author: HASTINGS, District Judge.

text:
    Vincent LUCA, Plaintiff, v. Margaret M. HECKLER, Defendant.
    No. 84-6889-Civ-HASTINGS.
    United States District Court, S.D. Florida, Miami Division.
    July 24, 1985.

      Lyle D. Lieberman, Miami, Fla., for plaintiff.
    Michael Burnbaum, Asst. U.S. Atty., Miami, Fla., for defendant.
   ORDER

HASTINGS, District Judge.

Upon the Report and Recommendation of a United States Magistrate and upon independent review of the file it is now ORDERED: the Report and Recommendation are AFFIRMED. Given the weight which this record requires be accorded to the treating physician, Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982), the Secretary has erred in any contrary reliance she may have placed upon Social Security Ruling 82-51. Her Final Administrative Order is REVERSED with direction to award benefits as appropriate.

REPORT AND RECOMMENDATION

PETER L. NIMKOFF, United States Magistrate.

This is a review of a final decision of the Secretary denying Plaintiff’s claim for disability insurance benefits under the Social Security Act, 42 U.S.C. § 423. All administrative remedies have been exhausted. Jurisdiction arises under 42 U.S.C. § 405(g).

For reasons now stated, it is Recommended that the decision of the Secretary be reversed.

FACTS

Plaintiff was 53 years old at the time of the hearing with a high school education and relevant work experience as a sales representative. He alleges disability beginning in October, 1982 due to arteriosclerotic cardiovascular disease, heart attack, heart damage, open heart surgery, and diabetes.

The medical evidence consists principally of the opinion, diagnosis and clinical findings of the treating physician, Dr. Stanley Feldman, a cardiologist and internist. Dr. Feldman treated Plaintiff since 1979 for angina, arteriosclerotic heart disease and myocardial infarction (a coronary bypass was performed at that time). He continued to treat him through the date of the administrative decision—at which time Plaintiff suffered an acute myocardial infarction.

The medical records show that in September, 1982 Plaintiff underwent a thallium stress test. At the conclusion his treating physician indicated “mild fixed ischemic change in the anteroseptal topography. There is no stress induced ischemic change identified. There is a small area of equivocal or suspicious old fixed change also seen in the inferior wall area.” (R. 201).

In March, 1983 Plaintiff was admitted to the hospital. His treating physician submitted a discharge summary which noted that Plaintiff had continued to experience upper chest pain. A gated wall motion study showed the resting left ventricle ejection fraction was 52% with apical and anterior septal hypokinesis. The right ventricle was globally hypokinetic. An isometric hand study showed no significant wall motion changes in the left ventricle but ejection fraction was 45%. (R. 176).

Minor degenerative changes in the spine were also found. Plaintiff was discharged with a diet and prescriptions for Inderal and Persantine.

In March, 1983 Dr. Feldman completed a form report for Plaintiffs insurance company. He stated that an EKG showed nonspecific T and ST segment abnormalities in the antero-septal area. Chest pain was noted. Plaintiff was described as having a Class 4 Impairment: marked limitation (of functional capacity), 60-70%. The physician also checked the section on mental impairments which stated “unable to engage in stress situations or engage in interpersonal relations.” He termed Plaintiff totally disabled with no fundamental change seen for the future. (R. 208).

In May, 1983 Dr. Feldman reported that Plaintiff “continued to experience upper chest pain occurring daily occasionally relieved by nitroglycerin lasting for 7-8 minutes on duration, not related to physical exertion.” (R. 175).

In November of 1983 Dr. Feldman responded to interrogatories indicating a confirmation of the diagnosis of Plaintiffs impairments and the clinical evidence in support. He reported Plaintiffs claims as pain across the upper chest, constant fatigue, soreness of the upper right quandrant, and paleness when bending. Dr. Feldman was given the definitions of light and sedentary work as used in the Social Security regulations and stated that Plaintiff had been unable to perform either since August of 1982. Pain was described as mild and not consistent with the objective findings and diagnosis. The patient’s complaints were termed credible. A Physical Capacities Evaluation form limited Plaintiff to lifting 5-10 lbs. occasionally, no pushing and pulling of arms controls, sitting maximum 4 hours in eight hour day, standing one hour. Feet could not be used for repetitive movement and rest was necessary “frequently” and “without restriction.” Dr. Feldman also indicated that it was necessary for the Plaintiff to lie down for substantial periods of time during the day (R. 217).

Dr. Feldman was asked to comment upon Social Security Ruling 82-51-B (SSR). He Stated:

All patients are different. It is true that we evaluate patients on the basis of tests utilizing aerobic measurements; but their ability to perform these tests can be influenced by many different factors. The fact that even when these tests are negative, does not necessarily imply that a cardiac patient is capable of returning to an occupation, even a sedentary one. Factors such as, effect of cardiac medication emotional stress factor, and overfall] physical condition all contribute to the final decision regarding a patient’s ability to return to work.

(R. 219).

The record also contains a hospital summary of February, 1984 which indicates that Plaintiff suffered a myocardial infarction. The notes indicate that Plaintiff had a history of ischemic heart disease and was admitted for pressing substernal chest pain radiating to the left side of the jaw and left arm, unrelieved by nitroglycerin. On Feb. 24 ventricular tychardia was detected; an EKG later that day showed no changes. Plaintiff was given medication, became asymptomatic and was discharged a week later.

In July of 1984 Dr. Feldman wrote a letter to claimant’s attorney stating that Plaintiff had suffered a myocardial infarction in February; that he continued to have chest pain; that EKGs had consistently shown abnormalities since that admission, and that Plaintiff continued to take significant amounts of anti-anginal pain medication. Dr. Feldman stated:

In light of the previously mentioned symptoms and recent myocardial infarction, I feel that [Plaintiff] can no longer perform “light” work ... I do not feel that he can stand for approximately six-hours out of an eight hour day, nor do I feel that he can lift up to ten pounds or even occasionally twenty pounds.

(R. 281).

Plaintiff testified at the hearing. He stated that he had left his position as a district sales manager to take a lesser position as a sales representative because he could not take the stress of travelling. He further stated that even the sales rep position involved great stress for him in dealing with customers. Much of the stress, he admitted, was due to the nature of his personality. As he put it “I’m my own worst enemy ... I make a non-stress situation stressful” (R. 66). He indicated that even when he was sitting down and on the phone he would experience stress-related pain.

Plaintiff worked briefly after his cardiac surgery but eventually left even the sales job due to his health. But for his heart problem he felt he could still be working.

Plaintiff stated he does not like to use the nitroglycerin but he does so twice a day. He is able to walk only about k block before he experiences pain and pressure. He does very little physical activity and stays at home most of the time. Occasionally he will help with the housework to the extent of unloading the dishwasher. Plaintiff rarely drives anymore due to pain and if he does drive, it can’t be for very long.

Plaintiff indicated that his prior job required him to sit about half of his time and stand or walk about half. He can sit for only twenty minutes at a time now and then must get up and walk around. He also finds it necessary to nap during the day. He can stand about 20-25 minutes.

THE ADMINISTRATIVE DECISION

The A.L.J. discussed the medical evidence of record and SSR 82-51. He did not discredit the findings or conclusions of the treating physician. Rather, he construed the doctor’s opinion to be that Plaintiff suffered only a “mild” impairment and that Plaintiff was much improved after surgery. He noted the negative stress test results. He also stated that Plaintiff was able to sit four hours and that his prior work required four hours of sitting and four hours of walking and standing. He determined that Plaintiff could, therefore, return to his pri- or work. He further indicated that Plaintiff could work despite the stress involved. In support of that statement he noted that the Social Security hearing was very stressful but that Plaintiff suffered no pain at that time.

Finally, the A.L.J. found the allegation of frequent anginal chest pain to be unsupported by the objective medical evidence and, therefore, incredible.

In applying SSR 82-51 the A.L.J. stated: [P]ost coronary bypass surgery with no significant angina pectoris, heavy work could be precluded ... [T]he distinction between the capacity to perform medium and light work activity would require consideration of the medical evidence describing claimant’s individual clinical condition. The treating physician indicates that the claimant’s condition is much improved subsequent to the coronary bypass surgery. His impairment is described as mild, and, therefore the [A.L.J.] must conclude that the claimant could perform at least light work activity.

(R. 53).

ISSUES

Plaintiff objects to the A.L.J.’s decision as erroneous. He notes five errors: (1) the finding that complains of anginal pain are not credible is not supported by substantial evidence; (2) the A.L.J. failed to properly consider the complaints of pain; (3) the A.L.J. has mischaracterized the evidence, particularly the findings and conclusions of the treating physician; and (4) the finding that Plaintiff can perform light work and can return to his prior employment is without any evidentiary support.

As a fifth issue, Plaintiff contends that the A.L.J. misapplied SSR 82-51 and that the ruling is, in any event, medically invalid.

The applicability of the rule and its validity is discussed first below. Thereafter, the only issue which is addressed is the A.L.J.’s determination of residual functional capacity (RFC). These issues are dispositive of the case and, accordingly, the only issues the court need reach.

RECOMMENDATION

Social Security Ruling 82-51 is set out in pertinent part in footnote 1. Plaintiff contends, and the Court Finds that SSR 82-51 was misapplied. By its express terms the Ruling applies to cases in which the claimant is status post coronary bypass surgery “without angina.” It also speaks of cases in which the claimant is “post myocardial infarction or coronary artery bypass graft.” It does not, by its terms, include a claimant who is both.

Social Security Rulings do not have the force and effect of law or regulations. Heckler v. Edwards, 465 U.S. 870, 104 S.Ct. 1532, 1535 at n. 3, 79 L.Ed.2d 878 (1984). They are merely precedents for cases in which the facts are basically the same. Id. In the instant case, Plaintiff has demonstrated through clinical evidence that he suffers from anginal chest pain. He is also a person who is status post myocardial infarcticn and coronary bypass. Thus the facts of his case are significantly different from the factual situation contemplated by the Ruling. Indeed, the ruling itself states that its conclusions are directly applicable only where the individual has those limitations “specifically described.” For this reason, SSR 82-51 was erroneously applied in this case.

The Plaintiff also argues that the Ruling is medically invalid. He notes that examples 1 and 2 of subpart B of the Ruling refer to the RFC of persons with angina. Both 1 and 2 seem to require a positive stress treadmill exercise test and then draw conclusions about RFC from the tests. Plaintiff has introduced the testimony of several prominent cardiologists to show that stress tests simply cannot measure a person’s ability to perform work activity on a sustained basis and some patients have negative stress tests but still suffer anginal pain.

It appears to the Court that only Section 3 of Subpart B of the Ruling was applied in this case. While Sections 1 and 2 are certainly medically questionable, there is no need to reach that issue in the present case. If the A.L.J. in this case assumed that Plaintiff had no anginal pain because his stress test was negative, he finds no support for that conclusion in SSR 82-51.

RESIDUAL FUNCTIONAL CAPACITY

The Court has thoroughly reviewed the record in this cause. It is beyond cavil that the A.L.J. made many factual mischaracterizations. While he cast Dr. Feldman’s findings as “mild impairment” and “much improved,” Dr. Feldman clearly found Plaintiff to be severely impaired and totally disabled, incapable of sedentary or light work. The A.L.J. indicated that Plaintiff’s pains were only occasional but Dr. Feldman’s report clearly indicates that they were frequent and only “occasionally relieved” by medication. The A.L.J. quoted the Plaintiff as saying that he could sit for four hours, could walk for a moderate length of time and sit for prolonged periods “with no difficulty.” The transcript reveals statements by the Plaintiff which are entirely opposite.

The A.L.J. also erred in his critical conclusion on Plaintiff’s RFC. Apparently, the A.L.J. sought to substitute SSR 82-51 for a medical opinion on RFC. However, the only medical determination of RFC is the assessment by Dr. Feldman which remains uncontroverted. The A.L.J. did not discredit that assessment, he simply ignored it.

Dr. Feldman found Plaintiff to be limited to carrying 5-10 lbs. occasionally; could only sit, stand or walk for five hours out of eight and required frequent rest and substantial periods for lying down. Clearly this RFC indicates that Plaintiff is unable to return to even sedentary work.

Unless good cause to the contrary is shown, the opinions, findings and conclusions of the treating physician must be accorded substantial weight. Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982). Here, the conclusion of Feldman regarding RFC is uncontroverted and, indeed, is the only medical evidence of record establishing Plaintiff’s work capacity. For this reason, the A.L.J.’s determination of RFC is unsupported by any substantial evidence. The Social Security Ruling is inapplicable for reasons noted earlier and, in any event, cannot constitute medical evidence.

For the foregoing reasons, the decision of the Secretary should be REVERSED and the Secretary directed to award benefits.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation with the Honorable Alcee L. Hastings, United States District Judge, within ten (10) days after being served with a copy thereof.

      . SSR 82-51 states, in relevant part:
      POLICY STATEMENT: Based on case experience and consultation with disability program physicians throughout the nation, the following impairments have been identified as resulting in predictable physical limitations which preclude specific levels of work based on physical exertion requirements ...
      The conclusions in these examples are directly applicable to the decision only when the individual has no limitations other than those resulting from the medical condition specifically described in each example. The examples are primarily related to physical capacities, including the capacity for sustained exertion, and additional reduction of RFC in other areas—mental, for example—will require further consideration.
      B. Examples of Cardiovascular Impairments
      3. Postmyocardial infarction or coronary artery bypass graft, without angina, congestive heart failure, or significant arrhythmias. Heavy work activity would be precluded unless specific exercise testing establishes the ability to engage in heavy work activity. The distinction between the capacity to perform medium and light work activity requires consideration of the medical evidence describing the individual's clinical condition.


source: Caselaw Access Project

author: CRABB, Chief Judge.

license: Public Domain

text:
    Robert Edward LIPSCOMB, Plaintiff, v. GENERAL FOODS CORPORATION, a New York corporation; Liberty Mutual Insurance Company, a Massachusetts company, Defendants.
    No. 84-C-436-C.
    United States District Court, W.D. Wisconsin.
    July 25, 1985.

      Robert Edward Lipscomb, pro se.
    Henry Field, Jr., Boardman, Suhr, Curry & Field, Madison, Wis., for defendants.
   ORDER

CRABB, Chief Judge.

In this civil action for damages, plaintiff, an inmate of the Michigan state prison, is suing for injuries suffered allegedly while he was an inmate at the Federal Correctional Institution in Oxford, Wisconsin and he ingested part of a defective batch of Tang instant breakfast drink. Jurisdiction is present. 28 U.S.C. § 1332. Presently before the court is plaintiffs motion for the appointment of counsel.

In an order entered herein on September 20, 1984, I denied an earlier request from plaintiff for the appointment of counsel. In denying the request, I made the following comments:

This is not a case where an indigent prison inmate alleges violations of his or her rights under the Constitution or a federal statute. See Childs v. Duckworth, 705 F.2d 915 (7th Cir.1983); Merritt v. Faulkner, 697 F.2d 761 (7th Cir. 1983); McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982); Maclin v. Freake, 650 F.2d 885 (7th Cir.1981). Instead, this lawsuit is indistinguishable from those brought by nonprisoners in ordinary civil litigation. In this situation, an indigent prison inmate’s need for special consideration is less compelling. See Haines v. Kerner, 404 U.S. 519 [92 S.Ct. 594, 30 L.Ed.2d 652] (prisoner complaint must be construed liberally). Cf. Bounds v. Smith, 430 U.S. 817, 827 [97 S.Ct. 1491, 1497, 52 L.Ed.2d 72] (1977) (habeas corpus and civil rights actions are of “fundamental importance ... in our constitutional scheme” because they directly protect our most valued rights).
Moreover, appointing counsel for indigent litigants where a contingent fee arrangement is feasible compromises the neutral posture that a court must maintain in its relationship with members of the bar. Once appointed in a civil damage action, counsel may be able to negotiate a potentially remunerative contingent fee contract. Under these circumstances, this court should avoid choosing among members of the bar until it becomes clear that a contingent fee arrangement is not feasible.

In an order entered subsequently on March 28, 1985, I stated that I would appoint counsel for plaintiff because it appeared from his efforts at conducting discovery that plaintiff was having considerable difficulty investigating and developing the factual basis for his claim. As I noted in that order, I thought that the appointment of counsel would materially advance the resolution of the case.

Following the entry of the March 28 order, plaintiff advised the court that he would not accept representation by appointed counsel. The matter rested there until July 8, 1985, when plaintiff filed the motion for appointment of counsel that is now before the court, which causes me to reconsider the orders filed earlier. Upon roevaluation, I am persuaded that this is not a case in which counsel should be appointed, despite the fact that plaintiff has been unsuccessful to date in persuading a private lawyer to take his case on a contingency fee basis. Notwithstanding the comments that I made in the March order concerning plaintiff’s evident difficulty in conducting discovery, I do not believe that appointment is justified in a civil case such as this, which raises no issue of constitutional dimension, and does not attack any aspect of prison life.

The issue is not whether district courts have authority to appoint counsel to represent indigent prisoner-plaintiffs in products liability suits. It seems probable that they do. 28 U.S.C. § 1915(d) provides that a court may request an attorney to represent any person granted leave to proceed as a pauper. The statute does not distinguish between federal question and other kinds of eases. See also McKeever v. Israel, 689 F2d at 1319-1320. (“There should be no question that a ‘district court has broad discretion to appoint counsel for indigents under 28 U.S.C. § 1915(d).’ Maclin [v. Freake], 650 F.2d at 886 ...”) The issue is whether it is a proper use of a court’s authority to require lawyers to undertake the representation of indigent prisoner-plaintiffs in cases which ordinarily are handled by private lawyers on a negotiated contingency fee basis.

In a number of cases the Court of Appeals for the Seventh Circuit has spoken forcefully about the obligation of district courts to give careful consideration to the requests of indigent litigants for appointed counsel and the concomitant obligation of the bar to provide pro bono representation for such litigants. The general rule in the circuit is that appointment of counsel for indigents “rests in the sound discretion of district courts unless denial would result in fundamental unfairness impinging on due process rights.” LaClair v. United States, 374 F.2d 486, 489 (7th Cir.1967). See also Maclin v. Freake, 650 F.2d at 886; Heidelberg v. Hammer, 511 F.2d 429, 431 (7th Cir.1978); Chapman v. Kleindienst, 507 F.2d 1246, 1250 n. 6 (7th Cir.1974). Although the court has never explained the circumstances in which it would find that the denial of counsel resulted in “fundamental unfairness impinging on due process rights,” it has encouraged appointment of counsel and has analyzed the denial of counsel under an abuse of discretion standard, reversing those decisions that did not reflect careful consideration of the factors indicating the need for appointment. See, e.g., McKeever v. Israel, 689 F.2d 1315; Caruth v. Pinkney, 683 F.2d 1044 (7th Cir.1982); Maclin v. Freake, 650 F.2d 885. In Maclin, the court articulated the specific factors the district courts should consider in deciding whether to appoint counsel: (1) the merits of the indigent litigant’s claim; that is, whether there is a colorable claim; (2) the nature of the factual issues raised in the claim and whether the indigent is in a position to investigate crucial facts; (3) the need for cross-examination, particularly where there is a question of credibility; (4) the capability of the indigent litigant to present the case; and (5) the complexity of the legal issues. Id., at 887-889.

All of the cases in which the court has reviewed district court decisions denying such appointments have concerned either challenges to a conviction, as in LaClair v. United States, 374 F.2d 486, or challenges to conditions of confinement, as in McKeever v. Israel, 689 F.2d 1315 (challenge to prison mail policy). So far as I can determine, the court of appeals for this circuit has never been asked to rule directly on the question of the appointment of counsel in private civil actions not raising any constitutional challenge or federal question.

If the Maclin guidelines are applicable to all cases brought by indigent litigants and not just to those raising federal questions, a fair reading of those guidelines would require the appointment of counsel in the present ease. Plaintiff has a colorable claim. At this juncture, I must assess it as having merit because I am in no position to evaluate with any accuracy the probable success of his claim. As is to be expected in a products liability case, the facts are complex. At issue are the nature and source of the alleged defect, causation, and consequential injuries, all of which are matters requiring expert witnesses. As I have noted, although plaintiff is a vigorous advocate for his own position, he has had considerable difficulty investigating and developing the facts necessary to the successful prosecution of his lawsuit.

For several reasons, I believe that the court of appeals did not intend district courts to evaluate the need for counsel in personal injury lawsuits in the same manner as in federal question litigation.

The primary reason is that personal injury claims have an economic value that makes meritorious claims attractive to lawyers without any need for judicial intervention. Assuming that a prisoner can obtain access to counsel to explain the factual basis for the claim, he or she would have approximately the same likelihood of obtaining representation on a contingency basis as a noninearcerated person with the same claim. The fact that the injured party is a prisoner is not in itself such an impediment as to foreclose injured prisoners from obtaining representation by counsel. It might be somewhat more difficult for a prisoner to find legal representation because he is not able to make a personal visit to the lawyer’s office, but there is no reason to believe that any prisoner with a meritorious personal injury claim could not find a capable lawyer willing to provide representation. If counsel refuse to take the claim because it appears unlikely to succeed or because, even if successful, it would not generate enough in money damages to justify the cost and risk of prosecution, there is no reason for the court to intervene to require a lawyer to proceed with prosecution of the claim. Certainly a court would not intervene to require a lawyer to go forward with a dubious or unprofitable claim on behalf of a non-inearcerated, non-indigent person. The only justification for intervention on behalf of an indigent prisoner would be in the circumstance in which the prisoner could show that no lawyer would even consider the prisoner’s claim solely because of the prisoner’s status and not because of a negative evaluation of the economic value of the claim.

It is necessary to keep in mind that legal resources are a scarce commodity. I am aware that in Caruth v. Pinkney, 683 F.2d 1044 (7th Cir.1982), the court suggested otherwise at p. 1049:

Although one proposal requiring mandatory pro bono publico work by attorneys was recently voted down by the American Bar Association, the very proposal itself indicates the awareness of the bar of its obligation to protect the rights of indigent litigants. See Rule 8.1, ABA Model Rules of Professional Conduct, Discussion Draft (1980). The bar within this Circuit has long viewed appointments of counsel as part of its professional duty to provide public service. We have faith that lawyers always will be found who are willing to represent the indigent without remuneration. Although we are not unsympathetic with the burden a district court faces in attempting to secure pro bono counsel, we merely note that the existence of this burden will not excuse a court from attempting to see that counsel is appointed in appropriate cases. We further noted that by appointing counsel in appropriate cases, a district court not only insures that the meritorious claims of a pro se plaintiff are not defeated, but also eases the burdens placed both on the district court and on this court when a skilled attorney presents a case. See Stronger v. Rowe, 616 F.2d 993, 1001 (7th Cir. 1980).
In sum, a request for appointment of counsel should not be denied solely for the reason that an attorney who takes the case may not be compensated for his efforts. Pro bono publico work by attorneys is an established tradition and it is up to the district courts to tap the reservoir of talent that exists within this Circuit.

However true it may be that there are sufficient lawyers to accept all federal court requests for representation of indigent litigants, it is not the case that there are enough lawyers to provide pro bono representation for all the individuals who need free or low cost legal assistance. There is an entire universe of such persons, of which indigent pro se litigants in federal court are only the aspect most visible to judges. The reality is that in making appointments of counsel, the district courts are determining the allocation of a finite resource. As tempting as it is to appoint counsel freely, if only so that the case will proceed more smoothly, the courts must be sensitive to the fact that there are many other demands for pro bono legal work no less deserving than the representation of incarcerated persons.

Additionally, the obligatory pro bono representation of an indigent litigant can represent a significant financial commitment on the part of the lawyer appointed to the case. The lost opportunity for remunerative work is only one obvious cost. If expert witnesses are to be hired and brought to trial, or demonstrative exhibits prepared, or depositions taken, the lawyer must bear the expenses personally, as no governmental source of funding is available or any means of easing the burden on any particular lawyer of the costs of representation. In smaller cities and rural areas, few lawyers, or their firms, are in a position to make such a financial commitment, regardless of their willingness to provide pro bono assistance to indigents. A products liability case would be an expensive case to prosecute effectively.

In a case brought on constitutional or federal statutory grounds, the vindication of rights and the resulting social value justifies the personal financial burden imposed upon the appointed private lawyer and the diversion to the federal court of a limited resource. These cases perform the important function of scrutinizing the exercise of governmental power “by those who employ and apply the organized force of the community.” Doyle, The Court’s Responsibility to the Inmate Litigant, 56 Judicature 407 (1973). Although individual cases may be legally frivolous or brought for no reason other than harassment of the defendants, the cases as a body raise some of the most profound issues that confront federal courts. See, e.g., Morales v. Schmidt, 340 F.Supp. 544 (W.D.Wis.1972). The societal value of these cases is reflected in the Congressional decision to authorize the award of attorneys’ fees to those lawyers who are successful in vindicating a constitutional or federal statutory right. 42 U.S.C. § 1988.

No similar social justification or statutory provision for attorneys’ fees attaches to the prosecution of a claim for damages for a personal injury, such as the plaintiff’s claim in the instant case. Although products liability litigation can have salutary effects upon worker and consumer safety, essentially such litigation, if successful, produces benefits that inure solely to the plaintiff and his counsel.

Taking into consideration the finite quantity of free legal assistance available in this district, the many competing demands for that assistance, the significant cost to private counsel of providing free representation, and the overriding factor that plaintiff’s case raises no claim of constitutional or federal statutory violation, but rather, a state tort claim of the type that lawyers in private practice handle routinely and profitably, I conclude that in the absence of any showing by plaintiff that his mere status as a prisoner has prevented him from obtaining consideration of his personal injury claim by any lawyer in private practice, this court should not exercise its authority to require or even request a lawyer to represent plaintiff in the prosecution of his private cause of action for damages for personal injuries.

ORDER

IT IS ORDERED that plaintiffs motion for appointment of counsel is DENIED.

      . 28 U.S.C. § 1915 speaks in terms of "requesting” counsel to represent an indigent litigant, thereby seeming to limit the court's power to draft counsel into the service of indigents, but most com ts have read the statute as authorizing the appointment of counsel. See, e.g., McKeever v. Israel, 689 F.2d 1315, 1319 (7th Cir.1982):
      ... the vast weight of authority in the Circuit and elsewhere demonstrates that the power of a court to provide counsel under section 1915(d) is commonly referred to as a power to "appoint.”
      (Footnotes omitted.)

      . The Court of Appeals for the Eighth Circuit directed the appointment of counsel for a prisoner in a case brought against the prison’s former lawyer for alleged fraudulent conversion of the prisoner’s car. The court based its holding on "the overall interests of the proper administration of justice,” noting that ”[f]or obvious reasons [the plaintiff] alone cannot investigate the case or hope to obtain evidence to prove his allegations," and that ”[t]he court will be aided by appearance of counsel at all proceedings." Peterson v. Nadler, (per curiam) 452 F.2d 754, 757, 758 (8th Cir.1971).

      . The State Bar of Wisconsin provides a lawyer referral service. If plaintiff wishes to utilize the service, he can write directly to the state bar for assistance, at 402 W. Wilson Street, Madison, Wisconsin, 53703.


author: SWEET; District Judge.

text:
    In the Matter of Dr. Jean FORD, Contempt Proceedings Under Title 28, U.S.C., § 1826(a).
    No. M 11-188 (RWS).
    United States District Court, S.D. New York.
    July 26, 1985.
   OPINION

SWEET; District Judge.

Civil contemnor Dr. Jean Ford has applied to this court for release from confinement despite his failure to purge himself of his civil contempt. For the reasons discussed below, his motion is granted.

Dr. Ford was subpoenaed to testify before a grand jury of this district investigating a suspected conspiracy to violate provisions of federal law by commission of armed robberies, prison breaks and other illegal acts, and was granted use immunity. Dr. Ford moved before the Honorable Charles S. Haight to quash the subpoena on the grounds of marital privilege because his wife, Collette Pean, was under indictment on the conspiracy charge which was the subject of the grand jury investigation. On January 9, 1985 Judge Haight denied Dr. Ford’s motion on the grounds that his spousal privilege was adequately protected by a “Chinese Wall” created in the United States Attorney’s Office, and directed him to comply with the subpoena. Dr. Ford thereafter appeared before the grand jury on January 24, 1985 and refused to answer questions on the basis of the spousal privilege. The government then moved before this court for an order of contempt pursuant to 28 U.S.C. § 1826 and at the same time Dr. Ford asked this court to reconsider his motion to quash. By order dated January 28, 1985 Dr. Ford’s motion was denied. Dr. Ford having once again declined to testify, he was found in contempt and confined pursuant to 28 U.S.C. § 1826(a). The adjudication of civil contempt was subsequently affirmed by the Second Circuit in Grand Jury Subpoena of Ford v. United States, 756 F.2d 249 (2d Cir.1985). Dr. Ford has been incarcerated in the Metropolitan Correctional Center since January 28, 1985.

Dr. Ford now seeks release from confinement, despite his continued failure to comply with this court’s order, on the grounds that further incarceration would not serve the coercive purposes of civil contempt. He first argues that he should be released because the work of the grand jury before which he was subpoenaed has concluded. In addition, he contends that because he will never abandon his refusal to testify his release is mandated by Simkin v. United States, 715 F.2d 34 (2d Cir.1983) and Sanchez v. United States, 725 F.2d 29 (2d Cir.1984).

The purpose of the civil contempt sanction is to coerce a contemnor into complying with an order to testify before a grand jury. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). When the grand jury’s term expires, the contemnor must be released because confinement can no longer have any coercive impact. Id. In the present case, Dr. Ford contends that even though the grand jury before which he was subpoenaed is still sitting, its work has effectively come to an end and therefore his continued incarceration can serve no purpose. In support, he points to the fact that no new indictments or subpoenas have issued from the grand jury in several months.

Despite Dr. Ford’s claims, there remains a present need for his testimony before the grand jury. The grand jury’s investigation culminated in part in the trial of several defendants on charges of RICO conspiracy presently going forward before the Honorable Robert L. Carter in United States v. Chimurenga et at, 84 Cr. 818 (RLC). It appears that Dr. Ford has knowledge of several of the Chimurenga defendants and may have knowledge of criminal activities in which the Chimurenga defendants as well as others may have engaged. According to the government, the evidence at the Chimurenga trial has demonstrated that the enterprise on trial conducted its affairs on a “need to know” basis and therefore no one person was privy to all criminal participants and activities. Dr. Ford may have knowledge that would fill remaining gaps in the investigation. In addition, Dr. Ford’s claim that there is no public necessity for his testimony because the grand jury is no longer actively pursuing its investigation is not convincing. As the Honorable Peter K. Leisure noted in In re Jean Baptiste, No. M 11-188 (S.D.N.Y. July 3, 1985), “the investigation did not simply end, it ran into a brick wall because Jean-Baptiste and seven of his compatriots who have been subpoenaed have all decided to go to jail rather than testify ... A contemnor should not be able to gain release on grounds of lack of public necessity when he himself brought the investigation to a halt.” Slip op. at 9. The grand jury’s recent inactivity does not justify Dr. Ford’s premature release.

Dr. Ford also contends that his unwillingness to testify at any future time renders the coercive element of confinement ineffective. Incarceration for civil contempt is intended to be remedial rather than punitive. Shillitani v. United States, supra. The civil contempt sanction is intended to coerce a contemnor into compliance rather than to punish him for his refusal to comply. Id. By enacting § 1826(a), Congress determined that confinement for up to eighteen months is coercive rather than punitive in nature. See In re Grand Jury Investigation of Braun, 600 F.2d 420, 425-27 (3d Cir.1979); Matter of Dorie Clay, No. M 11-188, slip op. at 6-7 (S.D.N.Y. June 27, 1985) (Brieant, J.).

Our Circuit has stated, however, that courts retain the discretion to determine, at some point prior to the expiration of eighteen months or the grand jury term, if the confinement is no longer coercive but is instead primarily punitive. Simkin v. United States, supra, 715 F.2d at 37; Sanchez v. United States, supra, 735 F.2d at 31. According to the Second Circuit, the court in each instance must decide if any “realistic possibility exists that the contemnor might yet testify if confinement is continued.” If the court is convinced “after a conscientious consideration of the circumstances pertinent to the individual contemnor,” Simkin, supra, at 37, that further incarceration is not likely to compel compliance, the contempt sanction becomes punitive rather than remedial in character and the contemnor must be released. Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir.1981); Sanchez, supra; Simkin, supra. Although the court may consider such factors as the government’s need for the testimony in making its decision, the primary issue to be resolved is whether the court is convinced that the contemnor has shown by a preponderance of the evidence that he is unlikely to be coerced by continued confinement. In re Lionel Jean-Baptiste, supra, slip op. at 7.

In the case at hand, I am forced to conclude that Dr. Ford has met that burden. Dr. Ford, a black male, is a twenty-eight year old graduate of Columbia University’s medical school who considers himself to be a political activist. Since his graduation from medical school in May of 1984, he has been a resident in internal medicine at Harlem Hospital in New York. At the evidentiary hearing, he testified that since his childhood in Port-au-Prince, Haiti, he has participated in “whatever struggles there were for better conditions" in the communities in which he lived. (Tr. p. 5). Dr. Ford stated that his formal involvement in political organizations began in 1978 when he became involved as a Columbia student in activities concerning apartheid in South Africa. Since that time he has been a member of organizations entitled the Mobilization Committee Against Police Brutality and the Sunrise Collective. Since 1982, in the context of his work for these organizations, he has participated in various forums, including demonstrations in front of the Metropolitan Correctional Center in support of several grand jury civil contemnors.

Mr. Lionel Legros, one of Dr. Ford’s friends, testified that Dr. Ford was involved in “propaganda work” and demonstrations in 1982 directed towards combat-ting prejudice against Haitians because of alleged links to AIDS and in 1984 in the context of a May 3, 1984 uprising in Haiti over the importation of pigs. Dr. James Curtis Macintosh, a resident on leave from Harlem Hospital serving as president of the union for residents and interns in New York City, the Committee of Interns and Residents, also testified at the hearing and stated that Dr. Ford had served as a delegate to the union from Harlem Hospital, that he had assisted Dr. Macintosh in presenting forums to the community on various issues of concern, and that Dr. Ford had been active in a number of political issues of relevance to the black community, including the issues of police brutality and apartheid.

Dr. Ford testified that even before he received his subpoena in this case it was his view that the grand jury is a “political intelligence gathering body that is being used as a means to derail different constitutionally protected resistence movements.” On cross-examination, he testified that although he would be willing to testify in an open court proceeding, he would under no circumstances consent to answer questions before a grand jury, regardless of the subject matter of the questions. He stated that he views the other individuals held in contempt for refusing to testify before the same grand jury investigations as his fellow political prisoners and that he has derived psychological support from this group. He also testified that to testify before the grand jury would be a betrayal of these “comrades” and would have serious personal consequences for him as he would be viewed as a traitor to his cause and to his people. Finally, he stated that 00 length of incarceration would change his position as to not testifying. Both Dr. Macintosh and Mr. Legros stated that they believed Dr. Ford’s commitment to political causes to be sincere and deeply felt and that in their opinions he would never cooperate with any grand jury investigation, although neither of them testified as to any prior knowledge of his attitude toward the grand jury.

Based on the evidence presented at vhe hearing as well as the affidavit submitted by Dr. Ford, I conclude that Dr. Ford has established by a preponderance of the evidence that there is no realistic possibility that he might testify if his confinement is continued. This conclusion is based not on the supposed depth of Dr. Ford’s alleged political convictions but instead on the fact that Dr. Ford considers himself to be a member of a group of “grand jury resisters.” Whether or not Di\ Ford’s record of political activity supports his self-serving claims of being a dedicated political activist, it is evident that m the context of this particular case, he sees himself as a political crusader and enjoys the support and attention of not only his fellow contemnors but also that portion of the community which supports the underlying “cause.” The element of “group think” generated by an organized gioup of individuals who call themselves freedom fighters and espouse the maintenance of a “wall of silence” may well be the sole reason for Dr. Ford’s refusal to testify and in any event, plainly reinforces his decision to remain silent. I am convinced that whether or not Dr. Ford would continue to testify if he were alone in his alleged beliefs, given the support he receives from this group of “resisters” he is unlikely to change his mind and risk losing his newly acquired status as a hero. Since continued incarceration would, therefore, have no coercive value, Dr. Ford must be teh-ased.

I reach this conclusion despite my conviction that the logical result of Simkin and Sanchez is to emasculate the civil contempt sanction, since any organized resistence to a grand jury investigation will result in the release of any contemnor who can demonstrate a real involvement with that effort. This is true whether the individuals resisting the investigation are members of a political organization or of an organized crime group. In addition, as Judge Charles Brieant noted in Matter of Dorie Clay, supra, slip op. at 6, Simkin and Sanchez have the perverse result of creating a special, more lenient standard for that class of contemnor most committed to defying the court’s order and thus least entitled to relief. Because I find that there is no realistic possibility that Dr. Ford will testify before the grand jury, however, I am constrained by the Second Circuit’s holdings to release him from confinement despite his failure to purge himself of his contempt.

IT IS SO ORDERED.