KOMIS v. OWENS et al
Filing
5
OPINION. Signed by Judge Renee Marie Bumb on 11/16/16. (jbk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JASON KOMIS,
Plaintiff,
v.
DAVID OWENS, et al.,
Defendants.
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Civ. Action No. 16-5716 (RMB)
OPINION
BUMB, District Judge
Plaintiff Jason Komis, a prisoner, was confined at South
Woods prison at the time he filed this civil rights action on
September 20, 2016, along with an application to proceed in
forma pauperis (“IFP.”) (Compl., ECF No. 1; IFP app., ECF No. 11 and 1-11 at 10-15.) Plaintiff’s IFP application is properly
completed pursuant to 28 U.S.C. § 1915(a), and establishes his
financial inability to prepay the $400.00 filing fee. The IFP
application will be granted. Therefore, the Court will review
the Complaint as required by 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b). The Court will also address Plaintiff’s motion for
appointment of counsel. (ECF No. 1-2.)
I.
DISCUSSION
A.
Sua Sponte Dismissal
1
Under
courts
28
must
U.S.C.
screen
§§
1915(e)(2)(B)
complaints
filed
and
by
1915A(b),
prisoners
district
in
civil
actions and dismiss any claim that is frivolous or 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.
A complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). A complaint must contain sufficient factual
matter, accepted as true, to “‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff
pleads
factual
reasonable
content
inference
that
that
allows
the
the
defendant
court
is
to
liable
draw
the
for
the
misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556.)
“While
legal
conclusions
can
provide
the
framework
of
a
complaint, they must be supported by factual allegations.” Id.
at 679.
Courts must liberally construe pleadings filed by pro se
litigants. Erickson v. Pardus, 551 U.S. 89, 94 (2007). If a
complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the
2
amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108
(3d Cir. 2002).
B.
THE COMPLAINT
The complaint arises out of an inmate assault on Plaintiff
at
Camden
County
Correctional
Facility
in
January
2015,
his
subsequent transfer to South Woods State Prison, and Plaintiff’s
medical treatment for chronic pain and ulcerative colitis in
2015 and 2016. (Compl., ECF No. 1.) Plaintiff asserts causes of
action under the Eighth and Fourteenth Amendments for failure to
protect him from an inmate assault and deliberate indifference
to
his
serious
medical
needs.
(Id.)
Plaintiff
also
alleges
Defendants were negligent, but he did not specifically plead a
cause of action under the New Jersey Tort Claims Act (“NJTCA”),
N.J.S.A. § 59:8.
The defendants are David Owens, Warden of Camden County
Correctional
Facility
(“CCCF”);
four
unidentified
“John
Doe”
Correctional Officers at CCCF; Gary Lanigan, Commissioner of the
New
Jersey
Department
of
Corrections;
Willie
Bonds,
Administrator of South Woods State Prison; Dr. William Briglia,
Director of Medical Services, South Woods State Prison; Lisa
Renee Mills, Nurse Practitioner, South Woods State Prison; and
Anthony
Thomas,
Medical
Ombudsman,
(Id., ¶¶2-11.)
3
South
Woods
State
Prison.
Plaintiff alleges the following facts in support of his
claims. On January 13, 2015, Plaintiff was temporarily housed at
CCCF as a state inmate, and he was assaulted by five county
inmates. (Compl., ECF No. 1 at 6.) He suffered a broken jaw and
injuries
to
his
head,
cervical
spine,
and
shoulder.
(Id.)
Plaintiff contends CCCF officials and officers were deliberately
indifferent to an excessive risk from the ongoing gang problem
at CCCF, and they had actual knowledge of impending harm. (Id.)
After
Lourdes
the
assault,
Hospital
in
Plaintiff
Camden.
(Id.)
was
taken
The
same
to
Our
night,
Lady
of
he
was
returned to the infirmary in CCCF, where he “was forced to sleep
on a boat in the middle of the floor,” and he was not given the
pain medication prescribed at the hospital. (Id.) When Plaintiff
saw a dentist the next day, who confirmed his jaw was broken, he
was denied the pain medication prescribed at the hospital. (Id.)
Plaintiff did not have food or medication for more than 24
hours. (Id. at 6.) He was transferred to Virtua Hospital on
January 15, 2015. (Id.) The hospital billed Plaintiff in excess
of $22,000 for treatment, including having his jaw wired shut.
(Id. at 7.) He was returned to CCCF the same day, where he was
placed on a liquid diet instead of a pureed diet. (Id.) He was
only provided Motrin, which did not alleviate his severe pain.
(Id.)
4
Plaintiff did not receive any pain medication from January
20 through January 23, 2015, while he was housed at the Central
Reception
and
Assignment
Facility
(“CRAF.”)
From
there,
Plaintiff was taken to South Woods State Prison (“SWSP”), where
he was housed in the Extended Care Unit (“ECU”) from January 23,
2015 through March 2015. (Id.) In the ECU, he was given a pureed
diet and pain medication. (Id.)
Plaintiff was transferred to the general population at SWSP
in mid-March 2015. (Id.) He requested “proper medication” for
his chronic ulcerative colitis, and MRIs to evaluate his neck
and shoulder injuries from the assault. (Id.) On July 6, 2016,
he
had
an
x-ray
of
his
neck
and
shoulder,
which
showed
degenerative changes to his cervical spine. (Id.)
In July 2015, Plaintiff complained of chronic pain, despite
having
been
on
steroids,
Tylenol
and
NSAIDS.
(Id.)
He
was
prescribed physical therapy. (Id.) On July 24, 2015, Plaintiff
filed a grievance complaining that he had no relief from the
medications for his neck and shoulder pain and his ulcerative
colitis. (Id.) Plaintiff had an MRI of his cervical spine on
September
1,
2015,
which
showed
degenerative
changes
and
“multiple signs of disc problems, mostly due to traumatic force
placed on the neck and shoulder.” (Id.)
Plaintiff
alleges
Nurse
Lisa
Renee
Mills
mistreated
his
ulcerative colitis, although she provided the proper treatment
5
to
another
inmate
with
the
same
condition.
(Id.
at
8.)
On
September 23, 2015, Plaintiff saw Dr. Chowdhury, the prison’s
gastroenterologist, for ulcerative colitis, pain in his joints,
and
anxiety.
(Id.)
Dr.
Chowdhury
prescribed
Klonopin
and
Naprosyn. (Id.)
Before Plaintiff was provided with Klonopin, which had to
be approved by the mental health unit, Nurse Mills prescribed
Inderal for Plaintiff’s tremors. (Id.) This caused Plaintiff to
suffer
side
joint
pain.
effects
(Id.)
of
pain,
Plaintiff
diarrhea,
contends
nausea,
Inderal
vomiting
should
not
and
be
prescribed to a person with ulcerative colitis. (Id.) He alleges
Dr. Briglia, who was responsible for supervising Nurse Mills,
was negligent for allowing her to prescribe Inderal to him.
(Id.)
In February 2016, Plaintiff filed grievances concerning the
lack of treatment for his joint pain. (Id.) He also wanted fish
oil to treat ulcerative colitis. (Id.) When Plaintiff saw Nurse
Mills for a chronic care appointment in March 2016, she threw
him out of her office when he showed her paperwork from the
Chrohn’s and Colitis Foundation of America (“CCFA”).
In a formal complaint, Plaintiff complained that he should
have received Humira for his joint pain. (Id. at 9.) He noted
that
Nurse
Mills
prescribed
Tylenol
4,
Klonopin,
and
Triamcinolone Acetonide for another inmate who had ulcerative
6
colitis,
but
not
for
him.
(Id.)
At
some
point,
Nurse
Mills
refused to see Plaintiff for his health issues. (Id.) She denied
Plaintiff
access
to
the
prison’s
gastroenterologist
several
times. (Id.) Plaintiff is in chronic pain and cannot eat or
sleep well. (Id.)
Plaintiff
filed
a
lawsuit
in
a
New
Jersey
state
court
against CCCF, CRAF, NJDOC, Rutgers University Behavioral Health
Care,
St.
Francis
Medical
Center,
Gary
Lanigan,
Dr.
William
Briglia, Nurse Lisa Renee Mills and John and Jane Does, alleging
the same facts as alleged here, and asserting negligence and
deliberate indifference. (Id. at 10, ¶1.) The case was dismissed
because Plaintiff did not timely file his tort claim notice.
(Id.) Plaintiff asserts this is why he is now filing an action
under 42 U.S.C. § 1983. (Id.)
Plaintiff exhausted his administrative remedies. (Id. at
10-11.) For relief, he seeks declaratory judgment, an injunction
providing
for
immediate
examination
by
a
qualified
gastroenterologist, follow up medical treatment without delay,
and compensatory and punitive damages. (Id. at 12-13.)
C.
ANALYSIS
1.
The
NJTCA
NJTCA
provides
that
“[n]o
action
shall
be
brought
against a public entity or public employee under [the NJTCA]
unless
the
claim
upon
which
it
7
is
based
shall
have
been
presented in accordance with the procedure set forth in this
chapter.” N.J.S.A. § 59:8-3. Chapter 8 of the NJTCA requires a
claimant to file a Notice of Claim. Id. at § 59:8-4. The notice
must be signed and filed with the public entity within 90 days
of the accrual of the cause of action. Id. at § 59:8-8. “The
claimant
shall
be
forever
barred
from
recovering
against
a
public entity or employee if . . . [he] failed to file his claim
with the public entity within 90 days of accrual of his claim
except as otherwise provided in section 59:8-9.” Badalmente v.
Monmouth County Prosecutor’s Office, Civ. Action No. 08-2501,
2011 WL 1898833, at *8 (D.N.J. May 17, 2011).
Plaintiff alleged that the negligence claims he filed in
state court against Gary Lanigan, Dr. William Briglia, Nurse
Lisa Renee Mills and other entities were dismissed for failure
to timely file the requisite notice under the NJTCA. N.J. Stat.
§ 59:8-8 forever bars relief if the plaintiff fails to meet the
notice requirements. To the extent that Plaintiff may be trying
to pursue state law negligence claims in this action by alleging
the
defendants
prejudice
the
were
negligent,
claims
against
this
Court
Lanigan,
will
Briglia,
dismiss
and
with
Mills,
pursuant to N.J.S.A. § 59:8-8.
Plaintiff has not alleged whether he has complied with the
NJTCA notice requirements with respect to state tort law claims
against the remaining defendants, Willie Bonds, Anthony Thomas,
8
David Owens and the John Doe Correctional Officers at CCCF.
(Compl., ¶¶2-11.) The Court will dismiss such claims without
prejudice.
Plaintiff
may
reassert
negligence
claims
in
an
amended complaint, if he can allege compliance with the notice
requirements of the NJTCA. See El v. Wehling, Civ. Action No.
12-7750(JBS), 2015 WL 1877667, at *16 (D.N.J. Apr. 23, 2015)
(dismissing prisoner’s NJTCA claim upon screening for failing to
allege compliance with NJTCA notice requirement).
2.
Section 1983 claims
A plaintiff may assert a cause of action under 42 U.S.C. §
1983 for violations of his constitutional rights. Section 1983
provides, in relevant part:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory . . .
subjects, or causes to be subjected, any
citizen of the United States or other person
within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured
in an action at law, suit in equity, or
other proper proceeding for redress . . . .
42 U.S.C. § 1983.
To state a claim for relief under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution or
laws
of
the
United
States,
and
that
the
constitutional
deprivation was caused by a person acting under color of state
9
law. West v. Atkins, 487 U.S. 42, 48 (1998); Malleus v. George,
641 F.3d 560, 563 (3d Cir. 2011).
a. Failure to Protect
The
Eighth
Amendment
requires
prison
officials
to
take
reasonable measures “to protect prisoners from violence at the
hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833
(1994)
(internal
quotations
omitted).
To
state
a
claim
for
damages against a prison official for failure to protect from
inmate violence, an inmate must plead facts that show (1) he was
incarcerated
under
conditions
posing
a
substantial
risk
of
serious harm, (2) the official was deliberately indifferent to
that substantial risk to his health and safety, and (3) the
official’s deliberate indifference caused him harm. Farmer, 511
U.S. at 834; Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir.
1997).
To
meet
the
requisite
subjective
standard
of
deliberate
indifference, “the prison official-defendant must actually have
known or been aware of the excessive risk to inmate safety.”
Bistrian v. Levy, 696 F.3d at 367 (quoting Beers-Capitol v.
Whetzel, 256 F.3d 120, 125 (3d Cir. 2001)). Actual knowledge can
be shown by circumstantial evidence where (1) “̔a substantial
risk
of
inmate
attacks
was
longstanding,
pervasive,
well-
documented, or expressly noted by prison officials in the past,’
and (2) where ‘circumstances suggest that the defendant-official
10
being sued had been exposed to information concerning the risk
and thus must have known about it.’” Counterman v. Warren County
Correctional Facility, 176 F. App’x 234, 238 (3d Cir. 2006)
(quoting Beers-Capitol, 256 F.3d at 131 (quoting Farmer, 511
U.S. at 837)).
Plaintiff
alleges
only
that
there
was
an
ongoing
gang
problem at CCCF. He does not allege that any defendant was aware
he was at risk of an attack by a gang member(s). See Paulino v.
Burlington County Jail, 438 F. App’x 106, 109 (3d Cir. 2011)
(finding
no
deliberate
indifference
absent
showing
that
defendants were aware the plaintiff was at risk of attack by
other inmates.) Negligent failure to prevent an attack by an
inmate
is
insufficient
to
establish
violation
of
the
Eighth
Amendment. Schwartz v. Cnty of Montgomery, 843 F.Supp. 962 (E.D.
Pa.)
aff’d
observe
37
F.3d
1488
institutional
(3d
Cir.
policies
1994)
(stating
regarding
failure
supervision
to
of
dangerous inmates constitutes negligence and does not support a
§
1983
action
for
violation
of
the
Eighth
or
Fourteenth
Amendments).
Additionally, Plaintiff has used fictitious names to sue
correctional officers at CCCF for failure to protect. When using
a fictitious name for a defendant, the complaint must contain a
sufficient description to identify the defendant. Rutkowski v.
Liberty Mut. Ins., Co., 209 N.J. Super 140, 146-47 (N.J. Super.
11
Ct. App. Div. 1986); DeRienzo v. Harvard Industries, Inc., 357
F.3d 348, 353 (3d Cir. 2004). Plaintiff has alleged only that
the John Doe Defendants are correctional officers at CCCF who
failed to protect him. If Plaintiff seeks to reassert his claims
against
unidentified
correctional
officers
in
an
amended
complaint, he should provide information sufficient to show the
unnamed defendants can be identified. Plaintiff must also allege
facts supporting deliberate indifference, on the part of each
defendant, to the substantial risk of serious harm posed to
Plaintiff by the inmates who attacked him.
Plaintiff has also alleged the Warden of CCCF, David Owens,
and
the
Commissioner
of
the
New
Jersey
Department
of
Corrections, Gary Lanigan, are liable for failing to protect him
from the inmate assault. To state a supervisory liability claim
under the Eighth Amendment, “plaintiffs must first identify a
‘specific supervisory practice or procedure’ that the defendant
supervisor failed to employ, and then prove ‘the existing custom
and practice without that specific practice or procedure created
an
unreasonable
risk
...’”
Counterman
v.
Warren
County
Correctional Facility, 176 F. Appx. 234, 240-41 (3d Cir. 2006)
(quoting Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).
Plaintiff has not identified any policy, practice or procedure
that the supervisory defendants failed to employ, nor has he
alleged how that failure created an unreasonable risk of harm.
12
Therefore, Plaintiff’s failure to protect claims against Owens
and Lanigan will be dismissed without prejudice.
b.
The
Eighth
Inadequate Medical Care
Amendment’s
prohibition
against
cruel
and
unusual punishment requires that inmates are provided adequate
medical care. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976);
Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999). To state a claim
of inadequate medical care in violation of the Eighth Amendment,
an inmate must set forth:
prison
official’s
(1) a serious medical need; and (2) a
deliberate
indifference
to
that
serious
medical need. Estelle, 429 U.S. at 106. A serious medical need
includes a need for which “denial of treatment would result in
the unnecessary and wanton infliction of pain” or a “life-long
handicap or permanent loss.” Atkinson v. Taylor, 316 F.3d 257,
273 (3d Cir. 2003) (internal quotations and citations omitted).
The second element of the Estelle test is subjective and
requires an inmate to show that a prison official acted with
deliberate indifference to a serious medical need. Natale v.
Camden County Correctional Facility, 318 F.3d 575, 582 (3d Cir.
2003). Conduct that constitutes malpractice or negligence does
not rise to the level of deliberate indifference; deliberate
indifference is a reckless disregard of a known risk of harm.
Farmer v. Brennan, 511 U.S. 825, 836 (1994). Courts will not
second guess “the adequacy a particular course of treatment” in
13
the
exercise
of
sound
professional
judgment.
Inmates
v.
Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.
1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.
1977)).
A non-physician defendant is not deliberately indifferent
to a prisoner’s serious medical needs in violation of the Eighth
Amendment if she fails to respond to an inmate’s administrative
complaint
already
regarding
receiving
O’Caroll,
991
medical
treatment
F.2d
64,
69
treatment
by
(3d
the
while
prison
Cir.
the
inmate
is
Durmer
v.
doctor.
1993).
“Once
a
prison
grievance examiner becomes aware of possible mistreatment, the
Eighth
Amendment
than ̔review[
]
does
...
not
[the
require
prisoner's]
him
or
her
to
complaints
and
do
more
verif[y]
with the medical officials that [the prisoner] was receiving
treatment.’” Glenn v. Barua, 252 F. App’x 493, 498 (3d Cir.
2007) (quoting Greeno v. Daley, 414 F.3d 645, 655–56 (7th Cir.
2005)) (citing Spruill, 372 F.3d at 236).
Although Plaintiff has alleged he was not provided pain
medication for over 24-hours after he returned to CCCF from the
hospital on January 15, 2015, it is not clear that Plaintiff is
asserting any medical claims against CCCF employees or officials
on this basis. The “Request for Relief” section of the Complaint
suggests Plaintiff is alleging only failure to protect claims
against CCCF employees and officials. If Plaintiff intended to
14
include any medical claims against CCCF employees or officials,
he
should
file
an
amended
complaint
describing
how
each
defendant was personally involved and deliberately indifferent
to his serious medical needs. The same is true with respect to
Plaintiff’s
allegation
that
he
did
not
receive
any
pain
of
South
medication for three days while he was housed at CRAF.
Plaintiff
alleged
Willie
Bonds,
Administrator
Woods State Prison, is responsible for administrative oversight
of
the
prison.
Plaintiff
alleged
(Compl.,
ECF
Anthony
No.
Thomas,
1
at
4,
Medical
¶8.)
Similarly,
Ombudsmen
at
South
Woods State Prison,1 is responsible for administrative oversight
of medical services and defense of inmates’ rights to adequate
medical care. (Id. at 5, ¶11.) Plaintiff has also generally
alleged
that
he
has
filed
numerous
grievances
and
inquiries
regarding his medical care at SWSP.
Plaintiff’s bare allegations are insufficient to establish
supervisory liability of non-medical prison officials. Plaintiff
admits he was receiving treatment for his ulcerative colitis and
joint pain, but he disagreed with the treatment provided. See
Durmer, 991 F.2d at 69 (finding no deliberate indifference by
non-medical
treatment
by
prison
prison
official
doctor).
where
The
1
prisoner
Court
will
was
receiving
dismiss
without
Plaintiff has not alleged whether Defendant Anthony Thomas is
himself a healthcare provider.
15
prejudice Plaintiff’s Eighth Amendment inadequate medical care
claims against Defendants Bonds and Thomas.
Plaintiff disagreed with the treatment Nurse Mills provided
to him, including her prescription of Inderal for tremors, and
her
failure
colitis.
to
These
prescribe
claims
Humira
rise
only
or
fish
to
the
oil
level
for
ulcerative
of
negligence
because Plaintiff was not denied treatment, he disagreed with
the treatment he was provided. See Innis v. Wilson, 334 F. App’x
454, 456-57 (3d Cir. 2009) (disagreement with treatment received
does not state a viable claim for relief).
Plaintiff
alleges
the
medications
he
received
were
ineffective in treating his pain. However, the Complaint shows
that Plaintiff was offered physical therapy when medication for
his joint pain was ineffective. He was evaluated by the prison’s
gastroenterologist
for
ulcerative
colitis
and
received
the
medication the specialist prescribed. Furthermore, Plaintiff has
not alleged that any medical provider had prescribed Humira to
him. A prisoner is not entitled to the medical treatment of his
choice. See Reed v. Cameron, 380 F. App’x 160, 162 (3d Cir.
2010) (dissatisfaction with prison medical care is insufficient
to show deliberate indifference) (citing Monmouth County Corr.
Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)).
Plaintiff alleges Nurse Mills ultimately refused to see him
for his health issues, and that she denied him access to the
16
gastroenterologist
on
several
occasions.
Plaintiff
did
not
allege that he did not have access to any other medical provider
when Mills refused to see him. Furthermore, he did not allege
how Mills prevented his access to the gastroenterologist or why
he
needed
to
see
the
gastroenterologist
on
those
occasions.
These allegations, without more, are insufficient to support an
Eighth
Amendment
inadequate
medical
care
claim
against
Nurse
Mills, and the claims will be dismissed without prejudice.
Plaintiff
also
alleged
Dr.
Briglia
was
responsible
for
Nurse Mills’ deliberate indifference because he supervised the
medical staff. First, Plaintiff has not alleged sufficient facts
to show Nurse Mills was deliberately indifferent to his serious
medical needs of joint pain and ulcerative colitis. Second, to
assert
a
deliberate
viable
claim
indifference
of
supervisory
standard
of
the
liability
Eighth
under
the
Amendment,
a
plaintiff must allege more than the supervisor’s responsibility
for the acts of her employees, liability must be based on the
supervisor’s
own
misconduct.
Barkes
v.
First
Corr.
Medical,
Inc., 766 F.3d 307, 320 (3d Cir. 2014) reversed on other grounds
by Taylor v. Barkes, 135 S.Ct. 2042 (2015).
To hold a supervisor liable for such an
Eighth Amendment violation, the plaintiff
must
identify
a
supervisory
policy
or
procedure that the supervisor defendant
failed to implement, and prove that: (1) the
policy or procedures in effect at the time
of
the
alleged
injury
created
an
17
unreasonable
risk
of
a
constitutional
violation; (2) the defendant-official was
aware
that
the
policy
created
an
unreasonable risk; (3) the defendant was
indifferent to that risk; and (4) the
constitutional injury was caused by the
failure
to
implement
the
supervisory
procedure. Brown [v. Muhlenberg Tp.,] 269
F.3d [205,] 216 (discussing Sample [v.
Diecks, 885 F.2d 1099 (3d Cir. 1989)]).
Id. at 317.
Plaintiff has not made sufficient allegations against Dr.
Briglia
to
state
a
claim
of
deliberate
indifference
to
his
serious medical needs. The Court will dismiss this claim without
prejudice.
III. MOTION FOR APPOINMENT OF COUNSEL
Plaintiff requests appointment of counsel in this action. A
district
civil
court
litigant
may
appoint
under
28
counsel
U.S.C.
to
§
represent
1915(d),
an
indigent
although
such
litigants do not have a right to appointed counsel. Tabron v.
Grace,
6
F.3d
determining
147,
whether
153
(3d
Cir.
1993)
(emphasis
to
grant
a
request
for
added).
In
appointment
of
counsel, courts should begin by determining that the plaintiff’s
claim has arguable merit in fact and law. Id. at 155. Plaintiff
has failed to state a claim upon which relief may be granted in
his
Complaint.
arguable
merit
Therefore,
in
law
at
he
has
this
not
time.
presented
The
Court
a
claim
will
of
deny
Plaintiff’s motion for appointment of counsel without prejudice.
18
IV.
CONCLUSION
For
the
reasons
discussed
above,
the
Court
will
grant
Plaintiff’s IFP application, deny his negligence claims against
Lanigan, Briglia and Mills with prejudice, deny his negligence
claims against Defendants Owens, John Doe correctional officers
at CCCF, Bonds and Thomas without prejudice, deny his Eighth
Amendment claims for failure to protect against Owens and John
Doe
correctional
Amendment
claims
officers
for
without
deliberate
prejudice,
deny
indifference
to
his
his
Eighth
serious
medical needs against Bonds, Lanigan, Thomas, Mills and Briglia
without prejudice, and deny Plaintiff’s motion for appointment
of counsel without prejudice.
An appropriate order follows.
Date: November 16, 2016
s/RENÉE MARIE BUMB
RENÉE MARIE BUMB
United States District Judge
19
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