Brightwell v. Lehman

Decision Date09 February 2011
Docket NumberNo. 07–3917.,07–3917.
PartiesBob BRIGHTWELL, Appellantv.Joseph LEHMAN, in his official capacity as the Commissioner of Pennsylvania Department of Corrections; Raymond Sobina, in his official capacity as the Superintendent of the State Correctional Institution at Somerset; Sylvia Gibson, in her official capacity as Deputy Superintendent for Centralized Services of the State Correctional Institution at Somerset; Gerald Rozum, in his official capacity as Acting Deputy Superintendent for Facilities Management of the State Correctional Institution at Somerset; Daniel Gehlmann, in his official capacity as Major of Unit Management of the State Correctional Institution at Somerset; Leo Glass, in his official capacity as Captain of Inmate Receiving Committee (I.R.C.) of the State Correctional Institution at Somerset; Jeffrey Beard, Ph.D., in his official capacity as the Secretary of the Pennsylvania Department of Corrections; Edward Klem, in his official capacity as Superintendent of the State Correctional Institution at Mahanoy; Kenneth G. Chmielewski, in his individual and official capacity as the Deputy Superintendent for Centralized Services at the State Correctional Institution at Mahanoy; Marva Cerullo, in her individual and official capacity as the Corrections Health Care Administrator at the State Correctional Institution at Mahanoy; Joseph Rush, in his individual and official capacity as a Physician's Assistant of the State Correctional Institution at Mahanoy; Dr. Fred Maue, in his individual and official capacity as Chief of Clinical Services, Bureau of Health Care Services, for the Pennsylvania Department of Corrections.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Michael Nonaka [Argued], Skye L. Perryman, Covington & Burling, Washington, DC, for Appellant.Kemal A. Mericli [Argued], Office of Attorney General of Pennsylvania, Pittsburgh, PA, Claudia M. Tesoro, Office of Attorney General of Pennsylvania, Philadelphia, PA, for Appellees, Lehman, Sobina, Gibson, Rozum, Gehlmann, Glass, Beard, Klem, Chmielewski, Cerullo and Maue.Kathryn M. Kenyon [Argued], Pietragallo, Gordon, Alfano, Bosick & Raspanti, Pittsburgh, PA, for Appellee, Rush.Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

In this appeal we consider whether a prisoner who has been denied in forma pauperis status because he has “three strikes” under 28 U.S.C. § 1915(g) is precluded from obtaining counsel pursuant to § 1915(e)(1). We hold that he is.

I
A

Bob Brightwell was sentenced to life in prison for a robbery and murder he committed in 1975. Since 1977, Brightwell has been housed in various Pennsylvania State Correctional Institutions (SCIs), including SCI–Somerset from May 2003 through January 2004, SCI–Mahanoy from May 2004 through November 2006, and SCI–Houtzdale, where he currently resides.

Brightwell claims to suffer from serious medical conditions and has long maintained that prison officials have been deliberately indifferent to his medical needs. His allegedly unattended-to conditions include: diabetes, a skin condition called keratosis pilaris, extreme liver and kidney pain, blurred vision, and severe “imploding-type” migraines caused by “a capsule” mistakenly left in his right eye during a botched cataract surgery in 1999. 1 According to Brightwell, these conditions required the following accommodations: a diabetic diet, Keri brand skin lotion, a sufficiently warm temperature in his prison cell, and remedial eye surgery. In the months before he filed an amended complaint in this case, Brightwell sought the aforementioned accommodations through sick call requests, grievances, and letters to Department of Corrections (DOC) officials. All of these entreaties were denied based on the DOC's determination that Brightwell's conditions of confinement and medical care were adequate.

Brightwell also claims that on May 7, 2004, he suffered from diabetic shock and that a physician's assistant who was in the room at the time failed to assist him. The next day, Brightwell filed a grievance alleging “unethical conduct by a member of [the staff].” Three weeks later, a prison administrator signed a misconduct report charging Brightwell with lying about the incident. The misconduct charge was later dismissed without any sanction against Brightwell.

B

On September 16, 2004, Brightwell filed an amended complaint against a number of prison officials and employees alleging: (1) breach of contract, (2) a due process violation relating to his prior placement in administrative custody, (3) violations of the International Covenant on Civil and Political Rights and the Convention Against Torture, (4) a violation of his First Amendment rights in the form of a retaliatory misconduct report levied against him for filing a grievance following the May 2004 diabetic shock incident, and (5) violations of 42 U.S.C. § 1983 and the Eighth Amendment for deliberate indifference to his serious medical needs.2 He sought compensatory and punitive damages and an order compelling Defendants to remedy the defects in his medical care. In April 2006, the District Court granted in part Defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), allowing only Brightwell's Eighth Amendment deliberate indifference and First Amendment retaliation claims to move forward.3

While his case was pending, Brightwell filed a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915 and three motions for the appointment of counsel under § 1915(e)(1). On March 23, 2004, Magistrate Judge Ila Jeanne Sensenich entered orders denying Brightwell's motion for leave to proceed in forma pauperis and his first motion for the appointment of counsel. The latter order was a handwritten notation at the top of the motion which stated: “Motion denied for reasons given in report and recommendation dated 10/30/2003.”

The October 30, 2003 Report and Recommendation to which Magistrate Judge Sensenich made reference explained that Brightwell was ineligible for in forma pauperisstatus because his history of filing frivolous suits triggered the “three strikes” provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). Magistrate Judge Sensenich's docket review indicated that as of October 2003, Brightwell had filed seventeen actions in Pennsylvania district courts. She aptly described him as “a litigious prisoner” whose motion to proceed in forma pauperis had to be denied under the PLRA.

On May 3, 2006, Brightwell filed another motion requesting counsel. This motion was denied by Magistrate Judge Lisa Pupo Lenihan, who emphasized two considerations: (1) the scarcity of pro bono counsel and (2) her willingness to revisit the issue if the case proceeded to trial. Brightwell appealed the decision to deny him counsel, but United States District Judge Kim R. Gibson affirmed Magistrate Judge Lenihan's order. On October 26, 2006, Brightwell again moved for the appointment of counsel, and Magistrate Judge Lenihan denied the motion for the same reasons articulated in her previous denial.

On November 30, 2006, Defendants filed a motion for summary judgment. Magistrate Judge Lenihan issued a Report and Recommendation finding in Defendants' favor, and on August 29, 2007, Judge Gibson adopted the Report and Recommendation, granting summary judgment. Brightwell filed this timely appeal.4

II

Brightwell presents three claims of error for our consideration. First, he contends the District Court erred in denying his motions for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). Second, he argues that the District Court should not have ruled on the motions for summary judgment because he was given inadequate notice and opportunity to reply. Finally, he maintains that disputed issues of material fact precluded summary judgment. We address each of these arguments in turn.

A

Ordinarily, we review the District Court's denial of an inmate's request for appointment of counsel for abuse of discretion. Tabron v. Grace, 6 F.3d 147, 155 n. 3, 158 (3d Cir.1993). In this case, however, whether Brightwell's “three strikes” statutorily preclude him from obtaining counsel pursuant to § 1915(e)(1) is a purely legal question, so our review is plenary. See United States v. Hull, 456 F.3d 133, 137 (3d Cir.2006). We may affirm a district court for any reason supported by the record. United States v. Agnew, 407 F.3d 193, 196 (3d Cir.2005) (citing United States v. Jasin, 280 F.3d 355, 362 (3d Cir.), cert. denied 537 U.S. 947, 123 S.Ct. 410, 154 L.Ed.2d 290 (2002)).

Brightwell requested counsel pursuant to 28 U.S.C. § 1915 (“Proceeding In Forma Pauperis ”), which not only enables indigent litigants to bring lawsuits without paying filing fees, but also allows for representation by pro bono counsel “requested” by the court.5 Section 1915(e)(1) authorizes district courts to “request an attorney to represent any person unable to afford counsel and, as we stated in Tabron, “gives district courts broad discretion to request an attorney to represent an indigent civil litigant[,] [even though] [s]uch litigants have no statutory right to appointed counsel.” 6 F.3d at 153, 156–58 (listing factors to consider when deciding whether to appoint counsel).

In this case, Magistrate Judge Sensenich denied Brightwell's motion for leave to proceed in forma pauperis pursuant to the “three strikes” rule of § 1915(g), which states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

§...

To continue reading

Request your trial
1636 cases
  • Hux v. Astrue
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • August 27, 2012
    ...file written objections will seriously impair his ability to challenge this Court's legal conclusions on appeal. Brightwell v. Lehman, 637 F.3d 187, 193, n. 7 (3d Cir. 2011). ________________________ LISA PUPO LENIHAN Chief United States Magistrate Judgecc: All counsel of record 1. Hux file......
  • Rivera v. Chester Cnty.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • March 28, 2017
    ...Walker, 665 F. App'x at 143 (temporary removal from work privilege and two days of prisonwages not adverse action); Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (charging prisoner with misconduct that was later dismissed not an adverse action); Verbanik v. Harlow, 512 F. App'x 120......
  • Swope v. City of Pittsburgh
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • February 5, 2015
    ...Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir.2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accord......
  • Campbell v. Pa. Sch. Boards Ass'n
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 27, 2020
    ...Court's grant of summary judgment.1 "We may affirm a district court for any reason supported by the record." Brightwell v. Lehman , 637 F.3d 187, 191 (3d Cir. 2011) (citation omitted).2 65 Pa. Cons. Stat. §§ 67.101 et seq. (2008).3 App. at 1576.4 Id. at 1589.5 Id. at 1587.6 See, e.g. , Rees......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT