Anderson v. Kauffman

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RODNEY ANDERSON, : Civil No. 1:22-CV-00226

:

Plaintiff, :

:

v. :

:

K. KAUFFMAN, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court are Defendants’ motions to dismiss this action. (Docs. 16,

17.) Also pending before the court are Plaintiff’s motion for summary judgment,

Doc. 37, and motion for appointment of counsel, Doc. 44. Plaintiff Rodney

Anderson (“Plaintiff”) is an inmate currently housed at the State Correctional

Institution in Huntingdon, Pennsylvania, (“SCI- Huntingdon”) and is self-

represented in this 42 U.S.C. § 1983 action. Plaintiff’s complaint is a shot-gun

approach to litigation, bringing a wide variety of claims against multiple

defendants for multiple, unrelated occurrences. As such, the court finds that

multiple claims are improperly joined in a single action. Therefore, the court will

only address the claims arising from the initial alleged incident. These claims will

be dismissed, and Defendants’ motion will be granted. Therefore, Plaintiff’s

motion for summary judgment will be denied as moot. Additionally, Plaintiff’s

motion for appointment of counsel will be denied.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff initiated this action by filing a complaint on February 15, 2022

naming thirteen defendants: (1) K. Kauffman (“Kauffman”), the superintendent of

SCI-Huntingdon until July 26, 2021; (2) J. Rivello (“Rivello”), the current

superintendent of SCI-Huntingdon; (3) Ms. C. Neri (“Neri”), the department

psychologist at SCI-Huntingdon; (4) Ms. Cousins (“Cousins”), the psychiatrist at

SCI-Huntingdon; (5) Ms. Connie Green (“Green”), the grievance coordinator at

SCI-Huntingdon; (6) Ms. Wakefield (“Wakefield”); (7) Mr. J. Wetzel (“Wetzel”),

the Secretary of Corrections for the Pennsylvania Department of Corrections

(“DOC”); (8) M. Murtha (“Murtha”), the librarian for the law library; (9) C.

Hammon (“Hammon”), the librarian at the law library; (10) Ms. M. Yost (“Yost”),

the unit manager at SCI-Huntingdon; (11) Ms. Hicks-Kern (“Hicks-Kern”), the

employment officer; (12) Ms. Pattersons (“Pattersons”), the phone coordinator at

SCI-Huntingdon; and (13) Mel, a nurse at the medical department. (Doc. 1.)

Plaintiff raises claims against Defendants under the Americans with

Disability Act (“ADA”), the Rehabilitation Act, the First Amendment, the Sixth

Amendment, the Eighth Amendment, and the Fourteenth Amendment. (Id.) The

complaint alleges facts from multiple separate incidents starting in March of 2020.

These unrelated claims include factual scenarios surrounding his access to mental

health treatment during the Covid-19 pandemic, lack of access to his peer support

specialist, the mishandling of grievances, prison conditions, access to the law

library, the implementation of the Covid-19 precautions, work assignments, pay

rates, confiscation of legal mail, inmate telephone authorization forms, and lack of

medical treatment while placed in Covid-19 quarantine. (Id.)

The complaint was served on all thirteen defendants on March 14, 2022.

(Docs, 9, 10.) On May 12, 2022, twelve of the thirteen Defendants filed a motion

to dismiss for failure to state a claim. (Doc. 16). On May 13, 2022, the remaining

defendant, Defendant Cousins, filed a similar motion to dismiss. (Doc. 17.) These

motions have been fully briefed and are now ripe for the court’s consideration.

On October 3, 2022, Plaintiff filed a motion for summary judgment and brief

in support. (Docs. 37, 39.) All Defendants filed a response to Plaintiff’s motion.

(Docs. 40, 42.) Plaintiff filed a reply. (Doc. 43.) Therefore, this motion for

summary judgment is ripe to be considered by the court.

On November 22, 2022, Plaintiff filed a motion for appointment of counsel.

(Doc. 44.) This motion is also ripe to be addressed by the court.

JURISDICTION AND VENUE

The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §

1331, which allows a district court to exercise subject matter jurisdiction in civil

cases arising under the Constitution, laws, or treaties of the United States. Venue

is proper in this district because the alleged acts and omissions giving rise to the

claims occurred at SCI-Huntingdon, located in Huntingdon County, Pennsylvania,

which is located within this district. See 28 U.S.C. § 118(b).

MOTION TO DISMISS STANDARD

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) abrogated on other

grounds by Mack v. Yost, 968 F.3d 311 (3d. Cir. 2020).

When ruling on a motion to dismiss under Rule 12(b)(6), the court must

“accept all factual allegations as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any reasonable reading of

the complaint, the plaintiff may be entitled to relief.” Phillips v. County of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts

contained in the complaint, the court may also consider “exhibits attached to the

complaint, matters of public record, as well as undisputedly authentic documents”

attached to a defendant’s motion to dismiss if the plaintiff’s claims are based upon

these documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196

(3d Cir. 1993)).

The pleadings of self-represented plaintiffs are to be liberally construed and

held to a less stringent standard than formal pleadings drafted by attorneys. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Fantone v. Latini, 780 F.3d 184, 193

(3d Cir. 2015), as amended (Mar. 24, 2015). Self-represented litigants are to be

granted leave to file a curative amended complaint even when a plaintiff does not

seek leave to amend, unless such an amendment would be inequitable or futile.

See Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 861 (3d Cir.

2014); see also Phillips, 515 F.3d at 245. A complaint that sets forth facts which

affirmatively demonstrate that the plaintiff has no right to recover is properly

dismissed without leave to amend. Grayson v. Mayview State Hosp., 293 F.3d

103, 106 (3d Cir. 2002).

DISCUSSION

Plaintiff’s complaint raises multiple claims against multiple Defendants.

(Doc. 1, pp. 3–15.)1 However, several of these claims are unrelated to each other.

A plaintiff may not bring unrelated claims against unrelated parties in a single

action. See Fed. R. Civ. P. 18(a); 20(a)(2). A plaintiff may bring a claim against

multiple defendants so long as (1) the claims arise out of the same transaction or

occurrence, or series of transactions and occurrences; and (2) there are common

questions of law or fact. See Fed. R. Civ. P. 20(a)(2). Courts have broad

discretion in applying Fed. R. Civ. P. 20 to reduce inconvenience, delay, and added

expense to the parties and to the court, and to promote judicial economy. Hagan v.

Rogers, 570 F.3d 146, 153 (3d Cir. 2009). However, the policy of liberal

application of Rule 20 is not a license to join unrelated claims and defendants in

one lawsuit. See, e.g., Pruden v. SCI Camp Hill, 252 Fed.Appx. 436 (3d Cir. 2007)

(nonprecedential).

Here, the court has reviewed the extensive number of claims brought against

the thirteen defendants and finds that several of these claims arise out of separate

incidents and are, therefore, improperly joined. As such, the court will address the

1 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

initial incident raised in the complaint concerning Plaintiff’s lack of access to

mental health care during the Covid-19 pandemic, the lack of access to an inmate

peer support specialty regarding the lack of mental health treatment, and the

alleged mishandling of the grievances he filed concerning the lack of mental health

treatment. Plaintiff’s claims regarding the lack of medical care while in Covid-19

quarantine stem from a quarantine in January of 2021 and appear unrelated to his

claims that he did not receive mental health treatment during the initial months of

the Covid-19 pandemic in 2020. (Doc. 1, pp. 14–15). As such, while the claim

does address a lack of medical treatment, it is improperly joined to the initial

occurrence alleged in the complaint. Likewise, the remaining claims raised in

Plaintiff’s complaint are the result of separate occurrences and are deemed

improperly joined. They are dismissed without prejudice to such claims being

raised in separate actions before this court.

A. The Claims Raised In Reference to the Lack of Mental Health

Treatment Will Be Dismissed.

Plaintiff brings claims against Defendants Kauffman, Neri, and Cousins for

“stress, anxiety, depression, mental anguish, metal degeneration, emotional

distress, mental health violations, deliberate indifference, mental cruel and unusual

punishment, and an equal protection clause violations.” (Doc. 1, p. 3.) These

amount to claims under the Eighth and Fourteenth Amendments. Plaintiff also

raises claims under the Americans with Disabilities Act (“ADA”) and the

Rehabilitation Act. (Id.)

The complaint alleges that Plaintiff filed grievance 880430 on July 20, 2020,

because he had not been seen, treated, contacted, or evaluated by a psychologist

since the March 20, 2020 lockdown following the beginning of the Covid-19

pandemic. (Id.) He alleges that he wrote to Defendant Cousins on June 20, 2020,

who referred him to Defendant Neri, who referred him to Ms. T. Lallia, who then

referred him back to Defendant Cousins. (Id.) He alleges that Defendants

Kauffman, Neri, and Cousins knew that Plaintiff was “ordered/prescribed” to be

seen by a psychologist and psychiatrist, knew that he had mental health issues, and

knew he was prescribed medications. (Id.) Plaintiff alleges that grievance 880430

was denied because it involved two different departments: psychiatry and

psychology. (Id.) Therefore, he later filed two separate grievances, one for the

psychologist department and one for the psychiatry department. (Id.) Plaintiff

alleges that these two grievances were combined into one grievance by Defendant

Wakefield. (Id.) This combined grievance is identified as Grievance 882257.

(Id.)

Construing the complaint liberally, Plaintiff attempts to bring a cruel and

unusual punishment claim, a deliberate indifference claim, an equal protection

claim, an ADA claim, and a Rehabilitation Act claim against Defendants Neri,

Cousins, and Kauffman.

The claims against Defendant Kaufman are all premised on his role as a

supervisor. (Id., p. 3.) “[An individual government] defendant in a civil rights

action must have personal involvement in the alleged wrongdoing; liability cannot

be predicated solely on the operation of [respondent] superior. Personal

involvement can be shown through allegations of personal direction or of actual

knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.

2005) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Plaintiff

alleges that Defendant Kauffman knew that the prison was short staffed for

psychologists and psychiatrists and made no attempt to hire more staff members.

(Doc. 1, p. 3.) However, this is not sufficient to rise to the level of actual

knowledge of Eighth or Fourteenth Amendment violations because it is not alleged

that Defendant Kaufman had actual knowledge that inmates were not receiving

mental health treatment. Therefore, claims against Defendant Kauffman in

association with these alleged facts will be dismissed without prejudice.

The court will now address the claims brought against Defendants Neri and

Cousins.

1. Cruel and Unusual Punishment Claim

Plaintiff brought a cruel and unusual punishment claim against Defendants

Neri and Cousins. (Doc. 1, p. 3.) Defendant Neri failed to address this claim in

the brief in support of the motion to dismiss. (Doc. 18, pp. 9–10.) Defendant

Cousins also failed to address this claim in her brief in support of her motion to

dismiss. (Doc. 20.) However, as Plaintiff is proceeding in forma pauperis in this

complaint, the court has the authority to dismiss a claim at any time if the court

determines that it fails to state a claim on which relief may be granted. 28 U.S.C. §

1915(e)(2)(B)(ii). Here, Plaintiff has failed to state a cruel and unusual

punishment claim for which relief can be granted.

The Eighth Amendment prohibits cruel and unusual punishment. U.S.

Const. Amend. VIII. Prison conditions constitute cruel and unusual punishment if

they result in a serious deprivation of the prisoner’s basic human needs. See

Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). Only

conditions that are so reprehensible as to be deemed inhumane under contemporary

standards or deprive an inmate of minimal civilized measures of the necessities of

life violate the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1, 8–9

(1992); Wilson v. Seiter, 501 U.S. 294, 298 (1991). “A claim of inhumane prison

conditions may rise to the level of an Eighth Amendment violation where the

prison official ‘deprived the prisoner of the minimal civilized measure of life’s

necessities’ and ‘acted with deliberate indifference in doing so, thereby exposing

the inmate to a substantial risk of serious damage to [his] future health.’”

Palakovic v. Wetzel, 854 F.3d 209, 225 (3d Cir. 2017) (quoting Parkell v.

Danberg, 833 F.3d 313, 335 (3d Cir. 2016)). Such a claim contains two

requirements: an objective and subjective component. Farmer v. Brennan, 511

U.S. 825, 834 (1994). A prisoner asserting a claim that their conditions of

confinement violate the Eighth Amendment must allege: (1) that objectively, they

were “incarcerated under conditions posing a substantial risk of serious harm;” and

(2) that the defendant prison official personally knew of the substantial risk to the

inmate’s health or safety and failed to “respond [ ] reasonably to the risk.”

Farmer, 511 U.S. at 834, 844–45.

Plaintiff alleges that he went without mental health treatment for five months

during the Covid-19 pandemic. Plaintiff failed to allege how a lack of treatment

during the pandemic deprived him of the minimal civilized measure of life’s

necessities. He failed to meet both the objective and subjective requirements of

this standard. The court acknowledges that, incarcerated or not, individuals

nationwide struggled to gain access to medical and mental health services during

the initial months of the pandemic. Plaintiff’s complaint fails to plead facts

regarding how this disruption in services rises to the level of cruel and unusual

punishment. Therefore, this claim will be dismissed.

2. Deliberate Indifference Claim

Both Defendants address the Eighth Amendment deliberate indifference

claim in their briefing. (Docs. 19, 202.) The court finds that Plaintiff failed to

bring a deliberate indifference claim against Defendants Neri and Cousins.

Prison officials violate the Eighth Amendment when they act with deliberate

indifference to a prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S.

97, 104–05 (1976). To sustain a constitutional claim under the Eighth Amendment

for inadequate medical treatment, a plaintiff must make (1) an objective showing

that his medical needs were serious, and (2) a subjective showing that the

defendants were deliberately indifferent to those medical needs. See Pearson v.

Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017). A serious medical need is

“one that has been diagnosed by a physician as requiring treatment or is so obvious

that a lay person would easily recognize the necessity for a doctor’s attention.”

Monmouth Cty. Corr. Inst'l Inmates v. Lanzaro, 834 F.2d 326, 346–47 (3d Cir.

1987) (citation omitted). A prison official is deliberately indifferent when he or

2 The court acknowledges that Defendant Cousins argued that all claims raised against her should

be dismissed based on Plaintiff’s failure to exhaust his administrative remedies. (Doc. 20.)

However, the affirmative defense of a failure to exhaust administrative remedies is properly

raised in a motion for summary judgment under Rule 56 and not in a motion to dismiss under

Rule 12 because it requires the court to consider documents outside those attached to the

complaint and potentially resolve factual disputes. See Paladino v. Newsome, 885 F.3d 203, 211

(3rd Cir. 2018). Therefore, the court will not address the administrative exhaustion requirement

at this time.

she “knows of and disregards an excessive risk to inmate health or safety.”

Farmer, 511 U.S. at 837.

However, “[p]rison medical authorities are given considerable latitude in the

diagnosis and treatment of medical problems of inmates and courts will ‘disavow

any attempt to second guess the propriety or adequacy of a particular course of

treatment . . . which remains a question of sound professional judgment.’” Byrd v.

Shannon, No. 1:09-CV-1551, 2010 WL 5889519, at *4 (M.D. Pa. Nov. 24, 2010)

(quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d

Cir.1979)). Mere disagreement over proper treatment does not state a claim upon

which relief can be granted. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990);

Monmouth Cty. Corr. Inst'l Inmates, 834 F.2d at 346 (“Courts, determining what

constitutes deliberate indifference, have consistently held that mere allegations of

malpractice do not raise issues of constitutional import. . . Nor does mere

disagreement as to the proper medical treatment support a claim of an eighth

amendment violation.”).

As discussed above, Plaintiff alleges that he failed to receive mental health

treatment for five months during the COVID-19 pandemic. Here, Plaintiff alleges

that he “was ordered/prescribed to have been seen by Psychologist and

Psychiatrist,” “had mental health issues,” and “that I was prescribed medication.”

(Doc. 1, p. 3.) Therefore, under a very liberal interpretation of the complaint,

Plaintiff has alleged the objective showing that his medical needs were serious.

However, he failed to meet the subjective showing that defendants were

deliberately indifferent to those medical needs. Plaintiff states that “I don’t deal

with my mental health issues every 5 months or once a year, I deal with it every

single second of every day.” (Id.) While Plaintiff allegedly had a chronic

condition, he was provided treatment. He was evaluated by a Psychologist on July

28, 2020 and by a psychiatrist in August of 2020. (Id.) While his medical

evaluations may not have been as frequent as he would have liked, this court will

not “second guess the propriety or adequacy of a particular course of treatment.’”

Byrd, 2010 WL 5889519, at *4. Therefore, these claims will be dismissed without

prejudice.

3. Equal Protection Claim

Plaintiff attempts to bring an equal protection claim against Defendants Neri

and Cousins. (Doc. 1, p. 3.) Defendant Neri failed to address the equal protection

claim in her brief in opposition. (Doc. 19, pp. 9–10.) Defendant Cousins did

address this claim in her briefing. (Doc. 20.) As discussed above, the court will

address this claim against Defendant Neri pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii).

The Equal Protection Clause of the Fourteenth Amendment commands that

no State shall “deny to any person within its jurisdiction the equal protection of the

laws,” which is essentially a direction that “all persons similarly situated should be

treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

Thus, to state a claim under the Equal Protection Clause, a plaintiff must allege

that (1) he is a member of a protected class, and (2) he was treated differently from

similarly situated inmates. See id.

Here, Plaintiff alleges he was a member of a protected class as a disabled

individual. To state an equal protection claim on the basis of disability (which is

not a suspect classification), a plaintiff must allege that he was treated differently

from non-disabled individuals and that there was no rational basis for the

difference in treatment. City of Cleburne, 473 U.S. at 446, (disability is not

suspect classification under Equal Protection Clause). Plaintiff has failed to allege

that he was treated any differently from the non-disabled prisoners. In fact, his

allegations are that there were not enough mental health providers for all the

inmates in the facility. Therefore, he is arguing that he is being treated the same as

other inmates in the facility. As such, the equal protection claim will be dismissed

without prejudice.

4. ADA and Rehabilitation Act Claims

Plaintiff attempts to bring a claim against Defendants Neri and Cousins

under the ADA and Rehabilitation Act. (Doc. 1, p. 3.) Defendant Neri failed to

challenge the ADA claim in the DOC briefing. (Doc. 19.) Defendant Cousins did

address this claim in her briefing. (Doc. 20.) However, the court will address and

dismiss the claims against both Defendants in accord with 28 U.S.C. §

1915(e)(2)(B)(ii).

Individual defendants are not liable under the ADA or Rehabilitation Act.

Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002). Furthermore, “[t]o

establish a violation of Title II of the ADA, an inmate must allege that: (1) he is a

qualified individual with a disability; (2) he was either excluded from participation

in or denied the benefits of some public entity’s services, programs, or activities;

and (3) such exclusion, denial of benefits, or discrimination was by reason of his

disability.” Brown v. Deparlos, 492 Fed.Appx. 211, 215 (3d Cir. 2012) citing 42

U.S.C. § 12132. Plaintiff’s complaint merely asserts that the lack of care was due

to an understaffed medical department and not by reason of his disability.

Therefore, these claims are also dismissed without prejudice.

B. The Claims Raised In Reference to the Peer Support Specialist Will

Be Dismissed.

Plaintiff alleges that he filed grievance 880428 on July 20, 2020 because he

had requested to speak to an inmate peer support specialist after not being treated

by a mental health professional. (Doc. 1, p. 4.) It appears that this grievance was

withheld in part and denied in part by a grievance officer who upheld the portion of

the grievance “relating to the inability to provide CPS services on CA unit at this

time. However, I deny the portion of the grievance relating to deliberate

indifference and equal protection as we continue to provide mental health services

on CA unit as permitted under the current Covid-19 guidelines.” (Doc. 1-4, p. 2.)

Defendant Kauffman then reviewed this determination on appeal stating that “I can

only reiterate that I uphold the response provided by the grievance officer.” (Id., p.

5.) Based on these facts, Plaintiff raises claims against Defendant Kauffman in his

role as superintendent of the facility and reviewing the grievance. (Doc. 1, p. 4.)

However, Plaintiff has failed to allege sufficient personal involvement on the

part of Defendant Kauffman. “Participation in the after-the-fact review of a

grievance or appeal is not enough to establish personal involvement.” Rode, 845

F.2d at 1208 (finding the filing of a grievance is not enough to show the actual

knowledge necessary for personal involvement); see also Brooks v. Beard, No. 05-

3196, 2006 WL 332547, 167 F. App’x 923, 925 (3d Cir. Feb. 14, 2006) (holding

that a state prisoner’s allegation that prison officials and administrators responded

inappropriately, or failed to respond to a prison grievance, did not establish that the

officials and administrators were involved in the underlying allegedly

unconstitutional conduct). Therefore, any claim against Defendant Kaufman in

relation to the facts alleged with grievance 880428 and the access to the peer

support specialist will be dismissed without prejudice.

C. All Claims Raised In Reference to the Alleged Mishandling of

Grievances 880430 and 882257 Will Be Dismissed.

Plaintiff brings claims against Defendant Wakefield arising from her

involvement with the above referenced grievances. (Doc. 1, p. 4.) Initially,

Plaintiff filed a single grievance, numbered 880430, alleging that he had not been

treated by a psychologist or a psychiatrist since the March 2020 lockdown. (Id.)

This grievance was denied because psychology and psychiatry were two separate

departments. (Id.) Plaintiff alleges that he then filed two separate grievances: one

against the psychology department; and one against the psychiatry department.

(Id.) Plaintiff then alleges that Defendant Wakefield “interjected” herself and

combined these two grievances into a single grievance numbered 882257. (Id.)

He states that “I am suing Ms. Wakefield for obstruction and interference with my

grievance process and filings, discrimination, deliberate indifference, and an equal

protection clause violation.” (Id.)

“[P]risoners do not have a constitutional right to prison grievance

procedures.” Travillion v. Leon, 248 Fed.Appx. 353, 356 (3d Cir. 2007) citing

Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001). “A state-created prison

grievance procedure is simply a procedural right and does not confer any

substantive right upon an inmate.” Massey, 259 F.3d at 647. Furthermore,

Plaintiff has failed to allege any injury from the alleged activity. In reviewing the

documents Plaintiff attached to the complaint, it appears that he continued to

pursue these claims despite them being combined into a single document. (Doc. 1-

3, p. 8.) Therefore, the claims raised against Defendant Wakefield in regard to the

combination of the grievances will be dismissed without prejudice.

D. Plaintiff’s Motions for Summary Judgment Will Be Dismissed As

Moot.

Because Defendants’ motions to dismiss will be granted, there is no

operative complaint in this action. As such, Plaintiff’s motion for summary

judgment will be denied as moot.

E. Plaintiff’s Motion for Appointment of Counsel Will Be Denied.

Although prisoners have no constitutional or statutory right to appointment

of counsel in a civil case, the court has discretion to “request an attorney to

represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); see

Houser v. Folino, 927 F.3d 693, 697 (3d Cir. 2019). The appointment of counsel is

a privilege, not a statutory or constitutional right. Brightwell v. Lehman, 637 F.3d

187, 192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993).

However, representation by counsel may be appropriate under certain

circumstances after a finding that the plaintiff’s case has arguable merit in fact and

law. Tabron, 6 F.3d at 155. If the court finds that the plaintiff has crossed this

threshold inquiry, the court should consider the following factors in deciding

whether to request a lawyer to represent an indigent plaintiff:

(1) the plaintiff’s ability to present his or her own case;

(2) the complexity of the legal issues;

(3) the degree to which factual investigation will be necessary

and the ability of the plaintiff to pursue such investigation;

(4) the plaintiff’s ability to retain counsel on his or her own

behalf;

(5) the extent to which a case is likely to turn on credibility

determinations, and;

(6) whether the case will require the testimony of expert

witnesses.

Tabron, 6 F.3d at 155-57. This list of factors is non-exhaustive, and no single

factor is determinative. Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002)

(citing Parham v. Johnson, 126 F.3d 454, 458 (3d Cir. 1997)). Instead, these

factors serve as guideposts for the district courts to ensure that the precious

commodity of volunteer attorney time is not “wasted on frivolous cases.” Id.

Plaintiff has not made a threshold showing for the appointment of counsel in

this civil action. All the claims raised in his complaint have been dismissed

without prejudice. Thus, appointment of counsel is not warranted at this time. If

Plaintiff files an amended complaint and future proceedings demonstrate the need

for counsel, the matter may be reconsidered either sua sponte or pursuant to a

properly filed motion.

CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss will be granted,

Plaintiff’s motion for summary judgment will be denied as moot, and Plaintiff’s

appointment of counsel will be denied without prejudice. All the claims not

addressed on their merits will be dismissed without prejudice to Plaintiff filing

separate claims for each separate transaction or occurrence. Plaintiff will be

granted an opportunity to amend his complaint as a matter of course as discussed

in Phillips, but only in regards to the claims raised surrounding the lack of mental

health treatment during the Covid-19 pandemic in 2020.

An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: February 7, 2023