Glenn v. McGrady et al

Filing 8

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the 2 MOTION for Leave to Proceed in forma pauperis filed by Tyrone Glenn is GRANTED. Pltf's 4 MOTION to Appoint Counsel is DENIED WITHOUT PREJUDICE. The USM is directed to serve the complaint on dfts. Signed by Chief Judge Yvette Kane on April 4, 2013. (sc)

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

TYRONE GLENN,
Plaintiff,
v.
JAMES J. MCGRADY, et al.,
Defendants

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CIVIL NO. 1:CV-13-0325
(Chief Judge Kane)

MEMORANDUM
I.

Background
Tyrone Glenn (“Glenn”), an inmate currently confined at the State Correctional

Institution at Retreat (“SCI-Retreat), Pennsylvania, filed this civil rights action pursuant to 42
U.S.C. § 1983 and the Americans with Disabilities Act, 42 U.S.C. § 12132. Glenn has filed a
motion requesting leave to proceed in forma pauperis in this matter. (Doc. No. 2.) This motion
will be construed as a request to proceed without full prepayment of the filing fee and granted.1
In the complaint, Glenn contends that he is vison-impaired and that the computer screens in the
Restricted Housing Unit (“RHU”) law library are not accessible to him because they are covered
with steel grids that affect his ability to see the screen. As a result, he argues that he is being
deprived of meaningful access to the courts. Due to the grids, he claims he was unable to
prepare a memorandum of law in opposition to a notice to deny/dismiss his PCRA petition. He
also alleges that he is subjected to discrimination and denied equal protection under the law
because of his disability. Glenn states that he has pursued grievances with respect to his matter.

Glenn completed this Court’s form application for leave to proceed in forma pauperis
and authorization form. An Administrative Order was thereafter issued on February 11, 2013
(Doc. No. 7), directing the warden at SCI-Retreat to commence deducting the full filing fee from
his prison trust fund account
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Named as Defendants are the following Pennsylvania Department of Corrections (“DOC”)
employees: James J. McGrady, Superintendent at SCI-Retreat; Michael Hoover, Deputy
Superintendent at SCI-Retreat; Michael Klopotoski, Deputy Secretary in the Eastern Region; and
Dorina Varner, DOC Chief Grievance Officer. Pending is Glenn’s motion for the appointment
of counsel. (Doc. No. 4.) For the reasons that follow, Glenn’s motion for counsel will be denied
without prejudice and service of the complaint will be directed.
II.

Discussion
In moving for the appointment of counsel Glenn argues that: (1) he is unable to afford

counsel; (2) the issues involved in this case are complex; (3) as an RHU inmate he has limited
access to the law library; (4) he is unable to see the computer screens in the RHU law library; (5)
he has a limited knowledge of the law; and (6) he will need an attorney for his jury trial. (Doc.
No. 4.)
Although prisoners have no constitutional or statutory rights to appointment of counsel in
a civil case, Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997), district courts have broad
discretionary power to appoint counsel under 28 U.S.C. § 1915(e)(1). Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002)(citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)); Ray v.
Robinson, 640 F.2d 474, 477 (3d Cir. 1981). The United States Court of Appeals for the Third
Circuit has stated that the appointment of counsel for an indigent litigant should be made when
circumstances “indicate the likelihood of substantial prejudice to him resulting, for example,
from his probable inability without such assistance to present the facts and legal issues to the
court in a complex but arguably meritorious case.” Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d
Cir. 1984).

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The initial determination to be made by the court in evaluating the expenditure of the
“precious commodity” of volunteer counsel is whether the plaintiff’s case “has some arguable
merit in fact and law.” Montgomery, 294 F.3d at 499. While Defendants have not yet responded
to the complaint, for purposes of this motion the Court will assume that this case has arguable
merit in law and the facts.
Next, upon successfully clearing the above hurdle, other factors to be examined are:
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 or her 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.
Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-57).
The pending motion fails to set forth any special circumstances or factors that would
warrant the appointment of counsel at this time. Tabron, 6 F.3d at 155-56. The pleadings
submitted thus far do not contain complicated legal issues. In reviewing the complaint, Glenn is
obviously literate and clearly able to litigate this action on his own. The complaint clearly sets
forth the claims Glenn desires to pursue in this matter. While Glenn may not have the ability to
visit the law library as often as he would like, it appears that he does have some access to the
library. Although he states that he is unable to see the computer screens in the law library due to
the grids placed in front of them, it is apparent that he is either receiving assistance in preparing
his legal filings or is able to access and read legal precedent in another manner because his
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filings with the court reference legal opinions. Further, any concern about a trial is premature at
this point in the case. It cannot be said, at least at this point, that Glenn will suffer substantial
prejudice if he is required to proceed with the prosecution of his case on his own. This Court’s
liberal construction of pro se pleadings, Haines v. Kerner, 404 U.S. 519 (1972), coupled with the
apparent ability of Glenn to litigate this action, weigh against the appointment of counsel. His
pending motion will be denied. If future proceedings demonstrate the need for counsel, the
matter may be reconsidered either sua sponte or upon a properly filed motion. An appropriate
order follows.

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

TYRONE GLENN,
Plaintiff,
v.
JAMES J. MCGRADY, et al.,
Defendants

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CIVIL NO. 1:CV-13-0325
(Chief Judge Kane)

ORDER
AND NOW, this 4th day of April, 2013, in accordance with the attached Memorandum,
IT IS HEREBY ORDERED AS FOLLOWS:
1.

Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is construed to be a
motion to proceed without full prepayment of the filing fee and is granted.

2.

Plaintiff’s motion for the appointment of counsel (Doc. No. 4) is denied without
prejudice.

2.

The United States Marshal is directed to serve the complaint (Doc. No. 1) on the
Defendants named therein.

S/ Yvette Kane
YVETTE KANE, Chief Judge
Middle District of Pennsylvania