PETER G. SHERIDAN, District Judge.
This matter comes before this Court on Defendant's motion for summary judgment [ECF No. 94] and Plaintiff's motion for appointment of pro bono counsel. [ECF No. 95].
Soon after entering prison, Plaintiff, a New Jersey state prisoner, was diagnosed with degenerative arthritis of his right hip. In July 2012, Plaintiff, proceeding pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges, in his original Complaint, that his Eighth Amendment rights were violated when prison officials failed to properly treat pain in his right hip. Specifically, Plaintiff alleges that prison officials acted with deliberate indifference when they failed to secure an extra mattress prescribed by Dr. Ahsan, a prison doctor, and failed to renew a prescription after it expired. Plaintiff also alleges that the prison failed to provide recommended shoes to alleviate pain.
Initially, this Court screened the Complaint and sua sponte dismissed all claims for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Thereafter, Plaintiff moved for reconsideration and to supplement the record, and the District Court vacated its dismissal Order. After reconsidering the supplemented Complaint, the District Court concluded that Plaintiff had failed to state a claim and again dismissed the Complaint. Plaintiff appealed, and the United States Court of Appeals for the Third Circuit affirmed in part, vacated in part, and remanded, finding that the facts alleged by Plaintiff were sufficient to state a claim under the Eighth Amendment. See Dykeman v. Ahsan, 560 Fed. Appx. 129 (3d Cir. 2014). The Court held:
Id. at 132-133. After the decision, parties engaged in discovery.
Plaintiff was deposed on August 1.
Defendant moved for Summary Judgment to be granted for Plaintiff's failure to provide any evidence sufficient to state a prima facie case of Eight Amendment deliberate indifference. Oral argument was held via telephone conference on November 8, 2017. On that date, the Court requested that Defendant file a supplemental response to Plaintiff's interrogatory No. 12, which asked "Is there any reason you can provide as to why you would not renew this 2008 order [] for an extra mattress after it expired in 2009?" [ECF No. 103]. Defendant filed a supplemental response on November 14. [ECF No. 106]. He stated:
Plaintiff stated in his interrogatories that his hip injury was caused by a fall in the late 1990s when he was framing the second story of a construction project. (Def. Br. Ex. A). After the fall, Plaintiff received an x-ray that did not show a fracture, and he did not seek further treatment. (Id. Ex. B). Plaintiff testified that his pain returned shortly after being incarcerated, in 2005, due to inactivity. (Id.).
On November 15, 2005, Plaintiff was examined by Grace Malendez, M.D. and she reported chronic right hip pain. Dr. Malendez offered to provide Plaintiff pain medication, which he refused. (Id. Ex. C at 390). The x-ray showed degenerative joint disease. (Id. at 364). On January 9, 2007, Plaintiff saw Dr. Malendez again and he requested shoe insoles and a double mattress. She ordered "Arch Support/Insoles." (Id. at 361). Plaintiff was seen by Barbara Brown, RN, on May 7, 2007 and requested better shoes and a softer mattress. He was advised that a softer mattress was not possible per Department of Corrections (DOC.) (Id. at 358). A new x-ray on December 6, 2007 showed "[d]egenerative joint disease bilaterally of the hip joint slightly greater at the right hip compared to the left hip. No apparent fracture or dislocation." (Id. at 353). On May 22, 2008, Plaintiff was seen by James Brewin, APN who told him that "MRI [was] not warranted at this time for osteoarthritic and degenerative changes. Treatment is analgesia." (Id. at 341). Plaintiff was seen again by Mr. Brewin on June 10, 2008, when he requested medical shoes but was told that they were not advised at that time. Mr. Brewin entered an order for arch support/insoles instead. (Id.)
Plaintiff first saw Defendant Abu Ahsan, M.D., on December 9, 2008. At the time he complained of chronic right hip pain and Defendant noting his diagnosis, planned to order a repeat hip x-ray, an extra mattress, and arch supports. The order stated: "Arch Supports/Insoles," and "Other Medical Equipment." He specified that he was ordering an extra mattress in his notes. (Id. Ex. C at 334). On December 11, 2008, the repeat x-ray showed advanced arthritis but no evidence of a fracture. (Id. at 332). On February 19, 2009, Plaintiff was seen by Donique Ivery, APN, and he complained that he had not received an extra mattress and that he wanted medical boots. (Id. Ex. C at 253). Plaintiff was again seen by Defendant on June 12, 2009, to discuss his right hip condition. Defendant submitted a request for a prosthetic consultation and advised Plaintiff to return in two weeks time. (Id. at. 250). On July 21, 2009, Ivery informed Plaintiff that his request for a prosthetic consultation was denied. Ivery entered a request for an MRI at Plaintiff's request. (Def. Br. Ex. C at 234).
On September 22, 2009, Plaintiff received a letter from Sharon Felton, B.A., Health Services Unit, Division of Operations, regarding his right hip complaints and requested treatment.
The letter stated:
(Def. Br. Ex. D) (emphasis in original provided to the Court).
Plaintiff saw Defendant again on December 16, 2009. Defendant explained to Plaintiff that the MRI and prosthetics were not indicated. He entered a new order for arch supports/insoles. (Id. Ex. at 228). On April 16, 2010, Plaintiff saw Defendant again and he indicated that he did not want any pain medications but that he did want to explore surgical option for his right hip short of total hip replacement. Defendant again ordered shoe insoles, requested an orthopedic evaluation and repeat x-ray. (Id. Ex. C at 216). On May 3, 2010, Defendant reviewed Plaintiff's repeat x-ray conducted on April 29, 2010, which showed a "[m]odest osteoarthritis of the right hip." (Id. Ex. C at 215). On July 26, 2011, Plaintiff saw Defendant, and requested "either padded shoes or MRI in preparation for his right hip replacement." A new MRI request was placed. (Id. at 196-197). On September 14, 2011, Ivey advised Plaintiff that his MRI request had been denied by the review committee and their recommended plan was for a steroid injection or anti-inflammatory medication. (Id. at 191).
On December 21, 2011, Plaintiff saw Barbara Brown, RN. He declined to take steroid injection or analgesic. Plaintiff again renewed his request for an MRI or a CAT scan but Brown advised him that his previous request had been rejected. (Id. at 172). On November 26, 2012, Plaintiff was seen by Defendant and complained of significant right hip pain occasionally. Defendant noted that Plaintiff was a candidate for hip replacement. (Id. at 144-45). On December 20, 2012, Plaintiff was seen in consultation by orthopedic surgeon, Ahmar Shakir, D.O. who noted: "[r]ight hip greater throchanteric bursitis. DJD [degenerative joint disease] is incidental and noncontributory and non-concordant with his symptomology." He further reported:
(Id. at 141). On May 15, 2013, Plaintiff was given a copy of the above orthopedic surgery consultation and reported that he did not want to review the report at the clinic because he needed time to "take it in." (Id. Ex. C. at 126).
On July 3, 2014, Plaintiff saw Denise Johnson with complaints of joint pain, stiffness and arthritis. Johnson explained to Plaintiff his diagnosis based on the result of multiple x-rays over the years. She also explained that the medical department does not write double mattress restrictions and that medical boots are reserved for foot problems. (Id. Ex. at 89).
On November 18, 2014, Plaintiff was seen in consultation by orthopedic surgeon, Scott Miller, M.D. who reported that although the MRI films were not available for his review, they were immaterial because:
(Def. Br. Ex. C at 53). At his deposition, Plaintiff testified that he is a practicing Jehovah's Witness and that his beliefs affect his treatment. (Id. Ex. B. T110:13-21). He also testified that because of his religious beliefs he would not accept blood transfusion under any circumstances. (Id. at T114:7-12). In his opposition, Plaintiff denies his alleged unwillingness to undergo surgery done and states that he only tried to find out how invasive it would be and other information specific to the procedure. (Opp. Br. at 1).
Also at his deposition, Plaintiff attested that Defendant was helpful and polite with him and tried to help with the mattress. (Id. at T84:19-25).
His deposition states the following:
(Id. at T84-85). When asked if Defendant ever refused to treat him Plaintiff stated, "No, he was never like that. . . but I think he refused to do what his job is, in a sense that, you know he was in a tough position." The conversation continued with Plaintiff acknowledging that there is a protocol in place, though it is not shared with the inmates. (Id. at T87:3-22).
As noted above, Defendant asserted in his answers to interrogatories that the request for a mattress was processed through the Department of Corrections and that the DOC was assessing Plaintiff's request for an additional mattress. He had no authority over the decision. [ECF No. 106].
First, the Court considers Plaintiff's motion to appoint Pro Bono Counsel on May 11, 2016. [ECF No. 64]. Plaintiff has previously filed applications for appointment of Pro Bono Counsel. His motion was denied on July 6, 2016. [ECF No. 67]. On March 8, 2017, Plaintiff was appointed Pro Bono counsel for the sole purpose of a settlement conference. [ECF No. 83]. In the present application, Plaintiff argues that he necessitates counsel because of his limited time and resources. He also argues that he will require aid in securing an expert and through the discovery process.
Federal law allows for a court, at its discretion, to appoint an attorney to represent any person unable to afford counsel. 28 U.S.C. § 1915 (2012); see also Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (holding that § 1915 affords the district courts "broad discretion" to determine whether the appointment of counsel in civil litigation is appropriate). The appointment of counsel pursuant to §1915 may be made at any point in the litigation and may be made by the district court sua sponte. Tabron v. Grace, 6 F.3d 147, 156 (3d Cir. 1993). Indigent civil litigants have no statutory right to court-appointed counsel. Id.
When deciding whether to appoint pro bono counsel, courts must initially decide whether a plaintiff's claim has "some merit in fact and law." Owens v. Armstrong, No. 15-4911, 2016 WL 1117945, at *14 (D.N.J. Mar. 22, 2016) (quoting Tabron, 6 F.3d at 155). The United States Court of Appeals for the Third Circuit has offered a non-exhaustive list of considerations that the district court may consider when deciding whether to appoint pro bono counsel, including "(1) the plaintiff's ability to present [his] own case; (2) the complexity of the legal issues; [and] (3) the degree to which factual investigation will be necessary and the ability of the plaintiff to pursue such investigation." Id. The court may also consider "(4) the amount the case will turn on credibility determinations; (5) whether the case will require the testimony of expert witnesses; and (6) whether the plaintiff can attain and afford counsel on his own behalf." Id. A single factor is not determinative. Id.
First, the Court examines the threshold Tabron factor: does Plaintiff's claim have some merit in fact and law? 6 F.3d at 155. For the purposes of evaluating this factor, the Court assumes "solely for purposes of this [request]" that Plaintiff's case has "some arguable merit in fact and law." Montgomery, 294 F.3d at 499.
Next, the Court analyzes the additional Tabron factors. The first additional factor examines whether the plaintiff has the ability to present his case. Tabron, 6 F.3d at 156. The Third Circuit has noted that courts should consider such factors as the plaintiff's literacy, education, work experience, and prior litigation experience. Id. The plaintiff's ability to present his own case is perhaps the most significant Tabron factor. Pinchak, 294 F.3d at 501. Here, as evidenced by Plaintiff's filings in this case, and he has, to this point, litigated his claims competently.
The second Tabron factor examines the complexity of the legal issues presented. If the law on a given issue is not clear, this factor will typically support the appointment of pro bono counsel. Tabron, 6 F.3d at 156. Here, the legal issues and factual circumstances surrounding Plaintiff's claims do not appear unusually complex. The Third Circuit has noted that the deliberate indifference standard used to analyze Eighth Amendment claims is not a complex legal issue. Parham v. Johnson, 126 F.3d 454, 459 (3d Cir. 1997). As such, "a lay person, like [the plaintiff-prisoner], should be able to comprehend what he has to prove." Id. Therefore, this factor also weighs against Plaintiff's request.
Third, the Court considers the degree of factual investigation necessary and the ability of the Plaintiff to pursue such investigation. Tabron, 6 F.3d at 156. Prisoners are limited in their investigatory ability and it "may be difficult for indigent plaintiffs to understand complex discovery rules." Montgomery v. Pinchak, 294 F.3d at 503. Here, although Plaintiff has limited resources as a prisoner, he has been able to collect various materials such as medical records and communications with the Department of Corrections. (See, e.g., ECF 47-1).
The fourth Tabron factor addresses credibility determinations. 6 F.3d at 156. If a case appears to be "solely a swearing contest" relying on "credibility determinations," this factor will weigh in favor of appointing pro bono counsel. Woodham v. Sayre Borough Police Dep't., 191 F.App'x 111, 116 (3d Cir. 2006) (emphasis added). At this point, it does not appear that this matter will be "solely a swearing contest." Id. at 116. Thus, this factor weighs against the appointment of counsel.
Fifth, the Court considers whether the case will require the testimony of an expert witness. Tabron, 6 F.3d at 156. Plaintiff presents this application for mainly this reason. Expert testimony in this case could hypothetically be necessary. See, e.g., Pearson v. Prison Health Service, C.A. No. 16-1140, 850 F.3d 526, 2017 U.S. App. LEXIS 4003, 2017 WL 892371, at *5 (3d Cir. March 7, 2017); See also Lanigani, 2017 U.S. Dist. LEXIS 45328 at *19.
Finally, the Court considers whether the plaintiff can retain and afford counsel. Tabron, 6 F.3d at 156-57. This factor is presumptively fulfilled when a plaintiff is granted permission to proceed in forma pauperis. Woodham, 191 F.App'x at 116. Here, Plaintiff is proceeding in forma pauperis and, therefore, this factor weighs in favor of appointing pro bono counsel for Plaintiff. However, indigency, absent satisfaction of other Tabron factors, does not itself warrant the appointment of counsel. See Christy v. Robinson, 216 F.Supp.2d 398, 410 (D.N.J. 2002).
Based on the above analysis, this Court finds most factors to weigh against appointment of pro bono counsel. Consequently, Plaintiff's motion is denied.
Next, this Court review's Defendant's motion for summary judgment.
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the nonmovant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to set forth specific facts showing that there is a genuine issue for trial"). Moreover, only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a court determines, after drawing all inferences in favor of [the non-moving party], and making all credibility determinations in his favor "that no reasonable jury could find for him, summary judgment is appropriate." Alevras v. Tacopina, 226 Fed. App'x. 222, 227 (3d Cir. 2007). As a preliminary matter, we note that courts must liberally construe pleadings that are filed pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Here, Defendant raises a motion for summary judgment on the basis that Plaintiff has failed to set forth a prima facie case of Eight Amendment deliberate indifference against him. The Supreme Court has made clear the standard for claims alleging failure to provide medical treatment to prisoners is "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state an inadequate medical care claim under the Eighth Amendment's proscription against cruel and unusual punishment, an inmate must allege two elements: (1) a serious medical need; and (2) behavior on the part of prison officials that constitutes deliberate indifference to that need. Estelle, 429 U.S. at 106; Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
"A medical need is `serious,' in satisfaction of the second prong of the Estelle test, if it is `one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.'" Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J.1979), aff'd, 649 F.2d 860 (3d Cir. 1981)). Denial of or delay in treatment that causes unnecessary and wanton infliction of pain may also constitute a serious medical need. Id. (citing Estelle, 429 U.S. at 103).
The second element of the Estelle test is subjective, requiring "an inmate to show that prison officials acted with deliberate indifference to his serious medical need." Holder v. Merline, 2005 U.S. Dist. LEXIS 32237, *4 (D.N.J. Jun. 27, 2005) (citing Natale, 318 F.3d at 582) (finding deliberate indifference requires proof that the official knew of and disregarded an excessive risk to inmate health or safety).
A plaintiff may indicate deliberate indifference by establishing that the defendants intentionally denied or delayed medical care. Positano v. Wetzel, 529 Fed. Appx. 116, 119 (3d Cir. 2013). Nevertheless, "[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law." Id. (quoting United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). Further, conduct that constitutes negligence does not rise to the level of deliberate indifference; rather, deliberate indifference is a "reckless disregard of a known risk of harm." Id. (citing Farmer v. Brennan, 511 U.S. 825, 836 (1994)). Additionally, an allegation of medical malpractice or simple negligence does not rise to the level of a constitutional violation. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). "Mere disagreement as to the proper medical treatment is also insufficient." Id. at 235 (internal citation omitted).
Courts have found deliberate indifference "in situations where there was `objective evidence that [a] plaintiff had serious need for medical care,' and prison officials ignored that evidence[,] Nicini v. Morra, 212 F.3d 798, 815 n. 14 (3d Cir. 2000) [and] in situations where `necessary medical treatment is delayed for non-medical reasons.' Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)[,] [cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L. Ed. 2d 195 (1988)]." Natale, 318 F.3d at 582.
The issue in this matter is whether Dr. Ahsan showed deliberate indifference when he did not file a second prescription for a mattress or cushioned shoes.
For those reasons, Defendant's motion for summary judgment is granted.
This matter is before the Court on Defendant's motion for summary judgment [ECF No. 94] and Plaintiff's motion for appointment of pro bono counsel. [ECF No. 95].; and the Court having carefully reviewed and taken into consideration the submissions of the parties, as well as the arguments and exhibits therein presented, and for good cause shown, and for all of the foregoing reasons,
IT IS on this 28th day of November, 2017;
ORDERED that Plaintiff's motion for appointment of pro bono counsel [ECF No. 95] is DENIED; and it is further
ORDERED that Defendants' motion for summary judgment [ECF No. 94] is GRANTED. Since Abu Ahsan is the only remaining Defendant in this matter, the matter is DISMISSED with prejudice.
