MCGINNIS v. HAMMER et al

Filing 70

OPINION setting forth the reasons plaintiff's motion for objection and appeal for motion to appoint counsel 23 will be GRANTED to the extent plaintiff seeks to preserve his rights to file a renewed motion to appoint counsel at an appropriate time. An appropriate order will be entered. Signed by Chief Judge Joy Flowers Conti on 12/14/15. (kjm) Modified on 12/14/2015 to include "will be GRANTED" and "An appropriate order will be entered." (kjm)

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

VERN E. McGINNIS, JR.,

CIVIL ACTION NO. 15-398
Plaintiff,

v.
PHYSICIAN ASSISTANT MARK
HAMMER; CHCA STEPHANIE WOOD;
SUPERINTENDANT MARK CAPOZZA
Individually and in their official capacities;
HEALTH CARE PROVIDER M.H.M.,
Defendants.
OPINION
CONTI, Chief District Judge
On November 16, 2015, plaintiff Vern E. McGinnis, Jr. (“plaintiff”), an inmate at the
State Correctional Institution at Pittsburgh (“SCI-Pittsburgh”), filed an amended complaint
asserting claims under 42 U.S.C. § 1983 against defendant Mark Hammer, Stephanie Wood,
Mark Capozza, and Correct Care Solutions, LLC (collectively, “defendants”). (ECF No. 59.)
Plaintiff, who is proceeding in forma pauperis, alleges that defendants violated his constitutional
rights by failing to provide him medical treatment for a knee injury he sustained while jogging
during his incarceration. (Id.)
On April 13, 2015, plaintiff filed a motion to appoint counsel, pursuant to 28 U.S.C. §
1916(e)(1). (ECF No. 6.) Plaintiff argued in the motion to appoint counsel that he has “limited
access to the law library and limited knowledge of the law,” is unable to afford counsel, and the
complexity of his case “will require significant research and investigation.” (ECF No. 6.) On
April 15, 2015, the magistrate judge issued an order denying plaintiff’s motion. (ECF No. 8.)
The magistrate judge held that “it does not appear with any degree of certainty that Plaintiff is

setting forth a factual basis that demonstrates he will ultimately prevail on the merits.” (Id. at 3.)
The magistrate judge considered the factors set forth in Parham v. Johnson, 126 F.3d 454, 457
(3d Cir. 1997), and determined that—even if plaintiff’s claim has arguable merit in fact or law—
the appointment of counsel is not warranted in this case. (Id. at 2-3.)
On May 1, 2015, plaintiff filed a “motion for objection and appeal for motion to appoint
counsel.” (ECF No. 10.) The magistrate judge considered plaintiff’s motion as a motion for
reconsideration of the order denying plaintiff’s motion to appoint counsel. (ECF No. 19.)
Plaintiff in the “motion for reconsideration” argued expert testimony is necessary is this case to
explain the extent of his knee injury. (ECF No. 10 ¶ 2.) On June 11, 2015, the magistrate judge
denied plaintiff’s motion because she was “not convinced that [expert] testimony will be so
required[,]” and, therefore, plaintiff’s argument did “not merit a change to the rationale of the
ruling set forth in the Order of April 15, 2015.” (ECF No. 19 at 1.)
On June 26, 2015, plaintiff filed another “motion for objection and appeal for motion to
appoint counsel.” (ECF No. 23.) Plaintiff requests that the court permit him to reserve his right to
seek the appointment of counsel once this case gets closer to trial because he will need
“assistance with depositions, discovery, etc.” and an expert witness. (ECF No. 23 ¶¶ 1-2.)
Plaintiff’s request to reserve his right to seek counsel as this case gets closer to trial will be
GRANTED. The magistrate judge’s denial of plaintiff’s motion to appoint counsel and motion
for reconsideration are without prejudice to plaintiff’s ability to file a renewed motion to appoint
counsel at an appropriate time. An appropriate order will be entered.
By the court,
Dated: December 14, 2015

/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Chief United States District Judge
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