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Stewart v. Wagner

August 31, 2010

THOMAS JOHN STEWART, PLAINTIFF
v.
GEORGE WAGNER, ET AL DEFENDANTS



The opinion of the court was delivered by: Stengel, J

MEMORANDUM

Thomas John Stewart filed a Section 1983 prisoner civil rights claim in 2007. When his court-appointed attorneys represented that Mr. Stewart authorized their withdrawal of his claim, this court entered an order pursuant to Local Rule 41.1(b) dismissing the action with prejudice. Mr. Stewart contends he did not acquiesce in the withdrawal of his claim. His motion for relief from judgment will be granted.

I. BACKGROUND

On January 18, 2007, Thomas John Stewart filed a Section 1983 civil rights complaint against George Wagner, Warden of the Berks County Prison ("BCP" or "the prison"), Dr. Eric Von Kiel, Medical Director at the prison, and Cindy Sheldon, Medical Administrator at the prison. (Document #3). Mr. Stewart was incarcerated as a pre-trial detainee at BCP starting August 4, 2006, and he alleged that, some time after his admission, medical staff members at the prison*fn1 determined that he needed medical attention for open sores on his leg. Id. He claimed a nurse at the prison forced him to use ointment on a daily basis even though Stewart explained to her that he had been directed by another physician to use the ointment only once a week, and that he did not receive the daily cleaning required for the sores. Id. Essentially, Stewart claimed that the prison's improper treatment of the sores resulted in a painful four months of suffering before they healed. Id. Mr. Stewart alleged that Wagner, Von Kiel, and Sheldon violated the Eighth and Fourteenth Amendments by failing to provide him with proper medical treatment. Id. He claimed their actions caused him "pain and suffering," "emotional distress," "anxiety, embarrassment, [and] humiliation" and that he continues to have difficulty breathing and feels pain in his stomach and back. Id.

Mr. Stewart noted in his complaint that he "would appreciate the Courts to appoint counsel." Id. After Wagner and Von Kiel filed motions to dismiss his complaint (Documents ## 7, 12), Mr. Stewart filed a separate motion for appointment of counsel on March 8, 2007 (Document #15), which I granted. Thomas O'Keefe, Esq., a lawyer on the Prisoner Civil Rights Panel, was appointed counsel to represent Mr. Stewart on March 21, 2007. Mr. O'Keefe handled Mr. Stewart's case along with an associate, Konrad Jarzyna, Esq. It is the subject of Mr. Stewart's communications with Mr. O'Keefe and Mr. Jarzyna that is at the heart of Mr. Stewart's motion for relief from judgment.

In a July 20, 2007 telephone conference, Mr. O'Keefe represented to the Court that he had engaged in discovery and was voluntarily withdrawing the action on behalf of Mr. Stewart. This court issued an order pursuant to Local Rule 41.1(b) dismissing the action with prejudice, although no official motion for voluntary dismissal was filed by Mr. O'Keefe. Nothing further was heard from Mr. Stewart until August 26, 2009, when he sent a letter to this court's chambers inquiring about the status of his suit and requesting new counsel because his appointed counsel was not pursuing his case and had not "been in touch" with him in two years.

Mr. O'Keefe sent a letter to the Court on November 4, 2009 in response to Mr. Stewart's inquiry, explaining that he and Mr. Jarzyna thought Mr. Stewart understood that his case was being closed. He wrote that he had not communicated with Mr. Stewart about the Section 1983 action since its dismissal. His firm had, however, successfully represented Mr. Stewart in a Social Security case relating to his disability claim.

I sent Mr. Stewart a letter on November 5, 2009, explaining that his case had been dismissed. Mr. Stewart now claims that he did not authorize this dismissal and has filed a motion seeking relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).

Mr. Stewart requested an evidentiary hearing concerning the motion to reopen his case. The hearing was held May 17, 2010, with Mr. Stewart attending by video-conference from a prison in Muskegon, Michigan, and attorneys for all parties present in the courtroom.

At the hearing, Mr. O'Keefe, Mr. Jarzyna, and Mr. Stewart each testified under oath. Mr. O'Keefe represented that his firm performed due diligence after being appointed as counsel for Mr. Stewart. Specifically, Mr. O'Keefe obtained Mr. Stewart's private and prison medical records from before, during, and after his incarceration at BCP. Evidentiary Hearing Tr., 12. After the medical records were obtained, Mr. O'Keefe retained a medical expert to examine them. Id. The expert opined that Mr. Stewart had received an appropriate level of medical care while at the prison. Id. Mr. O'Keefe concluded that, because Mr. Stewart had received appropriate care considering his medical history, his case lacked merit. Id. at 13.

Mr. Jarzyna was the attorney responsible for personal contact with Mr. Stewart.

Tr., 15. He met with Mr. Stewart twice in connection with this case - once shortly after O'Keefe was appointed counsel, and again following O'Keefe's review of the medical records and procurement of a medical expert's opinion. Id. at 15-16. Mr. Jarzyna testified that, when he spoke with Mr. Stewart the second time, he informed Mr. Stewart that the case lacked merit. Id. at 16. Mr. Jarzyna believed Mr. Stewart not only understood the basis for voluntary dismissal but that Mr. Stewart authorized the dismissal. Id. at 16, 19-20. During their second conversation and following their discussion about the 1983 action, Mr. Stewart asked Mr. Jarzyna to represent him in the social security disability case. Id. at 17. Mr. Jarzyna agreed and ultimately obtained a judgment for disability payments owed to Mr. Stewart. Id. at 18.

Mr. Stewart represented at the hearing that he believed this matter was ongoing, and that "nobody informed me that this case was dismissed." Tr., 5. He said he told Mr. Jarzyna that "under no circumstances do I wish to dismiss this case." Id. He explained that he has sent Mr. O'Keefe and Mr. Jarzyna letters and materials about the case and did not receive anything from them in return, and that he wrote to us in August of 2009 when he "finally had enough." Id. at 6.

At the hearing, Mr. O'Keefe provided us with copies of the letters received from Mr. Stewart. Mr. Stewart wrote letters to Mr. Jarzyna on August 6, 2007, August 15, 2007, September 21, 2007, October 28, 2007, January 16, 2008, March 23, 2008, May 21, 2008, August 23, 2008, January 25, 2009, and February 4, 2009. The content of these letters is, almost exclusively, Mr. Stewart's social security disability claim. He once mentions the possibility of a class action lawsuit against BCP, but in this context, gives Mr. Jarznya the name of a fellow prisoner as a ...


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