# Anderson v. Kauffman

> District Court, M.D. Pennsylvania · February 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10412764

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412764

## How later opinions describe it (automated extraction)

- finding the filing of a grievance is not enough to show the actual knowledge necessary for personal involvement

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412764. Public record. Not legal advice.