DYKEMAN v. AHSAN et al

Filing 108

MEMORANDUM AND ORDER that Plaintiff's motion for appointment of pro bono counsel [ECF No. 95 ] is DENIED; that Defendants' motion for summary judgment [ECF No. 94 ] is GRANTED. Since Abu Ahsan is the only remaining Defendant in this matter, the matter is DISMISSED with prejudice. Signed by Judge Peter G. Sheridan on 11/28/2017. (mmh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
WILLIAM DYKEMAN
Civil Action No.: 12-cv-04634 (PGS)

Plaintiff,
v.

MEMORANDUM AND ORDER

ABU AHSAN, et al.
Defendant.

SHERIDAN, U.S.D.J.
This matter comes before this Court on Defendant’s motion for summary judgment [ECF
No. 94] and Plaintiff’s motion for appointment of pro bono counsel. [ECF No. 95].
I.
Facts and Procedural History
Soon after entering prison, Plaintiff, a New Jersey state prisoner, was diagnosed with
degenerative arthritis of his right hip. In July 2012, Plaintiff, proceeding pro se and in forma
pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges, in his
original Complaint, that his Eighth Amendment rights were violated when prison officials failed
to properly treat pain in his right hip. Specifically, Plaintiff alleges that prison officials acted with
deliberate indifference when they failed to secure an extra mattress prescribed by Dr. Ahsan, a
prison doctor, and failed to renew a prescription after it expired. Plaintiff also alleges that the
prison failed to provide recommended shoes to alleviate pain.1

1

Plaintiff originally brought claims against Abu Ahsan, UNDMJ, and the New Jersey
Department of Corrections. Since then all Defendants, but Dr. Ahsan, were dismissed.
1 

Initially, this Court screened the Complaint and sua sponte dismissed all claims for failure
to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Thereafter, Plaintiff moved for
reconsideration and to supplement the record, and the District Court vacated its dismissal Order.
After reconsidering the supplemented Complaint, the District Court concluded that Plaintiff had
failed to state a claim and again dismissed the Complaint. Plaintiff appealed, and the United States
Court of Appeals for the Third Circuit affirmed in part, vacated in part, and remanded, finding that
the facts alleged by Plaintiff were sufficient to state a claim under the Eighth Amendment.  See
Dykeman v. Ahsan, 560 Fed. Appx. 129 (3d Cir. 2014). The Court held:
Here, Dykeman alleged that in December 2008 Doctor Ahsan
prescribed an extra mattress to alleviate discomfort at night.
Dykeman asserted that prison officials never provided him with the
mattress and that Doctor Ahsan did not renew the prescription after
it expired. Additionally, Dykeman alleged in his complaint and
supplement that he was prescribed cushioned shoes, but that, like
the mattress, they were not provided. Dykeman's allegations
concerning the cushioned shoes are not as clear as his allegations
regarding the mattress, but it does appear that he alleged that he
never received the prescribed footwear. Reading these allegations,
Dykeman has stated Eighth Amendment claims that should not have
been dismissed for failure to state a claim.
Id. at 132-133. After the decision, parties engaged in discovery.
Plaintiff was deposed on August 1.
Defendant moved for Summary Judgment to be granted for Plaintiff’s failure to provide
any evidence sufficient to state a prima facie case of Eight Amendment deliberate indifference.
Oral argument was held via telephone conference on November 8, 2017. On that date, the Court
requested that Defendant file a supplemental response to Plaintiff’s interrogatory No. 12, which
asked “Is there any reason you can provide as to why you would not renew this 2008 order [] for
an extra mattress after it expired in 2009?” [ECF No. 103]. Defendant filed a supplemental
response on November 14. [ECF No. 106]. He stated:
2 

In or about September of 2009, I was informed by the Department
of Corrections, Health Services Unit, that requests for mattresses
were processed through the Department of Corrections, not the
medical department and that the Department of Corrections was
assessing Plaintiff’s request for an additional mattress. I had no
authority over the decision to provide Plaintiff with an additional
mattress.
Facts relevant to the medical care of Plaintiff
Plaintiff stated in his interrogatories that his hip injury was caused by a fall in the late 1990s
when he was framing the second story of a construction project. (Def. Br. Ex. A). After the fall,
Plaintiff received an x-ray that did not show a fracture, and he did not seek further treatment. (Id.
Ex. B). Plaintiff testified that his pain returned shortly after being incarcerated, in 2005, due to
inactivity. (Id.).
On November 15, 2005, Plaintiff was examined by Grace Malendez, M.D. and she reported
chronic right hip pain. Dr. Malendez offered to provide Plaintiff pain medication, which he
refused. (Id. Ex. C at 390). The x-ray showed degenerative joint disease. (Id. at 364). On January
9, 2007, Plaintiff saw Dr. Malendez again and he requested shoe insoles and a double mattress.
She ordered “Arch Support/Insoles.” (Id. at 361). Plaintiff was seen by Barbara Brown, RN, on
May 7, 2007 and requested better shoes and a softer mattress. He was advised that a softer mattress
was not possible per Department of Corrections (DOC.) (Id. at 358). A new x-ray on December
6, 2007 showed “[d]egenerative joint disease bilaterally of the hip joint slightly greater at the right
hip compared to the left hip. No apparent fracture or dislocation.” (Id. at 353). On May 22, 2008,
Plaintiff was seen by James Brewin, APN who told him that “MRI [was] not warranted at this time
for osteoarthritic and degenerative changes. Treatment is analgesia.” (Id. at 341). Plaintiff was
seen again by Mr. Brewin on June 10, 2008, when he requested medical shoes but was told that

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they were not advised at that time. Mr. Brewin entered an order for arch support/insoles instead.
(Id.)
Plaintiff first saw Defendant Abu Ahsan, M.D., on December 9, 2008. At the time he
complained of chronic right hip pain and Defendant noting his diagnosis, planned to order a repeat
hip x-ray, an extra mattress, and arch supports. The order stated: “Arch Supports/ Insoles,” and
“Other Medical Equipment.” He specified that he was ordering an extra mattress in his notes. (Id.
Ex. C at 334). On December 11, 2008, the repeat x-ray showed advanced arthritis but no evidence
of a fracture. (Id. at 332). On February 19, 2009, Plaintiff was seen by Donique Ivery, APN, and
he complained that he had not received an extra mattress and that he wanted medical boots. (Id.
Ex. C at 253). Plaintiff was again seen by Defendant on June 12, 2009, to discuss his right hip
condition. Defendant submitted a request for a prosthetic consultation and advised Plaintiff to
return in two weeks time. (Id. at. 250). On July 21, 2009, Ivery informed Plaintiff that his request
for a prosthetic consultation was denied. Ivery entered a request for an MRI at Plaintiff’s request.
(Def. Br. Ex. C at 234).
On September 22, 2009, Plaintiff received a letter from Sharon Felton, B.A., Health
Services Unit, Division of Operations, regarding his right hip complaints and requested treatment.
The letter stated:

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(Def. Br. Ex. D) (emphasis in original provided to the Court).
Plaintiff saw Defendant again on December 16, 2009. Defendant explained to Plaintiff that
the MRI and prosthetics were not indicated. He entered a new order for arch supports/insoles. (Id.
Ex. at 228). On April 16, 2010, Plaintiff saw Defendant again and he indicated that he did not
want any pain medications but that he did want to explore surgical option for his right hip short of
total hip replacement. Defendant again ordered shoe insoles, requested an orthopedic evaluation
and repeat x-ray. (Id. Ex. C at 216). On May 3, 2010, Defendant reviewed Plaintiff’s repeat x-ray
conducted on April 29, 2010, which showed a “[m]odest osteoarthritis of the right hip.” (Id. Ex. C
at 215). On July 26, 2011, Plaintiff saw Defendant, and requested “either padded shoes or MRI in
preparation for his right hip replacement.” A new MRI request was placed. (Id. at 196-197). On
September 14, 2011, Ivey advised Plaintiff that his MRI request had been denied by the review
committee and their recommended plan was for a steroid injection or anti-inflammatory
medication. (Id. at 191).

5 

On December 21, 2011, Plaintiff saw Barbara Brown, RN. He declined to take steroid
injection or analgesic. Plaintiff again renewed his request for an MRI or a CAT scan but Brown
advised him that his previous request had been rejected. (Id. at 172). On November 26, 2012,
Plaintiff was seen by Defendant and complained of significant right hip pain occasionally.
Defendant noted that Plaintiff was a candidate for hip replacement. (Id. at 144-45). On December
20, 2012, Plaintiff was seen in consultation by orthopedic surgeon, Ahmar Shakir, D.O. who noted:
“[r]ight hip greater throchanteric bursitis. DJD [degenerative joint disease] is incidental and
noncontributory and non-concordant with his symptomology.” He further reported:
It was explained to [plaintiff] in detail that the patient does not
require any further workup. He had advanced arthritis in his right
hip that is noncontributory to his pain. His pain is localized to the
greater throchanter and bursa which is outside of the hip joint itself.
The patient disagrees with this finding. I have recommended that
he make no further appointments at this clinic. The patient will not
be treated by me.

(Id. at 141). On May 15, 2013, Plaintiff was given a copy of the above orthopedic surgery
consultation and reported that he did not want to review the report at the clinic because he needed
time to “take it in.” (Id. Ex. C. at 126).
On July 3, 2014, Plaintiff saw Denise Johnson with complaints of joint pain, stiffness and
arthritis. Johnson explained to Plaintiff his diagnosis based on the result of multiple x-rays over
the years. She also explained that the medical department does not write double mattress
restrictions and that medical boots are reserved for foot problems. (Id. Ex. at 89).
On November 18, 2014, Plaintiff was seen in consultation by orthopedic surgeon, Scott
Miller, M.D. who reported that although the MRI films were not available for his review, they
were immaterial because:

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[b]ased on x-ray criteria alone, the patient had osteoarthritis of the
hip. The arthritis is severe enough to warrant a total hip replacement.
This would seem to be the only appropriate intervention since the
patient is stating the medical management is not effective. Despite
this being the only effective treatment that I could recommend, the
patient wants to think about his options and would like to do some
research as to the types of hip replacements. He can return to clinic
on p.r.n. basis if he is more interested in learning about the surgical
options.
(Def. Br. Ex. C at 53). At his deposition, Plaintiff testified that he is a practicing Jehovah’s
Witness and that his beliefs affect his treatment. (Id. Ex. B. T110:13-21). He also testified that
because of his religious beliefs he would not accept blood transfusion under any circumstances.
(Id. at T114:7-12). In his opposition, Plaintiff denies his alleged unwillingness to undergo surgery
done and states that he only tried to find out how invasive it would be and other information
specific to the procedure. (Opp. Br. at 1).
Also at his deposition, Plaintiff attested that Defendant was helpful and polite with him and
tried to help with the mattress. (Id. at T84:19-25).
His deposition states the following:
Dr. Ahsan was very cordial. He was never nasty or anything. But
the main thing with Dr. Ahsan is that he was willing to help with the
mattress, which I appreciated. He was able to get me x-rays that on
at least two separate occasions we looked at them . . . And I think he
got in trouble, to be honest with you, because he was deathly afraid
of not renewing the thing or doing anything about the mattress.
(Id. at T84-85). When asked if Defendant ever refused to treat him Plaintiff stated, “No, he was
never like that. . . but I think he refused to do what his job is, in a sense that, you know he was in
a tough position.” The conversation continued with Plaintiff acknowledging that there is a protocol
in place, though it is not shared with the inmates. (Id. at T87:3-22).
As noted above, Defendant asserted in his answers to interrogatories that the request for a
mattress was processed through the Department of Corrections and that the DOC was assessing
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Plaintiff’s request for an additional mattress. He had no authority over the decision. [ECF No.
106].
II.
First, the Court considers Plaintiff’s motion to appoint Pro Bono Counsel on May 11, 2016.
[ECF No. 64]. Plaintiff has previously filed applications for appointment of Pro Bono Counsel.
His motion was denied on July 6, 2016. [ECF No. 67]. On March 8, 2017, Plaintiff was appointed
Pro Bono counsel for the sole purpose of a settlement conference. [ECF No. 83]. In the present
application, Plaintiff argues that he necessitates counsel because of his limited time and resources.
He also argues that he will require aid in securing an expert and through the discovery process.
Federal law allows for a court, at its discretion, to appoint an attorney to represent any
person unable to afford counsel. 28 U.S.C. § 1915 (2012); see also Montgomery v. Pinchak, 294
F.3d 492, 498 (3d Cir. 2002) (holding that § 1915 affords the district courts “broad discretion” to
determine whether the appointment of counsel in civil litigation is appropriate). The appointment
of counsel pursuant to §1915 may be made at any point in the litigation and may be made by the
district court sua sponte. Tabron v. Grace, 6 F.3d 147, 156 (3d Cir. 1993). Indigent civil litigants
have no statutory right to court-appointed counsel. Id.
When deciding whether to appoint pro bono counsel, courts must initially decide whether
a plaintiff’s claim has “some merit in fact and law.” Owens v. Armstrong, No. 15-4911, 2016 WL
1117945, at *14 (D.N.J. Mar. 22, 2016) (quoting Tabron, 6 F.3d at 155). The United States Court
of Appeals for the Third Circuit has offered a non-exhaustive list of considerations that the district
court may consider when deciding whether to appoint pro bono counsel, including “(1) the
plaintiff’s ability to present [his] own case; (2) the complexity of the legal issues; [and] (3) the
degree to which factual investigation will be necessary and the ability of the plaintiff to pursue

8 

such investigation.” Id. The court may also consider “(4) the amount the case will 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.” Id. A single factor is not
determinative. Id.
First, the Court examines the threshold Tabron factor: does Plaintiff’s claim have some
merit in fact and law? 6 F.3d at 155. For the purposes of evaluating this factor, the Court assumes
“solely for purposes of this [request]” that Plaintiff’s case has “some arguable merit in fact and
law.” Montgomery, 294 F.3d at 499.
Next, the Court analyzes the additional Tabron factors. The first additional factor examines
whether the plaintiff has the ability to present his case. Tabron, 6 F.3d at 156. The Third Circuit
has noted that courts should consider such factors as the plaintiff’s literacy, education, work
experience, and prior litigation experience. Id. The plaintiff’s ability to present his own case is
perhaps the most significant Tabron factor. Pinchak, 294 F.3d at 501. Here, as evidenced by
Plaintiff’s filings in this case, and he has, to this point, litigated his claims competently.2 Indeed,
he successfully appealed dismissal of his claims to the Third Circuit. Plaintiff, therefore, despite
his claims to the contrary, has shown he is capable of presenting his case. Consequently, this factor
weighs against Plaintiff’s request.
The second Tabron factor examines the complexity of the legal issues presented. If the law
on a given issue is not clear, this factor will typically support the appointment of pro bono counsel.
Tabron, 6 F.3d at 156. Here, the legal issues and factual circumstances surrounding Plaintiff’s
claims do not appear unusually complex. The Third Circuit has noted that the deliberate

2

The Court notes that this is not the first, nor the only claim that Plaintiff has filed with the
Federal Courts.
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indifference standard used to analyze Eighth Amendment claims is not a complex legal issue.
Parham v. Johnson, 126 F.3d 454, 459 (3d Cir. 1997). As such, “a lay person, like [the plaintiffprisoner], should be able to comprehend what he has to prove.” Id. Therefore, this factor also
weighs against Plaintiff’s request.
Third, the Court considers the degree of factual investigation necessary and the ability of
the Plaintiff to pursue such investigation. Tabron, 6 F.3d at 156. Prisoners are limited in their
investigatory ability and it “may be difficult for indigent plaintiffs to understand complex
discovery rules.” Montgomery v. Pinchak, 294 F.3d at 503. Here, although Plaintiff has limited
resources as a prisoner, he has been able to collect various materials such as medical records and
communications with the Department of Corrections. (See, e.g., ECF 47-1).
The fourth Tabron factor addresses credibility determinations. 6 F.3d at 156. If a case
appears to be “solely a swearing contest” relying on “credibility determinations,” this factor will
weigh in favor of appointing pro bono counsel. Woodham v. Sayre Borough Police Dep’t., 191
F.App’x 111, 116 (3d Cir. 2006) (emphasis added). At this point, it does not appear that this matter
will be “solely a swearing contest.” Id. at 116. Thus, this factor weighs against the appointment of
counsel.
Fifth, the Court considers whether the case will require the testimony of an expert witness.
Tabron, 6 F.3d at 156. Plaintiff presents this application for mainly this reason. Expert testimony
in this case could hypothetically be necessary. See, e.g., Pearson v. Prison Health Service, C.A.
No. 16-1140, 850 F.3d 526, 2017 U.S. App. LEXIS 4003, 2017 WL 892371, at *5 (3d Cir. March
7, 2017); See also Lanigani, 2017 U.S. Dist. LEXIS 45328 at *19.
Finally, the Court considers whether the plaintiff can retain and afford counsel. Tabron, 6
F.3d at 156-57. This factor is presumptively fulfilled when a plaintiff is granted permission to

10 

proceed in forma pauperis. Woodham, 191 F.App’x at 116. Here, Plaintiff is proceeding in forma
pauperis and, therefore, this factor weighs in favor of appointing pro bono counsel for Plaintiff.
However, indigency, absent satisfaction of other Tabron factors, does not itself warrant the
appointment of counsel. See Christy v. Robinson, 216 F.Supp. 2d 398, 410 (D.N.J. 2002).
Based on the above analysis, this Court finds most factors to weigh against appointment of
pro bono counsel. Consequently, Plaintiff’s motion is denied.
III.
Next, this Court review’s Defendant’s motion for summary judgment.
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the nonmovant, and it is material if, under the substantive law, it would affect the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary
judgment, a district court may not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party’s evidence “is to be believed and all justifiable
inferences are to be drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier

11 

Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations . . . and pleadings
are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912 F.2d 654,
657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to set forth specific
facts showing that there is a genuine issue for trial”). Moreover, only disputes over facts that might
affect the outcome of the lawsuit under governing law will preclude the entry of summary
judgment. Anderson, 477 U.S. at 247-48. If a court determines, after drawing all inferences in
favor of [the non-moving party], and making all credibility determinations in his favor “that no
reasonable jury could find for him, summary judgment is appropriate.” Alevras v. Tacopina, 226
Fed. App’x. 222, 227 (3d Cir. 2007).  As a preliminary matter, we note that courts must liberally
construe pleadings that are filed pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Here, Defendant raises a motion for summary judgment on the basis that Plaintiff has failed
to set forth a prima facie case of Eight Amendment deliberate indifference against him. The
Supreme Court has made clear the standard for claims alleging failure to provide medical treatment
to prisoners is “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U. S. 97,
104 (1976). To state an inadequate medical care claim under the Eighth Amendment's proscription
against cruel and unusual punishment, an inmate must allege two elements: (1) a serious medical
need; and (2) behavior on the part of prison officials that constitutes deliberate indifference to that
need. Estelle, 429 U.S. at 106; Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir.
2003).
"A medical need is ‘serious,’ in satisfaction of the second prong of the Estelle test, if it is
‘one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a
lay person would easily recognize the necessity for a doctor's attention.’” Monmouth County Corr.
Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp.

12 

456, 458 (D.N.J.1979), aff'd, 649 F.2d 860 (3d Cir. 1981)). Denial of or delay in treatment that
causes unnecessary and wanton infliction of pain may also constitute a serious medical need. Id.
(citing Estelle, 429 U.S. at 103).
The second element of the Estelle test is subjective, requiring “an inmate to show that
prison officials acted with deliberate indifference to his serious medical need." Holder v. Merline,
2005 U.S. Dist. LEXIS 32237, *4 (D.N.J. Jun. 27, 2005) (citing Natale, 318 F.3d at 582) (finding
deliberate indifference requires proof that the official knew of and disregarded an excessive risk
to inmate health or safety).
A plaintiff may indicate deliberate indifference by establishing that the defendants
intentionally denied or delayed medical care. Positano v. Wetzel, 529 Fed. Appx. 116, 119 (3d Cir.
2013). Nevertheless, "[w]here a prisoner has received some medical attention and the dispute is
over the adequacy of the treatment, federal courts are generally reluctant to second guess medical
judgments and to constitutionalize claims which sound in state tort law." Id. (quoting United States
ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). Further, conduct that
constitutes negligence does not rise to the level of deliberate indifference; rather, deliberate
indifference is a "reckless disregard of a known risk of harm." Id. (citing Farmer v. Brennan, 511
U.S. 825, 836 (1994)). Additionally, an allegation of medical malpractice or simple negligence
does not rise to the level of a constitutional violation. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.
2004). "Mere disagreement as to the proper medical treatment is also insufficient.” Id. at 235
(internal citation omitted).
Courts have found deliberate indifference "in situations where there was 'objective
evidence that [a] plaintiff had serious need for medical care,' and prison officials ignored that
evidence[,] Nicini v. Morra, 212 F.3d 798, 815 n. 14 (3d Cir. 2000) [and] in situations where

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'necessary medical treatment is delayed for non-medical reasons.' Monmouth Cnty. Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)[,] [cert. denied, 486 U.S. 1006, 108 S. Ct.
1731, 100 L. Ed. 2d 195 (1988)]." Natale, 318 F.3d at 582.
The issue in this matter is whether Dr. Ahsan showed deliberate indifference when he did
not file a second prescription for a mattress or cushioned shoes.3 From the facts provided, Dr.
Ashan examined Plaintiff again in December, 2009. Rather than prescribing a mattress, Dr. Ashan
recommended medication or a steroid injection. Mr. Dykeman refused same. This Court finds,
based on the record provided by the parties, that the decision of whether a mattress should be
issued to Plaintiff was not one that Defendant could have controlled.

Defendant showed

willingness to help Plaintiff by submitting the initial prescription for a mattress. He was then
informed that the Department of Correction was handling the matter. By not issuing a new script
for the mattress, Defendant did not act with deliberate indifference. He appears to have been
waiting on a resolution by the DOC, whose employee had expressly said would look into the
matter. Moreover, the Plaintiff was provided with alternative remedies to alleviate the pain, i.e.
medications, hip replacement or steroid injection.4 While it is not up to this Court to discern the
most appropriate treatment, it remains that, given the circumstances in this matter, Defendant’s
failure to issue a new prescription for the mattress did not rise to the level of deliberate indifference

3

Plaintiff does not appear to raise the issue of the therapeutic shoes in his opposition, though
he mentioned the issue at oral argument. Nevertheless, it appears from discovery, and specifically
from the letter sent to Plaintiff in 2009 that the training insoles were an appropriate course of
treatment, and that shoes would be reconsidered in later reassessments. (Def. Br. Ex. D).
4

 It is unclear whether Plaintiff refused the hip replacement as a remedy. Evidently, a blood
transfusion may occur, and it must be consented to prior to surgery, if significant blood loss occurs
during the operation. Plaintiff believes that a blood transfusion violates the rules governing his
religion (Jehovah’s Witness), and he will not grant permission.  
14 

by Dr. Ashan as required for an Eight Amendment claim, specifically when alternate treatments
like prescription medicines and steroid injections were refused by Mr. Dykeman.
For those reasons, Defendant’s motion for summary judgment is granted.
ORDER
This matter is before the Court on Defendant’s motion for summary judgment [ECF No.
94] and Plaintiff’s motion for appointment of pro bono counsel. [ECF No. 95].; and the Court
having carefully reviewed and taken into consideration the submissions of the parties, as well as
the arguments and exhibits therein presented, and for good cause shown, and for all of the
foregoing reasons,
IT IS on this 28th day of November, 2017;
ORDERED that Plaintiff’s motion for appointment of pro bono counsel [ECF No. 95] is
DENIED; and it is further
ORDERED that Defendants’ motion for summary judgment [ECF No. 94] is GRANTED.
Since Abu Ahsan is the only remaining Defendant in this matter, the matter is DISMISSED with
prejudice.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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