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Thinna v. Beard

January 16, 2008

JACKIE J. THINNA, PLAINTIFF
v.
JEFFERY A. BEARD, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Kosik

MEMORANDUM

I. Introduction

Jackie Thinna is an inmate currently confined at the State Correctional Institution at Waymart (SCI-Waymart), Pennsylvania. He filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging claims of inadequate medical care in violation of the Eighth Amendment on July 3, 2006. Only two (2) defendants remain in this action, Dr. Bekele and Dr. Purcell, both SCI-Waymart employees.*fn1

II. Background

Plaintiff sets forth claims of deliberate indifference to his medical needs which arose in May and June of 2004, following an unidentified surgical procedure performed by Dr. Roach. Plaintiff specifically avers that a drainage tube was not placed in his surgical wound, and that he was not prescribed any type of aftercare following surgery. He claims that Beard violated his Eighth Amendment rights because as Secretary of the DOC, he is responsible for all persons employed by the DOC and, therefore responsible for the injuries he received at the hands of Roach and Bekele. He contends that Fogel, as the DOC's Medical Director, is responsible for all actions of the medical personnel and, therefore, is also responsible for the actions of Roach and Bekele.

Plaintiff claims that Dr. Roach violated his rights when, as the surgeon, he failed to place a drainage tube in his wound following surgery or prescribe any type of aftercare for him. Defendant Bekele is alleged to have been deliberately indifferent when he removed Plaintiff's staples and his left nipple without first consulting the original attending surgeon, Dr. Roach. According to Plaintiff, Defendants Loomis, Villano and Dr. Purcell are responsible for "indifferent treatment in the aftercare concerning surgery." (Doc. 1, Compl. at unnumbered p. 2a.)*fn2

Plaintiff requests declaratory, compensatory and punitive relief.

Presently pending are the following motions filed by Plaintiff which will be addressed by the court: two (2) motions seeking the appointment of counsel (Docs. 44, 46); motion for the production of documents (Doc. 45); motion to continue (Doc. 48); motion to amend/correct the complaint (Doc. 56) and motion for enlargement of time to file briefs opposing the motions to dismiss filed by Defendants Bekele and Purcell (Docs. 58).

III. Discussion

A. Motions for Counsel

Pending are motions seeking the appointment of counsel filed by Plaintiff on July 13, 2007 (Doc. 44) and July 18, 2007 (Doc. 46). These two filings are identical to one another and, in light of the fact that the motions were filed within several days, it is evident that the later filing is merely a copy of the first, and not meant to be filed as a separate motion. Accordingly, it will be dismissed as moot. The earlier motion will be addressed by the court.

It is a well-established principle that prisoners have no constitutional or statutory right to appointment of counsel in a civil case. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). Yet, district courts have broad discretionary power to appoint counsel under 28 U.S.C. § 1915. Montgomery v. Pichak, 294 F.3d 492, 499 (3d Cir. 2002), citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). The United States Court of Appeals for the Third Circuit has stated that the appointment of counsel for an indigent litigant should be made when circumstances "indicate the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).

The initial determination to be made by the court in evaluating the expenditure of the "precious commodity" of volunteer counsel is whether the plaintiff's case "has some arguable merit in fact and law." Montgomery, 294 F.3d at 499. In this case, while Thinna's complaint alleges deliberate indifference to medical care, several of the Defendants have been dismissed from the case, and motions to dismiss have been filed by the remaining two (2) Defendants. (Docs. 28, 40.) ...


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