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Wilkerson v. United States

April 20, 2009


The opinion of the court was delivered by: James F. McCLURE, Jr. United States District Judge

(Judge McClure)


This pro se Federal Tort Claims Act ("FTCA") action was initiated by Plaintiff Linwood Wilkerson, an inmate presently confined at the Allenwood Low Security Correctional Institution ("FCI Allenwood Low") in White Deer, Pennsylvania. Plaintiff seeks compensation for an injury he sustained after slipping and falling on a puddle of water in the food services area at FCI Allenwood Low. (See Record document no. 1.)

Presently pending are Plaintiff's motions for independent medical examination (Record document no. 25) and to appoint counsel (Record document no. 26). For the reasons set forth below, the motions will be denied. In addition, Plaintiff will be given fifteen (15) days to file his opposition to Defendant's motion for summary judgment (Record document no. 30).

I. Motion for Independent Medical Examination

Plaintiff requests that this Court order that an independent medical examination, including a Magnetic Resonance Imaging ("MRI") test, be provided to him at Defendant's expense.*fn1 (Record document no. 25.) He asserts that his incarceration prevents him from seeking his own course of medical treatment and from "developing a factual and medical basis for an effective presentation of his claims at trial." (See id. at 1.) He alleges that he has made requests that the Bureau of Prisons ("BOP") obtain an MRI of his injured back, but the BOP has "resisted these requests."*fn2 (See id.) Plaintiff argues that the absence of an MRI diagnosis "may effectively prevent him from successfully presenting his case with a reasonable degree of medical certainty." (See id. at 2.) He further argues that he may not be able to successfully litigate his claims without a clear medical diagnosis. (See id.)

In opposition to Plaintiff's motion, Defendant argues that the Court does not have authority to appoint an expert witness at government expense for an indigent pro se plaintiff and that a litigant's in forma pauperis status does not entitle him or her to the waiver of payment of ordinary expenses of litigation. (See Record document no. 28 at 2-3.) The Court agrees. Neither the court nor defendants are required to pay for a plaintiff's expert witness. Boring v. Kozakiewicz, 833 F. 2d 468, 474 (3d Cir. 1987); Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993). The Third Circuit Court of Appeals has explicitly stated that similar "plaintiffs' dilemma in being unable to proceed in [a] damage suit [based on alleged denial of medical treatment] because of the inability to pay for expert witnesses [did] not differ from that of nonprisoner claimants [facing] similar problems." Boring, 833 F.2d at 474. The Court further noted that "[n]onprisoners often resolve that difficulty through contingent fee retainers with provisions for arranging expert testimony" and equated seeking government funding of expert reports to "asking for better treatment than [prisoner plaintiffs'] fellow-citizens who have not been incarcerated but who have at least equal claims for damages." Id.

The Boring Court reached its conclusion after noting that, although 28 U.S.C. § 1915 authorizes "the courts to waive prepayment of such items as filing fees and transcripts if a party qualifies to proceed in forma pauperis," the plaintiffs in Boring identified "no statutory authority nor [ ] any appropriation to which the courts may look for payment of expert witness fees in civil suits for damages." Id.; see also Tabron, 6 F.3d at 159. Similarly, in this case, Plaintiff has not identified any statutory basis that would require the Court or Defendant to fund the expert report. Therefore, his motion for independent medical examination (Record document no. 25) will be denied.

II. Motion to Appoint Counsel

Although indigent litigants have no constitutional or statutory rights to appointment of counsel in a civil case, the Court has broad discretionary power to appoint counsel under 28 U.S.C. § 1915(e)(1). Tabron, 6 F.3d at 153. The Tabron Court noted that "the district court must consider as a threshold matter the merits of the plaintiff's claim." Tabron, 6 F.3d at 155. Next, if a claim has arguable merit, "[t]he plaintiff's ability to present his or her claim is, of course, a significant factor that must be considered in determining whether to appoint counsel." Id. at 156. "If it appears that an indigent plaintiff with a claim of arguable merit is incapable of presenting his or her case, serious consideration should be given to the appointing of counsel . . . and if such a plaintiff's claim is truly substantial, counsel should ordinarily be appointed." Id. at 156.

In addition to the factors just noted, under Tabron, a district court's decision whether to appoint counsel should also be "informed" by a consideration of the following factors: "the difficulty of the particular legal issues;" "the degree to which factual investigation will be required and the ability of the indigent plaintiff to pursue such investigation;" whether "a case is likely to turn on credibility determinations;" "where the case will require testimony from expert witnesses;" and "whether an indigent plaintiff could obtain counsel on his or her own behalf." Id. at 156, 157 n.5.

The Tabron Court also held that the "appointment of counsel under § 1915(d) may be made at any point in the litigation and may be made by the district court sua sponte." Id. at 156. Finally, the Tabron Court acknowledged that "courts have no authority to compel counsel to represent an indigent civil litigant," id. at 157 n.7, and cautioned against the indiscriminate appointment of counsel in view of the limited supply of competent attorneys willing to accept such appointments. Id. at 157.

In a subsequent decision, the Third Circuit Court of Appeals reiterated that "[i]ndigent civil litigants possess neither a constitutional nor a statutory right to appointed counsel." Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citation omitted). The Montgomery Court recognized that the criteria set forth in Tabron should be employed in addressing the appointment of counsel issue. In a non-precedential decision, Gordon v. Gonzalez, No. 04-4623, 2007 WL 1241583, *2 n.4 (3d Cir. Apr. 30, 2007), the Third Circuit Court of Appeals added that two other factors to be taken into consideration are: (1) the court's willingness to aid the indigent party in presenting his or her case; and (2) the available supply of lawyers willing to accept 1915(e) requests within the relevant geographical area.

A review of Plaintiff's filings thus far reveals that he is fully capable of litigating this action on his own. Although Plaintiff alleges in his motion to appoint counsel that his imprisonment limits his ability to litigate his case, he clearly possesses the ability to prepare pleadings and present comprehensible arguments to the Court. He set forth the allegations in his Complaint and other filings in typewritten, plain, and concise statements. Contrary to Plaintiff's assertion, the legal issues in this case ...

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