NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  ________________

                                     No. 15-1803
                                  ________________


                              KEVIN C. BRATHWAITE,

                                                      Appellant

                                           v.

        WARDEN PERRY PHELPS; DEPUTY WARDEN DAVID PIERCE;
         DEPUTY CHRISTOPHER KLIEN; JAMES SCARBOUROUGH;
           MARCELLO RISPOLI; KAREN HAWKINS; LT. FURMAN;
          RONALD HOSTERMAN; LINDA KEMP; LARRY SAVAGE;
       DELAWARE DEPARTMENT OF CORRECTIONS; DR. DESROSIERS;
                      NURSE CAROL BIANNCHI
                         ________________

                    On Appeal from the United States District Court
                              for the District of Delaware
                       (D. C. Civil Action No. 1-10-cv-00646)
                     District Judge: Honorable Gregory M. Sleet
                                  ________________

                              Argued on January 8, 2018

      Before: JORDAN, ROTH, Circuit Judges and STEARNS, District Judge

                             (Opinion filed May 10, 2018)





 The Honorable Richard G. Stearns, Judge of the United States District Court for the
District of Massachusetts, sitting by designation
Justin E. Kerner, Esq.                 (ARGUED)
Haley D. Torrey, Esq.
DLA Piper
1650 Market Street
One Liberty Place, 49th Floor
Philadelphia, PA 19103

             Counsel for Appellant


Daniel A. Griffith, Esq.               (ARGUED)
Scott G. Wilcox, Esq.
Whiteford, Taylor & Preston
405 North King Street
The Renaissance Centre, Suite 500
Wilmington, DE 19801

             Counsel for Appellees Carol Biannchi
             and Dr. Desrosiers

Joseph C. Handlon, Esq.                (ARGUED)
Delaware Department of Justice
820 North French Street
Carvel Office Building
Wilmington, DE 19801

             Counsel for Appellees Warden James T. Vaughn Correctional Center,
             David Pierce, Scarbourough, Linda Kemp and Larry Savage

Ophelia M. Waters, Esq.
Delaware Department of Justice
820 North French Street
Carvel Office Building
Wilmington, DE 19801

             Counsel for Appellees Christopher Klien, Karen Hawkins
             and Lt. Furman




                                         2
                                    ________________

                                       OPINION
                                    ________________

ROTH, Circuit Judge

       Kevin C. Brathwaite, an inmate at the James T. Vaughn Correctional Center

(Prison) in Smyrna, Delaware, is serving a life sentence for several rapes and related

felonies. He appeals the District Court’s rulings, relating to his claims that the prison’s

staff and officials violated his due process right by placing him in the prison’s security

housing unit (SHU) for almost seven years without any form of review, as well as

violating his Eighth Amendment right to adequate medical attention for his serious

medical needs. The District Court ruled that Brathwaite’s due process claim was

frivolous and, later, that Brathwaite did not present the requisite expert evidence to

demonstrate his medical-related claims. For the reasons stated below, we will vacate

those rulings and remand both claims.

                                             I. FACTS

       In August 2010, Brathwaite commenced this civil rights lawsuit under 42 U.S.C. §

1983 against certain officials at the Prison (Prison Defendants), proceeding pro se and in

forma pauperis and alleging violations of his due process right. Specifically, Brathwaite

alleged that the Prison Defendants placed him in the SHU from 2004 through 2010 and

denied him any housing classification hearing or review, notwithstanding the fact that



  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              3
Brathwaite had completed the Prison’s internal prerequisites for being restored to general

population housing. In October 2010, Brathwaite amended his complaint to add claims

against additional individuals and the Delaware Department of Corrections.

      A week later, Brathwaite filed a Second Amended Complaint, this time raising

Eighth Amendment claims against certain medical staff at the Prison (Medical

Defendants).     Brathwaite alleged that the Medical Defendants were deliberately

indifferent to his medical needs stemming from a degenerative shoulder condition.1

Specifically, Brathwaite alleged that the Medical Defendants:

      1.       Disregarded and failed to renew a “medical memorandum” that

documented Brathwaite’s diagnosed degenerative shoulder condition and instructed

Prison personnel to restrain Brathwaite using two, linked sets of handcuffs instead of one

set when restraining Brathwaite;

      2.       Refused to deliver a mattress that had been recommended by an outside

medical professional to address Brathwaite’s spinal issues;

      3.       Refused to allow Brathwaite to see his medication before it was crushed

and provided to him, despite an administrative order that instructed otherwise, due to the

fact that Brathwaite had previously been provided the wrong medication through the pill

crushing process; and

      4.       Withheld his prescribed pain medication without a valid reason.


1
  Although the Eighth Amendment is applicable to the states through the Fourteenth
Amendment, Robinson v. California, 

, 675 (1962), for the sake of
simplicity, we refer to Brathwaite’s claims against the Medical Defendants as “Eighth
Amendment claims.”
                                             4
       The District Court reviewed Brathwaite’s Complaint pursuant to 28 U.S.C. § 1915

and § 1915A, and sua sponte dismissed his due process claim as frivolous. The District

Court acknowledged that Brathwaite had spent almost seven years in the SHU, as well as

eleven to twelve days in the “hole.” It concluded, however, that, “[b]ased upon the

relatively short time Brathwaite was confined to the ‘hole,’”2 Brathwaite’s confinement

did not constitute an atypical and significant hardship in relation to other prison

conditions, the threshold for a due process violation. Specifically, the District Court did

not examine whether Brathwaite’s seven years in the SHU constituted an atypical and

significant hardship. Because the District Court determined that Brathwaite did not have

a constitutional right to a specific housing classification, the court also concluded that he

was owed no process such as classification hearings.

       Following the District Court’s sua sponte dismissal of Brathwaite’s due process

claim, only Brathwaite’s Eighth Amendment claims against the Medical Defendants

survived. While discovery was proceeding, Brathwaite moved the District Court for

appointment of counsel to assist with discovery. The District Court denied his request,

concluding that Brathwaite was able to represent himself, but the court said that it would

revisit the issue “should the need for counsel arise later.”3

       After the close of discovery, the Medical Defendants filed a motion for partial

summary judgment on Brathwaite’s Eighth Amendment claims.4 The District Court

.

.
4
  The Medical Defendants did not move for summary judgment on Brathwaite’s claim
relating to the denial of his pain medication.
                                              5
denied summary judgment on all but Brathwaite’s mattress-related claim because the

three remaining claims raised triable issues of material fact.

       Rather than proceed to trial, the Medical Defendants sought leave to file a

“supplemental dispositive motion” to address whether Brathwaite could support his

remaining deliberate indifference claims without expert testimony.5 The District Court

granted the Medical Defendants’ request and re-opened discovery for an additional three

and a half weeks. The Medical Defendants then sought summary judgment on the

deliberate indifference claims on the ground that Brathwaite failed to support them with

expert testimony.    The District Court granted the motion, and specifically faulted

Brathwaite for failing to secure expert testimony during the three and a half weeks of re-

opened discovery.

       Brathwaite appealed.6

      II. DID BRATHWAITE’S CONFINEMENT IN THE SHU VIOLATE DUE

                                       PROCESS? 7

       The District Court dismissed Brathwaite’s due process claim as frivolous.8 A

claim is frivolous when it is “indisputably meritless” or “fantastic or delusional.”9 As we

.
6
  We thank Brathwaite’s counsel and his firm for accepting the pro bono appointment and
for their very able representation. Lawyers who act pro bono provide the highest service
that the bar can offer.
7
  The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291. Our jurisdiction pertains to all of Brathwaite’s claims notwithstanding
the fact that his notice of appeal specifies only the District Court’s order of March 17,
2015 granting summary judgment. See Pacitti v. Macy’s, 

, 776 (3d Cir.
1999) (liberally construing the requirement in Rule 3(c) that the notice of appeal
designate the orders being appealed).
                                              6
stated in Mitchell v. Horn, “[w]e are especially careful when assessing frivolousness in

the case of in forma pauperis complaints,” and we construe pro se pleadings

“nonrestrictively.”10

       To establish his due process claim, Brathwaite was required to show that (1) the

state, through the duration and conditions of his confinement, imposed “atypical and

significant hardship” on him giving rise to a protected liberty interest; and (2) the state

deprived him of the process he was due to protect that interest.11

       Brathwaite has sufficiently pled that the state imposed atypical hardship on him by

placing him in the SHU for almost seven years without any meaningful review. We have

held that this inquiry requires consideration of both the duration and conditions of the

prisoner’s confinement, in relation to other prison conditions.12 Recently, we held in

Williams v. Sec’y Pennsylvania Dep’t of Corr. that solitary confinement for years on

death row of an inmate, who is not presently subject to a penalty of death, is atypical if

such confinement is essentially indefinite “with no ascertainable date for [his] release into

the general population.”13, 14


8
  Our review of the District Court’s dismissal of Brathwaite’s claim as frivolous under
§ 1915(e)(2) is plenary. Mitchell v. Horn, 

, 530 (3d Cir. 2003). We must
accept as true the factual allegations in the complaint and all reasonable inferences that
can be drawn therefrom. Allah v. Seiverling, 

, 223 (3d Cir. 2000) (citation
omitted).
9
  

11
   Sandin v. Conner, 

, 484, 486 (1995); Shoats v. Horn, 

, 144
(3d Cir. 2000).
12
   

.

. Sec’y Pennsylvania Dep’t of Corr., 

, 562 (3d Cir. 2017).
14
   The conditions on death row are in relevant ways similar to the conditions in the SHU.
                                              7
       The District Court concluded that the ten to twelve days that Brathwaite was

confined in the “hole” was not atypical, but it failed to analyze Brathwaite’s claim that he

spent almost seven years in the SHU without review. In his complaint, Brathwaite

alleged that (1) he was listed on the “remain in SHU” list, and (2) he had not been

relocated to the general population even though he had completed the Prison’s requisite

programs for removal from the SHU. As in Williams, Brathwaite’s confinement in

segregated housing was allegedly indefinite and therefore atypical.15 Brathwaite’s due

process claim therefore was not frivolous.

       The record, however, has not been adequately developed as to whether the

conditions of Brathwaite’s confinement constituted significant hardship. Without this

information, we are unable to conduct the “fact-intensive inquiry” necessary to determine

whether Brathwaite has identified a state-created liberty interest.16 As we did in Mitchell,

we will remand Brathwaite’s due process claim to the District Court for further

proceedings concerning the conditions of Brathwaite’s confinement.17 If the District

Court concludes that Brathwaite’s SHU confinement imposed an “atypical and significant

hardship” on him, creating a liberty interest, the court should also determine whether the




15
   

.
16
   

(internal citation omitted).
17
   

Defendants violated this interest by failing to provide any review to Brathwaite

during his SHU confinement.18

               III. WAS EXPERT MEDICAL TESTIMONY REQUIRED?

       The District Court concluded that Brathwaite’s Eighth Amendment claims against

the Medical Defendants could not proceed to trial because one claim was disagreement

with medical treatment and thereby not a constitutional violation and because Brathwaite

had failed to support the other three claims with expert testimony. The Eighth

Amendment protects prisoners against prison official conduct that evidences “deliberate

indifference to serious medical needs.”19 To state a claim for deliberate indifference, a

prisoner must make “(1) a subjective showing that the defendants were deliberately

indifferent to [his or her] medical needs and (2) an objective showing that those needs

were serious.”20 Though prison medical staff are usually afforded “considerable latitude

in the diagnosis and treatment of prisoners,” no such deference attaches when the medical

staff has intentionally refused to provide care to a prisoner.21




18
   Even if Brathwaite received a proper classification hearing after filing his Complaint,
this fact would not moot his claim for damages for the period of time he spent in the SHU
without meaningful review. See generally Melvin v. Nickolopoulos, 

, 304
(3d Cir. 1988) (where state hearing eventually held, prisoner may still be entitled to
damages for amount of time in confinement before hearing date); 13C Fed. Prac. & Proc.
Juris. § 3533.3 (3d ed.) (“The availability of damages or other monetary relief almost
always avoids mootness.”).
19
   Estelle v. Gamble, 

, 104 (1976).
20
   Pearson v. Prison Health Serv., 

, 534 (3d Cir. 2017) (internal quotation
marks omitted).
21
   Palakovic v. Wetzel, 

, 227-28 (3d Cir. 2017).
                                              9
       Summary judgment should not have been granted for the Medical Defendants on

three22 of Brathwaite’s Eighth Amendment claims.23 The record indicates that the

Medical Defendants refused to double-cuff Brathwaite, even though double-cuffing had

been previously prescribed for Brathwaite’s shoulder and back issues. The record also

indicates that the Medical Defendants refused to crush Brathwaite’s pills in front of him,

despite instruction from the Prison’s grievance committee, which determined that

Brathwaite previously had been given the wrong medication in crushed form. Finally, it

appears clear from the record that, after Brathwaite filed his pill-crushing complaint with

the Prison’s grievance committee, the Medical Defendants denied Brathwaite his pain

medication altogether. As the District Court originally concluded on the Medical

Defendants’ first motion for summary judgment, “there remain genuine issues of fact” as

to these claims.24

       On the Medical Defendants’ second motion for summary judgment, the District

Court changed course and held that expert testimony was required for Brathwaite to

create a triable issue of fact on his Eighth Amendment claims. It is not clear to us that

expert testimony is actually required here. For example, expert testimony is not required


22
   The District Court properly granted summary judgment for the Medical Defendants on
Brathwaite’s mattress-related claim as based solely on Brathwaite’s disagreement with
the medical treatment he received, since the same doctor who originally prescribed the
mattress changed his mind seven months later. A.R. 384; see 

.
We will therefore affirm this aspect of the District Court’s ruling.
23
   “We exercise plenary review over a district court’s order granting summary judgment,
applying the same standard as the district court.” 

. Summary
judgment will be granted when there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law.
24
   See A.R. 383-86.
                                             10
to demonstrate serious medical needs where the prisoner can show that his medical need

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.”25

Moreover, we recently held that a prisoner need not introduce expert testimony to

establish that defendants demonstrated deliberate indifference when the claim is premised

on the denial or delay of care.26 Unlike claims sounding in the quality of care received,

denial of care is not an “objective question typically beyond the competence of a non-

medical professional.”27 Thus, the record must be further developed on this issue.

       Brathwaite would have benefited from having counsel appointed to help him to

determine whether expert testimony was needed and, if so, to obtain the requisite

testimony. Cases like Brathwaite’s are often complex and require the assistance of an

attorney who can help secure expert testimony if it is needed.28

       District courts have broad discretion in determining whether to appoint counsel29

and can appoint counsel at any point in the litigation, even sua sponte.30 As we held in

Tabron v. Grace, “[i]f the district court determines that the plaintiff’s claim has arguable

25
   Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 

, 347 (3d Cir.
1987) (citation omitted); see also Palakovic v. Wetzel, 

, 227 (3d Cir. 2017).
26
   

.
27
   

28
   See Montgomery v. Pinchak, 

, 498, 502 (3d Cir. 2002); see also Parham
v. Johnson, 

, 460 (3d Cir. 1997) (“This finding by the district court is
especially startling because when the district court denied Parham’s motion for court-
appointed counsel, the district court stated that it did not seem likely that expert
testimony would be needed in this case. Yet, in dismissing the case, the same district
judge cited as a deficiency in Parham’s case the lack of expert testimony, which the
district judge now deemed essential.”).
29
   

.
30
   Tabron v. Grace, 

, 156 (3d Cir. 1993).
                                             11
merit in fact and law, the court should then consider a number of additional factors that

bear on the need for appointed counsel.”31 These factors include: 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 necessary and the ability of the plaintiff to pursue

investigation, 4) the plaintiff’s capacity to retain counsel on his own, 5) the extent to

which a case is likely to turn on credibility determinations, and 6) whether the case will

require expert witness testimony.32

       As already addressed, three of Brathwaite’s Eighth Amendment claims have

arguable merit in fact and law. Brathwaite also meets the majority of the Tabron factors.

       Primarily, Brathwaite was unable to present his own case, especially once the

District Court determined that expert testimony was required for Brathwaite to make his

Eighth Amendment claims. Other Tabron factors also indicate the need for appointed

counsel. We have previously held that a deliberate indifference case like this one

involves complex legal issues,33 and may require expert testimony.34 Additionally, the

record reveals that Brathwaite cannot afford to retain his own counsel, as evidenced by

Brathwaite’s in forma pauperis status.35

       In sum, the District Court should have appointed counsel for Brathwaite; it

therefore abused its discretion by failing to do so. Even if the District Court did not deem

31
   

32
   

.
33
   See 

(“[A] § 1983 civil rights case alleging deliberate
indifference to a prisoner’s serious medical needs can raise sufficiently complex legal
issues to require appointment of counsel.” (citing 

)).
34
   See 

.
35
   See 

.
                                              12
it necessary at the time of Brathwaite’s motion for appointed counsel, it should have

appointed pro bono counsel when it determined that expert testimony would be

necessary.36

                                   IV. CONCLUSION

       For the above reasons, we will affirm the District Court’s ruling as to Brathwaite’s

mattress-related claim and vacate the District Court’s rulings on the remainder of the

Eighth Amendment claims, as well as its rulings on Brathwaite’s due process claim and

request for appointed counsel, and we will remand the case to the District Court for

further proceedings consistent with this opinion.




36
  See also 

(decision to appoint counsel can be made at any point in
the litigation).
                                            13