United States District Court, S.D. New York
September 16, 2004.
LUIS SANCHEZ, Plaintiff,
MESSHALL'S, ET AL., Defendants.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
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*fn1 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. 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.