Milhouse v. Heath et al

Filing 105

MEMORANDUM (Order to follow as separate docket entry) re 103 MOTION to Seal filed by Kareem Hassan Milhouse, 93 MOTION to Amend/Correct filed by Kareem Hassan Milhouse, 99 MOTION to Amend/Correct 90 Proposed Document filed by Kareem Hassan Milhouse, 95 MOTION to Appoint Counsel filed by Kareem Hassan Milhouse Signed by Magistrate Judge Karoline Mehalchick on 11/7/2016. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KAREEM HASSAN MILHOUSE,
Plaintiff,

CIVIL ACTION NO. 1:15-cv-01400

v.

(RAMBO, J.)
(MEHALCHICK, M.J.)

SUZANNE HEATH, et al.,
Defendants.
MEMORANDUM
Now pending before the Court are four motions by pro se Plaintiff Kareem Hassan
Milhouse. Milhouse filed two motions affecting the Defendants named in his complaint, a
“motion to add, clarify, and identify John Does” (Doc. 93; Doc. 94) and a “motion for leave to
file amended complaint.” (Doc. 99). Milhouse also filed a motion to appoint counsel (Doc. 95)
and a motion to seal certain documents contained in the record. (Doc. 103; Doc. 104).
Because Milhouse “request[s] to amend his complaint as he has identified the John Doe officers
that [were] in his [original] complaint,” the Court considers Milhouse’s “motion to add, clarify,
and identify John Does” to be incorporated into his motion for leave to file an amended
complaint. (Doc. 93). The motion to clarify is therefore considered moot. The Court now
addresses the motion for leave to file an amended complaint, motion to appoint counsel, and
motion to seal certain documents. For the reasons articulated in this memorandum, Milhouse’s
motion to amend is granted, and the motions to appoint counsel and seal are denied.

I.

BACKGROUND AND PROCEDURAL HISTORY
On July 20, 2015, Milhouse filed the present Bivens-style 1 complaint against 16

Defendants, including USP-Lewisburg prison officials, five John Doe Corrections Officers,
Pennsylvania state senators, and the United States of America. (Doc. 1). Milhouse alleged
prison administrators and officers were deliberately indifferent to imminent risks of harm to
Milhouse’s safety—due to his being labelled a “rat” by fellow inmates—and that these
administrators and officers conspired to cause him harm in retaliation for filed against various
officials. (Doc. 1). On September 22, 2015, Milhouse amended his initial complaint as a
matter of right, increasing the total number of Defendants but focusing the scope to prison
officials, employees, the Federal Bureau of Prisons, and the United States. (Doc. 15-Sealed).
Milhouse subsequently filed two motions to supplement his amended complaint and a motion
to file a second amended complaint. (Doc. 33; Doc. 79; Doc. 73). Both motions were denied,
though the Court instructed that an amended complaint, independent of prior submissions,
should be filed within 30 days. (Doc. 86). Milhouse filed his third amended complaint on July
19, 2016. (Doc. 90).
Prior to the Court performing the statutorily-required screening of his third amended
complaint, Milhouse filed the instant motions to clarify and amend on August 26, 2016, and
September 26, 2016, respectively. (Doc. 93; Doc. 99). He asserts that in some cases, he did not
know the identity of John Doe officers, while others were not named out of fear of retaliation.

1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
(recognizing an implied private action for damages against federal officers alleged to have
violated a citizen's constitutional rights).
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(Doc. 94, at 1). In total, Milhouse’s third amended complaint seeks redress from 21 named
Defendants; removing 3 formerly-named Defendants from his second amended complaint
while adding 5 new Defendants.
II.

DISCUSSION
A. MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DOC. 99)
Rule 15 of the Federal Rules of Civil Procedure governs motions to amend a complaint.

Rule 15 provides for three ways by which a plaintiff may potentially amend a complaint: (1) as
a matter of course; (2) with the opposing party’s written consent; and (3) by leave of court. Fed.
R. Civ. P. 15. Here, Milhouse seeks leave of court to amend his complaint pursuant to Fed. R.
Civ. P. 15(a)(2).
The Court has reviewed Milhouse’s motion, construing it liberally. See generally Arthur v.
Maersk, Inc., 434 F.3d 196, 202 (3d Cir. 2002) (“Federal Rule of Civil Procedure 15 embodies a
liberal approach to pleading.”). Under Rule 15(a)(2), “[t]he court should freely give leave [to
amend pleadings] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis,
371 U.S. 178, 182 (1962) (“In the absence of any apparent or declared reason . . . the leave
sought should, as the rules require, be ‘freely given.’”). However, even under this liberal
standard, a motion for leave to amend may be denied when justified. “Permissible justifications
[for denying leave to amend] include: (1) undue delay; (2) bad faith or dilatory motive; (3)
undue prejudice to the opposition; (4) repeated failures to correct deficiencies with previous
amendments; and (5) futility of the amendment.” Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995).
Although Milhouse intended the currently operative third amended complaint to
constitute his “last” when requested, the Court finds leave to amend should be granted. The
guiding principle which informs the exercise of the Court’s discretion in managing its docket is
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“to make pleadings a means to achieve an orderly and fair administration of justice.” Griffin v.
Cnty. Sch. Bd. of Prince Edward Cnty., 377 U.S. 218, 227 (1964). The Court finds Milhouse’s
proposed amendment would best serve the fair administration of justice. The proposed
amendment merely alters the Defendants from whom redress is sought without advancing new
or unrelated claims to the currently operative complaint. No Defendants have been served in
this case, as the Court has been unable to perform the necessary screening due to Milhouse’s
repeated filings. However, because no parties have been served, permission to amend would
not cause confusion or prejudice. Instead, granting leave to amend and adopting the submitted
fourth amended complaint as the operative complaint would allow the Court to screen and
serve a complete complaint, devoid of John Doe Defendants requiring discovery to identify.
Accordingly, the Court will GRANT Milhouse’s motion for leave to file an amended
complaint. (Doc. 99). As such, the accompanying proposed amended complaint is adopted as
the operative complaint. (Doc. 99, at 4). Milhouse is advised that given the extensive filings to
date, further amendments will not be tolerated. No Defendants have been served due to
repeated amended complaints preventing a comprehensive screening, despite well over a year
passing since the initial complaint. Cases cannot be permitted to proceed in perpetuity.
B. MOTION TO APPOINT COUNSEL (DOC. 95)
Plaintiff filed a motion to appoint counsel—his third—on August 26, 2016. (Doc. 95).
For the following reasons, the court will DENY the motion. Although prisoners have no
constitutional or statutory right to appointment of counsel in a civil case, Parham v. Johnson, 126
F.3d 454, 456-57 (3d Cir. 1997), the court has discretion to request “an attorney to represent
any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see also Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). Under
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1915(e)(1), the “court may request an attorney to represent any person unable to employ
counsel. The district court’s appointment of counsel is discretionary and must be made on a
case-by-case basis. Tabron, 6 F.3d at 157-58.
The United States Court of Appeals for the Third Circuit has stated that 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). 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. If a plaintiff overcomes this threshold 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 claimant to pursue investigation; (4) the plaintiff’s
capacity to retain counsel on his or her own behalf; (5) the extent to which the
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).
Additionally, another practical consideration must be taken into account when considering a
motion for appointment of counsel. As the Third Circuit has observed:
we must take note of the significant practical restraints on the district courts’
ability to appoint counsel: the ever-growing number of prisoner civil rights
actions filed each year in the federal courts; the lack of funding to pay appointed
counsel; and the limited supply of competent lawyers who are willing to
undertake such representation without compensation. We have no doubt that
there are many cases in which district courts seek to appoint counsel but there is
simply none willing to accept appointment. It is difficult to fault a district court
that denies a request for appointment under such circumstances.
Tabron, 6 F.3d at 157.
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Milhouse filed motions to appoint counsel for this matter twice prior. (Doc. 56; Doc.
84). Both times, the Court found Milhouse capable to adequately present his own case without
the aid of counsel. (Doc. 56, at 4; Doc. 84, at 11). The Court advised Milhouse that should
further proceedings demonstrate the need for counsel, the decision to deny appointment of
representation would be revisited. (Doc. 84, at 12). The Court does not find that circumstances
have changed to warrant appointment of counsel. Milhouse asserts the rescission of his pain
medication affects his daily routine, and forms the basis for his requested appointment. (Doc.
95, at 2). However, Milhouse points out that this change in circumstance occurred on April 22,
2016, prior to his filing of most of the motions discussed in this Memorandum. The Court,
while acknowledging Milhouse’s plight, does not find his ability to litigate prejudiced at this
stage and declines to appoint counsel on his behalf.
Furthermore, this court’s duty to construe pro se pleadings liberally, Haines v. Kerner, 404
U.S. 519 (1972), coupled with Milhouse’s apparent ability to litigate this action, weigh against
the appointment of counsel. Hence, the court will DENY Plaintiff’s motion for appointment of
counsel. In the event, however, that future proceedings demonstrate the need for counsel, the
matter may be reconsidered either sua sponte or upon motion by Milhouse.
C. MOTION TO SEAL (DOC. 103; DOC. 104)
Lastly, Milhouse petitions the Court, asking for specific Orders and accompanying
Memorandums in the record to be sealed. (Doc. 104). In the alternative, Milhouse requests the
names of inmates be redacted. (Doc. 104, at 1). Milhouse’s motion is a direct response to the
Court’s September 6, 2016 Order denying a prior motion to seal. In that Order, the Court
denied Milhouse’s motion because Milhouse “failed to identify specific documents to be
sealed,” and failed “to articulate a clearly defined and serious injury.” (Doc. 98, at 1-2).
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Milhouse’s present motion addresses the first issue identified by the Court, but again
fails to “articulate a clearly defined and serious injury.” See Miller v. Indiana Hosp., 16 F.3d 549,
551 (3d Cir. 1994) (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)).
In Miller, the Court of Appeals for the Third Circuit stated:
The existence of a common law right of access to judicial records is beyond
dispute. See Littlejohn v. BIC Corp., 851 F.2d 673, 677–78 (3d Cir.1988); United
States v. Criden, 648 F.2d 814, 819 (3d Cir.1981) (Criden I ). This Court has made
it clear that our “strong presumption” of openness does not permit the routine
closing of judicial records to the public. The party seeking to seal any part of a
judicial record bears the heavy burden of showing that “the material is the kind
of information that courts will protect” and that “disclosure will work a clearly
defined and serious injury to the party seeking closure.” Publicker Indus., Inc. v.
Cohen, 733 F.2d 1059, 1071 (3d Cir.1984).
Miller, 16 F.3d at 551.
Milhouse’s motion plainly fails to articulate a clearly defined and serious injury. The entirety of
his motion is grounded on the fact that Milhouse “was confronted” due to the content of one of
the documents, and that he “was accosted” about it on October 7, 2016. (Doc. 104, at 1).
These vague assertions are totally inadequate to warrant sealing part of a judicial record. They
do not articulate any actually suffered or future injury, let alone a “clearly defined and serious
injury.” For this reason, Milhouse’s motion to seal (Doc. 103; Doc. 104) must be denied
without prejudice to the filing of a renewed motion identifying a clearly defined and serious
injury he will suffer if these records are not sealed.

An appropriate Order follows.

s/ Karoline Mehalchick

Dated: November 7, 2016

KAROLINE MEHALCHICK
United States Magistrate Judge
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