DiPietro v. The Department of Corrections and Its Employees Listed Herein et al

Filing 60

MEMORANDUM re. mtns to dismiss 34 , amend or supplement the complaint 42 , 46 , 54 , for exttm 47 , to appoint cnsl 31 , 45 , 48 , and to withdraw 55 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 8/16/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICODEMO DiPIETRO,
Plaintiff
vs.
THE DEPARTMENT OF
CORRECTIONS & ITS EMPLOYEES
LISTED HEREIN, et al.,
Defendants

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CIVIL NO. 1:CV-15-1137
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se plaintiff, Nicodemo DiPietro, an inmate at the state correctional

institution in Somerset, Pennsylvania, has filed several motions: three motions to
supplement the complaint (Docs. 42, 46 and 54) and a proposed supplemental complaint; a
motion for a temporary restraining order (Doc. 40); two motions for appointment of counsel
(Docs. 31 and 45); a motion for extension of time/stay of proceedings (Doc. 47); and a
motion to appoint a mediator (Doc. 48). Also pending is Defendants’ motion to dismiss or
in the alternative motion for summary judgment (Doc. 34) and a motion to withdraw that
motion. (Doc. 55).
For the reasons that follow DiPietro’s motions will be denied, Defendants’
motion to withdraw their potentially dispositive motion will be granted, the motion deemed
withdrawn, and Defendants will be directed to file an Answer to the Amended Complaint.

II.

Discussion

A.

Motions to Supplement the Complaint
DiPietro alleges the following in his motions to supplement. He claims that on

June 3, 2016, he was advised by Unit Manager Little of the state correctional institution in
Houtzdale, Pennsylvania, that he would be transferred to (SCI-Somerset) “because of [his]
lawsuit against Daniel Mienert.” (Doc. 42-1, Suppl.) He also claims Unit Manager Little
“breached security” by telling him he would be transferred, and to which facility, in advance.
DiPietro also claims three unknown guards at SCI-Houtzdale assaulted him,
broke his reading glasses, and knocked out one of his teeth. He was taken to the
Restrictive Housing Unit (RHU) after this altercation. There he was held down, gagged and
water-boarded with a salty liquid. These actions were repeated until he heard a voice say
“what are you doing, he is white.” (Id.) The abuse then stopped.
His injuries were photographed on June 7, 2016, upon his arrival at SCISomerset where he also received emergency dental care. He was again placed in the
RHU where he is receiving psychiatric treatment and psychotherapy for PTSD due to the
“drowning” incident.
DiPietro filed an abuse allegation with SCI-Somerset’s Security Office and a
grievance. DiPietro also noted upon his arrival at SCI-Somerset that his reading glasses
and legal property pertaining to this case were missing “no doubtly (sic) thrown out by
Houtzdale unknown staff.” Without his glasses DiPietro can not read or write clearly.

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As relief, DiPietro seeks a permanent injunction prohibiting the Pennsylvania
Department of Corrections (DOC) from keeping him in the RHU longer than his RHU
sentence or transferring him in retaliation for his lawsuit. He seeks a transfer to a facility in
the eastern region of the state, closer to his family. (Doc. 41-2 and Doc. 40). All of his
motions to supplement revolve around these new issues. See Docs. 42, 46, and 54.
In reviewing DiPietro’s submissions, it is clear he seeks to supplement his
complaint by adding new claims against new yet-to-be identified SCI-Houtzdale staff
members for events that transpired after the filing of this action in June 2015. As such, his
motion will be construed as a motion to supplement his complaint pursuant to Fed. R. Civ.
P. 15(d).
Rule 15(d) provides:
On motion and reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date
of the pleading to be supplemented. The court may permit
supplementation even though the original pleading is defective
in stating a claim or defense. The court may order that the
opposing party plead to the supplemental pleading within a
specified time.
Fed. R. Civ. P. 15(d).
DiPietro’s initial Complaint named twenty-seven defendants from various
correctional facilities and the DOC’s Central Office, and complained in general, of the
Defendants’ failure to protect him from retaliation by Daniel Mienert after he refused to be
an informant. (Doc. 1, Compl.) DiPietro, while housed at SCI-Houtzdale, filed an Amended
Complaint on April 18, 2016. (Doc. 16, Am. Compl.) DiPietro again claimed that staff at
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Central Office and SCI-Rockview failed to protect him from Mienert’s retaliatory acts of
transferring him to different prisons and who threatened to label him as “a rat & get him
killed”. (Id. at ¶¶ 31 - 33). None of the existing Defendants are employed at SCIHoutzdale. The events upon which DiPietro premises his amendment all took place at SCIHoutzdale in June of this year. While DiPietro argues he was assaulted, water-boarded
and transferred from SCI-Houtzdale due to Mienert’s influence and continued retaliation,
these events occurred at a different facility, involve different individuals and include a claim
of assault and thus must be pursued in a new action. As such, his motions to amend will
be denied.

B.

Motion for Preliminary Injunction
Inmate pro se pleadings which seek extraordinary, or emergency relief, in the

form of preliminary injunctions are governed by Rule 65 of the Federal Rules of Civil
Procedure. A district court will only grant a preliminary injunction if the moving party
produces evidence sufficient to convince the court that: (1) there is a likelihood of success
on the merits; (2) he or she will suffer irreparable harm if the injunction is denied; (3)
granting relief will not result in even greater harm to the nonmoving party; and (4) the public
interest favors such relief. Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102 (3d Cir.
2010); ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). Furthermore, because
of the intractable problems of prison administration, a request for injunctive relief in the
prison context must be viewed with considerable caution. Rush v. Corr. Med. Servs., Inc.,

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287 F. App’x. 142, 144 (3d Cir. 2008) (citing Goff v. Harper, 60 F.3d 518, 520 (8th Cir.
1995)); see also 18 U.S.C. § 3626(a)(2).
Here, DiPietro seeks an injunction against nondefendants preventing them
from transferring him to another facility farther from his Philadelphia home or holding him in
the RHU beyond his current disciplinary sanction in retaliation for his filing of this civil
action. DiPietro speculates that if transferred to a different facility farther from his
hometown of Philadelphia, it will be in retaliation for his lawsuit. He does not suggest that
any transfer would be retaliatory, just one that would move him geographically farther from
Philadelphia. Likewise, Plaintiff seeks an order preventing nondefendants from housing
him in the RHU longer than his present disciplinary sanction. In both instances, DiPietro
speculates that he will be subjected to retaliation by third parties.1 His fears of retaliation in
the form of a transfer or extended RHU placement by nondefendants are not based on any
credible or cited evidence. A court may not grant preliminary injunctive relief unless the
Plaintiff can show “immediate irreparable injury, which is more than serious or substantial
harm.” ECRI, 809 F.2d at 226. Additionally, the claimed injury cannot merely be possible,
speculative or remote. See City of Los Angeles v. Lyons, 461 U.S. 95, 101 02, 103 S.Ct.
1660, 1665, 75 L.Ed.2d 675 (1983) (The moving party must show that “he has sustained or
is immediately in danger of sustaining some direct injury as a result of the challenged
official conduct and the injury or threat of injury must be both real and immediate not

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As addressed later in this memorandum, DiPietro makes a similar statement claiming that
while at SCI-Somerset he is being denied access to the law library in retaliation for his filing of this
lawsuit.

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conjectural or hypothetical.”) (internal quotation marks omitted). “Past exposure to illegal
conduct does not in itself show a present case or controversy regarding injunctive relief[.]”
O'Shea v. Littleton, 414 U.S. 488, 495 - 96, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974).
DiPietro has not met his burden of proving preliminary injunction relief is warranted.
Accordingly, his motion will be denied.

C.

Motion to Appoint a Mediator
“Every civil action filed within the Middle District of Pennsylvania is eligible for

mediation except any case which the assigned judge determines, after application by any
party or by the mediator, is not suitable for mediation.” Pa. M.D. Local Rule 16.8.4. We will
not force parties enter into the alternative dispute resolution process. While DiPietro
expresses an interest in mediation, Defendants have not. It is unknown if DiPietro has
approached defense counsel concerning settlement prior to mediation. In the absence of
any such discussions, or expressed interest from both parties, we will not appoint a
mediator to this case. DiPietro’s motion will be denied, but if circumstances change, he
may renew his request for a mediator.

D.

Defendants’ Motion to Withdraw their Motion to Dismiss the
Complaint, or in the alternative, Motion for Summary Judgment
Based on Defendants’ request, their motion to dismiss the Complaint, or

alternatively, motion for summary judgment (Doc. 34) will be deemed withdrawn.
Defendants will be required to file an Answer to the Complaint.

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E.

DiPietro’s Motion for Extension of Time
Although captioned as a motion for extension of time, it appears that DiPietro

seeks a stay of these proceedings for seven months, the time he believes it will take to
obtain new reading glasses. (Doc. 47). Defendants have submitted evidence,
uncontradicted by DiPietro, showing that on June 15, 2016, when medical staff learned of
DiPietro’s broken glasses, they were prepared to order a new pair for him as his
prescription was current. DiPietro elected not to order new glasses until he was seen by
the optometrist. (Doc. 55, ECF p. 22). He was scheduled to be seen sometime in July.
SCI-Somerset staff affirm that it takes approximately six to eight weeks from the time new
eye glasses are ordered to have them delivered to the institution. (Id.) Based on this
evidence, and the Defendants’ withdrawal of their motion to dismiss or in the alterative
motion for summary judgment, DiPietro’s motion for a seven-month stay of these
proceedings while he obtains new reading glasses is denied.

F.

DiPietro’s Second and Third Motions for Appointment of
Counsel
DiPietro seeks court-appointed counsel on the basis of his lack of legal

training, lack of access to the law library and his inability to read or write due to his lack of
prescription eyeware. He claims that a neighboring inmate must read all documents to him
on account of his poor uncorrected vision.
This is a civil action, not a criminal one. Hence the plaintiff has no
constitutional or statutory right to appointed counsel. Montgomery v. Pinchak, 294 F.3d

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492, 498 (3d Cir. 2002). Nor can the court compel a lawyer to represent an indigent
plaintiff. Tabron v. Grace, 6 F.3d 147, 153 n.1 (3d Cir. 1993). Rather, representation for an
indigent is governed by 28 U.S.C. § 1915(e)(1) which only provides that the court "may
request an attorney to represent any person unable to afford counsel." (emphasis added).
A district court has broad discretion under 28 U.S.C. § 1915(e)(1) in deciding
whether to seek counsel, Montgomery, 294 F.3d at 498, and the decision can be made at
any point of the litigation. Id. at 503-04 (“Either the Magistrate Judge or the District Court
should have recognized Montgomery's difficulties as they became increasingly apparent
and, in light of them, reconsidered Montgomery's motion for appointment of counsel.”).
The Third Circuit has provided guidance for the exercise of the district court’s
discretion. At the threshold, the court must decide whether the plaintiff’s case “has some
arguable merit in fact and law.” Id. at 499 (quoting Parham v. Johnson, 126 F.3d 454, 457
(3d Cir. 1997)). A court need not appoint counsel “if the indigent’s chances of success on
the merits are extremely slim.” Id. at 500 (quoting Hodge v. Police Officers, 802 F.2d 58,
60 (2d Cir. 1986))(internal quotation marks and brackets omitted). If the threshold
requirement is met, the court then considers a number of factors established by the Third
Circuit to determine whether it is appropriate to request counsel for an indigent party.
These factors include: (1) the plaintiff’s ability to present his 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

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determinations; and (6) whether the case will require testimony from expert witnesses.
Tabron, 6 F.3d at 155-57.
“[V]olunteer lawyer time is a precious commodity, Montgomery, supra, 294
F.3d at 499, so the district court’s “broad statutory discretion” should be exercised
“discerningly.” Id. at 505 n.10. However, if the case “appears to have merit” and “most of
the . . . Tabron factors have been met, the Third Circuit “instruct[s]” that the district court
“should make every attempt to obtain counsel.” Id. at 505 (quoting Parham, 126 F.3d at
461)(internal quotation marks omitted).
After careful review of the allegations in DiPietro’s motions for counsel and
Defendants’ response which was supported by several sworn declarations, DiPietro’s
motions are denied. As we have already discussed, the extended delay in replacing
DiPietro’s glasses is in part, self-imposed to a degree. Nonetheless, he should be
receiving his new glasses fairly soon if not already. More importantly, given that
Defendants’ have withdrawn their potentially dispositive motion, one of DiPietro’s reasons
for seeking court-appointed counsel is resolved. He need not conduct legal research
without his glasses.
Next, we address DiPietro’s claim that he is being denied access to the law
library. The evidence submitted by Defendants shows that since his arrival at SCISomerset, DiPietro has failed to go through the proper institutional channels to seek access
to the law library. Moreover, as of June 12, 2016, DiPietro admitted in a letter to defense
counsel that “[he] is not being denied law library” at SCI-Somerset. (Doc. 51, ECF p. 14).

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We find it curious that DiPietro’s second motion for counsel (Doc. 31), in which he claims
he “has no access to law library because he is on restricted movement. This was done in
retaliation for filing this lawsuit,” was also penned the same day, June 12, 2016.
Nonetheless, without reading glasses, and with access to the law library should he choose
to properly request access to it, DiPietro has demonstrated his ability to adequately, and
frequently, communicate his needs and concerns with defense counsel and the court.
Finally, any concern over his inexperience as a litigant is unnecessary as his pleadings are
measured against the liberal construction of pro se pleadings. See Haines v. Kerner, 404
U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Accordingly, DiPietro’s motions for
appointment of counsel will be denied.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: August 16, 2016

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