Opinion
No. 04 Civ. 8267 (BSJ)(KNF).
July 14, 2005
MEMORANDUM and ORDER
In the above-captioned action brought pursuant to 42 U.S.C. § 1983, Alfred J. Smith ("Smith") contends that, while he was in the custody of the New York City Corrections Department, the defendants violated his Eighth and Fourteenth Amendment right to be free from cruel and unusual punishment, when they exhibited deliberate indifference to his medical needs by failing to diagnose the cause of and to treat timely pain and swelling that Smith experienced in his hand and shoulder, as well as pain he experienced in his mouth. As a result, Smith alleges that the level of pain he experienced intensified, rendered him incapable of standing and, ultimately, caused him to expectorate blood. Smith has requested that the Court appoint counsel to assist him in prosecuting this action.
Unlike criminal defendants, indigents, like the plaintiff, filing civil actions have no constitutional right to counsel. However, 28 U.S.C. § 1915(e)(1) provides that the Court may request an attorney to represent any person unable to afford counsel. In the instant case, the plaintiff made an application to proceed in forma pauperis. Consequently, he is within the class to whom 28 U.S.C. § 1915(e)(1) speaks.
"In deciding whether to appoint counsel, [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596 (1991). This means that it appears to the court, "from the face of the pleadings," Stewart v. McMickens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988), that the claim(s) asserted by the plaintiff "may have merit," Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 (S.D.N.Y. July 9, 1999), or that the plaintiff "appears to have some chance of success. . . ."Hodge, 802 F.2d at 60-61. A person who is incarcerated by a state or its political subdivisions is entitled to received adequate medical care. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994); Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290 (1976). Deliberate indifference to the serious medical needs of a jailed inmate constitutes the unnecessary and wanton infliction of pain that is barred by the Eighth Amendment and states a claim under 42 U.S.C. § 1983. See Estelle, 429 U.S. at 104-105, 97 S. Ct. at 291.
"[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute `an unnecessary and wanton infliction of pain' or to be `repugnant to the conscious of mankind.' Thus, a complaint that a [health care provider] has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 105-106, 97 S. Ct. at 292.
From the face of the pleadings, there is reason to doubt that the claims asserted by the plaintiff in this action have merit. The plaintiff alleges that the defendants were slow in providing medical and dental services to him.
Claims of negligence in diagnosing or treating a medical or dental condition, as noted above, do not state a valid claim of mistreatment under the Eighth and Fourteenth Amendments. Therefore, under the circumstances, the Court is not persuaded, based upon the face of the pleadings, that the claims asserted by the plaintiff warrant the appointment of counsel. As a result, the plaintiff's request, that the Court appoint counsel to represent him, is denied.
SO ORDERED.