Opinion
02 Civ. 0233 (SHS) (KNF)
August 2, 2002
MEMORANDUM and ORDER
Julio Arce, a pro se litigant, brought this action, pursuant to 42 U.S.C. § 1983. He alleges that while incarcerated at the Sing Sing Correctional Facility, it was suspected that he had contracted tuberculosis. In order to address that matter, plaintiff was taken to a medical facility where, he says, medication was administered to him through an intravenous device by unauthorized healthcare personnel. He maintains this was done in violation of New York's Public Health Law and its Education Law.
Plaintiff also contends that prison officials exposed him to torn, damaged and friable asbestos insulation, as well as other hazardous airborne fibers. As a result, plaintiff filed a grievance in order to have this unhealthful situation addressed. He alleges that in retaliation for his filing a grievance, corrections personnel placed fans near the damaged asbestos insulation thereby exacerbating the hazardous condition. Plaintiff contends the defendants acted in contravention of his Eighth Amendment rights.
Plaintiff has requested that the Court appoint counsel to assist him in the prosecution of this action. That request is addressed below.
Unlike criminal defendants, prisoners, like plaintiff and indigents 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, 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," (see Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y. 1988]), that the claim(s) asserted by the plaintiff "may have merit," (see 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 v. Police Officers, 802 F.2d 58, 60-61.
A prison inmate is entitled to receive adequate medical care. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970 (1994); Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290 (1976). Deliberate indifference to the serious medical needs of a prison inmate constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment and states a claim under 42 U.S.C. § 1983. However, a complaint that medical treatment was administered negligently does not state a valid claim of medical mistreatment under the Eighth Amendment.
The allegation made by plaintiff, that persons unauthorized to administer medication to him did so using an intravenous device, appears to be a claim of medical malpractice. A claim of medical malpractice does not become a constitutional violation merely because the victim is a prison inmate. In order to state a cognizable claim, a prison inmate must allege acts or omissions sufficiently harmful to demonstrate deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. at 105-106, 97 S.Ct. at 292. Plaintiff's amended complaint does not meet this standard.
With respect to plaintiff's allegation that he has been exposed to friable asbestos and other airborne fibers, the Court views this allegation liberally as a claim that the conditions of plaintiff's confinement were "cruel and unusual" in contravention of the Eighth Amendment. In order to prevail on a claim of "cruel and unusual" conditions of confinement, a prison inmate must allege facts that demonstrate that prison officials were deliberately indifferent to the conditions of the prisoner's confinement. See Wilson v. Seiter, 501 U.S. 294, 305, 111 S.Ct. 2321, 2327 (1991).
In the instant case, the file maintained by the Clerk of Court for this action contains submissions by plaintiff which indicate that, upon receiving his grievance concerning the asbestos condition which is referenced in the amended complaint, prison officials sustained the grievance and directed that curative action be taken. Based upon that documented fact, the merit of plaintiff's claim seems suspect.
The Court's review of the amended complaint filed by plaintiff does not persuade it that the claims made by plaintiff may have merit. Inasmuch as plaintiff has failed to satisfy the threshold requirement set forth in Hodge, the Court finds that it would not be reasonable and appropriate to appoint counsel to represent him. Accordingly, plaintiff's application, that the Court appoint counsel to represent him is denied.