Collins v. Walsh et al

Filing 55

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that 1)Pltf's 35 MOTION for Temporary Restraining Order is DENIED AS MOOT. 2)Pltf's 46 MOTION to Appoint Counsel is DENIED WITHOUT PREJUDICE. 3)All discovery in this matter shall be completed by the parties w/i 60 days from the date of this order. Any dispositive mtns shall be filed w/i 30 days from the close of discovery. Signed by Chief Judge Yvette Kane on July 6, 2011. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK COLLINS,
Plaintiff,
v.
JEROME WALSH, et al.,
Defendants

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CIVIL NO. 1:CV-09-1932
(Chief Judge Kane)

MEMORANDUM
Plaintiff Frederick Collins filed this civil rights action pursuant to 42 U.S.C. § 1983 while
confined at the State Correctional Institution at Dallas (“SCI-Dallas”), Pennsylvania. The matter
proceeds on the original complaint and supplements thereto. (Doc. Nos. 1, 4, 18 and 20.)
Named as Defendants are Pennsylvania Department of Corrections (“DOC”) employees Jeffrey
Beard, former Secretary, and Dorina Varner, Chief Grievance Officer. Also named are the
following SCI-Dallas employees: Jerome Walsh, Superintendent; Vincent Mooney, Deputy
Superintendent; Rebecca Mooney, Program Supervisor; Ann Chiampi, School Principle;
Lieutenant Patterson; and Correctional Officers Bath, Romonoski and Salsman. In the
complaint, Collins alleges that he was subjected to cruel and unusual punishment in violation of
the Eighth Amendment, retaliation and the denial of due process. On September 22, 2010, the
Court issued a Memorandum and Order granting in part and denying in part a motion to dismiss
filed by Defendants. (Doc. No. 34.) Defendants Mooney, Mooney and Chiampi were dismissed
from this action. All other Defendants remain. All retaliation claims and the cruel and unusual
punishment claim proceed. An answer to the remaining claims was filed by Defendants on
October 29, 2010. (Doc. No. 43.) Presently pending before the Court is Collins’ motion for
temporary restraining order (Doc. No. 35) and second motion for the appointment of counsel

(Doc. No. 46). For the reasons that follow, the motion for injunctive relief will be denied as
moot and the motion for counsel will be denied without prejudice.
I.

Background
In the complaint Collins alleges that on June 8, 2009, Defendant Salsman requested oral

sex from him in the staff bathroom on A-Block. Collins did not oblige, but rather called a sexual
harassment hotline to report the incident. When Collins was later called to the security office to
investigate the claim, he was asked to recant his claim, but refused to do so. On June 13, 2009,
Collins filed a grievance with regard to the incident that was later denied by Defendant
Patterson. His appeal from this decision was also denied. Collins states he thereafter pursued an
appeal to the Central Office, as well as wrote letters to Defendant Beard and the Pennsylvania
Ethics Commission.
In this action Collins challenges the denial of his grievance and the appeals therefrom.
He also claims he was subjected to retaliation due to the claims he made against Salsman. In
particular, he states that Salsman retaliated against him when he moved him from A-Block to BBlock, and also when he was denied a job. He further claims that he was retaliated against for
calling the hotline by Defendant Romonoski, who issued a false misconduct report against him in
August of 2009 for fighting with an unknown inmate. Collins claims he was never in any such
fight, and that when taken to the infirmary there was no evidence that he had been in a fight.
Following a hearing, he was found guilty of the misconduct, and sanctioned to 30 days in the
Restricted Housing Unit (“RHU”).
Collins also alleges that while confined in the RHU, Defendants Bath and other RHU
officers subjected him to cruel and unusual conditions. He states that these conditions led to the

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suicide of another inmate confined in the RHU. Collins specifically alleges that he was not fed,
and that he was repeatedly told to kill himself. He states that following his release from the
RHU the retaliation continued when his library privileges were suspended. As relief he seeks
monetary damages.
Collins filed a motion seeking a temporary restraining order in this action. (Doc. No.
35.) In the motion he alleges that he is being harassed by Defendant Romonoski, a correctional
officer in the RHU at SCI-Dallas. He believes that Romonoski had two non-Defendant
correctional officers at SCI-Dallas assault him, and claims he has threatened to file a false assault
charge against him. Collins further asserts that other correctional officers at SCI-Dallas not
named as defendants in this action are denying him dinner trays. Collins seeks injunctive relief
against these SCI-Dallas officers due to his fear of physical force and starvation.
Collins has also filed a second motion for counsel. (Doc. No. 46.) In the motion, he
contends that he is unlearned in the law and lacks a proper understanding of legal principles, has
limited access to the law library and is unable to afford a lawyer. He further argues that although
he use to have an inmate assisting him with his legal work, this is no longer the case. Collins
also claims that he suffers from “mild retardation” for which he takes medication, and argues
that Defendants will not be prejudiced if counsel is appointed. (Id. at 1-2.)
II.

Discussion
A.

Motion for Temporary Restraining Order

Without unnecessary elaboration, the pending motion for temporary restraining order will
be denied as moot. When Collins filed the motion, he was confined at SCI-Dallas. In the
motion, he complains about conduct by SCI-Dallas officers, only one of whom is even named as

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a Defendant in this action. Regardless, where a plaintiff seeks injunctive relief against prison
officials in whose controls he no longer resides or against a prison in which he is no longer
housed, there is no longer a live controversy and a court cannot grant injunctive relief. See
Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993); Fortes v. Harding, 19 F. Supp. 2d 323,
326 (M.D. Pa. 1998). A prisoner lacks standing to seek injunctive relief if he is no longer
subject to the alleged conditions he attempts to challenge. See Weaver v. Wilcox, 650 F.2d 22,
27 n. 13 (3d Cir. 1981)(prisoner’s transfer from the prison moots claim for injunctive and
declaratory relief with respect to prison conditions).
In the instant case Collins was transferred out of SCI-Dallas to SCI-Coal Township in
December of 2010. He has been confined at SCI-Coal Township since that time. As such, it is
clear that the pending motion for injunctive relief must be denied as moot.
B.

Motion for Counsel

Also pending is Collins’ second request for counsel in this case. His first motion was
denied by Memorandum and Order dated August 9, 2010. (Doc. No. 27.) In said opinion, the
Court set forth the factors to be examined in determining whether the appointment of counsel for
a prisoner is warranted in a civil case. See Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993);
Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002). These principles will not be repeated
herein. Many of the arguments advanced by Collins in the instant motion for counsel have
previously been considered by the Court and found not to warrant the appointment of counsel in
this matter. For example, the Court has previously found that although Collins claims to be
unlearned in the legal field and unable to afford counsel, he is clearly capable of litigating this
action on his own at this point. The docket reveals that he is literate and is able to prepare and

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submit filings on his behalf, as well as comprehend filings submitted by Defendants. Although
Collins claims that he had inmate assistance when he was confined at SCI-Dallas, but no longer
has help since his transfer to SCI-Coal Township, the docket reveals that he is clearly capable of
continuing to litigate this matter pro se. While Collins states that he suffers from “mild
retardation” and takes medication, there is no evidence that any such condition impairs his
ability to litigate his matter or warrants the appointment of counsel at this time. Further,
although his access to the law library may be limited, he does have some access to legal
resources for purposes of preparing his case. For these reasons, the instant motion for counsel
will be denied, but without prejudice. If future proceedings demonstrate the need for counsel,
the matter may be reconsidered either sua sponte or upon a motion properly filed with the Court.
An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK COLLINS,
Plaintiff,
v.
JEROME WALSH, et al.,
Defendants

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CIVIL NO. 1:CV-09-1932
(Chief Judge Kane)

ORDER
AND NOW, this 6th day of July, 2011, in accordance with the accompanying
Memorandum, IT IS HEREBY ORDERED THAT:
1.

Plaintiff’s motion for temporary restraining order (Doc. No. 35) is denied
as moot.

2.

Plaintiff’s motion for counsel (Doc. No. 46) is denied without prejudice.

3.

All discovery in this matter shall be completed by the parties within sixty (60)
days from the date of this order. Any dispositive motions shall be filed within
thirty (30) days from the close of discovery.

___s/ Yvette Kane_________
YVETTE KANE, Chief Judge
Middle District of Pennsylvania