safety. See Farmer v. Brennan, 511 U.S. 825, 833-38 (1994); see also
Griffin v. DeRosa, 153 F. App'x 851 (3d Cir. 2005) (unpublished).
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. Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). The plausibility standard "asks for
more than a sheer possibility that a defendant has acted unlawfully." /d. "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."' /d.
Plaintiff alleges that on May 15, 2011, defendant Sgt. Stanford Henry ("Henry")
assaulted him and that defendant Lt. Natasha Hollingsworth ("Hollingsworth") arrived
during the assault. Each time plaintiff yelled in pain, Henry and defendant Charles
Stoddart ("Stoddart") told him to "shut up." Plaintiff sustained injuries but was denied
medical care by Henry, Hollingsworth, Stoddart, and defendants Sgt. Wilfred Beckles
("Beckles"), Sgt. Angelina DeAIIie ("DeAIIie"), and other prison personnel who are not
named as defendants. (D.I. 3,
Plaintiff was "roughly gripped-up, shoved and pushed" on June 3, 2011 by
Beckles when he was taken to a medical grievance hearing, making his injuries worse.
5) On July 28, 2011, Beckles shoved and pushed plaintiff while escorting him
to and from recreation, knowing that plaintiff had neck and back injuries. (/d.
On February 5, 2012, Beckles and defendant C/0 Thomas ("Thomas") escorted
plaintiff to the shower. On the way there, Beckles shoved and pushed plaintiff in the
back, and grabbed and shoved him, causing plaintiff to land on his right side. Plaintiff's
legs "went numb" and he could not get up. Beckles dragged plaintiff to the shower and
tried to place him in a standing position. Thomas told Beckles "that's enough", and
Beckles dropped plaintiff to the floor. Plaintiff was taken by stretcher to the nurse's
station and later, he was taken to the infirmary. (D.I. 3,
15) On February 8, 2012,
plaintiff was escorted from the infirmary to his cell. On the way, defendants Lt. Drake
("Drake"), Lt Baines ("Baines"), and C/0 Lindale ("Lindale") choked plaintiff until he lost
consciousness. (/d. at ~ 16)
Plaintiff will be allowed to proceed on the excessive force, failure to protect, and
denial of medical care claims against Henry, Hollingsworth, Stoddart, Beckles, DeAIIie,
Thomas, Drake, Baines, and Lindale.
B. Medical Needs/Conditions of Confinement
Plaintiff raises a number of medical needs claims. The claims concern denial
and/or delay of medical care, as well as the need for accommodation due to medical
conditions. The Eighth Amendment proscription against cruel and unusual punishment
requires that prison officials provide inmates with adequate medical care. Estelle v.
Gamble, 429 U.S. 97, 103-105 (1976). However, in order to set forth a cognizable
claim, an inmate must allege (i) a serious medical need and (ii) acts or omissions by
prison officials that indicate deliberate indifference to that need. Estelle v. Gamble, 429
U.S. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A prison official is
deliberately indifferent if he knows that a prisoner faces a substantial risk of serious
harm and fails to take reasonable steps to avoid the harm. Farmer v. Brennan, 511
U.S. 825, 837 (1994). A prison official may manifest deliberate indifference by
"intentionally denying or delaying access to medical care." Estelle v. Gamble, 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. Lasko v. Watts, 373 F.
App'x 196, 203 (3d Cir. 201 0) (unpublished) (quoting Harrison v. Barkley, 219 F.3d 132,
138-140 (2d Cir. 2000)). 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 and maintains
that options available to medical personnel were not pursued on the inmate's behalf.
Estelle v. Gamble, 429 U.S. 97, 107 (1976). In addition, allegations of medical
malpractice are not sufficient to establish a Constitutional violation. White v. Napoleon,
897 F.2d 103, 108-09 (3d Cir. 1990) (citations omitted); see also Daniels v. Williams,
474 U.S. 327, 332-34 (1986) (negligence is not compensable as a 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) (citations omitted).
1. Medical care
Plaintiff was seen by Dr. Derosiers on May 17, 2011 for the injuries resulting
from the May 15, 2011 incident with Henry. Dr. Derosiers would not prescribe pain
medication. Plaintiff was advised that he would be x-rayed within seven to ten days, but
the x-rays were not taken until July 1, 2011. 3 (D.I. 3, 114, 17) Plaintiff was seen by Dr.
Derosiers on October 19, 2011. Plaintiff was taken to Dover, Delaware on October 31,
2011 to undergo an MRI of the neck and back. 4 (!d. at 111131, 32) Plaintiff will be
allowed to proceed against Dr. Derosiers for denial or delay of medical treatment.
Plaintiff was taken to medical on May 24, 2011 and seen by defendant Nurse
Mark ("Mark"). Plaintiff had been prescribed Motrin or Tylenol and was charged for the
Piaintiff filed a grievance for denial of the x-rays. At the hearing, he was told
that he should have been taken to x-ray and it was not known why he had not. (ld. at
During that time, Stoddart made comments to others that nothing was wrong
with plaintiff. (ld. at 1112) Plaintiff submitted a grievance on December 13, 2011,
complaining that correctional officers signaled to the secretary not to write in medical
notes how plaintiff was treated by correctional officers. (D.I. 3, 1137) Neither of these
allegations rise to the level of a constitutional violation, and they will be dismissed as
medication. Plaintiff wanted his money back and wanted to see a physician. (0.1. 3, ,-r
18) On October 13, 2011, Mark did not dispense medication (apparently prescribed)
because plaintiff's medication had "expired." Mark, however, gave plaintiff Tylenol for
pain. (/d. at ,-r 30) Here, plaintiff's medical needs claim against Mark is frivolous. Mark
provided plaintiff treatment and medication, and provided alternate pain medication
when plaintiff's prescription had expired.
In addition, plaintiff's constitutional rights were not violated when he was charged
for pain medication. A prison may charge a modest fee for certain types of medical
care, so long as the inmate is not denied access to essential or needed medical
treatment for failure to sign the cash slip. See McCabe v. Pennsylvania Dep't of Corr.,
2013 WL 1834309, at *2 (3d Cir. May 2, 2013). Plaintiff was not denied treatment by
Mark, and the fee for pain medication does not rise to the level of a constitutional
violation. Accordingly, the court will dismiss all claims against Mark (i.e., ,-r,-r 18, 30) as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(1).
Plaintiff was taken to medical on June 7, 2011 and seen by defendant Nurse
Carol Bianchi ("Bianchi"). Bianchi told plaintiff that she would refer him to a physician
and would let him know when he was scheduled. Plaintiff alleges that Bianchi did not
follow through. (0.1. 3, ,-r,-r 20, 21) Plaintiff was taken to medical on June 13, 2011 by
Henry and non-defendant correctional officers. Plaintiff alleges that Henry and a nondefendant correctional officer interfered with his medical visit. In addition, Henry told
the nurse to charge plaintiff for the visit, plaintiff refused to sign the fee paper, and
Henry signed it for plaintiff. (0.1. 3, ,-r,-r 7, 22) Plaintiff further alleges that he was taken
to medical on July 27, 2011 and again seen by Bianchi and another nurse. Plaintiff
alleges that the nurses allowed Henry and a non-defendant correctional officer to
interfere with his medical visit. (D.I. 3,
24) Here, plaintiff's medical needs claim
against Bianchi is frivolous. Bianchi provided plaintiff treatment and medication, and he
was seen by medical personnel on numerous occasions. In addition, the allegations
that Henry interfered with plaintiff's treatment does not rise to the level of an Eighth
Amendment violation. Therefore, the court will dismiss as frivolous the claims against
Bianchi and Henry found in paragraphs 7, 20, 21, 22, and 24 pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and § 1915A(b)(1 ). Bianchi will be dismissed as a defendant.
On June 14, 2011, plaintiff was told by defendant Nurse Ebuelle ("Ebuelle") that
nothing else could done for his injuries and to stop putting in sick call slips for them.
(D. I. 3,
8, 23) Plaintiff does not allege that he was denied treatment by Ebuelle.
Instead he complains that there is no treatment available for his injuries. Plaintiff is
clearly dissatisfied with Ebuelle's statement. Regardless, disagreement with treatment
does not rise to the level of a constitutional violation. The claim is frivolous and Ebuelle
will be dismissed as a defendant pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and
On August 11, 2011, plaintiff was taken by non-defendant correctional officers to
a therapy session. Plaintiff was mistakenly taken the wrong time. Medical staff was
told that plaintiff had refused the therapy session. (D.I. 3,
25) Plaintiff was denied a
medical run on January 6, 2012, because he was in isolation. (D. I. 3,
foregoing claims are not directed toward any defendant. Nor do they rise to the level of
a constitutional violation. Therefore, the court will dismiss the claims in paragraphs 25
and 41 as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1 ).
It appears that, because of medical conditions, plaintiff has sought the use of a
handicapped shower, a special pillow, and lower bunk. He alleges the denial of the
accommodations violates his constitutional rights.
On June 10, 2011, Beckles told a correctional officer to place plaintiff in a nonhandicapped shower. Plaintiff alleges this was done on purpose. He asked to return to
his cell or to use the end shower. Instead, he was left handcuffed for approximately
one hour until all the inmates had showered. (D. I. 3,
To the extent plaintiff attempts to raise a conditions of confinement claim, the
claim fails. 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 of life. 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.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). Here, plaintiff was not allowed to use the
handicapped shower and remained handcuffed for one hour. The handcuffing and denial
of the use of the handicapped shower by Beckles did 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 a strip cell without clothes, the water in the cell was turned off and the mattress
removed, and prisoner's bedding, clothing, legal mail, and hygienic supplies were
withheld). Therefore, the court will dismiss as frivolous the claims found in paragraph 6
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(1).
On October 1, 2011, plaintiff wrote letters to Dr. Derosiers and defendant Dr.
Rogers ("Dr. Rogers") complaining that he had been denied the handicapped shower by
Henry and that Henry threatened to take his pillow. Plaintiff asked the physicians to
issue a memo for him to possess the pillow and to use the handicapped shower.
Plaintiff received no response. On October 3, 2011, Henry took plaintiff's pillow.
Plaintiff again wrote to Drs. Derosiers and Rogers with the same request for a memo to
possess the pillow and to use the handicapped shower. Again, he received no
response. (D.I. 3,
28, 29) Plaintiff fell in the shower on November 22, 2011, and
blames Dr. Derosiers and Dr. Rogers for the fall because they refused to provide a
memo for him to use the handicapped shower. 5 (/d. at~ 33) Plaintiff will be allowed to
proceed against Dr. Derosiers and Dr. Rogers for their failure to even respond to
plaintiff's requests for the alleged medically necessary accommodations.
After the fall, plaintiff was transferred to the infirmary. Plaintiff was lying on a
mattress in a cell in the infirmary, and defendants C/0 Edge and Younker lifted the
mattress, with plaintiff on it, which caused his neck and back injuries to intensify.
Plaintiff alleges that on November 29, 2011, defendant Nurse Gladys ("Gladys") lied to
him about carrying out Dr. Rogers' orders with regard to a mattress on the floor and
using a lift. Plaintiff alleges that, the next day, he was forced to lie in his urine for five
hours because Gladys refused to empty his urine jug. (D.I. 3,
34, 35, 36) The
Piaintiff was again denied use of the handicapped shower on December 23,
2011. (D.I. 3, ~ 38)
allegations against Edge, Younker and Gladys do not meet either element required for
an Eighth Amendment violation. They are frivolous and will be dismissed pursuant to
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(1 ).
On December 26, 2011, medical did not authorize plaintiff's housing on a lower
bunk and, as a result, he slept on the floor. 6 (0.1. 3, 1139) Plaintiff was moved to an
upstairs cell on February 4, 2012, by defendant Lt. Gattis ("Gattis"), who knew that
plaintiff required lower housing due to his neck and back injuries. Plaintiff showed
Gattis a memo from Major Costello ("Costello") that indicated plaintiff needed the
housing. Regardless, plaintiff was housed upstairs. (/d. at 1114) The court will allow
plaintiff to proceed with his Eighth Amendment claim against Gattis.
Plaintiff was taken to a grievance hearing on August 19, 2011. Plaintiff alleges
that defendant Nurse Connie Dernberger ("Dernberger") provided false information to
convince him that correctional officers can interfere with his medical needs. In addition,
plaintiff alleges that on August 30, 2011, Dernberger, who is not a physician, wrote a
false diagnosis statement about his injuries. (D. I. 3, 111126, 27) In appears that plaintiff
raises these claims in connection with the grievance process.
The filing of prison grievances is a constitutionally protected activity. Robinson v.
Taylor, 204 F. App'x 155, 157 (3d Cir. 2006) (unpublished). To the extent that plaintiff
bases his claims upon his dissatisfaction with the grievance procedure or denial of his
grievances, the claims fail because an inmate does not have a "free-standing
Piaintiff submitted a grievance on January 2, 2012, complaining that he was
"housed on the floor." (D. I. 3, 1140)
constitutionally right to an effective grievance process." Woods v. First Corr. Med.,
Inc., 446 F. App'x 400, 403 (3d Cir. 2011) (citing Flick v. Alba, 932 F.2d 728, 729 (8th
Plaintiff cannot maintain a constitutional claim based upon his perception that his
grievances were not properly processed, that they were denied, or that the grievance
process is inadequate. Therefore, the court will dismiss the claims against Dernberger
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and§ 1915A(b)(1 ).
Henry has labeled plaintiff as a snitch to other inmates since 2008. He reiterated
to other inmates on September 25 and 28, October 24, and November 14, 2011 that
plaintiff was a snitch. (D.I. 3,
10, 11, 13)
This court has recognized the serious implications of being labeled a "snitch" in
prison. Blizzard v. Hastings, 886 F. Supp. 405, 410 (D. Del. 1995) (being labeled a
snitch "can put a prisoner at risk of being injured"). See also Thomas v. District of
Columbia, 887 F.Supp. 1, 4 (D. D.C. 1995) (being "physically confronted by and
threatened by inmates" after a guard started a rumor that prisoner was a snitch was
"sufficiently harmful to make out an Eighth Amendment excessive force claim").
Plaintiff will be allowed to proceed with this claim.
E. Personal Involvement/Respondeat Superior
Warden Perry Phelps ("Phelps") is named as a defendant. A defendant in a civil
rights action must have personal involvement in the alleged wrongs to be liable, and
cannot be held responsible for a constitutional violation which he or she neither
participated in nor approved." Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007).
A§ 1983 claim cannot be premised upon a theory of respondeat superior. In order to
establish liability for deprivation of a constitutional right, a party must show personal
involvement by each defendant. Brito v. United States Dep't of Justice, 392 F. App'x
11, 14 (3d Cir. 201 0) (unpublished) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009);
Rode v. Dellarciprete, 845 F.2d at 1207).
"Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the official's own individual actions,
has violated the Constitution." Iqbal, 556 U.S. at 676. In Iqbal, the Supreme Court
emphasized that "[i]n a § 1983 suit - here masters do not answer for the torts of their
servants - the term 'supervisory liability' is a misnomer. Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her own
misconduct." Iqbal, 556 U.S. at 677. "Thus, when a plaintiff sues an official under
§ 1983 for conduct 'arising from his or her superintendent responsibilities,' the plaintiff
must plausibly plead and eventually prove not only that the official's subordinates
violated the Constitution, but that the official by virtue of his own conduct and state of
mind did so as well." Dodds v. Richardson, 614 F.3d 1185, 1198 (10 1h Cir. 2010). The
factors necessary to establish a § 1983 violation will vary with the constitutional
provision at issue. /d.
Facts showing personal involvement of the defendant must be asserted; such
assertions may be made through allegations of specific facts showing that a defendant
expressly directed the deprivation of a plaintiff's constitutional rights or created such
policies where the subordinates had no discretion in applying the policies in a fashion
other than the one which actually produced the alleged deprivation; e.g., supervisory
liability may attach if the plaintiff asserts facts showing that the supervisor's actions
were "the moving force" behind the harm suffered by the plaintiff. See Sample v.
Diecks, 885 F.2d at 1117-118; see also Iqbal, 566 U.S. at 677-686; City of Canton v.
Harris, 489 U.S. 378 (1989); Heggenmiller v. Edna Mahan Corr. /nsf. for Women, 128
F. App'x 240 (3d Cir. 2005) (unpublished).
Plaintiff provides no specific facts how Phelps violated his constitutional rights,
that Phelps expressly directed the deprivation of plaintiff's constitutional rights, or that
Phelps created policies wherein subordinates had no discretion in applying them in a
fashion other than the one which actually produced the alleged deprivation. The
allegations against Phelps do not satisfy the Iqbal pleading requirements. For the
above reasons, the court dismisses all claims against Phelps claims as frivolous
pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and§ 1915A(b)(1).
IV. REQUEST FOR COUNSEL
Plaintiff's request for counsel will be denied without prejudice. (D.I. 5) A prose
litigant proceeding in forma pauperis has no constitutional or statutory right to
representation by counsel. 7 See Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir.
2011 ); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However, representation by
counsel may be appropriate under certain circumstances, after a finding that a plaintiff's
claim has arguable merit in fact and law. Tabron, 6 F.3d at 155.
See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now§ 1915(e)(1)) does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
After passing this threshold inquiry, the court should consider a number of
factors when assessing a request for counsel, including:
(1) the plaintiff's ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree
to which factual investigation will be necessary and the ability
of the plaintiff to pursue investigation; (4) the plaintiff's capacity
to retain counsel on his own behalf; (5) the extent to which a
case is likely to turn on credibility determinations; and
(6) whether the case will require testimony from expert witnesses.
Tabron, 6 F.3d at 155-57; accord Parham, 126 F.3d at 457; Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002).
This case is in the early stages and service has not yet taken place. In addition,
in reading plaintiff's complaint, it appears that he possesses the ability to adequately
pursue his claims. Upon consideration of the record, the court is not persuaded that
representation by an attorney is warranted at this time. The court can address the
issue at a later date should counsel become necessary.
For the above reasons, the court will deny without prejudice plaintiffs request for
counsel. (D. I. 5) Further, the court concludes that plaintiff has alleged what appears to
be cognizable and non-frivolous excessive force, failure to protect, medical, conditions
of confinement, and/or snitch claims against Stanford Henry, Natasha Hollingsworth,
Charles Stoddart, Wilfred Beckles, Angelina DeAIIie, C/0 Thomas, Lt. Drake, Lt Baines,
C/0 Lindale, Dr. Derosiers, Dr. Rogers, and Lt. Gattis. Plaintiff will be allowed to
proceed against the foregoing defendants.
The court will dismiss the claims in paragraphs 6, 7, 8, 12, 18, 20, 21, 22, 23, 24,
25, 26, 27, 30, 34, 35, 36, 37, and 41 as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
and § 1915A(b)(1) and will dismiss defendants Warden Phelps, Nurse Carol Bianchi,
Nurse Mark, Nurse Connie Dernberger, Nurse Ebuele, C/0 Edge, Nurse Gladys, and C/0
Younker and the claims against as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and
An appropriate order will be entered.
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