Timothy Fletcher, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro se Plaintiff.
Katisha D, Fortune, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendant.
ROBINSON, District Judge
Plaintiff Timothy Fletcher ("plaintiff'), an inmate at the James T. Vaughn Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. (D.I. 3, 9, 24) He proceeds pro se and has been granted leave to proceed in forma pauperis. Presently before the court are plaintiff's request for counsel (D.I. 103), motions to compel (D.I. 104, 105), motion for an emergency ruling on pending motions (D.I. 107), motion for partial summary judgment (D.I. 118), and motion for preliminary injunction (D.I. 127), and defendant's motion for summary judgment (D.I. 121). The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons, the court will deny plaintiff's motions and will grant defendant's motion for summary judgment.
II. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff filed his complaint on April 17, 2012, and amended it on May 10, 2102 and December 3, 2012. (D.I. 3, 9, 24) Defendant Gladys Little ("defendant") is the sole remaining defendant, all other claims and defendants having been dismissed. (See D.I. 9, 10) Plaintiff alleges that defendant failed to protect him from an attempted rape by a known sexual offender and that she discriminated against him based upon his sexual orientation. (D.I. 24) Plaintiff further alleges that defendant's actions resulted in a disciplinary write-up, a loss of Level III status, thirty days in isolation, a year in the security housing unit ("SHU"), removal from a drug treatment program, and an increase in classification points. He seeks expungement of the disciplinary report, as well as compensatory and punitive damages.
Plaintiff was housed in a single-cell in SHU, Building 29. (D.I. 24 at 5) The latter part of December 2011, he was moved to a double cell in Building 21. Id. Plaintiff was housed there a short time before he was moved to a different cell due to his complaints that his Muslim cellmate harassed and threatened him because he is a homosexual. (D.I. 123 atA75) The first week of January 2012, plaintiff told defendant that his new cellmate, also a Muslim, was harassing him because of his homosexuality and that he feared for his life. (Id.) Defendant told plaintiff that she had no authority to move him and that he should make the request to move to a lieutenant. (Id. at A76) Defendant suggested to plaintiff that he avoid taunting other inmates and to avoid hanging out in the recreation yard's "blind spots" where staff could not see him. (Id.) Defendant discussed plaintiffs complaints with her supervisor, Lieutenant Barry Burman ("Burman"), and asked if plaintiff could be moved. (Id.) She was told that a move was not possible at that time. (Id.)
On January 2, 2012, plaintiff was moved to a different cell following his request for mental health services. (Id. at A29) A protective custody investigation form indicates that plaintiff had been double-celled with inmate Brandon Wallace ("Wallace") and had made complaints that Wallace harassed and threatened him because he is gay. (Id.) Wallace expressed his displeasure with having a gay cellmate. (Id. at A29) Plaintiff and Wallace were separated and questioned. (Id. at A30) During the interview, plaintiff indicated that he was afraid of Wallace and requested protective custody. (Id.) Plaintiff was subsequently moved to protective custody and celled with inmate Kevin Wilkerson ("Wilkerson"). (Id. at 30-31)
Defendant was off from work when plaintiff was moved. When she returned to work on January 7, 2012, she discovered that plaintiff had been moved to protective custody and was celled with Wilkerson. (Id. at A76) Defendant worked a double shift that day from 4:00 p.m. on January 7, 2012 until 8 a.m. on January 8, 2012. (Id. atA75) Around 10:00 p.m., plaintiff complained to defendant that he did not like Wilkerson and wanted to be moved. (Id. at A76) Plaintiff did not tell defendant that Wilkerson was harassing him for sex, but stated that Wilkerson was making fun of him for being a homosexual. (Id.)
On January 7, 2012 at 11:00 p.m., plaintiff told Sergeant John H. Goldman ("Goldman") and Correctional Officer David Alston ("Alston") that he was having a problem with Wilkerson. (Id. at A31) Plaintiff was cuffed and removed from the cell and taken to the interview room. (Id.) Alston and Goldman informed defendant of the complaint and told her that plaintiff and Wilkerson were "bickering." (Id. at A76) Both inmates were spoken to separately and were advised that they needed to get along. (Id. at A31) Both inmates agreed that they would and they were returned to their cells, ( Id. atA31, A76)
At 1:30 a.m. on January 8, 2012, defendant and Correctional Officer Keith Burns ("Burns") were conducting an area check, and plaintiff told defendant that Wilkerson was harassing him for sex. (Id. at A6) Wilkerson told defendant that plaintiff was doing the harassing. (Id.) Defendant told the inmates that if they continued to be disly, she would move them to isolation. (Id.) The inmates indicated they would stop. (Id.) Defendant did not report the incident to the area supervisor. (Id. at A70) During an investigation by internal affairs, defendant stated that she felt plaintiff was using her to go to SHU to be housed by himself. (Id.) She also indicated that she had not had complaints about Wilkerson in the past. (Id.) She did not report the matter because she did not see any reason to. (Id. at A70-A71) Defendant and Burns conducted a check thirty minutes later and both inmates were asleep in their assigned beds. (Id. at A34)
At approximately 3:21 a.m., Correctional Officer Jeffrey Holcomb ("Holcomb") noticed that Wilkerson had cut and scratch marks on his face. (Id. at A6, A37) Wilkerson indicated that he injured himself when he fell off his top bunk. (Id. at A37) Wilkerson was removed from the cell and examined by a prison nurse. (Id.) Wilkerson had scratches on his face, chest and upper left eye. (Id.) Plaintiff underwent a pre-segregation health assessment on January 8, 2012 at 5:30 a.m. (Id. at A47) Upon examination there were no contusions or bruises, and the physical examination was basically normal. (Id.) His emotional state was described as anxious. (Id.) Plaintiff was cleared for segregation. (Id.)
Wilkerson eventually admitted that he and plaintiff had been fighting. (D.I. 123 at A77) Plaintiff indicated to internal affairs that no sexual contact took place. (Id. at A11) Both inmates were placed in isolation for pre-hearing detention, both were issued a notice of disciplinary hearing due to fighting, and both inmates were found guilty of assault, threatening or disorderly behavior and fighting.
(Id. at A11, A40) During plaintiff's hearing, he indicated that he and Wilkerson were fighting, but he did not hit him in the face.
(Id. at A40) Both inmates were sanctioned and each sentenced to thirty days in isolation.
(Id. at A41) In addition, plaintiff received seven points for fighting and was classified to SHU Level IV status.
(Id. at A21) Plaintiff did not appeal the sanction. (Id. at A40) The disciplinary report does not indicate that Wilkerson attempted to rape plaintiff
(Id. at A40) but, according to plaintiff, he informed Lieutenant Brian Reynolds ("Reynolds"), the hearing officer on duty, that he was not guilty of fighting "because he was defending himself against a possible rape." (D.I. 24 at 7) Subsequent to the disciplinary hearing, plaintiff filed grievances and letters indicating that Wilkerson attempted to rape him. (D.I. 123 at A43-A45) Plaintiff states in one of his grievances that he told defendant of his issues with defendant, but she did nothing and turned her back on him after she stated that plaintiff was gay, the guys here have not been with a female and plaintiff should suck it up and stop coming to jail. (Id. at A57) The same allegation was included in the amended complaint. (D.I. 24, ¶3) Defendant denies the allegations. (D.I. 27, ¶3)
III. MISCELLANEOUS MOTIONS
A. Request for Counsel
Plaintiff requests counsel on the grounds that he is indigent and unable to afford counsel, his imprisonment greatly limits his ability to litigate the case, the issues are complex, he has no physical access to the law library and is a novice to the rules of civil procedure, a trial will involve conflicting testimony, and council will enable plaintiff to better present evidence and cross-examine witnesses. (D.I. 103) A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to representation by counsel. See 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 a plaintiff's claim has arguable merit in fact and law. Tabron, 6 F.3d at 155.
After passing this threshold inquiry, the court should consider a number of factors when assessing a ...