1 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 St ates District Court for the Western District of Pennsylvania (D.C. Civil Action No. 3:09

- cv - 0 0 043) Magistrate Judge: Honorable Lisa P upo Lenihan

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) April 4, 2011 Befo re: BARRY, JORDAN and GARTH , Circuit Judges (Opinion filed : April 6 , 2011 )

___________

OPINION

___________ PER CURIAM Cuevas, a federal prisoner proce e ding 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.2 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 un diagnosed 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

. H e 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 t he G overnment 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 req uested th at counsel be appointed to represent him . In support of his request, Cuevas averr ed that he was unable to understand the English language or the operation of the American legal system.

1 Cuevas, who was housed at the Federal Medical Center at Devens, Massachusetts a t the time he filed his complaint , initially filed in the Distri ct 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 com plaint 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, the3 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 u nable 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
arg ued that expert testimony was unnecessary . T he 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 Governmen t’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 th e 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

District Court transferred the matter to the W estern District of Pennsylvania. , 6 F.3d 147, 158 (3d Cir. 1993 ). “ [W] here the district court has4 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 m ay not be able to determine whether the district court made a reasoned and informed judgment regarding appointment of counsel.” “Indigent civil litigants possess neither a constitutional nor a statutory right to appointed couns el.” Id.

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 re quest 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 c ase 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 issue s; (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 credibilit y determinations; and (6) whether the case will require testimony from expert witnesses. Id

. I n the instant case, several of these factors appear to encourage the appointment of counsel. Cuevas is a foreign national, does not speak or read Eng lish , and does not

u nderstand the U.S. legal system

— he has thus far relied upon a “next

- friend” to prepare A t 155

- 57.5 his filings. The procedural issues involved in this case are complex and, by virtue of his need to obtain expert testimony, Cuevas’s confinement pr esents 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. A lthough 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 initia l examinations may not have accounted for this increased hazard.
T he 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 thi s problem, it cannot be determinative on its own. See id.

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 moti on. L imits 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

. 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.

See Chamberlain v. Giampapa , 210 F.3d 154, 158

- 161 (3d Cir. 2000 ) (concluding that a similar New Jersey “affidavit of merit” requirement6 constitutes substantive state law which must be applied by federal district courts in diversity actions). A mong 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.
D espite the Rule’s direction that COM s be filed within sixty days of filing a malpractice complaint, a plaintiff’s failure to file a COM within that period doe s not immediately end a malpractice claim before a Pennsylvania court . First, plaintiffs may move the court for additional t ime 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. C iv. P.
1042 .7(a)

. E ven 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

As we have not determined to what extent the Pennsylvania Rules of Civil Procedure regarding malpractice claims constitute substantive law, their app licability remains arguable. W e therefore conclude that although there is no dispute that Cuevas , 862 A.2d 631, 633 (Pa. Super. Ct. 2004) . Moreover, judgment may not be entered i f 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 wa s
requ ired, plaintiffs are then afforded an additional twenty d ays to file

. Pa. R. Civ. P. 1042.6(c ) . This period too may be extended. Pa. R. Civ. P. 1042.3(b)(2).7 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 Pe nnsylvania law governing malpractice actions appl ies and that the Government’s motion for summary judgment suffice d to satisfy it s notice requirements , Cuevas’ s argument that a
COM was unneeded tolled the requirement until a judicial ruling that one was ne eded 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 c ourt for further proceedings consistent with this opinion.