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Grant v. Cathel

April 25, 2006


The opinion of the court was delivered by: Hughes, U.S.M.J.


This matter comes before the Court upon Application by pro se Plaintiff, Jeffrey Grant ("Plaintiff"), for Appointment of Counsel pursuant to 28 U.S.C. § 1915 [Docket Entry #8]. Defendant submitted opposition to the Motion. [Docket Entry #10]. The Court has reviewed the written submissions of the parties and considered the matter pursuant to FED. R. CIV. P. 78. For the reasons set forth below, Plaintiff's Application for Appointment of Counsel is denied without prejudice.


Since 2003, Plaintiff has been incarcerated in protective custody at New Jersey State Prison ("NJSP"), located in Trenton, New Jersey. Plaintiff's incarceration has been complicated by the effects of non-Hodgkins lymphoma, which Plaintiff contracted in 1996. On or about August 8, 2005, Plaintiff, proceeding pro se, filed a Complaint in United States District Court for the District of New Jersey seeking injunctive and compensatory relief related to allegations that state prison officials and contracted medical providers were deliberately indifferent to Plaintiff's medical needs related to his cancer. The named Defendants are Ronald Cathel (Administrator of NJSP), Dr. Hannah Manar (CMS*fn1 resident doctor at NJSP), Dr. George Achebe (CMS head doctor at NJSP), Dr. Deborah Anicette (CMS administrative assistant), and Devon Brown (New Jersey Department of Corrections Commissioner).

Concurrent to filing the Complaint, Plaintiff also filed a Motion for a Temporary Restraining Order requesting that Defendants be prevented from denying Plaintiff pain medications that were prescribed earlier by a doctor at an outside medical facility. [Docket Entry #1]. The Court further notes that not all Defendant medical providers have answered the Complaint.

Plaintiff asserts that he suffers from a non-curable form of non-Hodgkins lymphoma. Despite receiving chemotherapy at an unspecified time, Plaintiff claims that the cancer effects his lymph nodes and internal organs, causing swelling and severe pain. Based on Plaintiff's complaint, it appears that Plaintiff receives in-house treatment from CMS doctors, including the administration of pain medications. Based on Plaintiff's submissions, Plaintiff also receives treatment from St. Francis Medical Center, and in particular, receives prescriptions for pain medication from an Oncologist who is both a medical specialist at St. Francis and a contract employee of CMS.

Pursuant to 42 U.S.C. § 1983, Plaintiff alleges that Defendants were deliberately indifferent to his health and safety in violation of the Eighth Amendment, as well as grossly negligent. (Pl.'s Compl. ¶¶ 65-79). Specifically, Plaintiff alleges that on numerous occasions between January 2004 and April 2005, Defendant medical provider doctors (CMS) arbitrarily provided Tylenol in place of the pain medications Oxycontin and Darvacette as prescribed by a St. Francis Medical Center oncologist. Plaintiff cites a personal dispute between the Medical Center's oncologist and Defendant medical providers as the reason that the CMS doctors would not administer the prescribed medication. Plaintiff further alleges that Defendant medical providers failed to re-schedule Plaintiff for missed laboratory work and medical treatment at St. Francis Medical Center.

Plaintiff additionally alleges that Defendant state prison officials were deliberately indifferent to Plaintiff's medical needs by failing to act on Plaintiff's written complaints regarding CMS' conduct. Plaintiff also claims that Defendants failed to provide security personnel to escort him to St. Francis Medical Facility for doctors visits and laboratory work. Plaintiff further alleges that Defendant State Prison Officials failed to re-schedule these missed appointments. Finally, Plaintiff alleges that Defendant State Prison Officials were deliberately indifferent to Plaintiff's medical needs by failing to adequately supervise third party medical contractor CMS.

By Court Order dated August 25, 2005 [Docket Entry #2], the District Court denied Plaintiff's motion for a Temporary Restraining Order. The District Court also ordered that Plaintiff could proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and (b), and additionally provided that Plaintiff could apply for Appointment of Counsel.

In the present Application before the Court, Plaintiff argues that he will need the assistance of an attorney due to the debilitating effects of non-Hodgkins lymphoma. (Pl.'s App. ¶ 3). Plaintiff argues that Defendants' deliberate indifference by failing to provide effective treatment "exacerbates [his] infirmities...which impedes [his] ability to realize, understand, and present the complexities of this matter." Id. "This gives the defendants an unfair advantage as it is through their deliberate indifference which directly deprives [him] of the ability to function without the debilitating effects from the disease." Id. Plaintiff further argues that although he has been assisted by others in filing pleadings and motions, he requires an attorney due to his "lack of training in the legal and medical professions that should be a barrier to the effective presentation of [his] claims." Id. Plaintiff also claims that his close-custody confinement limits his access to the law library, research materials and records. Id. Plaintiff admits that the legal issues may not be complex, but asserts expert medical testimony may be required. Id. Finally, Plaintiff claims that this case includes "exceptional circumstances." Id.

Defendant opposes Plaintiff's Motion for Appointment of Counsel. Defendant argues that Plaintiff has "neither a constitutional or statutory right to counsel." (Def.'s Ltr. Mem. at 1) (citing Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997)). Defendant also argues that Plaintiff's claim of deliberate indifference "has no basis in law or fact." Id. at 6. Moreover, Defendant argues that Plaintiff "has already demonstrated that he has the capacity to effectively present his claims without appointed counsel." Id. Defendant additionally asserts that Plaintiff already possesses the evidence necessary to prove his allegations, if true, and therefore does not require the assistance of counsel. Id. The State further contends that expert testimony will not be necessary. Id. Finally, the State argues that Plaintiff's § 1983 claims must be dismissed because the claims rely solely on a theory of respondeat superior. Id.

The Court conducted a video conference with Plaintiff and counsel for Defendants on February 8, 2006. After conducting the video conference, the Court ordered Defendant CMS to "arrange for an oncologist to review Plaintiff's case to determine whether narcotic pain medication is medically appropriate." [Docket Entry #25]. On March 22, 2006, Defendant CMS submitted an updated status report on Plaintiff's medical condition, signed by Dr. Abdul Mughal, to the Court. Dr. Mughal concluded that Plaintiff's "evaluation did not show any evidence of recurrent lymphoma." (Mughal Report at ¶ 3).


Pursuant to § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). "Indigent civil litigants possess neither a constitutional nor a statutory right to appointed counsel." Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Parham v. Johnson, 126 F.3d at 456-57). Nevertheless, the Third Circuit "has interpreted ยง 1915 as affording district ...

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