Nabawi v. Young

1

MR. ZAIN Z. NABAWI, Plaintiff, v. WARDEN D.L. YOUNG, FCI Beckley; MEDICAL NURSE ROSE; ALL PRESENT STAFF IN KITCHEN AT TIME OF INCIDENT; OFFICER DUNCAN, Food Services Employee; OFFICER LESTER, Food Services Employee; OFFICER HEAD, Food Services Employee; FOOD ADMINISTRATOR TIBERIO; N. THOMAS; BRANDON FAIN; and P. BOULET, Defendants.

Civil Action No. 5:19-cv-00693

United States District Court, S.D. West Virginia, Beckley

August 18, 2022

MEMORANDUM OPINION AND ORDER

FRANK W. VOLK UNITED STATES DISTRICT JUDGE

Pending is Defendants' Motion to Dismiss, or in the Alternative Motion for Summary Judgment, filed September 24, 2021. [Doc 79].

I.

On November 5, 2018, Plaintiff Zain Nabawi, a federal inmate incarcerated at the Federal Correctional Institution (“FCI”) Beckley, was transported via ambulance to Raleigh General Hospital after receiving a severe injury to his hand while working in the kitchen at FCI Beckley. [Doc 52 at 4]. Mr. Nabawi alleged that he was using a mixing bowl to fix the evening meal when the mixing bowl “flew off the track[,] cutting [his] hand in two.” [Doc. 53 at 1]. Mr. Nabawi underwent surgery to repair injuries to his hand and thumb. [Doc. 22-1 at 180]. On or about November 10, 2018, Mr. Nabawi was discharged from Raleigh General Hospital on IV antibiotics and with wound care instructions. [Id. at 181]. Mr. Nabawi continued to receive care at FCI Beckley after his discharge from Raleigh General Hospital. [See generally Doc. 22-1].

On November 22, 2018, Mr. Nabawi was evaluated by medical staff at FCI Beckley Health Services. [Doc. 23 at 3]. Blood was observed to be returning from the PICC line tubing; thus the PICC line could no longer be used to deliver antibiotics. [Id.]. Mr. Nabawi was subsequently sent to Raleigh General Hospital and evaluated by orthopedics and infectious disease. [Id.]. The physicians at Raleigh General recommended removal of the malfunctioning PICC line, and Mr. Nabawi began receiving his antibiotics orally. [Id.]. On November 24, 2018, Mr. Nabawi returned to FCI Beckley without further complication. [Id.].

On September 23, 2019, Plaintiff, acting pro se, filed his Application to Proceed Without Prepayment of Fees or Costs and a Complaint seeking relief pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671, et seq., and for alleged violations of his constitutional and civil rights pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Docs. 1, 2]. Specifically, Mr. Nabawi alleges that Defendants provided inadequate medical treatment. [Doc. 22-1]. Mr. Nabawi requests monetary damages and injunctive relief. [Doc. 2 at 5].

This action was previously referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission of proposed findings and a recommendation (“PF&R”). Magistrate Judge Aboulhosn filed his PF&R on April 21, 2022. [Doc. 90]. Magistrate Judge Aboulhosn recommended that the Court (1) grant Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgement, (2) deny Plaintiff's Motion Requesting Leave to Amend and Stay Summary Judgment, (3) dismiss without prejudice Plaintiff's Complaint against Defendant Lester for lack of service, and (4) remove this matter from the Court's docket. Mr. Nabawi filed a Motion Requesting for Extension of Time to file Objections to Magistrate Judge Aboulhosn's PF&R [Doc. 91], which was granted [Doc. 94]. Mr. Nabawi filed objections on June 8, 2022. [Doc. 95].

II.

The Court is required “to make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court need not review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” (emphasis added)). Failure to file timely objection constitutes a waiver of de novo review and the Petitioner's right to appeal the Court's order. See 28 U.S.C. § 636(b)(1); see also United States v. De Leon-Ramirez, 925 F.3d 177, 181 (4th Cir. 2019) (Parties may not typically “appeal a magistrate judge's findings that were not objected to below, as § 636(b) doesn't require de novo review absent objection.”); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989).

III.

A. Objection One

Mr. Nabawi objects to Magistrate Judge Aboulhosn denying his motion for appointment of counsel. Mr. Nabawi cites Whisenant v. Yuam, 39 F.2d 160 (4th Cir. 1984), in support, which held that under 28 U.S.C. § 1915(d) (now amended and renumbered as 28 U.S.C.A. § 1915(e)(1)), counsel should have been appointed for an inmate with little education and no legal education. [Doc. 95 at 2]. Mr. Nabawi asserted that he has no legal education and no ability to investigate the facts of his claim, such as engaging in discovery and depositions of prison officials. [Doc. 95 at 1].

There is no constitutional right to appointment of counsel in civil cases. Appointment of counsel for indigent plaintiffs bringing a Bivens action is required only when exceptional circumstances or complex issues are present and the plaintiff's ability to present the case is questionable. See Gordon v. Leek, 574 F.2d 1147, 1153 (4th Cir. 1978); Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). A district court's refusal to appoint counsel for an indigent inmate may be an abuse of discretion when “‘a pro se litigant has a colorable claim but lacks the capacity to present it.'” Alexander v. Parks, 834 Fed. App'x 778, 782 (4th Cir. 2020) (citing Whisenant, 739 F.2d at 163).

In deciding whether to grant Mr. Nabawi's request for counsel, Magistrate Judge Aboulhosn considered the following factors: (1) whether the plaintiff has presented a colorable claim; (2) the nature and complexity of the factual and legal issues; (3) the plaintiff's capability to present his own case; (4) the degree of factual investigation involved and the plaintiff's ability to investigate adequately crucial facts related to his claims; (5) the extent to which the case is likely to hinge on credibility determinations; and (6) whether expert testimony must be presented. See United States v. $27,000.00, More or Less in U.S. Currency, 865 F.Supp. 339, 340-41 (S.D. W.Va. 1994);McNeil v. Lowney, 831 F.2d 1368, 1371-72 (7th Cir. 1987), cert. denied, 485 U.S. 965 (1998); Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir. 1981), abrogated by Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005); Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir.), cert. denied, 510 U.S. 1196 (1993).

In Cook v. Bounds, our Court of Appeals held the appointment of counsel for civil litigants should be allowed only in exceptional cases. 518 F.2d 779, 780 (4th Cir. 1975). There is no articulated set of factors in our Circuit for use in evaluating whether counsel should be appointed for a civil litigant. The factors used by Magistrate Judge Aboulhosn are primarily composed of factors from other circuits.

Liberally construed, Mr. Nabawi's motion shows that his claim is colorable. Nevertheless, it appears that Mr. Nabawi has the capacity to present this claim. To date, Mr. Nabawi has shown that he can communicate with the Court and manage his case. Further, Mr. Nabawi has filed multiple motions related to his claim. While Mr. Nabawi contends he cannot conduct discovery because he is in prison and needs counsel to depose prison officials [Doc. 95 at 2], these circumstances alone do not satisfy the “exceptional” standard necessary to justify the appointment of counsel. See Lind v. Ballard, No. 2:14-cv-26284, 2022 WL 987935, at *3 (S.D. W.Va. Mar. 31, 2022); Louis v. Martinez, No. 5:08CV151, 2010 WL 1484302, at *1 (N.D. W.Va. Apr. 2, 2010). Thus, the Court OVERRULES Mr. Nabawi's objection.

B. Objection Two

Mr. Nabawi next objects to Magistrate Judge Aboulhosn's finding that he could not establish a claim of deliberate indifference. Mr. Nabawi alleges that he has a colorable claim under the Eighth Amendment for the deliberate indifference of the Defendants to his safety. [Doc. 95 at 2].

Once incarcerated, inmates “may be deprived of rights that are fundamental to liberty.” Brown v. Plata 563 U.S. 493, 510 (2011). However, they “retain the essence of human dignity inherent in all persons,” including the right to be free from the cruel and unusual punishment proscribed by the Eighth Amendment to the United States Constitution. Id. The Supreme Court has construed “cruel and unusual punishment” to include the “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). The Court has also established that “deliberate indifference to the serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); see Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019) (stating that the issue of whether deliberate indifference to serious medical needs is a violation of the Eighth Amendment “is beyond debate”); Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). Therefore, under the Eighth Amendment, inmates are entitled to “adequate food, clothing, shelter, sanitation, medical care and personal safety.” Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978), rev'd on other grounds, Bell v. Wolfish, 441 U.S. 520 (1979); see Scinto v. Stansberry, 841 F.3d 219, 236 (4th Cir. 2016). Prisons who fail to provide inmates with...