United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Chief United States District Judge
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
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.
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.
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.
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).
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.
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).
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" 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.
time his § 1983 claims arose between July 2013 and
January 2015, Formica, was incarcerated at the Central
Virginia Regional Jail ("the jail"). 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
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.
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.
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