filed: October 5, 1993; As Corrected November 23, 1993.
On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Civil No. 89-0633).
Before: Becker, Hutchinson and Weis, Circuit Judges.
Appellant Harvey Tabron, a prisoner at the State Correctional Institution in Huntington, Pennsylvania, brought this suit under 42 U.S.C. § 1983 against eight prison officials, claiming that they had violated his constitutional rights by failing to protect him from the assault of another prisoner. Tabron appeals the denial of his request for appointment of counsel, the denial of his request for free copies of deposition transcripts, the denial of his motion to compel responses to his interrogatories, and the court's final order granting summary judgment in favor of the defendants.
The magistrate Judge, see infra n.2, declined to appoint counsel, stating that counsel may be appointed to represent an indigent civil litigant under 28 U.S.C. § 1915(d) only in "exceptional circumstances." We conclude that this "exceptional circumstances" limitation is not supported by § 1915(d), and hence that the magistrate Judge did not properly exercise discretion regarding whether to appoint counsel. In addition, we take this opportunity to announce some standards for appointment of counsel under § 1915(d). We will vacate the judgment and remand for the district court (or the magistrate Judge) to reconsider Tabron's request for counsel in accordance with these standards. If counsel is appointed, the district court should allow additional discovery. Because the record on the merits may then change, we do not address Tabron's other arguments at this time, except for his contention that the district court erred in denying his request for free copies of deposition transcripts, which we discuss for the guidance of the district court on remand. On that point, we find that the district court correctly concluded that it had no authority to provide an in forma pauperis litigant with copies of deposition transcripts at the government's expense.
I. FACTS AND PROCEDURAL HISTORY
On March 21, 1989, Tabron, a prisoner at Huntington State Correctional Institution, was approached by Charles Evans, a fellow inmate, who offered to sell Tabron some marijuana cigarettes. Defendant Sgt. Francis Maskulyak, a prison guard, caught the two inmates with the marijuana and issued misconduct reports for both of them. According to Tabron's affidavit, Evans threatened Tabron with bodily harm in the presence of Sgt. Maskulyak if Tabron did not accept responsibility for the misconduct.
Later that evening, Tabron and Evans were called to the prison control area so that prison officials could review their misconduct reports and determine whether it was necessary to place them in temporary confinement prior to their respective misconduct hearings. Defendant Lt. James Grace, who was assigned to the control center that evening, decided not to place Evans and Tabron in pre-hearing confinement. Grace explained in his affidavit that the misconduct was a minor, nonviolent offense which normally does not require pre-hearing confinement. After sitting the two inmates down for thirty minutes of questioning and observation, Grace determined that, although they were angry with each other, there was no significant risk of physical threat or intimidation. According to Tabron's affidavit, however, Evans threatened him with bodily harm in the control center in the presence of Grace, Maskulyak, and an inmate named Donald Leonard. Grace and Maskulyak both deny that they heard Evans make any physical threats toward Tabron.
After the meeting in the control room, both Evans and Tabron were sent back to their respective cellblocks. Tabron states in his affidavit that at about 8 a.m. on the following morning there was a "heated confrontation" between him and Evans in the presence of Grace, during which Evans repeated his threats against Tabron. At about 10 a.m., Evans approached Tabron and attacked him with a razor blade attached to the end of a pin. According to Tabron's affidavit, defendant Officer Mary Perkins was present during the assault, but chose not to intercede. Inmate Leonard, who also was present during the assault, intervened and subdued Evans. Tabron suffered a laceration across his jaw that required 21 stitches, and a slash across the right side of his face that required 11 stitches.
After the assault, both Tabron (who had received medical treatment) and Evans were placed in temporary administrative custody under the normal prison procedures that follow a violent incident. At a hearing on the following day before defendants Director of Treatment Melvin Cooper, Deputy Warden Raymond Sobina, and Major James Price, Tabron was informed that he would remain in administrative custody pending investigation of the assault, again under standard prison procedures. Later that day, at a separate hearing on the marijuana misconduct, Tabron pled guilty to the charge of possessing contraband and was released from any disciplinary confinement for that offense. Tabron was also cleared of any responsibility for the Evans assault. The hearing examiner explained, however, that Tabron's administrative confinement would continue pending the investigation of the assault. Tabron was released from administrative confinement on March 30, 1989. At a separate hearing, Evans was found guilty of prison misconduct with respect to the assault, was given a 90-day period in lock-up, and was assessed medical costs.
B. Proceedings Before the District Court
In May 1989 Tabron brought this action pro se in the district court for the Middle District of Pennsylvania against the prison officials allegedly involved in the events surrounding the Evans assault and their supervisors. Tabron's complaint alleged the following: that defendants Grace and Maskulyak heard Evans threaten Tabron prior to the attack, but failed to take any measures to protect him; that defendant Perkins was present during the assault and deliberately refused to intercede; that, after the assault, Tabron was improperly placed in administrative segregation with the approval of defendants Cooper, Sobina, and Price; and that Huntington Superintendent Thomas Fulcomer, Deputy Superintendent Andre Domovich, Cooper, and Price, in their supervisory capacities, failed to prevent the assault and failed to discipline Grace, Maskulyak, and Perkins for their mishandling of the incident.
Pursuant to the local rules of the Middle District of Pennsylvania, see Middle District Rule 901, Tabron's case was assigned to a magistrate Judge for pretrial proceedings. Tabron moved for appointment of counsel, see 28 U.S.C. § 1915(d), arguing that he did not have the legal education or experience necessary to present his case and that he needed an attorney to assist him with discovery. Defendants did not oppose Tabron's motion, but the magistrate Judge denied it, stating in his order: "Non-compensated counsel can be appointed by the court in civil rights cases only when exceptional circumstances exist. No such circumstances exist in this case." (CITATIONS OMITTED) Tabron proceeded to represent himself.
During discovery, Tabron's lack of resources and his unfamiliarity with discovery rules and tactics put him at a significant disadvantage. The defendants took depositions of Tabron, Evans, inmate Leonard (who witnessed both the assault and the subsequent meeting in the prison control area), and an additional inmate who witnessed the assault. Tabron attended and participated in the depositions but could not afford copies of the transcripts. Also unable to afford to take his own depositions, Tabron sought written discovery. His first set of interrogatories was returned unanswered by the defendants because the six-month discovery deadline under Middle District of Pennsylvania Rule 406 had passed. Tabron moved for extension of the discovery deadline, but no action was taken on the motion, apparently because Tabron had failed to file a supporting brief. Two months after his first request for an extension, Tabron renewed his motion, and, in August 1990, the magistrate Judge granted a 60-day extension. Tabron immediately served new interrogatories and document requests on the defendants. Six weeks later he served a second set of interrogatories.
Defendants answered 16 of the initial 40 questions in Tabron's first set of 44 interrogatories, objecting to the remaining 24 of those first 40 questions on the ground that they were not reasonably calculated to lead to the discovery of admissible evidence. Of the 16 questions within the initial 40 to which the defendants responded, the response to nine of them was: "Defendants are still gathering information relating to this interrogatory and will supplement this response." Defendants never supplied supplementary responses to any of these questions. Defendants objected to all questions beyond the fortieth in the initial set of interrogatories and to all 98 questions in the second set on the ground that they exceeded the maximum number of 40 interrogatories per party permitted by Middle District Rule 402.8.
In February 1991, the magistrate Judge entered an order requiring that all dispositive motions be filed within 60 days. Tabron thereupon filed three discovery-related motions: a request that the court order that he be provided with copies of the transcripts of the depositions taken by defendants, a motion to compel answers to his interrogatories, and a motion to compel responses to his document requests. Defendants responded to these motions and then moved for summary judgment.
Tabron responded to the defendants' summary judgment motion, but did so without the benefit of most of the discovery information he sought and without copies of any deposition transcripts. Tabron's brief cited to the deposition testimony either from memory or by referring to pages of depositions that he had been allowed to inspect. Due to a misunderstanding between defendants' counsel and the court reporter, Tabron did not receive a copy of his own deposition to read and sign, pursuant to Fed. R. Civ. P. 30(e), until after all of his responses to defendants' dispositive motions had been filed. ...