DeVary v. Derosiers et al

Filing 105

MEMORANDUM ORDER, The motion injunctive relief (DI 91 ) is denied. CCS shall advise the court within fourteen (14) days of the date of this Memorandum Order of status of the Triple Play Pump. The motion for injunctive relief (DI 95 ) is denied. The motion for injunctive relief (DI 98 ) is denied. The request for counsel (DI 99 ) is denied without prejudice to renew.. Signed by Judge Gregory M. Sleet on 5/3/13. (cla, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

STEPHEN DEVARY,

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) Civ. Action No. 12-150-GMS
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Plaintiff,
v.
DR. DEROSIERS, et aI.,
Defendants.

MEMORANDUM ORDER

At Wilmington, this

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day of

,2013, having considered the plaintiff's

motions for injunctive relief (D.I. 91,95,98) and req est for counsel (D.!. 99);
IT IS ORDERED, as follows:

I. Introduction
The plaintiff, Stephen DeVary ("DeVary"), a prisoner housed at the James T. Vaughn
Correctional Center, Smyrna, Delaware filed this lawsuit pursuant to 42 U.S.C. § 1983. He
proceeds pro se and was granted leave to proceed in forma pauperis. Pending before the court
are three motions for injunctive relief and a request for counsel, all filed by DeVary. (D.I. 91,95,
98,99.) DeVary was previously placed on notice that future motions for injunctive relief seeking
the same or similar relief in the form of medical treatment will be docketed, but not considered.
At first blush it does not appear that the instant motions for injunctive relief sought the same or
similar medical treatment. Therefore, the court considers the merits of the motion.

II. Injunctive Relief
A party seeking a preliminary injunction must show: (l) a likelihood of success on the
merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting

preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the
public interest favors such relief. Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708
(3d Cir. 2004) (citation omitted). "Preliminary injunctive relief is 'an extraordinary remedy' and
'should be granted only in limited circumstances. '" Id. (citations omitted). Because of the
intractable problems of prison administration, a request for injunctive relief in the prison context
must be viewed with considerable caution. Abraham v. Danberg, 322 F. App'x 169, 170 (3d Cir.
2009) (unpublished) (citing Goffv. Harper, 60 F.3d 518, 520 (8th Cir. 1995».
DeVary seeks orders for: (1) Correct Care Solutions ("CCS") to locate and return a
medical device; (2) CCS to provide dental care; and (3) the defendants to allow the plaintiff to
communicate with his physician and for access to his medical records (D.I. 91, 95, 98). Initially
the court notes that DeVary's complaint raises claims regarding treatment to his shoulder
following an injury.

A. Triple Play Pump, D.I. 91
DeVary indicates that following shoulder surgery he was provided a Triple Play Pump.
The pump was taken by a correctional officer and a nurse. The company that provided the pump,
Compression Solutions, Inc. ("Compression Solutions") wrote DeVary for return of the device.
DeVary sent a copy of the request to the medical director, but received no response. He recently
received a bill from Compression Solutions for the cost of the device. In addition, DeVary
received correspondence stating that he would be charged for his surgery if he did not provide the
proper insurance information. DeVary also forwarded that letter to the medical director. DeVary
asks the court to order CCS to locate and return the pump and to provide the proper insurance
information.
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Given the record before the court, DeVary has not demonstrated the likelihood of success
on the merits as the motion found at Docket Item 91. Therefore, the motion (D.L 91) will be
denied. However, the court will order CCS to advise the court of the status of the pump (i.e.,
whether it has been located returned) and whether it has provided the necessary insurance
information to DeVary' s medical providers.

B. Dental, D.I. 95
DeVary seeks an order for CCS to; (1) find adequate dentists for the VCC; (2) make and
enforce dental policies; and (3) complete all dental work he requires. DeVary's complaint
concerns a shoulder injury and sequent care. It does not raise dental needs issues. Moreover,
records attached to th defendants' opposition indicate that DeVary has received dental treatment.
DeVary has not demonstrated the likelihood of success on the merits. Therefore, the
motion (D.1. 95) will be denied.

C. Dr. Gabriel Lewullis, D.I. 99
DeVary seeks injunctive relief for the defendants to: (1) allow him to have full
correspondence with Lewullis, his surgeon; (2) require Dr. Lewullis to release medical records to
him; and (3) have Dr. Lewullis review his medical records and file an affidavit of merit. To the
extent that DeV ary wishes to correspond with his surgeon, it does not appear that the defendants
have the authority to grant that request. Rather, in the court's experience, prison officials make
the determination with whom an inmate may correspond. With regard to obtaining medical
records, DeVary has available the means of discovery through the Federal Rules of Civil
Procedure. Finally, to the extent that DeVary seeks a medical expert, Rule 706 provides that the
trial judge has broad discretion to appoint an independent expert answerable to the court, whether

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sua sponte or on the motion of a party. Ford v. Mercer County Corr. Ctr., 171 F. App'x 416,
420 (3d Cir. 2006) (unpublished). The policy behind the rule is to promote the jury's factfinding
ability. Id. (citations omitted). See Ledford v. Sullivan, 105 F.3d 354, 359-60 (7th Cir. 1997)
Gury could comprehend whether plaintiffs medical needs were "serious" without the aid of a
court-appointed expert). At this stage of the proceedings it is not clear that expert testimony is
necessary. Moreover, to the extent that DeVary seeks to now raise a medical negligence claim
under Delaware law, DeVary was required to submit an affidavit of merit as to each defendant
signed by an expert witness at the time he filed the complaint - not at this late date. See 18 Del.
C. § 6853(a)(1).
DeV ary has not demonstrated the likelihood of success on the merits. Therefore, the
motion (D.L 98) will be denied.

III. Request for Counsel
DeVary seeks counsel for a number of reasons, including, but not limited to, that his case
has strong merit, he is unskilled in the law, an attorney will assist in discovery, and he has
unsuccessfully sought counsel. (D.I. 99). A pro se litigant proceeding in forma pauperis has no
constitutional or statutory right to representation by counseL I See Brightwell v. Lehman, 637
F.3d 187, 192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However,
representation by counsel may be appropriate under certain circumstances, after a finding that a
plaintiffs claim has arguable merit in fact and law. Tabron, 6 F.3d at 155.

ISee Mallard v. United States Dist. Court for the S. Dist. ofIowa, 490 U.S. 296 (1989)
(§ 1915(d) (now § 1915(e)(1») does not authorize a federal court to require an unwilling attorney
to represent an indigent civil litigant, the operative word in the statute being "request.".
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After passing this threshold inquiry, the court should consider a number of factors when
assessing a request for counsel, including:
(1) the plaintiffs ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree
to which factual investigation will be necessary and the ability
ofthe plaintiffto pursue investigation; (4) the plaintiffs capacity
to retain counsel on his own behalf; (5) the extent to which a
case is likely to tum on credibility determinations; and
(6) whether the case will require testimony from expert witnesses.

Tabron, 6 F.3d at 155-57; accord Parham, 126 F.3d at 457; Montgomery v. Pinchak, 294 F.3d
492, 499 (3d Cir. 2002).
At present, DeVary's filings indicate that he possesses the ability to adequately pursue his
claims. Upon consideration of the record, the court is not persuaded that representation by an
attorney is warranted at this time. The court can address the issue at a later date should counsel
become necessary. Accordingly, the court will deny the request for counsel. (D.I. 99.)
IT IS THEREFORE ORDERED, that:
1. The motion injunctive relief (D .I. 91) is denied. CCS shall advise the court within
fourteen (14) days ofthe date ofthis Memorandum Order of status ofthe Triple Play Pump (i.e.,

whether it has been located and returned) and whether it has provided the necessary insurance

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information to DeVary's medical service providers.
2. The motion for injunctive relief (D.I. 95) is denied.
3. The motion for injunctive relief (D.I. 98) is denied.
4. The request for counsel (D.I. 99) is denied without prejudice to renew.
5. DeVary is again placed on notice that future motions for injunctive relief seeking the
same or similar relief in the form of medical treatment will be docketed, but not considered. In
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addition, motions for injunctive relief on issues unrelated to the claims in the complain will e
docketed, but not considered.

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