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Formica v. Aylor

United States District Court, W.D. Virginia, Roanoke Division

August 26, 2016

F. G. AYLOR, ET AL., Defendants.


          Glen E. Conrad Chief United States District Judge

         Plaintiff Michael Formica, proceeding pro se, brought this prisoner civil rights action against officials at the Central Virginia Regional Jail ("the jail") under 42 U.S.C. § 1983. Formica alleges that jail officials delayed adequate dental treatment on two occasions based on Formica's inability to prepay the costs, in violation of his rights under the Eighth Amendment. Claim 1 alleged a six-month delay in arranging for extraction of a broken wisdom tooth, and Claim 2 alleged a one-year delay in repairing a tooth with a dislodged filling that led to loss of the tooth and an abscessed root. The court denied defendants' motion to dismiss, and they filed a motion for summary judgment, supported by declarations and medical records. Formica responded.

         The matter is presently before the court on the report and recommendation ("the report") of United States Magistrate Judge Joel C. Hoppe. See 28 U.S.C. § 636(b)(1). The report recommends granting defendants' motion as to all claims against Defendant Aylor; granting the motion as to Claim 1 against Defendants Dyer and Pitts, but denying the motion as to Claim 2 against these two defendants. Formica, Dyer, and Pitts and have filed objections to the report.

         The magistrate judge makes only a recommendation to this court. Mathews v. Weber. 423 U.S. 261, 270-71 (1976). The court is charged with making "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." § 636(b)(1). After de novo review of the portions of the report to which the parties object and pertinent portions of the record, the court concludes that the defendants are entitled to summary judgment.


         As a preliminary matter, Formica has filed a "motion to preserve objections" to the magistrate judges' denial Of his motions for evidentiary hearing and appointment of counsel. Formica has also renewed his motion for appointment of counsel. The court concludes that Formica's objections must be overruled, and his renewed motion for counsel must be denied.

         Contrary to Formica's assertions, "a § 1983 litigant has no right to appointed counsel...." McMillian v. Wake Cntv. Sheriffs Dep't 399 F.App'x 824, 829 (4th Cir. 2010) (citing Bowman v. White. 388 F.2d 756, 761 (4th Cir. 1968)). The statute governing in forma pauperis cases, 28 U.S.C. § 1915(e)(1), simply does not authorize the court to "appoint" counsel to represent an indigent party in a civil lawsuit; rather, court "may request" an attorney to represent any person unable to afford counsel. See also Mallard v. U.S. District Court for the Southern District of Iowa. 490 U.S. 296, 300-02 (1989) (finding under prior version of § 1915 that authority to "request" counsel to represent indigent civil litigant did not "authorize mandatory appointments of counsel"). Accordingly, the court asks attorneys for such assistance only in exceptional circumstances-when "a pro se litigant has a colorable claim but lacks the capacity to present it." Whisenant v. Yuam. 739 F.2d 160, 163 (4th Cir. 1984); Miller v. Simmons. 814 F.2d 962, 966 (4th Cir. 1987) ("Under [former version of § 1915(e)(1)], a plaintiff does not have an absolute right to appointment of counsel. In the district court a plaintiff must show that his case is one with exceptional circumstances.") (footnotes omitted).

         Formica does not present exceptional circumstances warranting court-obtained assistance of counsel. His stated reasons for counsel are "the Court has found merit in this case" by denying the motion to dismiss, he cannot afford counsel, the issues are complex, he has "limited knowledge of the law" [and] limited access to a law library (2 hours a day 5 days a week), " and he "needs to depose or serve interrogatories and procure medical records, " but cannot do so because of his incarceration. Formica's pleadings, however, demonstrate his ability to gather and present the facts of his case, to understand and respond to the legal issues raised in the defendants' briefs, and to read and understand the Federal Rules of Civil Procedure that govern this litigation. The issues in this case are not complex, and defendants attached Formica's dental records to their motion. Moreover, Formica offers no viable reason that incarceration prevented him from serving interrogatories or requests for production in a timely manner before Judge Hoppe filed his report. See Fed.R.Civ.P. 33 and 34. For these reasons, the court cannot find that procurement of counsel under § 1915(e)(1) is warranted in this case, or that the earlier denial of counsel was in error.

         The court also concludes that Formica has failed to state any right to an evidentiary hearing before the court addresses the motion for summary judgment. For the reasons stated, the court will overrule Formica's objections to denial of his motions for appointment of counsel and evidentiary hearing. Similarly, the court will deny Formica's pending motions for counsel (ECF Nos. 65 and 66) and his motion to preserve objections (ECF No. 73).

         Dyer and Pitts filed objections to particular findings in the report. Formica responded to the report by filing a pleading titled "objection to report and recommendation"[1] and a "declaration in opposition to defendants' objection to report and recommendation." Rather than stating particularized objections to specific portions of the report, Formica largely repeats the factual allegations and legal conclusions he presented in his response to defendants' motion for summary judgment and objects, generally, to the recommendation for summary judgment for defendants as to some claims. In light of parties' objections, however, the court has reviewed, de novo in accordance with § 636(b)(1), the 40-page report and pertinent portions of the record.

         II. The Evidence

         At the time his § 1983 claims arose between July 2013 and January 2015, Formica, was incarcerated at the Central Virginia Regional Jail ("the jail").[2] Aylor was superintendant of the jail, Dyer served as a major, and Pitts, a licensed practice nurse, served as the medical supervisor. The magistrate judge's report provides an extensive summary of Formica's dental complaints and course of treatment at the jail, based on Pitts' declaration describing the content of the jail's medical records of Formica's course of treatment at the jail. Neither of the parties has filed any particularized objection to this factual summary, and therefore, the court will adopt this portion of the report as an accurate portrayal of events as reflected in Formica's medical and dental records at the jail.

         A. Tooth #32

         In February 2012, shortly after his incarceration at the jail, Formica saw the jail dentist on a complaint that tooth #27 was malpositioned. The dentist noted that the problem was a preexisting condition posing no serious risk to Formica's life or health. Because Formica had many other medical problems, the dentist stated that any extraction should be performed by an outside specialist.

         Jail policy provided:

Inmates with medical and/or dental problems . . . which represent pre-existing conditions may be dealt with only in so far as these matters present a serious risk to life or health, as determined by the Jail Physician. Inmates will be required to be financially responsible for the outside treatment of pre-existing conditions.... inmates will be charged a fee of $10.00 for a doctor's call, nurse's call or dental call. . . NO INMATE WILL EVER BE DENIED MEDICAL SERVICES DUE TO AN INABILITY TO PAY! However, indigent inmates will have their commissary accounts placed in a negative balance.
Inmates with dental problems of a non-emergency nature should submit a request to the medical Department indicating the nature of the problem. Medical staff will evaluate the problem and if necessary have the Jail Dentist evaluate for further dental treatment. Generally extractions and temporary fillings are the dental services provided. Dentures, crowns, caps, root canals, permanent fillings, etc. are not provided by the jail except where dental problems indicate a serious risk to the inmate's health. These services are the financial responsibility of the inmate.

(ECF No. 53-3, at 4-5.) Advised of the cost he would have to prepay to have tooth #27 extracted by an outside specialist, Formica declined the procedure.

         On July 1, 2013, Formica notified the jail's medical department ("medical") that he had broken a tooth. He received Tylenol and was scheduled to see the jail dentist. Formica filed additional requests complaining that the broken tooth hurt and painfully rubbed against his tongue. He also alleges telling officers, other than the defendants, that he was in extreme pain. On July 8, 2013, he filed a request to see the doctor about discontinuing his blood thinner medication so his tooth could be extracted and about getting a "real ...

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