Ruben Cuevas v. United States, 580 F. App'x 71

Ruben Cuevas, a federal prisoner, sued under the Federal Tort Claims Act for medical negligence after a fall at FCI Loretto that resulted in a broken foot he alleges went undiagnosed and untreated surgically.
District Court initially denied counsel and granted summary judgment for failure to file a Pennsylvania Certificate of Merit (COM); this court vacated and remanded to reexamine counsel appointment and COM applicability.
On remand, the District Court solicited three attorneys; all three declined (reasons sealed). The court stopped recruitment after receiving those declinations.
The Third Circuit reviewed the sealed declinations and found reasons: non-legal full-time employment, excessive caseload/no available colleague, and belief the case lacked merit; it held the district court did not abuse its discretion in ending recruitment.
Cuevas filed a COM certifying under Pa. R. Civ. P. 1042.3(a)(3) that expert testimony was unnecessary; the Government moved for summary judgment arguing expert testimony was required.
The District Court held expert testimony was necessary, ruled Cuevas was bound by his COM representation precluding such testimony, and granted summary judgment for the Government; the Third Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court abused discretion by stopping recruitment of pro bono counsel and withholding declination reasons	Court failed to follow this Court's remand directive to continue efforts; should have appointed counsel or disclosed declination reasons	Court made reasonable efforts; declinations justified stopping recruitment and declination reasons need not be public	No abuse of discretion; after review of sealed reasons, stopping recruitment was permissible
Whether Pennsylvania COM Rule 1042.3 applies in federal FTCA action	COM applies but Cuevas argued he could certify no expert needed	Government: under Liggon-Redding COM is substantive and applies; expert testimony required here	COM applies; Cuevas’s certification that no expert was needed was incorrect and binding
Whether expert testimony was necessary to prove medical negligence	Cuevas argued his lay testimony sufficed and certified no expert needed	Government argued medical issues are beyond lay comprehension and require expert proof	Expert testimony was necessary; summary judgment appropriate because Cuevas had barred such testimony by his COM certification
Whether exceptional circumstances allowed deviation from COM certification	Cuevas suggested exceptions or late supplementation	Government opposed exceptions absent compelling reason	No exceptional circumstances found; certification precluded presenting expert testimony

Liggon-Redding v. Estate of Sugarman, 659 F.3d 258 (3d Cir. 2011) (Pennsylvania COM rule is substantive and applies in federal court)
Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993) (standard and practical constraints for district court appointment of counsel under § 1915)
Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296 (1989) (district courts may request but not compel counsel under the in forma pauperis statute)
Houston v. Lack, 487 U.S. 266 (1988) (prison mailbox rule for filing dates)
Cuevas v. United States, 422 F. App’x 142 (3d Cir. 2011) (prior per curiam disposition remanding for counsel recruitment and COM analysis)
Brightwell v. Lehmann, 637 F.3d 187 (3d Cir. 2011) (discussing limits on appointing counsel to indigent litigants)
S.H. v. Lower Merion Sch. Dist., 729 F.3d 248 (3d Cir. 2013) (summary judgment standard)
Barefoot Architect, Inc. v. Bunge, 632 F.3d 822 (3d Cir. 2011) (summary judgment evidentiary inferences standard)