Rainey v. Ransom

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KYLE RAINEY, :

Plaintiff :

: No. 1:23-cv-00055

v. :

: (Judge Rambo)

KEVIN RANSOM, et al., :

Defendants :

MEMORANDUM

Pro se Plaintiff Kyle Rainey (“Plaintiff”) is a convicted and sentenced state

prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”).

He has commenced the above-captioned action by filing a complaint pursuant to the

provisions of 42 U.S.C. § 1983 (“Section 1983”), claiming that Defendants violated

his constitutional rights while incarcerated at State Correctional Institution Dallas

(“SCI Dallas”) in Dallas, Pennsylvania. In accordance with the Prison Litigation

Reform Act,1 the Court has conducted an initial review of Plaintiff’s complaint. For

the reasons set forth below, the Court will dismiss Plaintiff’s complaint for failure

to state a claim upon which relief can be granted. However, the Court will grant

Plaintiff leave to file an amended complaint.2

1 See The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat.

1321 (Apr. 26, 1996).

2 Also pending before the Court are Plaintiff’s various motions. (Doc. Nos. 4, 5, 9,

13.) The Court will address these motions herein.

I. BACKGROUND

On January 11, 2023, Plaintiff filed his Section 1983 complaint against the

following Defendants all of whom appear to have worked at SCI Dallas during the

period of time relevant to his claims: Superintendent Kevin Ransom; Deputy

Superintendent Richardo Contreras; Deputy Superintendent Jason Bohinksi; Unit

Manager Frank Depiero; Major of Unit Managers Michael Goyne; Counselor

Richard Keller; Correctional Officer McGlynn; Correctional Officer Staples;

Lieutenant Conrade; Hearing Examiner Charlie McKeown; Lieutenant Flick;

Captain Daiter; Psychiatrist Gina Harris; “Psychological” C. Reed; and Psychology

Manager Dr. N. Ashton. (Doc. No. 1 at 12.) In addition to his complaint, Plaintiff

has also filed a motion for leave to proceed in forma pauperis, as well as his prisoner

trust fund account statement. (Doc. Nos. 9, 10.) The Court, having reviewed

Plaintiff’s motion and trust fund account statement, will grant him leave to proceed

in forma pauperis and will deem his complaint filed.3

The gravamen of Plaintiff’s complaint is that “several staff member’s [sic]”

at SCI Dallas have ignored the “abuse, trauma, and fear’s [sic]” that he continues to

suffer from as a result of “juvenile placement.” (Doc. No. 1 at 15.) Plaintiff claims

3 Plaintiff also filed a motion seeking to invoke the imminent danger exception.

(Doc. No. 4.) Because the Court will grant Plaintiff in forma pauperis status (Doc.

No. 9), the Court will deny, as moot, his motion seeking to invoke the imminent

danger exception.

that this prior abuse should prohibit staff members from placing him in double prison

cells. (Id. at 15-18.) In support, Plaintiff has set forth a number of discrete events

spanning from February 17, 2022, to April 5, 2022. (Id.) Most of these events have

been discussed in abbreviated fashion and have not been fully developed in the

complaint. Nevertheless, the Court has done its best to recount Plaintiff’s allegations

here.

At the outset of his complaint, Plaintiff asserts that he reported his prior abuse

in juvenile placement to his counselor, Defendant Keller, because he was having a

lot nightmares. (Id.) Nevertheless, Plaintiff claims that, on February 17, 2022,

Defendant Depiero moved him out of his single cell and placed him in a double cell

with a cellmate. (Id.) Plaintiff further claims that, when he advised Defendant

McGlynn of his prior abuse, “staff member’s [sic]” claimed that “A.C. Status, i.e.,

Administration Custody . . . did not exist,” which Plaintiff asserts is “a lie.” (Id.)

More specifically, Plaintiff asserts that, under DC-ADM 801, he can be transferred

from general population to A.C. Status if he is a danger to himself and has requested

and been granted “self[-]confinement.” (Id.) Notably, Plaintiff does not allege that

he is a danger to himself.

In addition, Plaintiff generally alleges that Defendant Conrade ignored his

“pleading’s [sic]” and ordered Defendant McGlynn to write him up. (Id. at 16.)

Plaintiff appears to allege that, as a result of this write-up, he was sanctioned by

Defendant McKeown on February 22, 2022, to thirty (30) days disciplinary custody

(Id.) In connection with these allegations, Plaintiff claims that he subsequently filed

a grievance against Defendant Conrade, but that it was “rejected[.]” (Id.) Plaintiff

also claims that his thirty (30) day sanction in disciplinary custody was reduced to

“cell restriction” by Defendant Ransom on March 4, 2022. (Id.)

Plaintiff alleges, however, that, on March 7, 2022, Defendant Depiero

returned from the weekend and “once again ignored Plaintiff’s abuse and ‘PREA’

status and placed [him] on the moving report, i.e., move to G-Blk double cell, with

a cell-mate.” (Id.) In support, Plaintiff asserts that Defendant Staples had informed

Plaintiff that he was on the moving report. (Id.) Plaintiff further asserts that,

although he tried to explain his concerns to Defendant Staples, those concerns were

ignored, and he received another write-up, which caused him to be returned to the

RHU. (Id.) Plaintiff claims that Defendant Staples’ write-up was dismissed without

prejudice, but “re-written” on March 16, 2022. (Id.) Plaintiff further claims that his

“pleading’s [sic] went ignored before [Defendant] McKeown once again, i.e.,

Plaintiff’s ‘PREA’ status.” (Id.)

Plaintiff appears to assert that, around this time, Defendant Klick ordered that

he be moved out of his single cell on “K-Blk, i.e., ‘RHU’ down the range in a double

cell, with a cell-mate, [and] another misconduct followed.” (Id. at 17.) Plaintiff also

asserts that Defendant McKeown found him guilty once again. (Id.)

In addition, Plaintiff alleges that, on April 5, 2022, Defendant Depiero

inflicted “additional emotional threat’s [sic] and trauma during the morning yard,

between 8:00 to 9:00 a.m.[,]” when “[t]his Defendant stated to Plaintiff, you are

scheduled to be released today and I am going to send you to C-Block or G-Blk with

the wolf’s [sic] and I hope you get abused again, like you did in juvenile placement.”

(Id. at 18.)

Finally, Plaintiff broadly contends that he “was placed in the ‘POR’ on suicide

watch” and that “[a]ll Psychology, Psychiatrist, and Psychological named

(Defendant’s) [sic] [have] done nothing to help [him].” (Id. at 17.) Plaintiff also

broadly contends that Defendants Ransom, Contreras, and Bohinksi have “done

nothing but inflict emotional pain and suffering against [him] and continue to act

cruel an[d] unusual[.]” (Id.)

In connection with all of these allegations, Plaintiff claims that Defendants

violated “PREA[,]” as well as his rights under the Eighth and Fourteenth

Amendments to the United States Constitution. (Id. at 19.) As for relief, Plaintiff

seeks declaratory, injunctive, and monetary relief from Defendants. (Id. at 20-21.)

On April 5, 2023, after Plaintiff filed his complaint, he filed a motion for a

temporary restraining order and preliminary injunction. (Doc. No. 13.) As reflected

by the Court’s docket, however, Plaintiff has not filed a brief in support of his

motion, and the time period for doing so has since passed.

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 1915(e)(2), district courts are required to review

complaints in civil actions where a litigant is proceeding in forma pauperis. See 28

U.S.C. § 1915(e)(2). If the complaint is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief against a defendant who

is immune from such relief, then the district court must dismiss the complaint. See

id. In dismissing claims under § 1915(e)(2), district courts apply the standard

governing motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

To avoid dismissal under Rule 12(b)(6), a civil complaint must set out “sufficient

factual matter” to show that its claims are facially plausible. See Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).

When evaluating the plausibility of a complaint, the Court is required to

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

light favorable to the plaintiff, and ultimately determine whether plaintiff may be

entitled to relief under any reasonable reading of the complaint.” See Mayer v.

Belichick, 605 F.3d 223, 229 (3d Cir. 2010); Kedra v. Schroeter, 876 F.3d 424, 434

(3d Cir. 2017) (stating that the court “must accept as true all factual allegations in

the complaint and draw all inferences from the facts alleged in the light most

favorable to [the plaintiff]” (citation and internal quotation marks omitted)).

Additionally, in the specific context of pro se prisoner litigation, a district

court must be mindful that a document filed pro se “is to be liberally construed.”

See Estelle, 429 U.S. at 106. A pro se complaint, “however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted by lawyers[.]” See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and internal quotation marks

omitted).

III. DISCUSSION

Plaintiff has filed his complaint pursuant to the provisions of Section 1983,

claiming that Defendants violated his constitutional rights while he has been

incarcerated at SCI Dallas. (Doc. No. 1.) Section 1983 provides, in pertinent part,

as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

See id. Thus, “Section 1983 imposes civil liability upon any person who, acting

under the color of state law, deprives another individual of any rights, privileges, or

immunities secured by the Constitution or laws of the United States.” See Shuman

v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005) (citation omitted).

Section 1983 “does not create any new substantive rights but instead provides a

remedy for the violation of a federal constitutional or statutory right.” See id.

(citation omitted).

A. Personal Involvement in a Section 1983 Action

In order for liability to attach under Section 1983, a plaintiff must sufficiently

allege that each defendant was personally involved in the act or acts that he claims

violated his federally protected rights. See Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988). And “[a] plaintiff makes sufficient allegations of a defendant’s

personal involvement by describing the defendant’s participation in or actual

knowledge of and acquiescence in the wrongful conduct.” See Chavarriaga v. New

Jersey Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (citing Rode, 845 F.2d at

1207); Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (stating that “[p]ersonal

involvement requires particular ‘allegations of personal direction or of actual

knowledge and acquiescence’” (quoting Rode, 845 F.2d at 1207)). Thus, in pursuing

any Section 1983 claim against prison officials, a plaintiff may not rely solely on

respondeat superior, see id. (citation omitted), which is a theory of liability that

“arises ‘solely on the basis of the existence of an employer-employee relationship,’

regardless of whether the employer had any part in causing harm[,]” see Santiago v.

Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010) (quoting Monell v. Dep’t of

Soc. Servs. of New York, 436 U.S. 658, 692 (1978)).

1. Defendants Goyne and Daiter

There is a complete absence of allegations in Plaintiff’s complaint that would

give rise to a plausible inference that Defendants Goyne and Daiter were personally

involved in any asserted deprivation of Plaintiff’s constitutionally protected rights.

While Defendants Goyne and Daiter have been named as defendants in the

complaint (Doc. No. 1 at 12), they have not been mentioned anywhere else in the

body of the complaint. Without such allegations of personal involvement, liability

cannot be imposed against these Defendants under Section 1983. Thus, the Court

finds that Plaintiff’s complaint fails to state a claim upon which relief can be granted

against Defendants Goyne or Daiter. As a result, Plaintiff’s claims against these

Defendants will be dismissed.

2. Defendants Harris, Reed, Ashton, Ransom, Contreras,

Bohinski, and Keller

In his complaint, Plaintiff alleges only broad and conclusory allegations

against Defendants Harris, Reed, Ashton, Ransom, Contreras, Bohinski, and Keller.

More specifically, Plaintiff alleges as follows: that Defendants Harris, Reed, and

Ashton have “done nothing to help [him]” (Doc. No. 1 at 17); that Defendants

Ransom, Contreras, and Bohinksi have “done nothing but inflict emotional pain and

suffering against [him] and continue to act cruel an[d] unusual . . . ” (id.); and that

he merely reported the abuse he previously suffered in juvenile placement to his

counselor, Defendant Keller (id. at 15).

The Court finds that these allegations do not show the personal involvement

of Defendants Harris, Reed, Ashton, Ransom, Contreras, Bohinski, and Keller

because they have not described their participation in or their actual knowledge of

and acquiescence in the alleged wrongful conduct. See Chavarriaga, 806 F.3d at

222; Dooley, 957 F.3d at 374. Moreover, the law is clear that such broad and

conclusory allegations are not entitled to the assumption of truth. See Ashcroft, 556

U.S. at 679 (stating that “conclusions[ ] are not entitled to the assumption of truth[,]”

and “[w]hile legal conclusions can provide the framework of a complaint, they must

be supported by factual allegations”); Fowler v. UPMC Shadyside, 578 F.3d 203,

210-11 (3d Cir. 2009) (explaining that while a court “must accept all of the

complaint’s well-pleaded facts as true, [it] may disregard any legal conclusions”

(citation omitted)). As a result, the Court concludes that Plaintiff’s complaint fails

to state a claim upon which relief can be granted against Defendants Harris, Reed,

Ashton, Ransom, Contreras, Bohinski, and Keller for failure to allege their personal

involvement in this action. As a result, Plaintiff’s Section 1983 claims against these

Defendants will be dismissed.

B. Rule 8 of the Federal Rules of Civil Procedure

Rule 8 requires a complaint to contain “a short and plain statement of the claim

showing that the pleader is entitled to relief[.]” See Fed. R. Civ. P. 8(a)(2). This

short and plain statement must give the defendant fair notice of what the plaintiff’s

claims are and the grounds upon which those claims rest. See Erickson, 551 U.S. at

93. “In other words, a complaint must do more than allege the plaintiff’s entitlement

to relief[; it] has to show such an entitlement with its facts.” Fowler v. UPMC

Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citation and internal quotation marks

omitted).

Here, the Court finds that Plaintiff’s complaint fails to meet this basic pleading

standard. Although the complaint is somewhat concise, Plaintiff’s complaint names

fifteen (15) different employees at SCI Dallas and pertains to a number of events

occurring between February 17, 2022, and April 5, 2022. (Doc. No. 1 at 15-18.)

Plaintiff’s complaint does not identify, however, the specific legal theories

supporting each of these events and, instead, only generally claims that Defendants

violated “PREA” and the Eighth and Fourteenth Amendments to the United States

Constitution. (Id. at 19.) As a result, Plaintiff has not clearly linked these general

claims to the various events asserted in his complaint.

Additionally, and as discussed more fully above, Plaintiff’s complaint does

not show how numerous Defendants were personally involved in the asserted

wrongdoing. As a result, the Court has been left—and Defendants, if served, would

also be left—to speculate as to what alleged conduct on their part gives rise to any

deprivations of Plaintiff’s federally protected rights. See Garrett v. Wexford Health,

938 F.3d 69, 93 (3d Cir. 2019) (stating that, “[n]aturally, a pleading that is so vague

or ambiguous that a defendant cannot reasonably be expected to respond to it will

not satisfy Rule 8” (citations and internal quotation marks omitted)); Binsack v.

Lackawanna Cnty. Prison, 438 F. App’x 158, 160 (3d Cir. 2011) (unpublished)

(affirming district court’s dismissal of a complaint where it “defie[d] any attempt to

meaningfully answer or plead to it, and it left the defendants having to guess what

of the many things discussed constituted [a cause of action]”).

Finally, although Plaintiff’s complaint has provided some factual detail

concerning his assertion that Defendants disregarded his request to be single-celled,

see, e.g., (Doc. No. 1 at 15, 16, 18), the Court is still unable to discern how, exactly,

he seeks to hold the various prison employees and medical defendants at SCI Dallas

liable under either the Eighth or Fourteenth Amendments. Indeed, Plaintiff only

asserts facts that he faced prior abuse in juvenile placement. He does not assert any

facts that, at SCI Dallas, he has faced a risk of imminent harm or danger to his health

or safety or that any of the Defendants disregarded such a risk of harm or danger, as

required to state an Eighth Amendment violation. See Farmer v. Brennan, 511 U.S.

825, 847 (1994) (explaining that “[a] prison official may be held liable under the

Eighth Amendment for denying humane conditions of confinement only if he knows

that inmates face a substantial risk of serious harm and disregards that risk by failing

to take reasonable measures to abate it”). And, in a similar vein, the allegations in

Plaintiff’s complaint are not sufficiently developed to provide Defendants with

notice of the grounds upon which his Fourteenth Amendment claim rests. See

Erickson, 551 U.S. at 93 (explaining that a complaint must provide the defendant

fair notice of what the plaintiff’s claims are and the grounds upon which those claims

rest); Fowler, 578 F.3d at 211 (stating that “a complaint must do more than allege

the plaintiff’s entitlement to relief[; it] has to show such an entitlement with its facts”

(citation and internal quotation marks omitted)).

Accordingly, for all of these reasons, the Court concludes that Plaintiff’s

complaint does not provide fair notice of his Section 1983 claims or the grounds

upon which those claims rest and, thus, it does not satisfy Rule 8 of the Federal Rules

of Civil Procedure. As a result, Plaintiff’s Section 1983 claims are subject to

dismissal for failure to satisfy Rule 8.

C. PREA

In his complaint, Plaintiff alleges, albeit broadly, that Defendants have

violated “PREA.” (Doc. No. 1 at 19.) To the extent that Plaintiff seeks to assert any

claims pursuant to the Prison Rape Elimination Act of 2003, 42 U.S.C. § 15601, et

seq., which is commonly referred to as PREA, the Court finds that Plaintiff’s claims

are without legal merit. Simply stated, this Act does not provide a private right of

action and, as a result, Plaintiff is prohibited from asserting a claim pursuant to this

Act. As a result, to the extent that Plaintiff asserts stand-alone PREA claims, his

claims will be dismissed. See, e.g., Johnakin v. Drosdak, No. 22-cv-02575, 2022

WL 2651969, at *5 (E.D. Pa. July 8, 2022) (stating that, “[w]hile the PREA was

intended in part to increase the accountability of prison officials and to protect the

Eighth Amendment rights of Federal, State, and local prisoners, nothing in the

language of the statute establishes a private right of action” (citation and internal

quotation marks omitted)); Williams v. Wetzel, 827 F. App’x 158, 162 (3d Cir.

2020) (unpublished) (concluding that the district court did not err in rejecting the

plaintiff’s stand-alone civil claims under the PREA, because the plaintiff had failed

to identify a private right of action); Krieg v. Steele, 599 F. App’x 231, 232 (5th Cir.

2015) (unpublished) (explaining that “[i]nsofar as [the prisoner-plaintiff] argues that

his rights under the Prison Rape Elimination Act of 2003 . . . were violated, other

courts addressing this issue have found that the PREA does not establish a private

cause of action for allegations of prison rape” (citations omitted)); Frederick v.

Snyder Cnty. Prison, No. 18-cv-00707, 2019 WL 1348436, at *4 (M.D. Pa. Mar. 22,

2019) (stating that, “[t]o the extent that Plaintiff attempts to raise a claim pursuant

to the PREA, this claim must fail [because] [t]he PREA does not provide a private

right of action and Plaintiff is thus prohibited from asserting a claim pursuant to the

PREA” (citations omitted)).

D. Leave to Amend

The Court must next determine whether Plaintiff should be granted leave to

file an amended complaint. Due to the applicable liberal pleading standard, a

plaintiff should generally be granted leave to amend before a Court dismisses a claim

that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). The Federal Rules of Civil Procedure allow for amendments to be

granted liberally in light of the “principle that the purpose of pleading is to facilitate

a proper decision on the merits.” See Foman v. Davis, 371 U.S. 178, 182 (1962)

(citation and internal quotation marks omitted).

However, the Court may deny leave to amend where there is “undue delay,

bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, [or] futility of the amendment[.]”

See id. The Court may also deny leave to amend where the proposed amendment

would be futile—that is, where the pleading, “as amended, would fail to state a claim

upon which relief could be granted.” See In re NAHC, Inc. Sec. Litig., 306 F.3d

1314, 1332 (3d Cir. 2002) (citations and internal quotation marks omitted).

In accordance with this standard, the Court finds that it would be futile to grant

Plaintiff leave to amend his PREA claims because, as discussed above, this Act does

not create a private right of action. However, the Court cannot say that granting

Plaintiff leave to amend his Section 1983 claims against Defendants would be futile.

Thus, the Court will grant Plaintiff leave to file an amended complaint in order to

attempt to cure the deficiencies of his Section 1983 claims, and specifically, his

claims asserted under the Eighth and Fourteenth Amendments.

Plaintiff is advised that his amended complaint must be complete in all

respects. It must be a new pleading that stands by itself without reference to the

original complaint or any other document already filed. The amended complaint

shall set forth the claims in short, concise, and plain statements as required by Rule

8 of the Federal Rules of Civil Procedure. Finally, neither conclusory allegations

nor broad allegations will set forth a cognizable claim.

E. Motion for Temporary Restraining Order and Preliminary

Injunction

On April 5, 2023, after Plaintiff filed his complaint, he filed a motion for a

temporary restraining order and preliminary injunction. (Doc. No. 13.) Plaintiff has

failed to file a brief in support of this motion, as required by Local Rule 7.5 of the

Court’s Local Rules. See M.D. Pa. L.R. 7.5 (providing as follows: “[w]ithin fourteen

(14) days after the filing of any motion, the party filing the motion shall file a brief

in support of the motion . . . [i]f a supporting brief is not filed within the time

provided in this rule the motion shall be deemed to be withdrawn”). As a result, the

Court will deem Plaintiff’s motion withdrawn.

F. Motion for the Appointment of Counsel

Finally, the Court addresses Plaintiff’s pending motion seeking the

appointment of counsel. (Doc. No. 5.) The Court begins its discussion with the

basic principle that, although indigent civil litigants have no constitutional or

statutory right to the appointment of counsel, district courts have broad discretionary

power to request appointed counsel for such litigants pursuant to 28 U.S.C. §

1915(e)(1). See Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citations

omitted). The United States Court of Appeals for the Third Circuit has “outlined a

two-step process” that district courts are to follow when deciding whether to request

appointed counsel to represent an indigent civil litigant. See Houser v. Folino, 927

F.3d 693, 697 (3d Cir. 2019).

First, as a threshold inquiry, the district court must consider whether the

plaintiff’s case has some arguable merit in fact and law. See Montgomery, 294 F.3d

at 498-99 (citations omitted). Second, if the district court determines that the

plaintiff’s case has some arguable merit in fact and law, then the district court is to

consider other factors, including: (1) the plaintiff’s ability to present his own case;

(2) the complexity of the legal issues; (3) the degree to which factual investigation

will be required and the plaintiff’s ability to pursue such investigation; (4) the extent

to which the case is likely to turn on credibility determinations; (5) whether the case

will require testimony from expert witnesses; and (6) whether the plaintiff can attain

and afford counsel on his own behalf. See Houser, 927 F.3d at 697 (citations

omitted).

This list, however, “is not meant to be exhaustive.” See Tabron v. Grace, 6

F.3d 147, 157 (3d Cir. 1993); see also Houser, 927 F.3d at 700 (stating that “[w]e

have always emphasized that [these] factors are only a guidepost for district courts

in their exercise of the broad statutory discretion granted to them by Congress. They

are not exhaustive, nor are they each always essential”). Rather, the district court

must determine on a case-by-case basis whether a request for appointed counsel is

warranted. See Tabron, 6 F.3d at 157-58.

Having reviewed Plaintiff’s motion, the Court concludes that the appointment

of counsel is not warranted at this time. Under the two (2)-step process outlined

above, the Court must consider whether Plaintiff’s case has some arguable merit in

fact and law and, if so, whether the pertinent factors warrant the appointment of

counsel. See Houser, 927 F.3d at 697. Here, until Plaintiff files an amended

complaint, the Court cannot meaningly consider whether Plaintiff’s case has

arguable merit in fact and law. Even if the Court were to assume, however, that any

of the claims raised by Plaintiff have arguable merit, the Court would still deny his

motion for the appointment of counsel at this time.

While the Court appreciates the fact that Plaintiff will certainly face

challenges in this litigation as he is currently incarcerated at SCI Dallas (Doc. No. 5

at 2), the Court finds that he has, nevertheless, demonstrated the apparent ability to

read, write, and understand English, as well as the apparent ability to litigate this

action pro se, as illustrated by the filing of his complaint, his motion for leave to

proceed in forma pauperis, his motion seeking a temporary restraining order and

preliminary injunction, and his instant motion seeking the appointment of counsel.

(Doc. Nos. 1, 5, 9, 13.) Moreover, although Plaintiff seems to suggest that he has

raised complex legal issues in his complaint (Doc. No. 5 at 2-3), the Court notes that

this case is at a very early stage and that the filings submitted thus far do not

implicate complicated legal issues. Accordingly, given the Court’s duty to liberally

construe Plaintiff’s pro se pleadings, see Riley v. Jeffes, 777 F.2d 143, 147-48 (3d

Cir. 1985), coupled with his apparent ability to litigate this action, the Court

concludes that the appointment of counsel is not warranted at this time.

Additionally, with respect to Plaintiff’s concerns regarding limited legal

resources at SCI Dallas (Doc. No. 5 at 2), the Court notes that, if he were to need

extensions of time to respond to filings and Orders in this matter, which would

require a response from him, then he need only request an extension from the Court

at the appropriate time. And, finally in the event that future proceedings would

otherwise demonstrate the need for counsel, then the Court may reconsider this

matter either sua sponte or upon a motion properly filed by Plaintiff.

IV. CONCLUSION

Accordingly, for all of the foregoing reasons, the Court will dismiss Plaintiff’s

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). However, the Court will grant

Plaintiff leave to file an amended complaint. In addition, the Court will deem his

motion for a temporary restraining order and preliminary injunction withdrawn, and

the Court will deny without prejudice his motion seeking the appointment of

counsel. An appropriate Order follows.

Dated: May 9, 2023 s/ Sylvia H. Rambo

SYLVIA H. RAMBO

United States District Judge