CAGNINA v. LANIGANI et al

Filing 6

OPINION. Signed by Judge Robert B. Kugler on 3/28/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
ANTHONY CAGNINA,
:
:
Plaintiff,
:
Civ. No. 16-7253 (RBK)
:
v.
:
:
GARY LANIGANI, et al.,
:
OPINION
:
Defendants.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Plaintiff, Anthony Cagnina, is a state prisoner currently incarcerated at South Woods
State Prison (“SWSP”) in Bridgeton, New Jersey. He is proceeding pro se with a civil rights
complaint filed pursuant to 42 U.S.C. § 1983. At this time, this Court must screen the complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A 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. For the following reasons, the
complaint will be permitted to proceed in part.
II.

BACKGROUND

The allegations of the complaint will be construed as true for purposes of this screening
opinion. Mr. Cagnina names the following as defendants: (1) Gary Lanigani – Commissioner of
the New Jersey Department of Corrections (“NJDOC”); (2) University Correctional Health Care
Rutgers (“UCHC”); (3) Dr. Ralph Woodward – Supervisor & Medical Provider to NJDOC and
UCHC: (4) Dr. Arthur Brewer – Supervisor and Medical Provider to NJDOC and UCHC; (5) Dr.
William Briglia – Medical Provider for NJDOC and UCHC; (6) Dr. Diaz – Medical Provider for

NJDOC and UCHC; (7) Dr. Sherita Latimore-Collier – Medical Provider for UCHC and
NJDOC; (8) Monica Tsakiris – Nurse Practitioner; (9) Melissa Curtis – Nurse Practitioner; (10)
Jen Farestad – Nurse Practitioner; (11) Angie Luciano – Physical Therapist; (12) John & Jane
Does.
Mr. Cagnina’s complaint arises from the medical treatment, or lack thereof, he has
received while incarcerated at SWSP principally for his left shoulder and back pain. Before his
commitment to SWSP on February 25, 2015, Mr. Cagnina had pain in his left shoulder and back.
He had MRIs performed in 2010 and again in 2012. He was prescribed various pain medications
as a result of his pain.
On February 27, 2015, Mr. Cagnina met with Tsakiris and advised her of his MRI
findings and pain medications he takes. However, Tsakiris refused to refer Mr. Cagnina to a
physician or provide him pain medication.
From March 1, 2015 until May 1, 2015, Mr. Cagnina went to the medical department at
SWSP several times complaining of pain. One of these consults was with Tsakiris. His efforts
were to no avail.
On May 12, 2015, Mr. Cagnina was admitted to St. Francis Medical Center to have a
stent placed in his heart. He was transferred back to SWSP on May 14, 2015. He remained at
SWSP’s extended care unit until December 20, 2015. He complained every day to medical
personnel there about the pain in his left shoulder and back that made it hard for him to walk.
Eventually, Curtis requested that Mr. Cagnina receive an evaluation from physical
therapist Luciano. Mr. Cagnina consulted with Luciano in June, 2015. Luciano ordered physical
therapy. Mr. Cagnina performed physical therapy with Luciano for six weeks. After each

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session, Mr. Cagnina advised Luciano of the worsening of his pain caused by the physical
therapy exercises. Nevertheless, Luciano continued Mr. Cagnina’s physical therapy sessions.
On December 20, 2015, Mr. Cagnina was cleared to leave the extended care unit by Dr.
Briglia to return to general population. Mr. Cagnina explained to Curtis that there was a very
long walk back to general population and that there was no way he could do it without
assistance. Nevertheless, Mr. Cagnina left the extended care unit that day. About halfway back to
general population, Mr. Cagnina collapsed due to the pain his spine and legs. Mr. Cagnina was
then provided a wheelchair which he has had since December 20, 2015. He is unable to walk or
stand for more than seven minutes.
On December 21, 2015, Mr. Cagnina was called to medical and had a consult with
Tsakiris. He explained to her the previous MRI findings and the pain he was suffering in his left
shoulder, spine, back and legs, along with the problems he was having standing and walking.
Tsakiris requested an X-ray on Mr. Cagnina’s back that was eventually conducted.
In February, 2016, Mr. Cagnina had another medical consult with Tsakiris where he
again complained about the pains in his left shoulder, spine, back and legs as well as his
problems standing and walking. Tsakiris told him that his X-rays came back normal. Mr.
Cagnina requested an MRI, but Tsakiris prescribed him a muscle relaxer, instead.
On March 25, 2016, Mr. Cagnina had another consult with Tsakiris complaining of his
pain in his left shoulder, spine, back and legs as well as his problems standing and walking.
Tsakiris requested that Mr. Cagnina be given an internal specialty consult with Luciano.
Mr. Cagnina met with Luciano who ordered him to perform six weeks of physical
therapy. After three weeks, Mr. Cagnina told Luciano that he would have more pain in his spine,

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back and legs from the physical therapy than before he had started it. Eventually, Luciano
became frustrated with Mr. Cagnina and ordered him to do his physical therapy alone in his cell.
On May 4, 2016, Mr. Cagnina wrote a letter to Dr. Woodward that explained his pains,
injuries and occurrences at SWSP. Mr. Cagnina states that he did not receive a response to his
letter.
Also in May, 2016, Mr. Cagnina had another consult with Tsakiris where he complained
about the physical therapy with Luciano as well as the pain he was suffering to no avail. Four
days later, Tsakiris advised Mr. Cagnina that Luciano stated that an MRI was not needed for
him.
On June 12, 2016, Mr. Cagnina wrote to Dr. Woodward again and sent him his MRI
findings which he had just received in May, 2016.
At the end of June, 2016, Mr. Cagnina met with Farested on a medical consult. He told
her the problems he was having and Farestead put in a request to see a neurologist which was
done. One week later Mr. Cagnina was told by Tsakiris that he was denied a consult with a
neurologist. Mr. Cagnina again complained about his injuries to Tsakiris who requested to her
supervisors that Mr. Cagnina receive some sort of injections for his pain. That request was
ultimately denied. Despite Mr. Cagnina’s complaints to her, Tsakiris responded that she can only
request treatment so her hands were tied.
Mr. Cagnina requests injunctive and monetary relief. He also requests the appointment of
pro bono counsel. Furthermore, he has also filed a motion for a temporary restraining
order/preliminary injunction and requests the appointment of an independent medical expert.

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III.

LEGAL STANDARDS

Under the Prison Litigation Reform Act, Pub.L. 104-134, §§ 801-810, 110 Stat. 1321-66
to 1321-77 (Apr. 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. see 28 U.S.C. § 1915(e)(2)(B).
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x
230, 232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(l)); Courteau v. United States, 287
Fed.Appx. 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)). That standard is set forth
in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), as explicated by the United States Court of Appeals for the Third Circuit. To survive the
court's screening for failure to state a claim, the complaint must allege ‘sufficient factual matter’
to show that the claim is facially plausible. See Fowler v. UPMC 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). “[A] pleading that offers ‘labels or conclusions' or ‘a formulaic

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recitation of the elements of a cause of action will not do.’ ” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).
Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner, 404 U.S.
519 (1972). Nevertheless, “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) (citation
omitted).
IV.

DISCUSSION

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
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 or the
District of Columbia, 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, except that in any action brought against a
judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
Thus, to state a claim for relief under § 1983, a plaintiff must allege first, the violation of
a right secured by the Constitution or laws of the United States, and second, that the alleged
deprivation was committed or caused by a person acting under color of state law. See Harvey v.
Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v.
Atkins, 487 U.S. 42, 48 (1988).
For the delay or denial of medical care to rise to a violation of the
Eighth Amendment's prohibition against cruel and unusual
punishment, a prisoner must demonstrate “(1) that defendants were
deliberately indifferent to [his] medical needs and (2) that those
needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
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1999). Deliberate indifference requires proof that the official
“knows of and disregards an excessive risk to inmate health or
safety.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582
(3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). We have found deliberate indifference where a prison
official: “(1) knows of a prisoner's need for medical treatment but
intentionally refuses to provide it; (2) delays necessary medical
treatment based on a nonmedical reason; or (3) prevents a prisoner
from receiving needed or recommended treatment.” Rouse, 182
F.3d at 197. Deference is given to prison medical authorities in the
diagnosis and treatment of patients, and courts “disavow any
attempt to second-guess the propriety or adequacy of a particular
course of treatment ... (which) remains a question of sound
professional judgment.” Inmates of Allegheny Cnty. Jail v. Pierce,
612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551
F.2d 44, 48 (4th Cir. 1977)). Allegations of negligent treatment or
medical malpractice do not trigger constitutional protections.
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
Pierce v. Pitkins, 520 F. App’x 64, 66 (3d Cir. 2013). Deliberate indifference can also be found
“where the prison official persists in a course of treatment in the face of resultant pain and risk of
permanent injury.” See McCluskey v. Vincent, 505 F. App’x 199, 202 (3d Cir. 2012) (internal
quotation marks and citation omitted). “A medical need is serious if it ‘has been diagnosed by a
physician as requiring treatment,’ or if it ‘is so obvious mat a lay person would easily recognize
the necessity for a doctor's attention.’ ” See Mitchell v. Beard, 492 F. App’x 230, 236 (3d Cir.
2012) (quoting Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (quoting Monmouth
Cnty. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987))).
A. Tsakiris
This Court will permit Mr. Cagnina’s deliberate indifference claims against Tsakiris to
proceed in part. For much of Mr. Cagnina’s incarceration at SWSP, he received some treatment
from Tsakiris. Indeed, she requested that X-rays be taken of his back, prescribed him muscle
relaxers, and requested that he be given an internal specialty consult with Luciano. However, this
Court is troubled by Tsakisis’ treatment of Mr. Cagnina upon his arrival at SWSP. Indeed, Mr.
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Cagnina alleges that he advised Tsakiris of his medical conditions and medications, yet she
refused to refer him to a physician or provide him pain medication. It is plausible that these
allegations rise to the level of deliberate indifference such as intentionally preventing Mr.
Cagnina from getting medical care or delaying medical treatment for a non-medical reason. At
this early stage, this Court will permit Mr. Cagnina to proceed with a deliberate indifference
claim against Tsakiris.
B. Luciano
This Court will also permit a deliberate indifference claim to proceed against Luciano.
Despite complaining that the physical therapy was hurting Mr. Cagnina more, Luciano continued
with the treatment. At this early stage, this could be seen as persisting in a course of treatment in
the face of resultant pain. See McCluskey, 505 F. App’x at 202.
C. Curtis
A deliberate indifference claim against Curtis shall also be permitted to proceed. Mr.
Cagnina complained to her that he could not walk back to general population because of his pain
and injuries when he was to be released from the extended care unit. Nevertheless, Curtis did not
provide him with a wheelchair. Mr. Cagnina ultimately collapsed on the walk back. Such
allegations could rise to the level of deliberate indifference because Curtis allegedly knew of Mr.
Cagnina’s need for medical treatment in the form of a wheelchair, but intentionally refused to
provide it.
D. Woodward & UCHC
Mr. Cagnina alleges Woodward’s involvement in this case in the form of grievance
letters he wrote to Woodward as one of the supervisory doctors. Similarly, Mr. Cagnina states
that UCHC is aware through his grievances that his constitutional rights have been violated. It is

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worth noting that numerous courts have explained that a plaintiff states a claim by alleging that a
supervisory defendant reviewed a grievance where the plaintiff alleges an ongoing violation as
she ‘“is personally involved in that violation because [s]he is confronted with a situation [s]he
can remedy directly.’” Carter v. Smith, No. 08–279, 2009 WL 3088428, at *6 (E.D. Pa. Sept. 23,
2009) (quoting Harnett v. Barr, 538 F. Supp. 2d 511, 524–25 (N.D.N.Y. 2008)); see also
Zappulla v. Fischer, No. 11–6733, 2013 WL 1387033, at *10 (S.D.N.Y. Apr. 5, 2013) (“[T]he
Complaint further alleges that Defendant Lee, after being informed of that ongoing violation
through the grievance process, failed to remedy that wrong. Those allegations ... are adequate to
state a claim against Lee.”) (citations omitted); Whitehead v. Rozum, No. 11–102, 2012 WL
4378193, at *2 (W.D. Pa. Aug.7, 2012) (“In the prison setting, where a grievance alleges an
ongoing constitutional violation, a supervisory defendant who reviews it is personally involved
in that violation because he is confronted with a situation he can remedy directly.”) (citations
omitted), report and recommendation adopted by, 2012 WL 4370929 (W.D. Pa. Sept.24, 2012);
Williams v. Johnson, No. 10–1290, 2011 WL 1396967, at *5 (E.D. Va. Apr. 11, 2011) (“In
support of his argument, Williams states that Johnson was made aware of these violations
through appeals to denials of grievances that Williams filed. To the extent that the [allegations]
relate to ongoing constitutional violations that defendant Johnson was made aware of, Williams
has plausibly stated a claim for which Johnson made be liable.”); Binsack v. Lackawanna Cnty.
Prison, No. 10–535, 2010 WL 4973309, at *3 (M.D. Pa. Oct. 14, 2010) (“A prisoner's grievance
or complaint regarding ongoing abuse may be sufficient to put a prison official on notice of such
abuse by other prison staff and therefore may show actual knowledge of an alleged constitutional
violation and acquiescence in the events forming the basis of a prisoner's claims.”) (citing
Atkinson v. Taylor, 316 F.3d 257, 270–71 (3d Cir. 2003)), report and recommendation adopted

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by, 2010 WL 4956329 (M.D. Pa. Dec.1, 2010). Based on this theory, and in light of the early
stages of this litigation, this Court will permit Mr. Cagnina’s claims against Woodward and
UCHC to proceed.
E. Farestad
Mr. Cagnina’s factual allegations against Farestad are insufficient to state a deliberate
indifference claim. Indeed, Mr. Cagnina alleges that Farestad made the request to UCHC medical
supervisors that Mr. Cagnina should see a neurologist. This Court fails to see how these actions
by Farestad as alleged rise to the level of deliberate indifference. Therefore, Mr. Cagnina’s
federal claims against Farestad will be dismissed without prejudice.
To the extent that Mr. Cagnina is pursuing state law claims against Farestad, this Court
will not exercise supplemental jurisdiction over such claims since his federal claims against her
have been dismissed. See T.R. v. Cnty. of Delaware, No. 13–2931, 2013 WL 6210477, at *8
(E.D. Pa. Nov. 26, 2013) (declining supplemental jurisdiction over plaintiff's state law claims
against one defendant when there are no viable federal claims against that defendant despite the
fact that plaintiff may have pled plausible claims against another defendant); see also Nadal v.
Christie, No. 12–5447, 2014 WL 2812164, at *8 (D.N.J. June 23, 2014).
F. Briglia
Mr. Cagnina’s sole specific allegations against Briglia is that he cleared Mr. Cagnina to
return back to general population from the extended care unit on December 20, 2015. This
allegation, standing alone, fails to state a deliberate indifference claim against Briglia.
Furthermore, this Court will decline to exercise supplemental jurisdiction over any state law
claims such an allegation could potential be raising as there are no longer any federal claims
remaining against Briglia. See T.R., 2013 WL 6210477, at *8 (declining supplemental

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jurisdiction over plaintiff's state law claims against one defendant when there are no viable
federal claims against that defendant despite the fact that plaintiff may have pled plausible claims
against another defendant); see also Nadal, 2014 WL 2812164, at *8.
G. Langani, Brewer, Diaz, Latimore-Collier
Personal involvement of the defendants is necessary to sustain a Section 1983 claim. . See
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988); see also In re Bayside Prison Litig.,
No. 97–5127, 2007 WL 327519, at *5 (D.N.J. Jan.30, 2007). Personal involvement can be shown
through allegations of personal direction or of actual knowledge and acquiescence. See Rode,
845 F.2d at 1207; see also Baker v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995);
Jackson v. Camden Cnty. Corr. Facility, No. 12–7538, 2013 WL 1844636, at *3 n.1 (D.N.J. Apr.
29, 2013). However, the complaint is devoid of specific factual allegations against Langani,
Brewer, Diaz and Latimore-Collier with respect to their personal involvement in his medical
care. Therefore, the federal claims against them will be dismissed without prejudice. As with
Brigilia and Farestad, this Court will also decline to exercise supplemental jurisdiction over Mr.
Cagnina’s state law claims against these defendants as well because all of the federal claims
against them have been dismissed. See T.R., 2013 WL 6210477, at *8; see also Nadal, 2014 WL
2812164, at *8.
V.

MOTION TO APPOINT COUNSEL

Mr. Cagnina is pursuing this case in forma pauperis. 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. 1993). Furthermore, in
determining whether to appoint counsel, a court considers the following: (1) the plaintiff’s

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ability to present his or her own case; (2) the complexity of the legal issues; (3) the degree to
which factual investigation will be necessary and the ability of the plaintiff to pursue such
investigation; (4) the amount a case is likely to turn on credibility determinations; (5) whether
the case will require the testimony of expert witnesses; and (6) whether the plaintiff can attain
and afford counsel on his own behalf. See id. at 155-56, 157 n.5; see also Cuevas v. United
States, 422 F. App’x 142, 144-45 (3d Cir. 2011) (reiterating the Tabron factors). Additionally,
the power to grant appointment of counsel lies solely with the discretion of this Court. See id.
Appointing counsel may be made at any point during the litigation sua sponte or by granting a
party’s motion. See id. at 156.
Initially, the Court notes that there may be some merit to Mr. Cagnina’s claims. For
example, as described above, several of his claims against various defendants have made it past
this Court’s screening. He could potentially have a meritorious deliberate indifference claim
under the Eighth Amendment. Thus, the Tabron factors will be analyzed.
The first Tabron factor requires this Court to analyze the circumstances of the individual
plaintiff. See 6 F.3d at 156. “Courts generally should consider the plaintiff’s education, literacy,
prior work experience, and prior litigation experience. An indigent plaintiff’s ability to present
his or her case may also depend on factors such as the plaintiff’s ability to understand English.
See id. (citations omitted). In this case, plaintiff has demonstrated that he is literate and
understands English. Furthermore, plaintiff has had access to this Court as demonstrated by his
numerous court filings. Accordingly, this factor does not weigh in favor of appointing counsel.
The second Tabron factor requires this Court to examine the complexity of the legal
issues in the case. See 6 F.3d at 156. “[W]here the law is not clear, it will often serve the ends of
justice to have both sides of a difficult legal issue presented by those trained in legal analysis.”

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Id. In this case, plaintiff is raising Eighth Amendment deliberate indifference claims arising from
the medical care he received. The underlying law for asserting an Eighth Amendment deliberate
indifference to a serious medical needs claim is clear. See Montgomery v. Pinchak, 294 F.3d 492,
502 (3d Cir. 2002) (citation omitted). Nevertheless, “[s]implicity in the allegation does not
translate into simplicity in the presentation of the claim.” Id. Thus, “[w]hile the ultimate issue
may be comprehensible, courts must still look to the proof going towards the ultimate issue and
the discovery issues involved.” Parham, 126 F.3d at 459.
Mr. Cagnina is attempting to raise claims associated with the medical care he has
received (or lack thereof) at SWSP. Based on the potential for complex medical issues associated
with this case, this Court finds that Mr. Cagnina’s case presents issues of sufficient complexity
so as to warrant the appointment of counsel. See Colston v. Corr. Med. Servs., 256 F. App’x 551,
553 (3d Cir. 2007) (“[C]ivil rights cases alleging deliberate indifference to a prisoner’s medical
needs can raise sufficiently complex legal issues to require appointment of counsel.”) (citing
Montgomery, 294 F.3d at 502 (citing Parham, 126 F.3d at 459)). Thus, the second Tabron factor
weighs in favor of appointing counsel.
The third Tabron factor asks this Court to examine the degree to which factual
investigation will be required and the ability of the indigent plaintiff to pursue such investigation.
See Tabron, 6 F.3d at 156. “[W]here claims are likely to require extensive discovery and
compliance with discovery rules, appointment of counsel may be warranted.” Id. (citing Rayes v.
Johnson, 969 F.2d 700, 703 (8th Cir. 1992)). Documents and medical records from different
sources may be needed to be produced and examined in this case. Given the nature of Mr.
Cagnina’s deliberate indifference arguments, the Court finds that the third Tabron factor
supports appointment of counsel. See Parham, 126 F.3d at 460 (deliberate indifference to

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medical needs claims “involve[] complex facts and medical records that even most lawyers
struggle to comprehend”).
The fourth Tabron factor requires the Court to analyze whether the case will turn on
credibility determinations and whether the case is “solely a swearing contest.” Parham, 126
F.3d at 460. In this case, this Court presumes that the medical records could provide the relevant
evidence with respect to the claims. Therefore, at this time, the Court finds that the fourth
Tabron factors does not necessarily weigh in favor of appointing counsel.
This Court also needs to consider whether the case will require expert testimony under
the fifth Tabron factor. Expert testimony in this case may ultimately be necessary. See, e.g.,
Pearson v. Prison Health Service, C.A. No. 16-1140, 2017 WL 892371, at *5 (3d Cir. March 7,
2017). Thus, this factor weighs in favor of appointing counsel.
Finally, the sixth Tabron factors requires this Court to analyze whether plaintiff is able to
retain and afford counsel. See 6 F.3d at 156. Plaintiff is proceeding in forma pauperis in this case
and there is no indication that plaintiff is able to retain and afford counsel. Consequently, this
factor weighs in favor of appointing counsel.
On balance, and having considered the Tabron factors, the Court finds that the
appointment of counsel is warranted.
VI.

MOTION FOR A TEMPORARY RESTRAINING ORDER/PRELIMINARY
INJUNCTION/APPOINTMENT OF EXPERT

Mr. Cagnina has also filed a motion for a temporary restraining order (TRO)/preliminary
injunction. He seeks to have this Court restrict the defendants from denying him proper treatment
for his shoulder and back. He also seeks the appointment of an independent medical expert.
To secure the extraordinary relief of a preliminary injunction or a temporary restraining
order (“TRO”), a plaintiff must demonstrate that “‘(1) he is likely to succeed on the merits; (2)
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denial will result in irreparable harm; (3) granting the injunction will not result in irreparable
harm to the defendants; and (4) granting the injunction is in the public interest.’” Barber v.
Sharp, No. 10–5286, 2011 WL 2223651, at *15 (D.N.J. June 2, 2011) (citing Maldonaldo v.
Houston, 157 F.3d 179, 184 (3d Cir. 1998) (as to preliminary injunction); Balias v. Tedesco, 41
F.Supp.2d 531, 537 (D.N.J. 1999) (as to TRO)). A preliminary injunction grants “intermediate
relief of the same character as that which may be granted finally.” De Beers v. Consol. Mines v.
United States, 325 U.S. 212, 220 (1945). A plaintiff “must establish that all four factors favor
preliminary relief.” Barber, 2011 WL 2223651, at * 15 (citing Opticians Ass'n of Am. v. Indep.
Opticians of Am., 920 F.2d 187 (3d Cir. 1990)).
At this stage of the proceedings, this Court will have the remaining defendants respond to
the motion prior to this Court ruling on the merits of the motion. Once the defendants are served
with the complaint and the motion, the defendants shall respond to the motion within thirty days.

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VII.

CONCLUSION

For the foregoing reasons, Mr. Cagnina’s complaint shall be permitted to proceed against
defendants UCHC, Woodward, Tsakiris, Curtis and Luciano on the claims outlined in this
Opinion. Mr. Cagnina’s federal claims against defendants Langani, Brewer, Brijalia, Diaz,
Latimore-Collier and Forestad are dismissed without prejudice for failure to state a claim upon
which relief may be granted. This Court declines to exercise supplemental jurisdiction over Mr.
Cagnina’s state law claims against Langani, Brewer, Brijalia, Diaz, Latimore-Collier and
Forestad. The motion for the appointment of pro bono counsel is granted. The remaining
defendants shall respond to Mr. Cagnina’s motion for a temporary restraining order/preliminary
injunction/appointment of an expert within thirty days of being served with the complaint.

DATED: March 28, 2017

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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