Opinion
No. 04 Civ. 8906 (GEL)(HBP).
July 12, 2005
MEMORANDUM OPINION AND ORDER
By notice of motion docketed on February 16, 2005 (Docket Item 14), plaintiff moves for pro bono counsel. For the reasons set forth below, the motion is granted.
In a civil case, such as this, the Court cannot actually "appoint" counsel for a litigant. Rather, in appropriate cases, the Court submits the case to a panel of volunteer attorneys. The members of the panel consider the case, and each decides whether he or she will volunteer to represent the plaintiff. If no panel member agrees to represent the plaintiff, there is nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296 (1989). Thus, even in cases where the Court finds it is appropriate to request volunteer counsel, there is no guarantee that counsel will actually volunteer to represent the plaintiff.
The factors to be considered in ruling on a motion for pro bono counsel are well-settled and include "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [the plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel."Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). Of these, "[t]he factor which command[s] the most attention [is] the merits." Id. Accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 at *1 (S.D.N.Y. Apr. 26, 1996). As noted by the Court of Appeals:
Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent.Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) ("In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.").
Plaintiff alleges a violation of his Eighth Amendment right to be free from cruel and unusual punishment as a result of defendants' deliberate indifference to his serious medical conditions. Specifically, plaintiff claims that he suffers from
chronic urinary infection problems causing his scrotum to break down every 20 days because of a Perneral [sic] Hole that he is forced to catheterize himself approximately 6 times daily. Because of this condition plaintiff is required to wear adult diapers to keep his pants dry. It is of the utmost medical importance for plaintiff to keep his groin area as clean as possible in order to reduce the presence of bacterium, the existence of which promotes infection due to the 6 time daily insertion of a cathetera [sic] tube.
(Complaint ¶ 12). According to plaintiff, defendants have referred him to a specialist who made treatment recommendations that were ignored by defendants (Complaint ¶¶ 17-18).
Based on the application to proceed in forma pauperis submitted with plaintiff's complaint, there can be little question that plaintiff cannot afford an attorney. In addition, plaintiff states in the pending application that he has contacted several attorneys seeking representation on either a pro bono or contingent basis, and none of them has agreed to represent plaintiff.
Although little is known about the case at this time beyond what is in the complaint, I conclude that enough has been shown to warrant adding plaintiff's case to the list of cases considered by the Court's Pro Bono Panel. First, in a deliberate indifference medical care case, such as this one, plaintiff has to prove a deviation from accepted medical standards beyond the deviation necessary to prove malpractice. Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000). The weight of this burden and the technical nature of the showing required makes it unlikely that an individual unskilled in the law could competently present the case.
In addition, this is not a deliberate indifference case involving generalized allegations of relatively minor conditions. Rather, plaintiff has alleged a urinary tract infection so serious that he needs to use a catheter several times a day in order to urinate. Although it would be premature to pass on the merits at this time, this allegation, if proven, appears sufficient to establish the objective element of a deliberate indifference claim. See Dvorak v. Marathon County, 01-C-0450-C (BBC), 2002 WL 31115191 at *6 (W.D. Wis. July 29, 2002) ("The undisputed fact that plaintiff must use a catheter in order to urinate (and has since 1995) establishes that she has a serious medical need.").
Finally, although the case is at a very early stage, it appears preliminarily that it has sufficient merit to warrant its being submitted to the Court's Pro Bono Panel. The complaint alleges more than plaintiff's personal disagreement with the methods of treatment chosen by defendants. Rather, plaintiff alleges that an expert examined him and made recommendations for his care that defendants simply ignored. If proven, this conduct could constitute deliberate indifference. See Gil v. Reed, 381 F.3d 649, 663-64 (7th Cir. 2004); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999); Parham v. Johnson, 126 F.3d 454, 458 (3d Cir. 1997).
I am not suggesting that a prison official's failure to follow a specialist's advice necessarily constitutes deliberate indifference; it almost certainly does not. See Hudson v. McMillian, 503 U.S. 1, 9 (1992); Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Nor am I suggesting that plaintiff has demonstrated a likelihood of success on the merits; there is currently no evidence in the record, and, therefore, such a determination cannot be made at this time. Nevertheless, plaintiff's allegation that a specialist's advice was disregarded, if true, does add some weight to his deliberate indifference claim. At a minimum, it suggests that plaintiff's disagreement with the treatment he received has a basis in something other than plaintiff's personal opinion.
Accordingly, I find that plaintiff has established sufficient cause to have his case added to the list of cases considered by the Court's Pro Bono Panel, and, to that extent, his motion is granted.
SO ORDERED.