Culver v. Specter et al

Filing 116

MEMORANDUM AND ORDER - IT IS ORDERED that Plaintiffs request for the appointment of counsel 77 is granted conditionally. If counsel cannot be found to represent Plaintiff, the conditional order for appointment of counsel will be revoked, and Plaint iff will be required to proceed in this case without counsel. The Clerk of Court is directed to forward a copy of this order to the Chair of the Federal Bar Associations Pro Bono Committee, Stephen M. Greecher, Jr., Esquire. Appointed counsel for Pla intiff is directed to file an entry of appearance with the Court no later than thirty (30) days from the date of this order. Resolution of all pending motions in this action will be stayed pending further notification from the Court. Signed by Chief Judge Yvette Kane on 10/11/12. Copy of this order sent on this date to Stephen Greecher, via email and First class USPS.(rc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRETT T. CULVER,
Plaintiff,
v.
JAMES SPECTER, et al.,
Defendants

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CIVIL NO. 1:CV-11-2205
(Chief Judge Kane)

MEMORANDUM
This civil rights action was filed by Brett T. Culver (“Culver”) pursuant to 42 U.S.C.
§ 1983. Culver alleges that employees at SCI-Mahanoy, his former place of incarceration, failed
to protect him from an assault by another inmate after they informed the inmate that Culver had
made complaints about him. He further maintains that he was denied adequate medical care in
violation of the Eighth Amendment with respect to the broken jaw he sustained from the assault.
State medical negligence claims are also asserted. Presently before the Court is Culver’s sixth
motion seeking the appointment of counsel in this matter. (Doc. No. 77.) For the reasons that
follow, the motion will be conditionally granted.
I.

Background
Culver claims that on December 3, 2009, while confined at SCI-Mahanoy, Unit Manager

Muick and Counselor Marhelko failed to protect him from an assault by another inmate when
they informed said inmate that Culver had made complaints against him. By doing so, Culver
claims that Defendants deliberately disregarded his safety by inciting hostility toward him that
resulted in the attack. As a result, Culver suffered a broken jaw. Following the assault, Culver
states he was denied adequate medical care on numerous occasions with respect to his injury by
members of the SCI-Mahanoy prison staff, including medical, dental and administrative

personnel, as well as by Dr. Specter, a private practice oral surgeon contracted by the
Pennsylvania Department of Corrections to provide services to SCI-Mahanoy.1 This conduct
continued over the course of approximately two (2) years. On August 15, 2012, a motion to
dismiss filed by Specter was granted in part and denied in part. (Doc. No. 81). In addition,
Specter’s motion for partial summary judgment on the basis of Culver’s failure to file a
certificate of merit was denied without prejudice. Culver was granted an enlargement of time
within which to file a certificate of merit in this case.
On October 9, 2012, the Court also granted in part and denied in part a motion to dismiss
filed by the Corrections Defendants. (Doc. No. 115.) The motion was granted with respect to
Culver’s claims regarding the denial of his grievances and appeals, and denied in all other
respects. In addition, a motion to dismiss filed by Medical Service Provider Corizon was
granted. Pending, but not yet ripe, are motions to dismiss filed by Defendants Lisiak and
Gustitus (Doc. No. 96), and Defendant Chipriano (Doc. No. 102).
II.

Standard
As previously set forth in addressing Culver’s earlier motions for counsel, a plaintiff in a

civil case has no constitutional or statutory right to counsel. Montgomery v. Pinchak, 294 F.3d
492, 498 (3d Cir. 2002). The Court does not have the authority to compel a lawyer to represent
an indigent plaintiff. Tabron v. Grace, 6 F.3d 147, 153 n. 1 (3d Cir. 1993). Rather,
representation for an indigent is governed by 28 U.S.C. § 1915(e)(1) which only provides that

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The Corrections Defendants named in this action are as follows: Mr. Muick, E-Unit
Manager; Mrs. Marhelko, E Unit Block Correctional Officer; Ms. Stanitis, Food Services
Supervisor; and Robert Moczulski, prison dentist. Also named as Defendants are Health Care
Administrators Cerullo and Chipriano, Doctors Lisiak and Gustitus, and Medical Service
Provider (Corizon).
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the court “may request an attorney to represent any person unable to afford counsel,” (emphasis
added), not that the court can order the attorney to do so. The Third Circuit Court of Appeals
has cautioned that “courts should exercise care in appointing counsel because volunteer lawyer
time is a precious commodity and should not be wasted on frivolous cases.” Parham v. Johnson,
126 F.3d 454, 458 (3d Cir. 1977).
A district court has broad discretion under 28 U.S.C. § 1915(e)(1) in deciding whether to
seek counsel for a pro se litigant, Montgomery, 294 F.3d at 498, and the decision may be made
at any point in the litigation. Id. at 503-04. As a threshold matter, the Court must assess whether
the claimant’s case has some arguable merit in fact and law. Tabron v. Grace, 6 F.3d 147, 155
(3d Cir. 1993). If the plaintiff overcomes this initial hurdle, the Court may then consider the
following non-exhaustive list of factors when appointing pro bono counsel: (1) the plaintiff’s
ability to present his own case; (2) the difficulty of the particular legal issues; (3) the degree to
which factual investigation will be necessary and the ability of the plaintiff to pursue
investigation; (4) the plaintiff’s capacity to retain counsel on his own behalf; (5) the extent to
which a case is likely to turn on credibility determinations; and (6) whether the case will require
testimony from expert witnesses. Id. at 155-56, 157 n. 5.
III.

Discussion
Culver has represented himself to this point in the instant case. His filings have been

articulate, complete with legal citation, literate and logical. He has successfully defended
against the motions to dismiss that have been filed to date by Defendants. The Court has found
the majority of his claims to have arguable merit, and believes that in light of his need to obtain a
Certificate of Merit with respect to his injuries, the possibility of obtaining counsel should be

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explored. However, the Court also notes that whether or not such opinion can be obtained is
unknown. In addition, numerous motions are being filed in this action not only by the various
groups of Defendants, but also Culver. If counsel can be obtained, it may lead to a more
expeditious resolution of this matter. For these reasons, the motion will be granted
conditionally provided that pro bono counsel can be found through the Pro Bono Panel of the
Federal Bar Association for the Middle District of Pennsylvania. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRETT T. CULVER,
Plaintiff,
v.
JAMES SPECTER, et al.,
Defendants

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CIVIL NO. 1:CV-11-2205
(Chief Judge Kane)

ORDER
NOW, THIS 11th DAY OF OCTOBER, 2012, in accordance with the accompanying
Memorandum, IT IS HEREBY ORDERED AS FOLLOWS:
1.

Plaintiff’s request for the appointment of counsel (Doc. No. 77) is granted
conditionally.

2.

If counsel cannot be found to represent Plaintiff, the conditional order for
appointment of counsel will be revoked, and Plaintiff will be required to proceed
in this case without counsel.

3.

The Clerk of Court is directed to forward a copy of this order to the Chair of the
Federal Bar Association’s Pro Bono Committee, Stephen M. Greecher, Jr.,
Esquire, Tucker Arensberg, P.C., 2 Lemoyne Drive, Suite 200, Lemoyne,
Pennsylvania, 17120, who shall seek the services of a volunteer member of the
Bar Association to represent Plaintiff in this matter.

4.

Appointed counsel for Plaintiff is directed to file an entry of appearance with the
Court no later than thirty (30) days from the date of this order.

5.

Resolution of all pending motions in this action will be stayed pending further
notification from the Court.

S/ Yvette Kane
YVETTE KANE, Chief Judge
Middle District of Pennsylvania