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United States District Court, S.D. New York

March 3, 2004.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge


Russell Taylor ("Taylor"), a pro se litigant, commenced this action, pursuant to 42 U.S.C. § 1983, contending that the defendants 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 diagnose and treat timely and appropriately his onset of Bell's palsy.

In August 1999, the plaintiff was incarcerated at the Sing Sing Correctional Facility. He maintains that he visited the emergency sick call window and complained of dizziness, swelling about his face and numbness and pain in his neck. However, the plaintiff contends, defendant Patricia Conklin ("Conklin") failed to provide him any medical treatment. Instead, the plaintiff recalls, she directed him to return to his housing unit and to "sign up for regular sick call." Later that morning, Taylor contends he returned to the emergency sick call window and defendant Hadiyah Abdullah failed to provide him with medical treatment after the plaintiff explained that he was still experiencing the same symptoms that he had previously reported to Conklin. Page 2

  The following day, Taylor was seen by defendant Quovadis Smith, a nurse at the facility, who, according to Taylor, told him that he would be scheduled to be seen by the facility's physician. However, Taylor alleges that the nurse did not dispense any pain medication to him. Later that day, Taylor reported to a corrections officer that he felt dizzy, had a swollen face and was experiencing extreme pain and numbness in his neck. The facility's medical unit was contacted concerning Taylor's reported discomfort. However, Conklin is alleged to have refused to provide Taylor medical attention based on what the corrections officer communicated to the medical unit about Taylor's complaint of discomfort.

  One day later, the plaintiff recalls, in addition to the symptoms he had experienced previously, his face was then in a "drooped" position. Taylor requested emergency sick call attention. However, when a corrections officer contacted the medical unit regarding Taylor's condition, Conklin refused to speak with the plaintiff or to provide medical assistance to him. Taylor was directed to submit a request to be seen during the regular sick call.

  Taylor contends that for the next seven days, he requested to be seen during the regular sick call. However, he was never summoned to the medical unit in response to his requests. On September 2, 1999, a physician's assistant examined Taylor at the correctional facility. Taylor was diagnosed as suffering from Bell's palsy, for which he was prescribed prednisone. Taylor maintains that he should have received "viral" medication and should have received diagnostic tests so that the amount of damage, if any, to his facial nerve cells could have been assessed and appropriate therapy ordered.

  After the initial diagnosis was made by the physician's assistant, Taylor was examined by him again. No change was observed in the plaintiff's condition. However, the physician's Page 3 assistant advised Taylor that he would request that Taylor be examined by a neurology consultant.

  In October 1999, Taylor was examined by a neurologist, who confirmed the diagnosis of Bell's palsy. Taylor alleges that the neurologist failed to prescribe therapeutic treatment to restore or to reestablish his full range of facial movements. Taylor alleges further that, as a result of the conduct of the defendants, he suffered severe physical pain, mental pain and anguish and permanent facial disability. Furthermore, he contends that the defendants acted negligently when they denied him prompt and adequate medical care.

  In order to prosecute this action, Taylor has requested that the Court appoint counsel to assist him. Taylor's application is addressed below.

  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 Page 4 who is incarcerated by a state is entitled to received adequate medical care. See Farmer v. Brennan, 511 U.S. 825, 832, 114 So. 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 may have merit. The plaintiff alleges that the defendants were negligent in providing medical services to him. Furthermore, the plaintiff contends that the defendants failed to prescribe medication for him that he believed was warranted, based upon the Bell's palsy diagnosis that was made.

  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 Page 5 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.



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