United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
Plaintiff Willie Petty, who is self-represented, has filed a complaint pursuant to 28 U.S.C. § 1983 against defendant Richard Sampong, PA. ECF 1, 3. Sampong, through counsel, has filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12 (b)(6), ECF 12, to which Petty has filed a response. ECF 16. Also before the court are Petty's motion to amend the complaint and motion to appoint counsel. ECF 17, ECF 18.
In his motion to amend the complaint (ECF 17), Petty seeks to add to his prayer for relief that: 1) this court find Wexford Health Sources, Inc.'s policy of allowing inmates only "access to medical treatment by physicians assistants and/or nurses, " and not physicians, constitutes deliberate indifference to his serious medical need; 2) plaintiff was denied reasonable access to medical treatment due to this policy; 3) this policy violated plaintiff's rights under the Eighth Amendment to the Constitution and caused him undue pain and suffering; and 4) this court should award plaintiff damages of $20, 000. Id.
Under Federal Rule of Civil Procedure 15(a)(1)(B), a party may amend its pleading once as a matter of course within "21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." The motion to amend was filed within twenty-one days of the motion to dismiss. Therefore, it will be granted. The Court will consider the motion to dismiss in the context of the amended complaint.
Petty's reasons for moving for appointment of counsel include his inability to afford to hire an attorney; his imprisonment will greatly limit his ability to litigate; and he is housed in protective custody where there is limited access to the prison law library. ECF 18. Pursuant to 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." However, there is no constitutional right to appointment of counsel in civil cases. "[A] plaintiff must present "exceptional circumstances." Harris v. Salley, 339 Fed.Appx. 281, 284 (4th Cir. 2009) (quoting Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987)). Such "[e]xceptional circumstances exist where 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), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989).
The issues in this case are not unduly complex and are adequately presented by plaintiff. Consequently, appointment of counsel will be denied.
Petty is an inmate at the Maryland Correctional Institution in Hagerstown, Maryland ("MCI-H"). Sampong is a physician's assistant employed by Wexford Health Sources, Inc. Petty states he has "serious medical issues, " including thalassemia,  which he describes as a "rare blood disorder" for which he has been placed on chronic care status for at least the last fifteen years. ECF 1 at 1; ECF 3 at 3, Ex.1. Petty states he also is seen for lower back pain and acid reflux. Petty avers: "I'm suppose[d] to be seen by a medical doctor every 3 months. But the medication department here is refusing me to see the doctor, they keep sending me to see a P.A. that lack the knowledge a [sic] care to treat me." Id. Petty asserts he was informed by Sampong that Petty is "not allowed to see a doctor" because he is on protective custody. ECF 3 at 3. Petty claims he has suffered a "serious dizzy spell and hurt his back because of the heat. But P.A. Sampong said its nothing he can do and smiled at me." Id.
As relief, Petty asks the court to order "the medical department" to provide him with proper treatment and award "compensation" for his pain and suffering. Id. Because Petty is selfrepresented, his submissions are liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Defendant moves to dismiss this case for failure to state a claim upon which relief may be granted. Defendant asserts that Petty's claim of entitlement to see a physician rather than a physician's assistant, without a claim of injury, fails to state an Eighth Amendment claim. Moreover, defendant claims he is entitled to qualified immunity.
A. Motion to Dismiss - Standard of Review
A defendant may test the adequacy of a complaint by way of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010). To survive a Rule 12(b)(6) motion, a complaint must satisfy the pleading standard articulated in Fed.R.Civ.P. 8(a)(2), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendant with "fair notice" of the claim and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 & n. 3 (2007). This requires more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted); see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
To defeat a motion under Rule 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 684 ("Our decision in Twombly expounded the pleading standard for all civil actions'....") (citation omitted); see also Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012); Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ...