McClure v. Haste et al

Filing 26

MEMORANDUM and ORDER: Pltf's mtn to appoint counsel 24 is denied..Signed by Honorable Sylvia H. Rambo on 12/22/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TABU N. MCCLURE,
Plaintiff
vs.
COMMISSIONER JEFFREY T.
HASTE, et al.,
Defendants

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CIVIL NO. 1:14-CV-2249

(Judge Rambo)

MEMORANDUM AND ORDER
Background
On November 25, 2014, Tabu N. McClure, an inmate
presently confined at the State Correctional
Institution, Somerset, Pennsylvania (“SCI-Somerset”),
filed a pro se civil rights complaint pursuant to 42
U.S.C. § 1983 relating to the conditions of confinement
which he was exposed to while incarcerated at the
Dauphin County Prison as a pretrial detainee and parole
violator. Doc. 1.

McClure names the following

individuals as defendants: (1) Commissioner Jeffrey T.
Haste; (2) Warden Dominic DeRose; (3) Deputy Warden
Nichols; (3) Deputy Warden D.W. Carroll; (4) Major
Stewart; (5) Captain Neidigh; (6) Lieutenant Carnazzo;

(7) Lieutenant Hostetter; and (8) Sergeant R. Adams. Id.
McClure also names the Board of Dauphin County Prison
and an “Unknown number of John Does” as defendants.

Id.

Along with his complaint, McClure submitted a motion for
leave to proceed in forma pauperis under 28 U.S.C. §
1915.
Pending before the court is McClure’s motion for
appointment of counsel. Doc. 24.

The motion states in

toto as follows:
1. Plaintiff is unable to afford counsel in this
matter.
2. The issues involved in this case are complex.
3. The plaintiff has very limited access to the
law library, where he is forced to sign up two
(2) weeks in advance in order to access the
law library at SCI Somerset.
4. The plaintiff has a limited knowledge of the
law and in the interest of justice an attorney
could help navigate through the process of
litigation.
5. The plaintiff has written to a number of
attorneys asking them to handle the case,
namely Angus Love of the Pennsylvania Institute
Law Project.
Doc. 24.

For the reasons set forth below the motion

will be denied.

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McClure’s complaint is typewritten and consists
of 68 paragraphs. Id.

The pertinent factual allegations

which are somewhat disjointed and rambling are set forth
in paragraphs 17 through 55. Id.

Those paragraphs

reveal that McClure on February 8, 2013, was
incarcerated at the Dauphin County Prison as a pretrial
detainee, and on that date he received a misconduct for
refusing to turn on his cell light during a shakedown.
Id., ¶ 17.

McClure claims that he was removed from his

cell by guards who used mace and physical force and
“placed [him] in a strip cell with no clothing or
sheets, [or]

blanket, and no toilet paper.” Id., ¶ 18.

McClure claims it was the middle of winter and the cell
was very cold and “so after about two hours still under
these conditions [he] ripped the stuffing from inside of
[his] mattress and crawled inside of it like a sleeping
bag to stay warm.” Id., ¶ 19. McClure alleges that
during this time he repeatedly asked a correctional
officer for toilet paper, sheets and a blanket but his
requests were denied. Id., ¶ 20. McClure then alleges
that he was issued a misconduct for destroying county
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property, his mattress was taken from him and he was
restricted to having the same damaged mattress from 8:00
a.m. to 9:00 p.m. based on a memo issued by Lieutenant
Hostetter on February 9, 2013, which restriction was
approved by Deputy Warden Carroll. Id., ¶¶ 21-24.
McClure contends that the mattress which he was
permitted to use between the hours of 8:00 a.m. and 9:00
p.m. was defective and useless because a substantial
amount of the “internal insulation” had been removed
from the mattress.”1 Id., ¶ 25. McClure alleges that over
the “next several months until September 9, 2013" he
“was forced to use this defective shell of a mattress,
while in the hole or segregation[.]” Id., ¶ 26.
McClure then switches gears and sets forth
allegations regarding his ability to shower and engage
in recreation while housed at Dauphin County Prison.
Id., ¶¶ 27-28.

McClure contends that from February 10

through 16, 2013, while in segregation he was required
to go to the shower and recreation in shackles and

The court assumes based on the allegations that it
was McClure who removed the internal insulation.

1.

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handcuffs and “was only given 30 minutes for showering
and recreation altogether.”

Id.

McClure next contends that after being deprived
of a mattress and because of a pre-existing back problem
from lifting weights, he began to experience a
substantial amount of pain in the lower back and
occasional tingling and numbness sensation in his legs.
Id., ¶¶ 29-31.

As a result of these symptoms he claims

he “signed up for medical” beginning on or about March
20, 2013, and “each time [he] was only given Motrin for
five or seven days.” Id.

McClure contends that he lost

sleep, he experienced a stiff back and had reduced
mobility and the conditions aggravated previously
diagnosed mental and emotional problems. Id.
McClure alleges that on February 26, 2013, he
had a visit from his public defender and apparently
prior to that visit he was handcuffed behind his back
and placed in a holding pen or cell by Sergeant Adams
for over two hours. McClure contends that once he was
placed in the holding pen or cell the use of the
handcuffs was not “justified penologically.” Id., ¶¶ 3235. Furthermore, he claims that during that two hour
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period he had to use the restroom and asked Sergeant
Adams how he was going to use the bathroom with his
hands were cuffed behind his back and claims that
Sergeant Adams responded by stating “you figure it out.”
Id.
McClure next claims that he filed a grievance
relating to the incident with Sergeant Adams and that
Captain Neidigh denied the grievance and his appeals
were denied by Warden DeRose, Prison Board Chairman
Haste, the Full Prison Board and the County Solicitor.
Id., ¶¶ 36-41.

McClure alleges that Sergeant Adams

violated a policy established in September, 2012, by
Major Stewart which required inmates to be taken out of
handcuffs when placed in a holding cell or cage and that
corrections officers have been violating that policy.
Id.
McClure

contends that he was treated

differently than other prisoners who engaged in
destruction of county property. Id.,¶¶ 42-44. He claims
that one inmate who destroyed property on two occasions
only received a 34 days mattress restriction and a
monetary assessment of $42.00 and another inmate who
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destroyed property received 30 days of disciplinary
confinement and a monetary assessment of $42.00 but he
was not placed on a mattress restriction. Id.
McClure next alleges that from March 10 through
18, April 19 through May 2 and on July 10, 2013, he was
again placed in segregation and was forced to shower
with handcuffs and shackles and was only allowed 30
minutes for recreation or 2.5 hours per week outside of
his cell and he was deprived of a mattress and “only had
a concrete slab to either sit or lie on.” Id.,¶¶ 45-47 &
51.
Finally, McClure contends that he filed numerous
grievances regarding the mattress restriction and the
use of physical restraints and the grievances and/or
appeals were ignored or denied by Lt. Hostetter, Deputy
Warden Carroll, Warden DeRose, Prison Board Chairman
Haste, the Full Prison Board, and the County Solicitor.
McClure attached to his complaint a copy of the
grievance he filed relating to the use of restraints and
a copy of the grievance relating to the mattress
restriction as well as the responses by prison
officials.

Doc. 1, at 10-26.
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The response of the

Prison Board to the grievance relating to the use of
restraints states in pertinent part as follows:
The Dauphin County Prison Board, at its meeting
held on June 26, 2013, reviewed your grievance
appeal from Prison Board Chairman Jeffery (sic)
T. Haste’s denial of your complaint regarding an
alleged denial of use of the restroom and
improper use of restraints. . . .
In its deliberations, the Prison Board reviewed
your concerns, as well as the pertinent records.
In your underlying grievance and subsequent
appeal to Commissioner Haste, you stated that
the incident at issue occurred on 2/27/13. In
this appeal, you have revised the date and
stated the incident in question occurred on
2/26/13. A new investigation has been conducted
and the video from that date and relevant times
has been reviewed. It has been concluded that
your allegations regarding being handcuffed in
the bullpen are verified. However, at not time
does it appear that you requested to use the
restroom. Moreover, you are alone in the cell
and therefore not in danger from any other
inmates. The officer involved felt that this
action was necessary as a result of your unruly
behavior while in the previous holding cell.
That officer has stated that you were screaming
and continued this behavior even after being
ordered to stop. Moreover, your records at this
facility, and at others, indicate that you have
a history of violent and combative behavior.
Id. at 15.

The response of the Prison Board to the

grievance relating to the mattress restriction states in
pertinent part as follows:
In your appeal you claim that your “mattress
deprivation” cannot be justified. You are not
being deprived of a mattress. Your are given
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a mattress for sleeping purposes between the
hours of 9:00 p.m. and 8:00 a.m. While you
assert that you only destroyed the mattress in
an effort to use it as a sleeping bag, the
records reflect that you used the stuffing from
the mattress to cover the windows on your cell
door, thereby creating a security risk. As
such, there is a legitimate penological interest
in restricting your access to a mattress.
Id. at 24.

The response further addresses an additional

claim of McClure regarding the use of restraints as
follows:
You also claim that use of restraints
constitutes a “wanton practice” and is
“used to inflict pain or cause harm
unnecessarily.” It should be noted that you
have complained of neck pain on one (1)
occasion following the use of restraints.
However, that complaint was resulting from the
use of the restraint chair, and not the use of
handcuffs and shackles as complained of in
your appeal. As further support of your
proposition that you should not be restrained,
you allege that there is no record of any
violent behavior. Your disciplinary file here,
and at PA DOC, indicates otherwise. During
your most recent incarceration at this facility
beginning on 12/26/12, it has been documented
that you exhibited violent behavior on at least
four (4) occasions. Additionally, your records
from DOC indicate that you assaulted an officer
and made numerous threats to employees and/or
inmates. You also have been charged, and found
guilty of, at least three (3) assaults while
housed throughout the years.
Id.

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Although prisoners have no constitutional or
statutory rights to appointment of counsel in a civil
case, a court does have broad discretionary power to
appoint counsel under 28 U.S.C. § 1915(d).

Tabron v.

Grace, 6 F.3d 147, 153, 155-57 (3d Cir. 1993) (setting
forth non-exhaustive list of factors to be considered in
ruling on motion for appointment of counsel, including
the merits of the claims and the difficulty of the legal
issues), cert. denied, 114 S.Ct. 1306 (1994); Ray v.
Robinson, 640 F.2d 474, 477 (3d Cir. 1981).

The Court

of Appeals for the Third Circuit has stated, however,
that appointment of counsel for an indigent litigant
should only be made "upon a showing of special
circumstances indicating 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).

But no part of the

discussion in Smith-Bey of circumstances warranting
appointment of counsel should be interpreted to mean
that "appointment is permissible only in exceptional
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circumstances and that, in the absence of such
circumstances, the court has no discretion to appoint
counsel."

Tabron, 6 F.3d at 155.

McClure’s motion fails to set forth sufficient
special circumstances or factors warranting appointment
of counsel.

See Tabron v. Grace, supra.

In the

pleadings submitted by McClure to date, he has
demonstrated that he is capable of presenting his
claims.

In fact McClure has already responding by

filing a brief in opposition (Doc. 23) to a motion to
dismiss filed by Defendants.

Furthermore, this court's

liberal construction of pro se pleadings, e.g., Haines
v. Kerner, 404 U.S. 519, 520 (1972), coupled with
McClure’s apparent ability to litigate this action pro
se, mitigate against the appointment of counsel.
Moreover, the legal and factual issues are relatively
uncomplicated, and the court can not say, at least at
this point, that McClure will suffer substantial
prejudice if he is forced to prosecute this case on his
own.
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Therefore, McClure’s motion for appointment of
counsel will be denied.

In the event, however, that

future proceedings demonstrate the need for counsel, the
matter may be reconsidered either sua sponte or upon a
motion properly filed by Plaintiff.
ACCORDINGLY, this 22nd day of December, 2015, IT
IS HEREBY ORDERED THAT McClure’s motion for appointment
of counsel (Doc. 24) is DENIED.
s/Sylvia H. Rambo
United States District Judge

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