NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3615
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LARRY LYLE LASKO,
Appellant
v.
HARRELL WATTS, Administrator for National Inmate Appeals; SCOTT DODRILL,
Regional (NE) Director the B.O.P.; RONNIE HOLT, Warden, F.C.I. Schuylkill,
Minersville, PA; RUSSELL C. HENDERSHOT, D.O. M.S. F C.I. Schuylkill;
EDGARDO ONG, Health Services Administrator F.C.I. Schuylkill;
Ms. M. WAMBACH, P.A. FMG, F.C.I. Schuylkill; Mr. HEADER, Law Library &
Education Supervisor, F.C.I. Schuylkill; AMY LEONARD, Unit 2 Manager, F.C.I.
Schuylkill; M. PLESH, Unit 2 Case Manager, F.C.I. Schuylkill;
D. SHIRES, Unit 2-A Counselor, F.C.I. Schuylkill
On Appeal From the United States District Court
for the Middle District of Pennsylvania
(06-cv-2126)
District Judge: Honorable Thomas I. Vanaskie
Argued February 25, 2010
Before: CHAGARES, STAPLETON, and LOURIE, * Circuit Judges.
(Filed: April 12, 2010 )
*
The Honorable Alan D. Lourie, Circuit Judge for the United States Court of
Appeals for the Federal Circuit, sitting by designation.
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OPINION OF THE COURT
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Thomas S. Jones
Jean M. Mosites (Argued)
Jones Day
500 Grant Street
Suite 4500
Pittsburgh, PA 15219-2514
Counsel for Appellant
Dennis C. Pfannenschmidt
United States Attorney
G. Michel Thiel (Argued)
Assistant U.S. Attorney
Middle District of Pennsylvania
235 North Washington Avenue
Suite 311
Scranton, PA 18501
Counsel for Appellees
CHAGARES, Circuit Judge.
Larry Lasko, an inmate incarcerated at the Schuylkill Federal Correctional
Institution in Minersville, Pennsylvania (“FCI-Schuylkill”), appeals from orders of the
District Court granting summary judgment for defendants and denying Lasko’s motion
for appointment of counsel under 28 U.S.C. § 1915(e)(1). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the essential facts. Lasko suffers from chronic hepatitis C, a viral disease that
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can cause significant liver damage. The Bureau of Prisons (“BOP”) guidelines on the
treatment of hepatitis C, see Joint Appendix (“J.A.”) 137-58, recommend that physicians
weigh a number of factors when assessing the appropriate form of treatment and
determining the best timing for initiating treatment. These guidelines advise that before
beginning a course of treatment with the antiviral medications ribavirin and interferon, an
inmate should be assessed for potential contraindications and treatment limitations.
Moreover, because of the potential side effects from these medications, the guidelines
instruct that patients must be carefully monitored and examined while undergoing a
course of treatment.
Consistent with these guidelines, Lasko received a series of laboratory tests,
physical examinations, and psychological evaluations before starting on a regimen of
ribavirin and interferon. Upon his transfer to FCI-Schuylkill on April 12, 2004, Lasko
received a medical intake screening, which noted his history of hepatitis C. After this
initial screening, Lasko underwent a series of laboratory tests to evaluate his liver
function. Lasko received physical examinations from defendant Dr. Russel Hendershot
and other medical staff, and Lasko was evaluated on several occasions by a psychiatrist.
Lasko was also referred to a gastroenterology specialist, who recommended treating
Lasko with interferon and ribavirin. After seeing the gastroenterologist, Lasko was
scheduled for a liver biopsy. On October 5, 2005, Dr. Hendershot examined Lasko,
explained the results from the biopsy, and instructed him that his antiviral treatment
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would begin shortly. Dr. Hendershot also explained that Lasko would need to submit to
weekly examinations and periodic blood work to be eligible for the treatment. Over a
year passed between Lasko’s initial incarceration at FCI-Schuylkill and the
commencement of an antiviral medication regimen, but Lasko was evaluated and treated
by medical staff throughout this time period. During this time, Lasko submitted
numerous letters and administrative grievances regarding his medical treatment.
Lasko began receiving ribarivin and interferon on October 17, 2005. On
November 8, 2005, Lasko refused to speak with or be examined by Dr. Hendershot. Dr.
Hendershot consulted with the BOP regional medical director, who recommended
discontinuing treatment because the ribavirin and interferon regimen could not be
continued without physical and psychological examinations. Dr. Hendershot continued
the medication treatments for another week, pending a psychological examination. The
staff psychologist reported that Lasko had failed to appear for appointments on at least
three occasions. On November 15, 2005, Lasko again refused to be examined by Dr.
Hendershot. At this time, Dr. Hendershot discontinued the ribavirin and interferon
treatment regimen. Lasko contends that his treatment was discontinued because Lasko
filed an administrative grievance against Dr. Hendershot, not because Lasko refused to
comply with the required physical and psychological examinations.
On May 1, 2006, Lasko requested that his medication treatments be resumed, and
on June 7, 2006, he was re-started on ribavirin and interferon. On June 14, 2006,
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however, Lasko refused to allow blood samples to be drawn for laboratory work. In
addition, Lasko exhibited abusive and disruptive behavior during two medical
appointments. On October 25, 2006, a review of Lasko’s treatment plans and laboratory
reports indicated that the medication regimen had not been effective, as his viral load had
not declined and stabilized. After consulting with the BOP regional clinical director, Dr.
Hendershot discontinued Lasko’s medication regimen on October 27, 2006. Lasko
contends that his treatment was discontinued in retaliation for his administrative and legal
actions against defendants.
Lasko initiated this action by filing a pro se complaint on October 30, 2006.1 The
complaint names ten individuals as defendants, including two BOP administrators and
eight FCI-Schuylkill employees. Lasko alleges that defendants knew of Lasko’s chronic
hepatitis C condition but delayed treating him for eighteen months. J.A. 71-73. The
complaint seeks relief under the First and Eighth Amendments, the Federal Tort Claims
Act, 28 U.S.C. §§ 2671-2680, and the Americans with Disabilities Act, 42 U.S.C. §§
12101-12213. J.A. 67, 70. The complaint also lists several specific legal claims: (1)
deliberate indifference to serious medical need; (2) retaliation; and (3) denial of access to
the courts. J.A. 76. After Lasko filed this complaint, the District Court sent him a
Standing Order indicating that each party had six months from the filing of its last
1
Lasko filed an earlier lawsuit, Lasko v. Hendershot, No. 05-cv-0991 (M.D. Pa.
Sep. 29, 2006), approximately one month before initiating this action. This earlier action
was dismissed for failure to exhaust administrative remedies.
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pleading to complete discovery.
On June 6, 2007, defendants moved for summary judgment on all of Lasko’s
claims, filing supporting papers on June 27, 2007. On July 27, 2007, Lasko filed a
motion for enlargement of time to respond to defendants’ motion for summary judgment;
a motion for the appointment of counsel; and several discovery requests. On August 6,
2007, Lasko filed another discovery request. On September 4, 2007, the District Court
granted defendants’ motion for an extension of time to respond to Lasko’s discovery
requests, permitting defendants to respond within thirty days of the court’s resolution of
defendants’ motion for summary judgment. On September 11, 2007, Lasko filed a brief
opposing defendants’ motion for summary judgment.
On March 25, 2008, the District Court denied Lasko’s motion for appointment of
counsel, concluding that Lasko had demonstrated the ability to represent himself, at least
through this stage of the litigation. On August 12, 2008, the District Court granted
defendants’ motion for summary judgment, dismissing all of Lasko’s claims and ordering
the case closed. Lasko timely appealed.
II.
We review a district court’s denial of counsel to an indigent civil litigant for abuse
of discretion. See, e.g., Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). A
district court abuses its discretion “if its decision ‘rests upon a clearly erroneous finding
of fact, an errant conclusion of law or an improper application of law to fact.’” Id.
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(quoting Newton v. Merrill Lynch, 259 F.3d 154, 165-66 (3d Cir. 2001)).
We review de novo the District Court’s substantive decision to grant summary
judgment for defendants, applying the same standard that the District Court was obligated
to apply. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir. 2008). “Summary judgment is
appropriate only where there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Id. (citation omitted); see Fed. R. Civ. P. 56(c).
On summary judgment, “we must view the facts in the light most favorable to the non-
moving party, and draw all reasonable inferences therefrom in that party’s favor.” N.J.
Transit Corp. v. Harsco Corp., 497 F.3d 323, 326 (3d Cir. 2007) (citation omitted). For
Lasko’s claim that the District Court granted summary judgment prematurely, we review
for abuse of discretion. See Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir.
2007) (citation omitted).
III.
Lasko first argues that the District Court abused its discretion in denying his
motion for appointment of counsel and in declining to appoint counsel sua sponte later in
the proceedings. “Indigent civil litigants possess neither a constitutional nor a statutory
right to appointed counsel.” Montgomery, 294 F.3d at 498. Congress has granted district
courts the discretion to “request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). A district court has “broad discretion” to determine
whether counsel should be appointed. Montgomery, 126 F.3d at 498. We have outlined
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a two-step process for determining whether counsel should be appointed. First, as a
“threshold matter,” the district court “must assess whether the claimant’s case has some
arguable merit in law and fact.” Montgomery, 126 F.3d at 499. Second, we have
provided a list of factors to guide the district court’s discretion. See Tabron v. Grace, 6
F.3d 147, 155 (3d Cir. 1993). These factors include:
(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 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.
Parham, 126 F.3d 454, 457 (3d Cir. 1997) (citing Tabron, 6 F.3d at 155-56, 157 n.5).
This list of factors “is not exhaustive, but should serve as a guidepost for the district
courts.” Id. We have also instructed that “courts should exercise care in appointing
counsel because volunteer lawyer time is a precious commodity and should not be wasted
on frivolous cases.” Parham, 126 F.3d at 458.
As a “threshold matter,” before a court may appoint counsel for an indigent civil
litigant, “‘it must first appear that the claim has some merit in fact and law.’” Tabron, 6
F.3d at 155 (quoting Maclin v. Freake, 650 F.2d 885, 887 (7th Cir. 1981) (per curiam)).
This burden is met if the “‘plaintiff has not alleged a frivolous or malicious claim and the
pleadings state a prima facie case.’” Id. (quoting Rayes v. Johnson, 969 F.2d 700, 703
(8th Cir. 1992), cert. denied, 506 U.S. 1021 (1992)). Lasko argues that his FTCA medical
8
malpractice claim, his Eighth Amendment claim, and his First Amendment retaliation
claim met this low initial hurdle. We agree. To determine whether the District Court
abused its discretion in denying Lasko’s motion for counsel, we must therefore analyze
the factors set forth in Tabron.
The first, and “[p]erhaps the most significant,” factor influencing whether counsel
should be appointed in a civil case is the plaintiff’s ability to present his case to the court.
Montgomery, 294 F.3d at 501. In evaluating this factor, courts “should consider the
plaintiff’s education, literacy, prior work experience, and prior litigation experience,”
along with “whether the plaintiff has access to necessary resources like a typewriter,
telephone and computer.” Parham, 126 F.3d at 459 (citations and quotation marks
omitted). In this case, the District Court concluded that, at least up through the time of
that motion, “Lasko has possessed the means and ability to present his claims to the
court.” J.A. 14. The court acknowledged that Lasko suffered from serious medical issues
that may limit his ability to represent himself, but found that despite “the many physical
difficulties under which Lasko operates,” the record is “amazingly full and complete of
examples of Lasko’s ability to file motions, discovery, briefs, and exhibits relevant to this
case.” Id. Although a plaintiff’s ability to present and respond to motions does not
“conclusively establish” that a plaintiff is able to present his case, Parham, 126 F.3d at
459, we agree with the District Court that Lasko’s numerous submissions indicated that
he was able to present the necessary legal and factual issues to the court.
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The second factor to be considered is the complexity of the legal issues involved.
Courts should be “more inclined to appoint counsel” if the legal issues are complicated.
Tabron, 6 F.3d at 156. Counsel for defendants admitted during oral argument that this
case involved complicated legal issues, but neither the substantive legal issues nor the
procedural hurdles Lasko faced were unusually complicated. Unlike in Montgomery and
Parham, procedural hurdles do not seem to have prevented Lasko from articulating his
arguments in opposition to defendants’ motion for summary judgment.
The third factor is the need for, and the plaintiff’s ability to conduct, a detailed
factual investigation. Courts should consider “the degree to which factual investigation
will be required and the ability of the indigent plaintiff to pursue such investigation.”
Tabron, 6 F.3d at 156. Where the plaintiff’s claims are “likely to require extensive
discovery and compliance with complex discovery rules, appointment of counsel may be
warranted.” Id. In this case, Lasko successfully obtained all of his relevant medical
records, presented detailed factual chronologies in his pleadings, and submitted extensive
documentation to support his various filings with the court. As the District Court noted,
“many of his filings include portions of his own medical records, [and] excerpts of
medical textbooks and journals.” J.A. 14-15. The District Court also noted that Lasko
had shown “the ability to pose relevant discovery requests.” J.A. 15. Lasko’s lack of
counsel does not appear to have prevented him from marshaling the factual information
and evidence necessary to present his claims to the court.
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The fourth factor bearing on the appointment of counsel is the role that credibility
determinations may play in the litigation. Representation by skilled advocates is
particularly important when a case is likely to turn on credibility determinations, because
“it is more likely that the truth will be exposed where both sides are represented by those
trained in the presentation of evidence and in cross examination.” Tabron, 6 F.3d at 156
(citation and quotation marks omitted). In this case, the District Court declined to appoint
counsel at the summary judgment stage but noted its ability to reconsider this decision if
the case were to proceed to trial. Moreover, under the summary judgment standard,
credibility determinations could not have played any role in the District Court’s resolution
of defendants’ motion.
The fifth Tabron factor is the need for expert witnesses. Lasko emphasizes his
need to submit expert testimony in order to establish his medical malpractice claim under
the FTCA. This court has explained that “appointed counsel may be warranted where the
case will require testimony from expert witnesses.” Tabron, 6 F.3d at 156. We have held
that a district court abuses its discretion by denying a motion for appointment of counsel
because expert testimony would not be required to present the plaintiff’s case but then
granting a dispositive motion because of the lack of expert testimony. See Mongtomery,
294 F.3d at 505 (“successive contradictory decisions” effectively prevented plaintiff from
presenting his claim); Parham, 126 F.3d at 460 (“It is troublesome that the court could use
the lack of expert testimony as a shield to protect its denial of the motion for counsel and
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then as a sword to slay the indigent plaintiff’s case.”). Our precedent cannot be read as
requiring the appointment of counsel in every case in which expert testimony may be
warranted, however. In this case, the District Court did not base its decision denying
counsel on the erroneous assumption that Lasko would not need expert testimony.
Rather, the District Court highlighted Lasko’s demonstrated ability to present his claims
to the court and the court’s ability to appoint counsel later in the proceedings if the
circumstances changed. J.A. 14-15. Although the District Court cited the lack of medical
evidence as the reason for granting summary judgment on the medical malpractice claim,
Lasko’s case did not fall short merely because he was unable to retain a medical expert.
The final factor to be considered is the plaintiff’s ability to retain and afford
counsel. “If counsel is easily attainable and affordable by the litigant, but the plaintiff
simply has made no effort to retain an attorney, then counsel should not be appointed by
the court.” Tabron, 6 F.3d at 157 n.5. The record lacks any evidence that Lasko had the
means to retain private counsel.
Considering all of these factors, we conclude that the District Court did not abuse
its discretion in declining to appoint counsel. Lasko was able to obtain the medical
records and other documents underlying his claim, present the necessary factual
information and legal arguments to the court, and respond to the issues raised by
defendants’ summary judgment motion. The District Court did not abuse its broad
discretion in determining that counsel should not be appointed at this stage of the
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litigation.
IV.
Lasko also challenges the District Court’s order granting summary judgment for
defendants, arguing that the District Court should have allowed Lasko to conduct
additional discovery before deciding defendants’ motion for summary judgment and that
the District Court erred in its substantive analysis of that motion.
A.
It is “well established that a court is obliged to give a party opposing summary
judgment an adequate opportunity to obtain discovery.” Doe, 480 F.3d at 257 (citations
and quotation marks omitted). “If discovery is incomplete in any way material to a
pending summary judgment motion, a district court is justified in not granting the
motion.” Id. at 257. In Doe, we held that the district court abused its discretion by
granting summary judgment for the defendants based on a single affidavit before allowing
the plaintiffs any opportunity to conduct discovery into the issue on which the court
granted summary judgment. 480 F.3d at 254. Although the “extent of discovery . . . is
within the [district court’s] discretion,” the district court in Doe “needed to allow the
parties to develop the record as to potentially relevant facts.” Id. at 258.
Unlike in Doe, Lasko cannot claim that defendants or the District Court prohibited
him from obtaining the information or evidence relevant to opposing the summary
judgment motion. Before this lawsuit was even commenced, defendants provided Lasko
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with all of his relevant medical records and the BOP guidelines on hepatitis C treatment.
Lasko has not identified any outstanding discovery that would be relevant to the summary
judgment motion. Given these circumstances, the District Court did not abuse its
discretion in granting defendants’ motion for summary judgment.
B.
Lasko also argues that the District Court erred by granting summary judgment on
his Eighth Amendment deliberate indifference claim and his First Amendment retaliation
claim, and by dismissing the individual defendants not involved in his medical treatment.
Lasko contends that the District Court improperly weighed evidence, made credibility
determinations, and drew inferences in favor of defendants.
The District Court dismissed the deliberate indifference claim because Lasko
failed to present evidence from which a reasonable jury could conclude that any
Defendant possessed the culpable mental state required for such a claim. The standard
for evaluating a prisoner’s deliberate indifference claim is highly deferential to the
medical practitioners’ professional judgment. “Courts will ‘disavow any attempt to
second-guess the propriety or adequacy of a particular course of treatment . . . [which]
remains a question of sound professional judgment.’” Inmates of Allegheny County Jail
v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48
(4th Cir. 1977)). A prisoner does not have the right “to choose a specific form of medical
treatment.” Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000). Lasko’s deliberate
14
indifference claim hinges on the premise that defendants refused to treat him for hepatitis
C for eighteen months after he arrived at FCI-Schuylkill. As the District Court pointed
out, however, Lasko’s medical treatment, including extensive evaluations assessing the
appropriate course of treatment for his hepatitis C condition, commenced immediately
upon entering the facility. Defendants did not approve Lasko to begin a interferon and
ribavirin regimen until he had undergone physical and psychological examinations,
extensive laboratory testing, and several counseling sessions, but this approach is entirely
consistent with the BOP Guidelines for hepatitis C treatment. See J.A. 144-46. Lasko
has not adduced any evidence that Dr. Hendershot – or any of the other defendants –
failed to treat Lasko’s chronic hepatitis C condition. The District Court did not err in
granting summary judgment on Lasko’s Eighth Amendment claim.
The District Court dismissed the First Amendment retaliation claim because Lasko
failed to adduce evidence that his filing of grievances and initiation of litigation played
any role in the decision to discontinue his medical treatment To establish a prima facie
case of retaliation in violation of the First Amendment, Lasko must show that “1) the
conduct in which he was engaged was constitutionally protected; 2) he suffered ‘adverse
action’ at the hands of prison officials; and 3) his constitutionally protected conduct was a
substantial or motivating factor in the decision to discipline him.” Carter v. McGrady,
292 F.3d 152, 158 (3d Cir. 2002) (citation omitted). In this case, there was no evidence
that the decisions to discontinue Lasko’s medication or to file incident reports regarding
15
his conduct were influenced in any way by retaliatory motives. Furthermore, even if
Lasko were able to state a prima facie case, “the prison officials may still prevail by
proving that they would have made the same decision absent the protected conduct for
reasons reasonably related to a legitimate penological interest.” Rauser v. Horn, 242 F.3d
330, 334 (3d Cir. 2001). As the District Court recognized, there were compelling
penological interests supporting defendants’ actions in this case. Under these
circumstances, the District Court did not err in granting summary judgment. See Carter,
292 F.3d at 159 (affirming summary judgment based on undisputed evidence supporting
defendants’ proffered legitimate penological interests).
Lasko’s final argument is that the District Court erred by dismissing the defendants
who had no responsibility for his medical decisions. Lasko contends that other
defendants were aware of his serious medical condition but failed to arrange for adequate
treatment. It is undisputed, however, that Lasko received medical treatment for his
hepatitis C. The only factual dispute is whether Lasko should have been started on
interferon and ribavirin sooner. We agree with the District Court that these non-medical
defendants could not have played a role in this decision and were properly dismissed from
the case.
V.
For the foregoing reasons, we will affirm the judgment of the District Court.
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