Summary
examining the face of the pleadings to evaluate merit of claim
Summary of this case from MAYE v. ERIE COUNTYOpinion
No. 03 Civ. 4433 (GBD)(KNF).
September 16, 2004
MEMORANDUM and ORDER
In the above-captioned action, brought pursuant to 42 U.S.C. § 1983, Luis Sanchez ("Sanchez") contends that defendants Nurse Conklin and Dr. Halko violated his Eighth Amendment right to be free from cruel and unusual punishment when they exhibited deliberate indifference to his medical needs by failing to identify and treat timely and appropriately hepatitis A and B, which it was determined that the plaintiff had contracted. Sanchez maintains that a positive finding that he had contracted the disease followed his ingestion of a used medical bandage that was secreted in a meal he consumed while housed at the Sing Sing Correctional Facility. In addition, Sanchez contends that he was prescribed medication by Dr. Halko for a condition from which he did not suffer. As a result, Sanchez maintains that he experienced abdominal pains and headaches. Sanchez has requested that the Court appoint counsel to assist him as he prosecutes this action.
Sanchez has advised the Court that the claims made against defendant Brian Fischer have been withdrawn. Therefore, only Nurse Conklin and Dr. Halko remain as defendants in the action.
Unlike criminal defendants, prisoners, like the 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, 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 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 prison 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 services to him. Furthermore, the plaintiff contends that inappropriate medication was prescribed for him.
Claims of negligence in diagnosing or treating a medical condition, as noted above, do not state a valid claim of medical mistreatment under the Eighth Amendment. 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.