United States District Court, D. New Jersey
Malcolm Hunter, Plaintiff Pro Se #84212-083
B. SIMANDLE, U.S. DISTRICT JUDGE
Plaintiff Malcolm Hunter is a convicted and sentenced federal
prisoner currently confined in FMC Fort Worth, Texas. He is
proceeding in forma pauperis with a civil rights
complaint filed pursuant to Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971), and the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. § 2671
et seq. He has also moved for the appointment of pro bono
counsel. [Docket Entry 2].
this time, the Court must review the complaint pursuant to 28
U.S.C. § 1915(e)(2)(B) to determine whether it should be
dismissed as frivolous or malicious, for failure to state a
claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from suit.
Having completed this screening, the Court will permit the
complaint to proceed. The Court will also grant
Plaintiff's motion for the appointment of counsel.
Plaintiff raises four claims: (1) a medical malpractice claim
against the United States under the FTCA for failing to
examine his injuries after being assaulted; (2) deliberate
indifference to his medical needs against defendants Phillip
Wawrzyniak, Lt. Thomas, Carl Scuesa, Nicoletta Turner-Foster,
Chigozie Ibe, N. West, Ravi Sood, Mr. Wilks, Ms. Barton, S.
Rubio, James Gibb, Burlew, Clark, Watson, SHO Officer Clark,
Eckerson, Lt. McCool, and John Does 1-3 in violation of the
Eighth Amendment; (3) a “special relationship
clause” violation against Mr. Boyd and Mr. Melsky in
violation of the Fifth Amendment's Due Process Clause;
and (4) a second medical malpractice and/or negligence claim
against the United States for failing to provide appropriate
post-operative care and antibiotics. [Docket Entry 1 at 8].
the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26,
1996) (“PLRA”), district courts must review
complaints in those civil actions in which a prisoner is
proceeding in forma pauperis, see 28 U.S.C.
§ 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b),
or brings a claim with respect to prison conditions,
see 42 U.S.C. § 1997e. The PLRA directs
district courts to sua sponte dismiss any claim that is
frivolous, is malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. This action is
subject to sua sponte screening for dismissal under 28 U.S.C.
§ 1915 because Plaintiff is a prisoner proceeding in
determining the sufficiency of a pro se complaint, the Court
must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89,
93-94 (2007) (following Estelle v. Gamble, 429 U.S.
97, 106 (1976)); see also United States v. Day, 969
F.2d 39, 42 (3d Cir. 1992). According to the Supreme
Court's decision in Ashcroft v. Iqbal, “a
pleading that offers ‘labels or conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
survive sua sponte screening for failure to state a claim,
complaint must allege “sufficient factual matter”
to show that the claim is facially plausible. Fowler v.
UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(citation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d
Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
Moreover, while pro se pleadings are liberally construed,
“pro se litigants still must allege sufficient facts in
their complaints to support a claim.” Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
Plaintiff alleges he received inadequate medical care from
prison officials after he was assaulted by multiple inmates
on April 10, 2016 while he was confined in FCI Fort Dix, New
Jersey. [Docket Entry 1 ¶ II.A]. The Court has reviewed
his allegations and concludes he has sufficiently alleged a
deliberate indifference claim under the Eighth Amendment.
Court also concludes that Plaintiff has sufficiently alleged
FTCA claims against the United States.Plaintiff has
provided a copy of his notice of claim form, [Id. at
27]; therefore, the Court will preliminarily exercise
jurisdiction over the FTCA claims.
Plaintiff's “special relationship” claim,
citing the Due Process Clause of the Fifth Amendment, centers
on his allegations that defendants Boyd and Melsky failed to
provide him with Bureau of Prisons remedy forms while he was
incarcerated in the special housing unit (“SHU”).
He asserts that the failure to provide him with the remedy
forms prevented him from going to Health Services to be
evaluated in a timely manner and frustrated his ability to
exhaust his administrative remedies. [Id. at 22].
alleges that he “suffered for months with excruciating
pain, emotional and mental distress, not knowing whether or
not he'll be able to use his hand again. . . . The
surgery Hunter received would not have been necessary, had
defendants protected and cared for Hunter as their
affirmative duties imposes.” [Id.].
a sentenced and convicted prisoner, Plaintiff's failure
to protect claims are more appropriately considered under the
Eighth Amendment standard. Plaintiff's claims against
defendants Boyd and Melsky may proceed as there is a
reasonable inference that they knew Plaintiff “face[d]
a substantial risk of serious harm and disregard[ed] that
risk by failing to take reasonable measures to abate
it.” Farmer v. Brennan, 511 U.S. 825, 847
Court turns now to Plaintiff's motion for the appointment
of counsel. Indigent persons raising civil rights claims have
no absolute right to counsel. See Parham v. Johnson,
126 F.3d 454, 456-57 (3d Cir. 1997). As a threshold matter,
there must be some merit in fact or law to the claims the
plaintiff is attempting to assert. See Tabron v.
Grace, 6 F.3d 147, 155 (3d Cir. ...