                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-2412
                                      ___________

                                   RUBEN CUEVAS,
                                                       Appellant

                                            v.

                          UNITED STATES OF AMERICA
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                        (D.C. Civil Action No. 3:09-cv-00043)
                    Magistrate Judge: Honorable Lisa Pupo Lenihan
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 4, 2011
                Before: BARRY, JORDAN and GARTH, Circuit Judges

                              (Opinion filed: April 6, 2011)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Cuevas, a federal prisoner proceeding pro se, appeals from the District Court’s

grant of summary judgment. For the reasons that follow, we will vacate that judgment

and remand for further proceedings consistent with this opinion.
                                            1
                     I. FACTS AND PROCEDURAL HISTORY

       Cuevas’s complaint alleged that, while housed at the Federal Correctional

Institution in Loretto, Pennsylvania, he fell and broke his foot in several places. He

alleged that his broken bones went undiagnosed for several months while he suffered

serious pain and was only minimally treated with pain killers and bandages. Cuevas also

alleged that bone graft surgery is needed to properly mend his foot, and that he has not

received it. He proceeded in forma pauperis on his action, filed pursuant to the Federal

Torts Claims Act, 28 U.S.C. §§ 2671-80 (“FTCA”). 1

       The parties consented to proceed before a Magistrate Judge, and the Government

moved for summary judgment, arguing that Cuevas had failed to obtain expert testimony

to support his claim. Cuevas filed a letter shortly thereafter in which he informed the

court that he did not receive a copy of the Government’s motion and requested that

counsel be appointed to represent him. In support of his request, Cuevas averred that he

was unable to understand the English language or the operation of the American legal

system.


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  Cuevas, who was housed at the Federal Medical Center at Devens, Massachusetts at the
time he filed his complaint, initially filed in the District of Massachusetts. Although
Cuevas did not explicitly raise an action under Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the District of Massachusetts
dismissed sua sponte any such claims implied in his complaint pursuant to its authority
under 28 U.S.C. § 1915A. Bivens claims do not lie against the federal government or
federal agencies generally. See F.D.I.C. v. Meyer, 510 U.S. 471, 486, 486 n.11 (1994).
In any event, Cuevas’s claims sound in negligence and not the deliberate indifference
required to maintain a Bivens action alleging violations of his Eighth Amendment rights.
Estelle v. Gamble, 429 U.S. 97, 106 (1976) . Later, on the Government’s motion, the
                                                2
       On October 21, 2009, the Magistrate Judge ruled on Cuevas’s request for counsel.

The relevant order, entered on the District Court docket, stated in its entirety:

       Regarding [Cuevas’s] request for counsel, unfortunately there are few
       lawyers, if any, willing to take these cases on a pro bono basis so the court
       is unable to obtain counsel for plaintiff at this time. He will, however, be
       provided with deference as a pro se litigant and his pleadings will be
       liberally construed.

After this denial, Cuevas filed a brief in opposition to summary judgment in which he

argued that expert testimony was unnecessary. The Magistrate Judge held that because

Cuevas failed to proffer a Certificate of Merit (“COM”) as required by Pa. R. Civ. Pro.

1042.3, applicable pursuant to the FTCA and 28 U.S.C. § 1346(b), no genuine issue of

material fact remained. She granted the Government’s motion for summary judgment,

and Cuevas appealed.

                                    II. DISCUSSION

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because

Cuevas’s claim proceeded pursuant to the FTCA, the United States may only be liable

“under circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission occurred.” 28

U.S.C. § 1346(b)(1). Here Pennsylvania’s law governs the United States’ liability.

       Cuevas argues that the Magistrate Judge’s denial of his motion for appointment of

counsel was error. We review the denial of a request for counsel for abuse of discretion.

See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). “[W]here the district court has


District Court transferred the matter to the Western District of Pennsylvania.
                                              3
failed to provide reasons for its decision to deny an indigent civil litigant’s request for

counsel, the court of appeals in some cases may have to remand, for, without the district

court’s reasons, the appellate court may not be able to determine whether the district

court made a reasoned and informed judgment regarding appointment of counsel.” Id.

       “Indigent civil litigants possess neither a constitutional nor a statutory right to

appointed counsel.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citation

omitted). Nonetheless, Congress has granted district courts the authority to “request”

appointed counsel for indigent civil litigants. See 28 U.S.C. § 1915(e)(1) (“[t]he court

may request an attorney to represent any person unable to afford counsel”). In Tabron,

we articulated factors relevant to determine whether to appoint counsel for indigent civil

litigants. As a threshold matter, the indigent plaintiff’s case must have some arguable

merit in fact and law. 6 F.3d at 155. If so, the court should then consider a number of

additional factors including: (1) the plaintiff’s ability to present his or her own case; (2)

the difficulty of the particular legal issues; (3) the degree to which factual investigation

will be necessary and the ability of the plaintiff to pursue investigation; (4) the plaintiff’s

capacity to retain counsel on his or her behalf; (5) the extent to which a case is likely to

turn on credibility determinations; and (6) whether the case will require testimony from

expert witnesses. Id. At 155-57.

       In the instant case, several of these factors appear to encourage the appointment of

counsel. Cuevas is a foreign national, does not speak or read English, and does not

understand the U.S. legal system— he has thus far relied upon a “next-friend” to prepare
                                               4
his filings. The procedural issues involved in this case are complex and, by virtue of his

need to obtain expert testimony, Cuevas’s confinement presents a daunting challenge to

the pursuit of his claim. That claim also appears to have at least arguable merit. Cuevas

has alleged that prison medical staff failed to properly diagnose his severely broken foot

over the course of a four-month period. Although the Government has averred that he

was examined during this period, the Government’s filings suggest that his long history

of poorly controlled diabetes placed Cuevas at a heightened risk for precisely the type of

injury he suffered, yet his initial examinations may not have accounted for this increased

hazard.

       The Magistrate Judge’s order denying counsel indicated that due to the paucity of

attorneys willing to take on pro bono cases, she was unable to obtain counsel. While we

are sensitive to this problem, it cannot be determinative on its own. See id. at 157 (noting

the practical constraints on the appointment of counsel in the course of establishing the

factors to be considered). Thus, the Magistrate Judge should continue to attempt to

obtain counsel for Cuevas, and we will remand for further proceedings.

       We have considered the possibility that Cuevas’s inability to obtain a COM prior

to requesting counsel would have doomed his case even if an attorney had been appointed

in response to his motion. Limits on professional malpractice claims to ensure that only

meritorious claims may proceed may be substantive laws that must be applied by federal

courts in diversity or FTCA actions. See Chamberlain v. Giampapa, 210 F.3d 154, 158-

161 (3d Cir. 2000) (concluding that a similar New Jersey “affidavit of merit” requirement
                                             5
constitutes substantive state law which must be applied by federal district courts in

diversity actions). Among other provisions, Rule 1042.3 of the Pa. R. Civ. P. requires

that plaintiffs file a COM averring that a licensed professional has supplied a statement

indicating that there is a reasonable probability that the conduct at issue fell outside

acceptable professional standards and caused the harm complained of.

       Despite the Rule’s direction that COMs be filed within sixty days of filing a

malpractice complaint, a plaintiff’s failure to file a COM within that period does not

immediately end a malpractice claim before a Pennsylvania court. First, plaintiffs may

move the court for additional time to file the required COM. Pa. R. Civ. P. 1042.3(b)(2).

Even without such extensions, failure to timely file the COM has no automatic effect;

only upon a defendant’s proper motion may the court take action. Pa. R. Civ. P.

1042.7(a). Even an untimely COM can suffice to prevent this entry of judgment if filed

prior to defendant’s motion. Pa. R. Civ. P. 1042.7(a)(2); Moore v. Luchsinger, 862 A.2d

631, 633 (Pa. Super. Ct. 2004). Moreover, judgment may not be entered if there is a

pending motion to determine whether the filing of a certificate is required. Pa. R. Civ. P.

1042.7(a)(1). If, upon resolution of such a motion, the court determines that a COM was

required, plaintiffs are then afforded an additional twenty days to file. Pa. R. Civ. P.

1042.6(c). This period too may be extended. Pa. R. Civ. P. 1042.3(b)(2).

       As we have not determined to what extent the Pennsylvania Rules of Civil

Procedure regarding malpractice claims constitute substantive law, their applicability

remains arguable. We therefore conclude that although there is no dispute that Cuevas
                                              6
failed to file a COM, whether his claim was foreclosed on that basis at the time he

requested counsel has not been settled. Assuming arguendo that broader Pennsylvania

law governing malpractice actions applies and that the Government’s motion for

summary judgment sufficed to satisfy its notice requirements, Cuevas’s argument that a

COM was unneeded tolled the requirement until a judicial ruling that one was needed

and, upon the Magistrate Judge’s ruling that a COM was required, entitled Cuevas to

additional time to file. Pa. R. Civ. P. 1042.6(c). At that time, counsel may have been

invaluable. In any event, we leave it to the Magistrate Judge to consider in the first

instance whether the COM requirement in the Pennsylvania Rules of Civil Procedure

actually represents a point of substantive Pennsylvania law.

                                  III. CONCLUSION

       For the foregoing reasons, we will vacate the judgment and remand the case to the

district court for further proceedings consistent with this opinion.




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