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April 1, 1998

EUGENE CRAWFORD, Plaintiff, -vs- SALLY B. JOHNSON, ET AL., Defendants.

The opinion of the court was delivered by: SIRAGUSA

The complaint alleges that on March 10, 1995, the plaintiff injured his hand while at recreation, and he then complained to a nurse that "he heard what sounded like a bone break in his hand." The plaintiff alleges that he was not afforded adequate medical care until March 13, 1995, when it was determined that he had a fractured metacarpal in his right hand. The following facts appear to be undisputed: Immediately following his injury, he was treated on March 10, 1995 by a registered nurse, K. Muscarella, who examined his hand and determined that he had hyper-extended two of his fingers. The contemporaneous medical notes do not support the plaintiff's claim that he complained of hearing a sound like a breaking bone. A written statement dated March 10, 1995, signed by the plaintiff, states only that: "When I went up for the ball-- the other player went for the ball-- pulling my hand back." The medical notes from March 10, 1995, state in relevant part: "No edema or mal-alignment noted - good mobility. Minimal pain." The plaintiff was given an ice pack and Advil for pain. The plaintiff went back to the medical unit the following day, where he was seen by a different registered nurse, D. Lackey, who examined his hand, applied a splint and dispensed more Advil. Nurse Lackey's notes from that visit on March 11, 1995 state in relevant part: "Posterior of [right] hand swollen no redness, not hot to touch splint applied given Advil." The plaintiff went back to the medical unit the following day and was again examined by nurse Lackey, and was told that an appointment had been made for an x-ray the following day. Nurse Lackey's notes from March 12, 1995, state in relevant part: "1:25 pm Dr. Sinha informed ... x-ray [right] hand in AM." The following day, March 13, 1995, the prison took an X-ray of his hand, showing the fracture, and he was transferred to the Erie County Medical Center where a cast was placed on his hand. In a grievance filed April 3, 1995, the plaintiff states only that Muscarella was "negligent." Not until later did the plaintiff make any allegation against Lackey or the other defendants.

 By Order dated June 30, 1995, the plaintiff was granted leave to proceed in forma pauperis. Pursuant to 28 U.S.C. ยง 1915(e), the Court may appoint counsel to represent an indigent party. However, the decision whether or not to assign counsel is within the Court's discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The factors which the Court must consider in deciding whether or not to appoint counsel are as follows:

1. Whether the indigent's claims seem likely to be of substance;
2. Whether the indigent is able to investigate the crucial facts regarding his claim;
3. Whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder;
4. Whether the indigent is able to present his case;
5. Whether the legal issues involved are complex; and
6. Whether there are any special reasons why appointment of counsel would be more likely than not to lead to a just determination.

 Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997).

 Applying these principles to the instant case, the Court finds that appointment of counsel is not warranted. First, the plaintiff's claim does not seem likely to be of substance. In Ross v. Kelly, 784 F. Supp. 35, 43 (W.D.N.Y. 1992), affirmed 970 F.2d 896 (2d Cir. 1992), cert denied 506 U.S. 1040, 113 S. Ct. 828, 121 L. Ed. 2d 698 (1992), the court held:

To establish an Eighth Amendment violation based on the alleged inadequacy of prison medical treatment or the withholding of essential health care, plaintiff must prove that the defendants' actions or omissions amounted to "deliberate indifference to a serious medical need." Recently, the Supreme Court held that the deliberate indifference standard includes both an objective and a subjective component. As to the former--the objective component, a court must ask whether there has been a sufficiently serious deprivation of the prisoner's constitutional rights. With respect to the latter, a court must consider whether the deprivation was brought about by the defendants in wanton disregard of those rights. To establish deliberate indifference, therefore, plaintiff must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain. (Citations omitted).

 The court went on to state that:

A [prisoner's] complaint that a physician 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. Rather, the plaintiff must allege conduct that is "repugnant to the conscience of mankind" or "incompatible with the evolving standards of decency that mark the progress of a maturing society." Id. at 44 (Citations omitted).

 The deliberate indifference standard has an objective prong and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). This standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain." Id. Second, the charged official must act with a sufficiently culpable state of mind, i.e. more than negligence but less than conduct undertaken for the very purpose of causing harm. Id. A prison official acts with deliberate indifference where he "knows of and disregards an excessive risk to inmate health or safety; the ...

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