                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 10-1470
                                    ____________

                               RANDOLPH CARSON,
                                            Appellant

                                           v.

           MR. RICHARD MULVIHILL, Department Head, Public Safety;
           MR. GARY MERLINE, Warden; MR. ERIC NILSON, Sergeant;
         DOCTOR HUBBARD, Doctor at the Atlantic County Justice Facility;
          CENTER FOR FAMILY GUIDANCE HEALTH SYSTEMS, LLC,
                             ____________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                               (D.C. No. 1-07-cv-03588)
                     District Judge: Honorable Robert B. Kugler
                                     ____________

                           Argued January 23, 2012
        Before: FISHER, GREENAWAY, JR. and ALDISERT, Circuit Judges.

                                 (Filed: July 16, 2012 )

Paige H. Forster (Argued)
Reed Smith
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
       Counsel for Appellant

James T. Dugan (Argued)
Atlantic County Department of Law
1333 Atlantic Avenue, 8th Floor
Atlantic City, NJ 08401
       Counsel for Richard Mulvihill,
       Gary Merline and Eric Nilson
Wendi D. Barish (Argued)
Joseph Goldberg
Weber, Gallagher, Simpson, Stapleton,
 Fires & Newby
2000 Market Street, Suite 1300
Philadelphia, PA 19103
       Counsel for Inez T. Hubbard and Center
       for Family Guidance Health Systems, LLC

                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Appellant and Plaintiff Randolph Carson (“Carson”) appeals from the judgment

entered against him in the United States District Court for the District of New Jersey. He

claims that the District Court abused its discretion by refusing to appoint counsel and

erred by granting summary judgment in favor of Defendants. For the reasons discussed

below, we will affirm.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.




                                              2
       Carson alleges that his constitutional rights were violated by Defendants1 while he

was a pre-trial detainee at the Atlantic County Justice Facility in New Jersey (“ACJF”),

housed in the Medical Unit. Carson is unable to walk and is confined to a wheelchair.

He suffers from a heart condition, asthma, and high blood pressure. During Carson‟s

detention, he was charged a $50 per month “user fee” for room and board.

       Carson claims that between December 2006 and August 2007, a second person

was sometimes housed in his one-man cell, and when his cell was locked overnight, he

could not maneuver his wheelchair around the extra bed to access the toilet. After Carson

handed in his complaint to his social worker on July 23, 2007, ACJF officials agreed that

they would not place a second person in his cell absent emergency circumstances.

       Carson also claims that at some point during the same time period, he was denied

asthma medication. He was experiencing breathing problems, and went to see Dr. Inez

Hubbard, who provided medical services at the ACJF. He asked her for asthma

medication, but after an evaluation, she explained that she could not give him asthma

medication because he did not have asthma. Carson told her that he had a prescription

for asthma medication, and so Dr. Hubbard gave him a release form to provide

information and authorize her to obtain the alleged prescription. Carson later stated in his


       1
        Defendants include individuals and an organization associated with the ACJF:
Richard Mulvihill, Department Head of Public Safety for Atlantic County; Gary Merline,
Warden of the ACJF; Eric Nilson, Sergeant in the ACJF; the Center for Family Guidance
Health Systems (“CFG”), which contracted with Atlantic County to provide medical
services at the ACJF; and Dr. Inez Hubbard, who was an employee with CFG from
December 22, 2006 until September 27, 2007.

                                             3
deposition that he was not on asthma medication at the time that he was incarcerated, and

that he had not been taking asthma medication since 2000. Although Dr. Hubbard did

not give Carson asthma medication, he claims that after she left, the ACJF eventually

provided him with asthma medication. At some point after Carson obtained asthma

medication, a prison fight ensued, resulting in a search of all prison cells in the unit.

During the search, a sergeant found Carson‟s inhaler and confiscated it on the basis that it

was “not authorized” according to the medical staff on duty.

       At another point, Carson wrote a letter requesting medical footrests, and claiming

that the lack of footrests caused him to drag his feet and placed stress on his heart.

Defendants produced affidavits showing that the Director of Nursing and the Health

Services Administrator considered Carson‟s requests, but determined that footrests would

offer no therapeutic benefit and cited concerns that the footrests could be used as

weapons. As an alternative, they gave Carson instruction on range of motion exercises.

Carson claims that other detainees were given wheelchair footrests, crutches, and canes.

       Additionally, Carson alleges that on June 4, 2007, ACJF Sergeant Eric Nilson

verbally and physically assaulted him. Carson apparently expressed consternation that

Nilson was about to place another inmate in his cell with him. According to Carson,

Nilson “grabbed” his wheelchair, swung it around, and “launch[ed]” Carson “forward

from the cell door directly into the steel bed.” Carson claims that this action hurt his legs,

requiring him to apply ice packs, and caused him to experience chest pains.




                                               4
       On August 1, 2007, Carson filed a pro se complaint alleging that these various

actions by Defendants violated his constitutional rights. He repeatedly requested counsel

through an application and letters to the District Court and the Magistrate Judge. The

Magistrate Judge denied the motion for counsel. Defendants filed motions for summary

judgment, which the District Court granted on September 29, 2009. See Carson v.

Mulvihill, No. 07-3588, 2009 WL 3233482 (D.N.J. Sept. 29, 2009). On January 20,

2010, Carson filed a notice of appeal.2

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate

jurisdiction under 28 U.S.C. § 1291. Although the District Court‟s order granting

summary judgment was filed almost four months before the notice of appeal, cross-

claims remained outstanding, and thus, the order was not initially an appealable final

judgment. Owens v. Aetna Life & Casualty Co., 654 F.2d 218, 220 n.2 (3d Cir. 1981).

The judgment became final and appealable when the cross-claims were dismissed on

June 30, 2011, and Carson‟s notice of appeal became effective as of that date. Fed. R.

App. P. 4(a)(2); see also Bethel v. McAllister Bros., 81 F.3d 376, 382 (3d Cir. 1996).

                                             III.

       Carson appeals from the District Court‟s decision to deny counsel and to grant

Defendants‟ motions for summary judgment. “[W]e review the district court‟s decision

to deny counsel for an abuse of discretion.” Parham v. Johnson, 126 F.3d 454, 457 (3d

       2
           We thank pro bono counsel for their able representation of Carson on appeal.

                                              5
Cir. 1997). We review de novo a grant of summary judgment. Monroe v. Beard, 536

F.3d 198, 206 (3d Cir. 2008). We will affirm only if “there is no genuine [dispute] as to

any material fact and . . . the moving party is entitled to a judgment as a matter of law.”

In re Color Tile Inc., 475 F.3d 508, 512 (3d Cir. 2007) (citation omitted). We “view the

facts in the light most favorable to the nonmoving party and draw all inferences in that

party‟s favor.” Id. “Where the plaintiff is a pro se litigant, the court has an obligation to

construe the complaint liberally.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).

                                              A.

       Carson argues that the District Court abused its discretion by refusing to appoint

counsel on his behalf. We disagree. Unlike criminal litigants, indigent civil litigants

have no constitutional right to counsel. Parham, 126 F.3d at 456. Rather, district courts

have “broad discretion to determine whether appointment of counsel is warranted” in

civil cases, and must make a “case-by-case” determination, taking a number of factors

into account. Tabron v. Grace, 6 F.3d 147, 156-58 (3d Cir. 1993). As a threshold matter,

a plaintiff may not secure appointment of counsel unless his claim “ha[s] some merit in

fact and law.” Parham, 126 F.3d at 457. Next, courts must consider the Tabron factors,

a non-exhaustive list of factors that is intended “to aid district courts in determining when

it is proper to appoint counsel for an indigent litigant in a civil case.” Id. (construing

Tabron). Additionally, courts

       “must take note of the significant practical restraints on the district courts‟
       ability to appoint counsel: the ever-growing number of prisoner civil rights
       actions filed each year in the federal courts; the lack of funding to pay

                                               6
       appointed counsel; and the limited supply of competent lawyers who are
       willing to undertake such representation without compensation.”

Tabron, 6 F.3d at 157.

       For purposes of this analysis, we will assume that Carson‟s claims had arguable

merit and that they therefore met the threshold requirement for appointment of counsel.

Turning next to the Tabron factors, we agree with the District Court that several factors

weigh in favor of appointing counsel. For example, credibility determinations would

likely be very important, and Carson was unable to provide his own counsel. The case

was also fact-intensive, and presented some challenging discovery and investigative

issues. Despite these difficulties, we agree with the District Court that the balance of the

factors overall did not warrant the appointment of counsel. For example, Carson‟s case

was not especially complex, and he was amply able to represent himself. The case

involved several Due Process allegations, and although some cases involving a prisoner‟s

medical treatment might present complex issues, see, e.g., Montgomery v. Pinchak, 294

F.3d 492, 502 (3d Cir. 2002), this case does not. At issue are basic disputes regarding the

amount of space in Carson‟s cell, his access to wheelchair footrests and asthma

medication, and the minimal fee that he was required to pay. Furthermore, Carson was

able to present his case without the assistance of counsel. He successfully filed a

complaint, submitted a pretrial motion, served interrogatories, and requested production

of documents. He has expressed frustration with the discovery process, and his lack of

familiarity with the “legal” jargon, but was nonetheless able to present his case before the


                                              7
District Court. Finally, expert testimony would not have helped Carson‟s case to

withstand summary judgment. Cf. Parham, 126 F.3d at 460 (district court‟s denial of

appointment of counsel is troubling where the lack of expert testimony is the basis for

dismissing the case). Defendants‟ summary judgment motions did not challenge

Carson‟s injuries or lack of expert medical proof; rather, they challenged Carson‟s failure

to prove that Defendants knew of and disregarded a risk to Carson‟s health or that

Defendants acted with an illegitimate or irrational purpose. In sum, we find no abuse of

discretion in the District Court‟s reasoning that Carson was sufficiently able to handle the

case on his own.

                                             B.

       Carson argues that the District Court erred by granting summary judgment in favor

of Defendants. We disagree. Carson raised Due Process and Equal Protection claims

before the District Court, pursuant to 42 U.S.C. § 1983. To prove a § 1983 claim, a

plaintiff must show that a person acting under color of state law deprived him of rights

secured by the Constitution or laws of the United States. Piecknick v. Pennsylvania, 36

F.3d 1250, 1255-56 (3d Cir. 1994). As discussed below, Carson failed to raise a genuine

dispute of material fact as to whether his constitutional rights were violated.

       1.     Due Process Claims

       In the seminal case of Bell v. Wolfish, the Supreme Court established that pretrial

detainees are protected under the Fourteenth Amendment‟s Due Process Clause rather

than the Eighth Amendment. 441 U.S. 520, 535-37 (1979); Boring v. Kozakiewicz, 833

                                              8
F.2d 468, 471 (3d Cir. 1987). The rationale is that the Eighth Amendment protects

convicted inmates from “cruel and unusual punishment,” but a pre-trial detainee “may

not be punished [at all] prior to an adjudication of guilt in accordance with due process of

law.” Bell, 441 U.S. at 535. Thus, a pre-trial detainee may be subject to “the restrictions

and conditions of the detention facility so long as those conditions and restrictions do not

amount to punishment, or otherwise violate the Constitution.” Id. at 536-37.

       Carson argues that Defendants violated his Due Process rights through (a) the

conditions of his confinement, (b) inadequate medical treatment, (c) excessive force, and

(d) imposition of an unconstitutional housing fee. We will address each claim below.

       a.     Conditions of Confinement Claim

       Carson complains that during certain overnight periods, when the ACJF was

forced to double-bunk inmates, he had to wait until morning to use the toilet because he

was unable to maneuver his wheelchair around the extra bed.3

       When a pre-trial detainee claims that the conditions of his confinement violate his

due process rights, “the proper inquiry is whether those conditions [at issue] amount to

punishment of the detainee.” Bell, 441 U.S. at 535. Bell established a two-prong

standard for determining whether conditions of confinement violate Due Process:

whether the questioned “restrictions and practices” (1) “are rationally related to a

       3
          Defendants argue that Carson‟s claim should fail because officials eventually
agreed that Carson should have a one-man cell absent emergency circumstances. This
argument is meritless; even if past constitutional violations have ceased, an inmate can
still sue for damages, Winsett v. McGinnes, 617 F.2d 996, 1004 (3d Cir. 1980), and so
certainly a pre-trial detainee may do so as well.

                                             9
legitimate nonpunitive governmental purpose[,]” and (2) “whether they appear excessive

in relation to that purpose.” Id. at 561. The first prong of the Bell analysis requires a

two-part inquiry, analyzing “first, whether any legitimate purposes are served by [the]

conditions [of confinement], and second, whether these conditions are rationally related

to these purposes.” Hubbard v. Taylor, 399 F.3d 150, 159 (3d Cir. 2005).

       Turning to Carson‟s claim, we begin with the principle that mere double-bunking

does not constitute punishment, because there is no “„one man, one cell‟ principle lurking

in the Due Process Clause of the Fifth Amendment.” Bell, 441 U.S. at 542. Nonetheless,

“confining a given number of people in a given amount of space in such a manner as to

cause them to endure genuine privations and hardship over an extended period of time

might raise serious questions under the Due Process Clause as to whether those

conditions amounted to punishment[.]” Id. For example, we found a constitutional

violation where the conditions of confinement were “unsanitary and humiliating” in

Union County Jail Inmates v. Di Buono, 713 F.2d 984, 996 (3d Cir. 1983). In that case,

pre-trial detainees were double-celled, resulting in mattresses being placed next to toilets

on the floors of small (five-foot by seven-foot) cells. Id. at 988.

       Carson attempts to analogize his case to LeFaut v. Smith, 834 F.2d 389 (4th Cir.

1987) and Johnson v. Lewis, 217 F.3d 726 (9th Cir. 2000), where the Fourth and Ninth

Circuits found Eighth Amendment violations because convicted prisoners‟ lack of toilet

access resulted in deplorably unsanitary conditions. See LeFaut, 834 F.2d at 392-94

(wheelchair-bound plaintiff housed in location without handicap facilities had to drag

                                             10
himself to the toilet, and would sometimes slip down into the toilet bowl water); Johnson,

217 F.3d at 730 (prisoners forced to wait outside in prison yard for four days and lack of

toilet resulted in extremely unsanitary conditions). We are not persuaded by Carson‟s

argument. Despite his attempts to analogize his case to LeFaut or Johnson, he does not

claim any deprivation that is even akin to the deplorable conditions in those cases.

       The conditions of which Carson complains simply do not rise to the level of

punishment because the conditions were rationally related to the nonpunitive purpose of

housing inmates, and did not appear to be excessive. At most, Carson complains of an

inconvenient and uncomfortable situation, but, as the District Court noted, “the

Constitution does not mandate comfortable prisons[.]” Rhodes v. Chapman, 452 U.S.

337, 349 (1981). We find no error in the District Court‟s grant of summary judgment on

this issue.

       b.     Inadequate Medical Treatment Claims

       Carson argues that his Due Process rights were violated when he was denied

prescription asthma medication, and when it was later confiscated after he had eventually

obtained it.4 He also claims that his Due Process rights were violated by the denial of

wheelchair footrests. We disagree.

       As a threshold matter, the parties dispute exactly what standard should be applied

to analyze a Due Process claim in the context of inadequate medical treatment. Carson

       4
         In his brief, Carson also claims that he was refused medication for “other
conditions,” but fails to explain or discuss what other medication or conditions he is
referring to. Thus, we will address only the issue regarding his asthma medication.

                                            11
argues that we should apply Bell‟s two-pronged legitimate purpose standard, whereas

Defendants argue that Bell is limited to conditions of confinement claims, and that for

inadequate medical treatment claims, we should apply the Eighth Amendment deliberate

indifference standard from Estelle v. Gamble, 429 U.S. 97 (1976).5 We need not resolve

today which standard applies because even under the Bell standard, which is arguably

more protective of pretrial detainees‟ rights than the Estelle standard, we will affirm the

District Court‟s determination that Carson‟s Due Process rights were not violated.

       Turning to Carson‟s claims, we find that pursuant to Bell, the ACJF had

legitimate, nonpunitive purposes for its determinations regarding Carson‟s asthma

medication and wheelchair footrests. First, the denial of asthma medication was

warranted because when Dr. Hubbard evaluated Carson, she determined that he did not

have asthma. Although Carson claimed he had a prescription, he admitted in his

deposition that, in fact, at the time that he was incarcerated he had not been on asthma

medication for quite some time. Thus, it is clear that Dr. Hubbard denied him medication

for the legitimate reason that he was no longer on asthma medication and did not appear

to have asthma. We “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 Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)

(quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).


       5
        Estelle requires proof that the inmate (1) had a serious medical need, and (2) that
prison officials were deliberately indifferent to that need. Estelle, 429 U.S. at 103-04.

                                             12
       Second, the confiscation of Carson‟s inhaler was warranted because the staff

sergeant who found it following a prison fight believed that the inhaler was “not

authorized” according to the medical staff on duty. This was a legitimate and

nonpunitive purpose for confiscating the inhaler, even if, as Carson claims, the sergeant

or medical staff were incorrect. As Defendants explain, “[t]here is a legitimate

government interest in ensuring that prison inmates only receive prescription drugs that

are necessary. . . . [because] doing so . . . avoids needless costs and prevents prisoners

from abusing prescription medications.”

       Finally, Carson was denied wheelchair footrests because the Director of Nursing

and the Health Services Administrator determined that footrests would offer no

therapeutic benefit, and cited concerns that the footrests could be used as weapons. Thus,

Carson was denied footrests for legitimate, nonpunitive reasons. The denial of footrests

was not excessive, given the fact that health professionals determined Carson did not

need them in the first place, and especially since he was prescribed alternative treatment.




                                             13
       In sum, we find no constitutional violation under Bell, let alone any sign of

deliberate indifference under Estelle. Thus, the District Court did not err in granting

summary judgment to Defendants on this claim.6

       c.     Excessive Force Claim

       Carson claims that Sergeant Eric Nilson used excessive force against him, in

violation of his Due Process rights, when he forced Carson into his cell by “launch[ing]”

him through the cell door and into his steel bed. We disagree. Since Bell, we have only

addressed excessive force claims by pre-trial detainees where the claim “ar[ose] in the

context of a prison disturbance.” Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir. 2000).

There, we applied the Eighth Amendment standard rather than Bell because we cannot

expect prison guards to draw distinctions between sentenced and unsentenced inmates

while they are trying to stop a prison disturbance. Id. We need not decide today what

standard should apply to isolated incidents of excessive force that are unrelated to a

prison disturbance, because even under the Bell standard, we will affirm the District

Court‟s determination that Carson‟s Due Process rights were not violated.




       6
         Carson argues that we should reverse the District Court with regard to the asthma
medication issue, because it failed to explain its reasoning for granting summary
judgment on that claim. However, we find that any error in the District Court‟s failure to
explain its reasoning was harmless pursuant to Federal Rule of Civil Procedure Rule 61
because we agree with the District Court‟s decision to grant Defendants‟ motion for
summary judgment on the asthma medication issue. See Nicini v. Morra, 212 F.3d 798,
805 (3d Cir. 2000) (en banc) (“We may affirm the District Court on any grounds
supported by the record.”).

                                             14
       Carson argues that plaintiffs with minor injuries such as his have withstood

summary judgment. However, multiple factors besides the level of injury go into the

analysis of whether force in any given case is excessive. See Hudson v. McMillian, 503

U.S. 1, 7 (1992). In the cases cited by Carson, where injuries were treated with ice packs,

Smith v. Mensinger, 293 F.3d 641, 645 (3d Cir. 2002), and consisted of “superficial

lacerations and abrasions[,]” Brooks v. Kyler, 204 F.3d 102, 109 (3d Cir. 2000), the

allegations regarding the use of force were quite serious. In Brooks, the plaintiff was

punched and choked, id. at 105, and in Smith, several officers “rammed Smith‟s head into

walls and cabinets” and kicked, punched, and choked him. 293 F.3d at 644.

       The facts Carson alleges simply do not show that the prison guard lacked a

legitimate nonpunitive purpose for his actions, or that the force was excessive. At most,

Carson has alleged that in an attempt to force him into his cell, the prison guard pushed

Carson‟s wheelchair rapidly and harshly through his cell door, causing him to fall sharply

onto his bed inside the door. But “not . . . every malevolent touch by a prison guard gives

rise to a federal cause of action[,]” and “[n]ot every push or shove, even if it may later

seem unnecessary in the peace of a judge‟s chambers, violates a prisoner‟s constitutional

rights[.]” Hudson, 503 U.S. at 9; see also id. at 10 (“[D]e minimis use[] of physical

force” is not excessive, provided that such use of force “is not of a sort „repugnant to the

conscience of mankind.‟” (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986))).

Because Carson has alleged, at most, a malevolent shove by Nilson, we find no Due

Process violation.

                                             15
       d.     Housing Fee Claim

       Carson claims the $50-per-month “user fee” for room and board constituted a fine,

which violates his Due Process right to be free from punishment until proven guilty. We

disagree. In Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 420 (3d

Cir. 2000), we specifically held that such fees are not punishment, but are rather

“designed to teach financial responsibility.” Furthermore, we explained that “[m]ore

fundamentally, the fees can hardly be called fines when they merely represent partial

reimbursement of the prisoner‟s daily cost of maintenance, something he or she would be

expected to pay on the outside.” Id.

       Carson argues that Tillman does not control, because unlike him, the plaintiff in

that case was a convicted prisoner. We agree that the Eighth Amendment legal standard

applied in Tillman does not control, but Tillman is relevant not because of its legal

standard, but because of its holding that housing fees are not punishment. The fees are

nonpunitive and related to the legitimate purpose of partially reimbursing the government

for housing expenditures. Thus, the fines do not violate the Bell requirement that pre-trial

detainees not be subject to punishment.

      2.      Equal Protection Claim

       On appeal, Carson argues that he raised a “class of one” Equal Protection claim in

the District Court, when he argued that he should not have been denied wheelchair

footrests while other prisoners were permitted footrests, crutches, and canes. Carson

argues that the District Court erred in failing to address his “class of one” Equal

                                             16
Protection claim. We disagree. It is far from clear that Carson‟s assertions regarding

alleged discrepancies constituted an Equal Protection claim, considering that he discussed

these discrepancies in an effort to prove his Due Process claim by showing that the ACJF

did not have a legitimate reason for denying him wheelchair footrests. To the extent that

Carson raised such a claim, the District Court granted Defendants‟ motions for summary

judgment “on all claims contained in [Carson‟s] complaint.” Carson v. Mulvihill,

No. 07-3588, 2009 WL 3233482, at *7 (D.N.J. Sept. 29, 2009).

       Even assuming the District Court erred in failing to more explicitly identify or

address a “class of one” Equal Protection claim, any such error was harmless, see Federal

Rule of Civil Procedure Rule 61, because we find such a claim to be meritless and “may

affirm . . . on any grounds supported by the record.” See Nicini v. Morra, 212 F.3d 798,

805 (3d Cir. 2000) (en banc). A “class of one” Equal Protection claim requires a plaintiff

to show that he “was intentionally treated differently from others similarly situated . . .

and that there was no rational basis for such treatment.” Phillips v. Cnty. of Allegheny,

515 F.3d 224, 243 (3d Cir. 2008). Carson does not allege facts showing that he was

similarly situated to the inmates who received wheelchair footrests, crutches and canes,

or that there was no rational basis for his different treatment.

                                             IV.

       For the reasons set forth above, we will affirm the order of the District Court.




                                              17
