The opinion of the court was delivered by: DIAMOND
The United States Court of Appeals for the Third Circuit has filed an opinion in the above civil action reversing a ruling by this court and remanding the case for further proceedings consistent with that opinion. Parham v. Johnson, 126 F.3d 454 (3d Cir. 1997).
In ruling that this court abused its discretion in a memorandum and order dated June 27, 1994, by which it denied plaintiff's seventh motion for the appointment of counsel, the court of appeals found that a January 6, 1992, order of the magistrate judge to whom this case had been assigned for pretrial procedures which had directed the clerk of court to request counsel for the indigent prisoner plaintiff had never been executed.
The appeals court also found it "especially startling" and "troublesome" that although this court in denying plaintiff's motion for the appointment of counsel had given as one of its reasons that the plaintiff would not "need" expert testimony, "the same district judge" later granted defendant's motion at trial for judgment as a matter of law on the ground that plaintiff had failed to prove his case because he had not produced such expert testimony.
As we demonstrate below, both of these findings are based on inaccurate factual premises which apparently were formed by the court, at least in part, because highly relevant portions of the case record in this court were not included in the appellate court record.
In view of the circumstances peculiar to this matter set forth below, with the exception of the ministerial act of complying with the mandate of the court of appeals, this member of the court will recuse in this case, because his "impartiality might reasonably be questioned" in the future by counsel or a party. See 28 U.S.C. § 455(a).
During all times relevant to this matter, the plaintiff, Paul Lamont Parham, was a prisoner in the Allegheny County, Pennsylvania, jail where he was incarcerated for the commission of several felonies. During this period, the defendant, Marshall Johnson, Jr., was a physician who provided medical services for prisoners at that jail. The plaintiff brought this action under 42 U.S.C. § 1983 to recover damages from the defendant on the ground that he had subjected the plaintiff to cruel and unusual punishment in violation of plaintiff's Eighth Amendment rights during the course of treating him for a problem he was experiencing with his left ear. The plaintiff's complaint was filed pro se on April 30, 1990. He was permitted to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and the case was assigned to a magistrate judge for pretrial procedures. After several motions by plaintiff for the appointment of counsel were denied, the case was tried to a jury. At the conclusion of plaintiff's case, the defendant's motion for judgment as a matter of law was granted and plaintiff appealed.
The Matter of the Appointment of Counsel
On May 23, 1990, the clerk of court received the first of seven motions which plaintiff filed seeking the appointment of counsel. This motion was returned to the plaintiff because it was not in proper form. Thereafter, between June 22, 1990, and September 19, 1991, plaintiff filed five additional motions for appointment of counsel. The magistrate judge denied each of those motions by an order which provided that the motion was being denied without prejudice for reconsideration when the issues in the case became more clearly defined. Plaintiff appealed each of those rulings to this court, and all were affirmed. One ultimately was appealed to the United States Court of Appeals for the Third Circuit, which dismissed it on jurisdictional grounds.
On January 6, 1992, the magistrate judge issued the order which the court of appeals found was never executed. That order provided in its entirety as follows:
AND NOW, this 6th day of January, 1992;
The Clerk of Court is directed to request an attorney from Allegheny County to represent plaintiff Paul Lamont Parham in the district court and to furnish the attorney with copies of the following, together with any other pleadings requested by the attorney:
2. Any Amendments to the Complaint
4. Pretrial Narrative Statements
The court of appeals, obviously disturbed by what it believed to be the failure of this court to obtain compliance with that order, made several references to it in its opinion. The first appears in the first paragraph of the opinion at 126 F.3d at 455:
The magistrate judge found that Parham's claim may have merit and ordered that counsel be appointed for Parham pursuant to 28 U.S.C. § 1915. This order was never adhered to. Two years later, Parham, still without counsel, petitioned the district court to appoint him an attorney. The district court acknowledged that Parham's claim had merit, but denied his requests.
Parham was then forced to try his claim pro se. The district court directed a verdict for Dr. Johnson because Parham failed to present an expert witness....
Upon review, we find that the magistrate judge's order should have been complied with and Parham should have had counsel below. Accordingly, we reverse and remand.
Again at 126 F.3d at 456, the court states:
On January 6, 1992, the magistrate judge entered an order directing the clerk of court to appoint counsel for Parham. Two years later, the clerk still had not appointed counsel.
At 126 F.3d at 458, the court notes:
In this case, the magistrate judge originally granted Parham's motion for appointment of counsel and ordered that the clerk of courts (sic) appoint counsel for Parham. J.A. at ...