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Burgos v. Philadelphia Prison Health System

August 26, 2009


The opinion of the court was delivered by: Eduardo C. Robreno, J.



Pro se Plaintiff Jose Burgos ("Plaintiff") filed this Section 1983 action against the Philadelphia Prison System, the Philadelphia Health System and individuals associated with those institutions, including Dr. Skliros,*fn1 Linda Maher, Major Osie M. Butler, C/O Castro, and Lt. Lake ("Defendants"), alleging that Defendants violated his constitutional rights by failing to provide adequate medical treatment for his broken arm while he was incarcerated. Specifically, Plaintiff avers that on March 8, 2006, he broke his left arm after falling from the top bunk of his bed in the Philadelphia county prison. According to Plaintiff, although he was immediately seen by the medical staff within the prison, he was not taken to the hospital for treatment until March 17, 2006. (Compl., doc. no. 3.)

On September 16, 2008, this case was placed in civil suspense to accommodate Plaintiff as he made the transition from imprisonment to parole (doc. no. 21). On December 16, 2008, after a status and scheduling conference with the parties, this case was returned to the active docket. At that time, Defendants were instructed to take Plaintiff's deposition and to file their motion for summary judgment by February 13, 2009.

On February 13, 2009, Defendants filed a motion to dismiss for lack of prosecution, arguing that they had been unable to take Plaintiff's deposition, or otherwise proceed with the case, because Plaintiff had absconded from a halfway house and was a fugitive from justice (doc. no. 24). On March 24, 2009, Plaintiff filed a motion seeking leave to reschedule his deposition to a later date (doc. no. 26). The Court granted Plaintiff's motion, and directed Defendants to reschedule Plaintiff's deposition (doc. no. 29). Defendants' motion to dismiss for lack of prosecution was denied as moot (doc. no. 30).

On May 19, 2009, the Court granted Defendants' motion to take Plaintiff's deposition, and directed the Warden at the State Correctional Institution at Forest to produce Plaintiff for a deposition (doc. no. 35). Plaintiff has filed several motions since then, which are currently before the Court.


Plaintiff's motion to release all medical records from the Philadelphia Prison System appears to be a mislabeled discovery request. In it, Plaintiff seeks the release of medical records from November 3, 2005 through May 11, 2006, as well as the names of the staff who treated him. Plaintiff's motion also seeks medical records from Albert Einstein Hospital.*fn2

Plaintiff's motion is unopposed and will be granted.*fn3


Civil litigants do not have a constitutional or statutory right to counsel, but a district court may appoint counsel where certain factors are met. See 28 U.S.C. 1915(e)(1) (providing that "[t]he court may request an attorney to represent any person unable to afford counsel"). "As a preliminary matter, the plaintiff's claim must have some merit in fact and law."

Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). If Plaintiff meets this threshold requirement, the district court should consider the following non-exclusive factors: "(1) the plaintiff's ability to present his or her own case; (2) the complexity of the legal issues; (3) the degree to which factual investigation will be necessary and the ability of the plaintiff to pursue such an investigation; (4) the amount a case is likely to turn on credibility determinations; (5) whether the case will require the testimony of expert witnesses; (6) whether the plaintiff can attain and afford counsel on his own behalf." Id. at 457-58. The Third Circuit has noted that "courts should exercise care in appointing counsel because volunteer lawyer time is a precious commodity and should not be wasted on frivolous cases." Id. at 458.

Plaintiff argues that the appointment of counsel is necessary in this case because he is indigent, illiterate and incarcerated. Additionally, Plaintiff argues that his case involves complex medical issues, which may require expert testimony, and which he is unable to "take on without qualified counsel." (Pl.'s Mot. for Counsel, doc. no. 36.)

Defendants oppose Plaintiff's request for the appointment of counsel. First, Defendants argue that Plaintiff's claim lacks merit. "To demonstrate a prima facie case of cruel and unusual punishment based on the denial of medical care, a plaintiff must establish that defendants acted 'with deliberate indifference to his or her serious medical needs.'" Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002). "This standard has two elements: First, plaintiff must make an 'objective' showing that the deprivation was 'sufficiently serious,' or that the result of defendant's denial was ...

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