On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 03-cv-00205J) District Judge: Honorable Kim R. Gibson
The opinion of the court was delivered by: Hardiman, Circuit Judge.
Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.
In this appeal we consider whether a prisoner who has been denied in forma pauperis status because he has "three strikes" under 28 U.S.C. § 1915(g) is precluded from obtaining counsel pursuant to § 1915(e)(1). We hold that he is.
I A Bob Brightwell was sentenced to life in prison for a robbery and murder he committed in 1975. Since 1977, Brightwell has been housed in various Pennsylvania State Correctional Institutions (SCIs), including SCI-Somerset from May 2003 through January 2004, SCI-Mahanoy from May 2004 through November 2006, and SCI-Houtzdale, where he currently resides.
Brightwell claims to suffer from serious medical conditions and has long maintained that prison officials have been deliberately indifferent to his medical needs. His allegedly unattended-to conditions include: diabetes, a skin condition called keratosis pilaris, extreme liver and kidney pain, blurred vision, and severe "imploding-type" migraines caused by "a capsule" mistakenly left in his right eye during a botched cataract surgery in 1999.*fn1 According to Brightwell, these conditions required the following accommodations: a diabetic diet, Keri brand skin lotion, a sufficiently warm temperature in his prison cell, and remedial eye surgery. In the months before he filed an amended complaint in this case, Brightwell sought the aforementioned accommodations through sick call requests, grievances, and letters to Department of Corrections (DOC) officials. All of these entreaties were denied based on the DOC's determination that Brightwell's conditions of confinement and medical care were adequate.
Brightwell also claims that on May 7, 2004, he suffered from diabetic shock and that a physician's assistant who was in the room at the time failed to assist him. The next day, Brightwell filed a grievance alleging "unethical conduct by a member of [the staff]." Three weeks later, a prison administrator signed a misconduct report charging Brightwell with lying about the incident. The misconduct charge was later dismissed without any sanction against Brightwell.
B On September 16, 2004, Brightwell filed an amended complaint against a number of prison officials and employees record whether "capsule" refers to a foreign object or to the "capsule of the lens," which is a natural part of the human eye. See HENRY GRAY, F.R.S., GRAY'S ANATOMY 821 (T. Pickering Pick, F.R.C.S. & Robert Howden, M.A., M.B., alleging: (1) breach of contract, (2) a due process violation relating to his prior placement in administrative custody, (3) violations of the International Covenant on Civil and Political Rights and the Convention Against Torture, (4) a violation of his First Amendment rights in the form of a retaliatory misconduct report levied against him for filing a grievance following the May 2004 diabetic shock incident, and (5) violations of 42 U.S.C. § 1983 and the Eighth Amendment for deliberate indifference to his serious medical needs.*fn2 He sought compensatory and punitive damages and an order compelling Defendants to remedy the defects in his medical care. In April 2006, the District Court granted in part Defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), allowing only Brightwell's Eighth Amendment deliberate indifference and First Amendment retaliation claims to move forward.*fn3
While his case was pending, Brightwell filed a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915 and three motions for the appointment of counsel under § 1915(e)(1). On March 23, 2004, Magistrate Judge Ila Jeanne Sensenich entered orders denying Brightwell's motion for leave to proceed in forma pauperis and his first motion for the appointment of counsel. The latter order was a handwritten notation at the top of the motion which stated: "Motion denied for reasons given in report and recommendation dated 10/30/2003."
The October 30, 2003 Report and Recommendation to which Magistrate Judge Sensenich made reference explained that Brightwell was ineligible for in forma pauperis status because his history of filing frivolous suits triggered the "three strikes" provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). Magistrate Judge Sensenich's docket review indicated that as of October 2003, Brightwell had filed seventeen actions in Pennsylvania district courts. She aptly described him as "a litigious prisoner" whose motion to proceed in forma pauperis had to be denied under the PLRA. On May 3, 2006, Brightwell filed another motion requesting counsel. This motion was denied by Magistrate Judge Lisa Pupo Lenihan, who emphasized two considerations: (1) the scarcity of pro bono counsel and (2) her willingness to revisit the issue if the case proceeded to trial. Brightwell appealed the decision to deny him counsel, but United States District Judge Kim R. Gibson affirmed Magistrate Judge Lenihan's order. On October 26, 2006, Brightwell again moved for the appointment of counsel, and Magistrate Judge Lenihan denied the motion for the same reasons articulated in her previous denial.
On November 30, 2006, Defendants filed a motion for summary judgment. Magistrate Judge Lenihan issued a Report and Recommendation finding in Defendants' favor, and on August 29, 2007, Judge Gibson adopted the Report and Recommendation, granting summary judgment. Brightwell filed this timely appeal.*fn4
II Brightwell presents three claims of error for our consideration. First, he contends the District Court erred in denying his motions for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). Second, he argues that the District Court should not have ruled on the motions for summary judgment because he was given inadequate notice and opportunity to reply. Finally, he maintains that ...