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.
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
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
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
claims asserted by the plaintiff warrant the appointment of
counsel. As a ...