Evans v. Fanelli, CIVIL NO. 1:CV-12-2385
| Decision Date | 17 June 2013 |
| Docket Number | CIVIL NO. 1:CV-12-2385 |
| Parties | JEROME P. EVANS, Plaintiff, v. OFFICER FANELLI, et al., Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Chief Judge Kane)
On November 29, 2012, Jerome P. Evans ("Evans"), an inmate currently confined at the Warren County Correctional Center in Belvidere, New Jersey, filed this civil rights action pursuant to 42 U.S.C. § 1983. Named as Defendants in the original complaint are Officer Fanelli and K.P. Reisinger, two employees at the State Correctional Institution at Camp Hill, Pennsylvania, Evans' former place of confinement. Evans proceeds in forma pauperis in this matter.1 On December 3, 2012, Evans filed an amended complaint in this action. (Doc. No. 5.) Named as Defendants in the amended complaint are Fanelli, Reisinger, the Program Review Committee and "John Doe," the Grievance Coordinator at SCI-Camp Hill. The Court will proceed on the amended complaint. Evans has also filed a motion for the appointment of counsel in this matter. (Doc. No. 7.) Pursuant to 28 U.S.C. § 1915, the Court is required to examine the complaint for legal sufficiency and to dismiss the complaint if it is frivolous, malicious or fails to state a claim on which relief may be granted. For the reasons that follow,the motion for counsel will be denied, and the amended complaint will be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Evans alleges that he was issued a false misconduct by Defendant Fanelli on April 12, 2012, charging him with threatening Fanelli with bodily harm and using obscene language. Evans was placed in the Restricted Housing Unit pending a formal hearing on the misconduct and provided with a form to draft his version of the incident. Evans states that he requested witnesses, including a counselor at SCI-Camp Hill. According to Evans, Fanelli has a reputation for issuing false misconducts.
On April 16, 2012, a formal misconduct hearing was conducted in front of Defendant Reisinger. Evans was found guilty of the charges and sanctioned to ninety (90) days disciplinary segregation. According to Evans, he was not told by Reisinger the reasons for his decision and was not afforded the opportunity to call witnesses. Evans does acknowledge that Reisinger provided a written summary of the hearing and states that he believed the officer's version of the story over Evans' version. Evans filed an appeal from the finding of guilt the same day.
Evan further alleges that on April 19, 2012, he received a receipt for personal property of his that was inventoried with respect to the move to the segregated cell in the RHU. He noticed that almost all of his commissary items were not listed on the form, and that some of his clothing had been destroyed/shredded. He was informed that any items not appearing on the list meant that they were not sent from his former housing unit and that he would have to file a grievance about the matter.
On April 22, 2012, Evans states that he was transferred out of SCI-Camp Hill to SCI-Coal Township, and placed in the segregation unit there. He claims that as of May 23, 2012, he still had not received any response to his appeal from the finding of guilt on the misconduct. On June 12, 2012, Evans wrote a letter addresses to the Program Review Committee at SCI-Camp Hill requesting that the charges be dismissed against him, but received no response.
In the amended complaint he claims that he was illegally placed in segregation and denied procedural due process with respect to the misconduct proceeding that was conducted. He appears to challenge the issuance of a false misconduct, as well as the confiscation/destruction of his personal property. As relief he seeks injunctive and monetary relief.
Evans requests the appointment of counsel in this action because he is unable to afford an attorney and states that he is greatly limited by his imprisonment. (Doc. No. 7.) He also states that his access to the law library is limited, and that investigation and trial preparation will require the expertise of an attorney. His request for counsel will be denied for the following reasons. 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 bemade 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. For the reasons set forth in this Memorandum, it is clear that the claims set forth in amended complaint lack merit and amendment would be futile. However, even if this Court were to assume that this case has arguable merit in law and the facts, other factors to be examined are:
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 do not contain complicated legal issues. In reviewing the complaint, Evans is obviously literate and able to litigate this action on his own. The complaint clearly sets forth the claims Evans desires to pursue in this matter. While he may not have the ability to visit the lawlibrary as often as he would like, it appears that he does have some access to the library. Further, even if the Court were to find any merit to the claims set forth, any concern about a trial would be premature.
28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions in federal court and wish to proceed in forma pauperis. Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
(Emphasis added.) Federal Rule of Civil Procedure 12(b)(6) allows a defendant, in response to a complaint, to file a motion to dismiss a claim or claims for "failure to state a claim upon which relief can be granted . . . ." Section 1915(e)(2)(B)(ii) provides this ground for summary dismissal of a complaint (before service) - - failure to state a claim under Rule 12(b)(6) principles. A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Under Fed. R. Civ. P. 12(b)(6), the court must accept as true the factual allegations in the complaint, and construe any inferences to be drawn from the allegations in Plaintiff's favor. See Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). "The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.'" Marangos v. Swett, No. 08-4146, 2009 WL 1803264 (3d Cir. June 25, 2009)(citing Ashcroft v. Iqbal, _ U.S. _, _, 129 S. Ct. 1937, 1949-50 (2009). In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), acomplaint must contain enough "facts to state a claim to relief that is plausible on its face" Iqbal, 129 S. Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007), and the factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (internal citations omitted); accord Iqbal, 129 S. Ct. at 1953. The facts plead must offer more "than an unadorned, the defendant-unlawfully-harmed-me accusation." Id., 120 S. Ct. at 1949 (internal quotations and citations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct at 1949 (citing Twombly, 550 U.S. at 556). Further, a district court should provide leave to amend "when amendment could cure the deficiency and would not be inequitable." Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002). A complaint that does not establish entitlement to relief under any reasonable interpretation is properly dismissed without leave to amend. Id. at 106.
The filing of a false misconduct report does not violate an inmate's due process rights. The general rule, as stated in Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986),...
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