Miller v. Price et al

Filing 25

MEMORANDUM (Order to follow as separate docket entry) re 22 MOTION for Extension of Time to File Brief to 20 MOTION to Dismiss Plaintiff's Amended Complaint Pursuant to Rule 12(b)(6) filed filed by Jason Miller Signed by Honorable A. Richard Caputo on 8/21/14. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JASON MILLER,
Plaintiff
v.
PAULA PRICE, et al.,
Defendants

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CIVIL NO. 3:CV-14-0301
(Judge Caputo)

MEMORANDUM
I.

Introduction
On February 9, 2014, Jason Miller, an inmate currently housed at the

Huntingdon State Correctional Institution (SCI-Huntingdon), in Huntingdon,
Pennsylvania, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 after
he slipped and fell in the shower. He was taken to an outside hospital were he was
treated and released. (Doc. 1, Compl.) Mr. Miller claims the medical staff
misdiagnosed his injuries and failed to adequately treat his pain. (Id.) Prior to the
Court screening Mr. Miller’s Complaint, he filed an Amended Complaint. See Doc.
7. He further elaborates on his lack of medical care and denial of his ankle brace in
his Amended Complaint. (Id.)
Presently before the Court is Mr. Miller’s third motion for appointment of
counsel based on his incarceration, limited knowledge of the law, limited access to
the law library, indigent status and physical disabilities. See Doc. 23. For the
reasons that follow, Mr. Miller’s third motion for counsel will be denied without
prejudice.

II.

Discussion
A pro se litigant proceeding in forma pauperis has no constitutional or

statutory right to representation by counsel. Montgomery v. Pinchak, 294 F.3d 492,
498 (3d Cir. 2002). Congress has granted district courts the discretion to “request
an attorney to represent any person unable to afford counsel.” 28 U.S.C. §
1915(e)(1). A district court as “broad discretion” to determine whether counsel
should be appointed. Montgomery, 294 F. 3d at 498. The appointment of counsel
is made only "upon a showing of special circumstances indicating the likelihood of
substantial prejudice to [plaintiff] resulting ... from [plaintiff's] 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. Next, if plaintiff's claims meet this threshold review, other non-exclusive 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 extent to which a case is likely to turn on credibility
determinations;
5. whether the case will require testimony from expert
witnesses;
6. the plaintiff's capacity to retain counsel on his or her own behalf;
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997)(citing Tabron v. Grace, 6 F.3d
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147, 155-57 (3d Cir. 1993)). After examining the above factors, the Court will deny
Mr. Miller’s present motion for counsel without prejudice.
As noted in our denial of Mr. Miller’s first and second motions for counsel on
(Docs. 11 - 12 and 15), this case is still in its procedural infancy. On April 11, 2014,
the Court directed service of the Amended Complaint. Since then Defendants have
filed a motion to dismiss, based in part, of Mr. Miller’s failure to exhaust his
administrative remedies. (Doc. 20, Mot. to Dismiss.) The Prison Litigation Reform
Act (PLRA) requires that a prisoner shall not be permitted to proceed with a Section
1983 action unless he or she has exhausted all available administrative remedies.
See 42 U.S.C. § 1997e(a). Defendants also charge Mr. Miller has failed to allege
the personal involvement of many of the Defendants. Mr. Miller has yet to respond
to Defendants’ motion to dismiss.
To date, Mr. Miller’s Amended Complaint, and other correspondence to the
court, have been clearly worded and present logical concise arguments. Minimal
legal knowledge or research is necessary to respond to many of the issues raised in
Defendants’ motion to dismiss such as his alleged improper exhaustion of
administrative remedies, as well as the personal involvement of each of the named
Defendants. To the extent that Mr. Miller’s request for counsel is based on the fact
of his incarceration or his indigent status, these facts do not warrant the
appointment of counsel given this Court's liberal construction of pro se pleadings.
Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Mr. Miller has
recently sought an enlargement of time to respond to Defendants’ motion to dismiss.
The court will grant Mr. Miller the requested enlargement of time.
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There is no evidence, at this point, that any prejudice will result in the
absence of counsel. Consequently, at this time Mr. Miller’s third request for counsel
will be denied without prejudice. Plaintiff may file another motion for appointment of
counsel if his circumstances change. The court will grant Mr. Miller additional time
to file his brief in opposition to Defendants’ motion to dismiss.
An appropriate Order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: August

21 , 2014