Opinion
01 Civ. 8994 (RCC)(KNF)
July 12, 2002
MEMORANDUM and ORDER
In this action, brought pursuant to 42 U.S.C. § 1983, plaintiff has made an application for the Court to appoint counsel to represent him. Plaintiff alleges, in his complaint, that he suffers from a seizure disorder, which is documented in the medical records maintained at the Green Haven Correctional Facility where he is presently housed. The complaint explains that on numerous occasions, while confined to his cell, plaintiff has experienced a seizure and fallen from his bed, and has hit his head and face. As a consequence, plaintiff maintains, he has received cuts above his eye and on his forehead, which had to be sutured. Through the instant action, he seeks damages for injuries he alleges were caused by the defendants' negligence and their deliberate indifference to his medical needs, demonstrated, plaintiff contends, by the defendants' failure to change his sleeping accommodations.
Unlike criminal defendants, prisoners, such as 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. Plaintiff made an application to proceed informa pauperis which was granted. See order of Chief Judge Michael B. Mukasey, dated October 9, 2001. Therefore, he is in 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 plaintiff "appears to have some chance ofsuccess. . . ." See Hodge, 802 F.2d at 60-61.
A person who is incarcerated 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 prisoner 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 a healthcare professional has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Furthermore, differences of opinion between a prisoner and prison officials concerning the appropriate course of treatment for the prisoner's medical condition do not rise to the level of an Eighth Amendment violation. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
The Court's review of the complaint filed by plaintiff does not lead it to conclude that the claim(s) made by plaintiff may have merit. Since 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. Therefore, plaintiffs application, that the Court appoint counsel to represent him, is denied.