Cogley

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JAMES ANDREW COGLEY, :

Plaintiff : CIVIL ACTION NO. 3:25-1938

Vv. : (JUDGE MANNION)

WELLPATH, LLC, et al., :

Defendants :

MEMORANDUM

Currently before the Court are pro se Plaintiff James Andrew Cogley

(“Cogley”)’s application for leave to proceed in forma pauperis (“IFP

Application”), motion to appoint of counsel, and motion seeking a ruling on

his IFP Application and motion to appoint counsel. For the reasons stated

below, the Court will deny Cogley’s motions.

I. BACKGROUND

Cogley, a convicted and formerly incarcerated state prisoner," filed a

complaint in the Court of Common Pleas of Centre County on October 6,

1 According to the Pennsylvania Parole Board’s Parolee Locator

(https://inmatelocator.cor.pa.gov), Cogley was _ paroled from state

incarceration on September 17, 2023.

2025. (Doc. No. 1-2.)? Cogley asserts claims under 42 U.S.C. §1983 for

deliberate indifference to his serious medical needs in violation of the Eighth

Amendment to the United States Constitution as well as Pennsylvania state-

law tort claims, including, inter alia, professional negligence/medical

malpractice claims, against the following Defendants: (1) Wellpath, the

Commonwealth of Pennsylvania Department of Corrections (“DOC”")’s third-

party medical provider for Pennsylvania State Correctional Institutions Camp

Hill (“SCI Camp Hill’), Rockview (“SCI Rockview’), and Smithfield (“SCI

Smithfield”); (2) the DOC; (3) Dr. Vernon Preston (“Dr. Preston”), the Medical

Director at SCI Rockview; (4) David McKenna (“McKenna”), a physician's

assistant at SC] Rockview; (5) Christina Brown (“Brown”), a medical provider

at SCI Rockview; and (6) four (4) John Doe correctional officers at SCI

Rockview (“CO Does’). (/d. at 1, 3-4.) For relief, Cogley seeks compensatory

damages, punitive damages, declaratory relief, and “equitable relief to

prevent similar violations in the future.” (/d. at 16.)

2 It does not appear that this is the date that Cogley commenced his

action in the Court of Common Pleas. See (Doc. 11 at 1 (indicating that

Cogley initiated the action by filing a praecipe for a writ of summons against

Wellpath, LLC (“Wellpath”) on August 16, 2023)); see also Pa. R. Civ. P.

1007 (“An action may be commenced by filing with the prothonotary: (1) a

praecipe for a writ of summons, or (2) a complaint.”).

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Wellpath, Dr. Preston, McKenna, and Brown (ine “Wellpath

Defendants”) removed the action from the Court of Common Pleas to this

Court on October 25, 2025. (Doc. 1.) Both the Wellpath Defendants and the

DOC have waived service, and their responses to Cogley’s complaint are

due on December 15, 2025, and December 26, 2025, respectively. (Docs. 3,

9.)

Cogley filed the IFP Application, a motion to appoint counsel, and a

brief in support of the motion to appoint counsel on October 20, 2025. (Docs.

6-8.) On November 17, 2025, Cogley filed a motion seeking a ruling on the

IFP Application and motion to appoint counsel. (Doc. 10.) A day later, the

Wellpath Defendants filed a brief in opposition to Cogley’s motion to appoint

counsel. (Doc. 11.) The following day, Cogley filed a reply brief in further

support of his motion to appoint counsel. (Doc. 12.) The IFP Application and

Cogley’s motions are ripe for disposition.

ll. DISCUSSION

A. ThelFP Application

Cogley’s request for in forma pauperis status in this case is moot

because the Wellpath Defendants, in removing the case to thiss Court, were

required to pay, and did pay, the filing fee. See? 28 U.S.C. § 1914 (a) (requiring

removing party to pay filing fee); (Docket: Text Accompanying Doc. 1

(showing payment of fee)). Therefore, the Court will deny Cogley’s IFP

Application as moot.

B. Motion to Appoint Counsel

Cogley has no constitutional or statutory right to appointment of

counsel in a civil case. See Parham v. Johnson, 126 F.3d 454, 456-57 (3d

Cir. 1997). Nevertheless, the Court has discretion to request “an attorney to

represent any person unable to afford counsel.” 28 U.S.C. §1915(e)(1); see

also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v.

Grace, 6 F.3d 147, 153 (3d Cir. 1993). Such a request should be made if

circumstances indicate “the likelihood of substantial prejudice to [the plaintiff]

resulting, for example, from [their] probable inability without such assistance

to present the facts and legal issues to the court in a complex but arguably

meritorious case.” Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).

When evaluating the expenditure of the “precious commodity” of

volunteer counsel, a court must first determine whether the plaintiff's case

has some arguable merit in fact and law. See Montgomery, 294 F.3d at 499.

If a plaintiff overcomes this threshold hurdle, then the court is to consider

other factors, including: (1) the plaintiff's ability to present their own case; (2)

the complexity of the legal issues; (3) the degree to which factual

investigation will be required and the plaintiffs ability to pursue such an

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investigation; (4) the extent to which the case is likely to turn on credibility

determinations; (5) whether expert testimony will be required; and (6)

whether the plaintiff can retain and afford counsel. See Houser v. Folino, 927

F.3d 693, 697 (3d Cir. 2019) (citations omitted). This list, however, “is not

meant to be exhaustive.” Tabron, 6 F.3d at 157; see also Houser, 927 F.3d

at 700 (stating that “[w]e have always emphasized that [these] factors are

only a guidepost for district courts in their exercise of the broad statutory

discretion granted to them by Congress[,]" and that ‘[t]hey are not

exhaustive, nor are they each always essential”). Rather, the court must

determine on a case-by-case basis whether a request for appointed counsel

is warranted. See Tabron, 6 F.3d at 157-58.

Here, presuming that Cogley’s complaint has arguable me2rit, the Court

will address each Tabron factor in turn. As explained below, the Court's

review of those factors shows that appointing counsel is not weirranted.

1. Ability to Present His Case*

In arguing that he cannot present his »wn case, Cogley foxcuses on his

lack of legal training, “numerous [unspecified] procedural anid evidentiary

3 This factor is “[p]erhaps the most significant of Te:bron’s post-

threshold factors... .” Montgomery, 294 F.3d at 5C1 (citing Teabron, 6 F.3d

at 156); see also Tabron, 6 F.3d at 156 (describing the pléint:iff's ability to

present their case as “a significant factor’).

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requirements that cannot be met pro se,” an inability to interpret his medical

records, and his inability to obtain a certificate of merit (“COM”) to prosecute

his professional negligence claims as required by Pennsylvania Rule of Civil

Procedure 1042.3(a). (Doc. 7 at 3.) These assertions are insufficient to show

that Cogley is unable to present his own case.

When considering whether a plaintiff can present their own case,

“courts should consider ‘the plaintiff's eclucation, literacy, prior work

experience, . . . prior litigation experience[,’ and] . . . whether the plaintiff has

access to necessary resources like a typewriter, photocopier, telephone, and

computer.” Parham, 126 F.3d at 459. Here, Cogley provides no information

about his education, literacy, prior work experience, prior litigation

experience, or whether he has the necessary resources to prosecute this

case. In addition, he does not identify any procedural or evidentiary

requirements that he allegedly cannot satisfy in this case. Moreover,

Cogley’s representation about whether a pro se plaintiff can obtain a COM

without assistance of counsel is simply wrong.

When proceeding on a professional negligence claim under

Pennsylvania law, the Pennsylvania Rules of Civil Procedure provide that

“the attorney for the plaintiff, or the plaintifi if not represented, shall file

with the complaint or within sixty days after the filing of the complaint, a

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[COM] signed by the attorney or party... .” Pa. R. Civ. P. 1042.3(a); see

also Tompkins v. PrimeCare Med., Inc., No. 19-cv-1089, 2019 WL 7049796,

at * (W.D. Pa. Dec. 23, 2019) (“Compliance with Rule 1042.3 may be

accomplished by the filing of a [COM] prepared by an unrepresented party

provided [they have] obtained a written statement from an appropriate

licensed professional that there exists a reasonable probability that the care,

skill or knowledge exercised or exhibited in the treatment, practice or work

that is the subject of the complaint, fell outside acceptable standards and

that such conduct was a cause in bringing about the harm alleged.”), recons.

denied, 2020 WL 14037122 (W.D. Pa. Jan. 17, 2020). Thus, not only can

Cogley file COMs while proceeding pro se, but he is obligated to do so.

The Wellpath Defendants point out that Cogley attempted to bring this

action in the Court of Common Pleas of Mercer County prior to filing his

complaint in the Court of Common Pleas of Centre County. See (Docs. 11 at

1 (referencing Cogley v. Wellpath, LLC, No. 2023-1714 (Mercer Cnty. Ct.

Com. PI.)); 12 at 3 (discussing prior Mercer County action)).* The Court of

Common Pleas dismissed the action because Cogley was unable to secure

a COM within sixty (60) days of filing the complaint. See (Docs. 11 at 1; 12

4 It is unclear why Cogley did not mention this fact in his brief in support

of his motion to appoint counsel.

omit

at 3). Cogley argues that his inability to obtain a COM in his prior action

supports his assertion that he cannot litigate this case without counsel. The

Court disagrees.

Cogley alleges that despite his “diligent effort, no licensed medical

provider will review or support the case while [he] is unrepresented.” (Doc.

12 at 2.) However, other than identifying the “Medical Justice Alliance” as an

entity that might be willing to help if he has counsel, see (Doc. 7 at 4), Cogley

does not detail his efforts to obtain a COM. Without factual support for his

assertions, it is just as likely that a medical provider does not believe that any

Defendant’s conduct deviated from the applicable standard of care as it is

that they will not sign a COM because Cogley is unrepresented.

Overall, without additional information about Cogley and his efforts to

obtain a COM, Cogley has not demonstrated that he cannot present his own

case. To the contrary, Cogley’s filings thus far indicate not only that he is

literate and articulate, but that he can present his case and his legal

arguments. In fact, his brief in support of his motion to appoint counsel and

his reply brief are well organized, researched, and argued. Moreover, Cogley

has not had any issues with complying with the applicable Federal Rules of

Civil Procedure and the Court’s Local Rules in presenting his case at this

early stage. Furthermore, although Cogley raises claims relating to events

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that allegedly occurred while he was incarcerated, he is no longer

incarcerated and, consequently, does not face the same barriers affecting

pro se prisoner plaintiffs when prosecuting their cases. See Montgomery,

294 F.3d at 502 (concluding that an incarcerated plaintiff proceeding on his

first claim since being incarcerated demonstrated that they were unable to

present their case because they “encountered multiple obstacles, both in the

resistance of the defendants and in the intricacies of the discovery rules’).

As such, the first Tabron factor weighs against the appointment of counsel.

2. Complexity of the Legal Issues

“Where the legal issues are complex, it will probably serve everyone

involved if counsel is appointed.” Parham, 126 F.3d at 459 (citations

omitted). Cogley contends that his case is legally complex because he raises

Eighth Amendment deliberate-indifference-to-serious-medical-needs claims

under Section 1983 as well as various state-law claims, including

professional negligence claims. (Doc. 7 at 3-4.)° He also points out that

because he presents federal and state claims, he will have to “navigat[e] dual

procedural systems — the Federal Rules of Civil Procedure and

Pennsylvania’s specialized COM and expert-witness rules.” (/d. at 3.)

° In his brief, Cogley asserts that he raises Fourteenth Amendment

claims against Defendants. See id. at 3. It is unclear from the complaint that

he raises such claims. See (Doc. 1-2 at 8-15).

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Although the Court recognizes the rules Cogley will have to navigate,

see Parham, 126 F.3d at 460 (explaining that “courts should be aware that it

may be difficult for indigent plaintiffs to understand the complex discovery

rules” (citing Tabron, 6 F.3d at 156)), he does not identify any aspect of those

rules rendering this case overly complex. It also is not apparent from

Cogley’s submissions that he will have difficulty understanding any rules,

such as the discovery rules.

Cogley’s Eighth Amendment deliberate-indifference-to-serious-

medical-needs claim appears to present “relatively straightforward legal

issues and is not unusually complex or complicated.” Gray v. Pa. Dep’t of

Corr., No. 21-cv-1221, 2021 WL 11108669, at *1 (M.D. Pa. Oct. 5, 2021). In

fact, “[t]he vast sum of Section 1983 claims filed by pro se prisoners involve

the Eighth Amendment and its deliberate indifference standard.” /d. Thus,

Cogley’s Section 1983 claim, on its face, does not appear to present complex

legal issues, at least at this stage.

As for Cogley’s medical malpractice claim, the Third Circuit Court of

Appeals has pointed out that “[a] medical malpractice case involves complex

facts and medical records that even most lawyers struggle to understand.”

Parham, 126 F.3d at 460. Nevertheless, Cogley’s medical malpractice claim

relates to Defendants’ alleged failure to, inter alia, send him for an MRI that

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had been ordered due to his January 2021 MRSA infection in his L5 spinal

disc pocket, and despite his vital signs and symptoms showing that further

evaluation and testing was needed. See (Doc. 1-2 at 5-7). Such aclaim does

not appear to present complex legal issues. Also, even though Pennsylvania

state-law imposes additional requirements on “a plaintiff asserting medical

malpractice claims, .. . these requirements apply to all such claims whether

filed by a prison or person at liberty,” Begandy v. Wellpath, No. 21-cv-213,

2022 WL 22888807, at *3 (W.D. Pa. June 17, 2022), and Cogley has

demonstrated his understanding of these requirements so far. Therefore, the

second /abron factor also does not weigh in favor of Cogley’s request.

3. Extent to Which Factual Investigation Will Be Required

and Cogley’s Ability to Pursue Such an Investigation

Cogley asserts that “[s]Jubstantial discovery is needed [in this case],

including medical-record authentication, depositions of treating and

supervisory personnel, and expert evaluation of the records.” (Doc. 7 at 4.)

He acknowledges having obtained his medical files from prison but contends

that “his ability to conduct formal discovery, obtain affidavits, and depose

witnesses is limited by lack of training and procedural access.” (/d.)

This factor weighs against appointing counsel for several reasons.

First, Cogley has already identified his need to obtain an expert and a COM,

so this is not an instance where a lack of knowledge about procedural or

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evidentiary requirements have prejudiced the plaintiff. Second, Cogley has

already obtained his prison medical records, which are likely to be the main

documentary evidence the parties rely upon in this case. Thus, it does not

appear that this case will involve unusually burdensome discovery. Third,

Cogley was paroled in mid-September 2023, so he has hac almost two (2)

years to obtain evidence pertaining to his case without havirg the obstacles

confronted by incarcerated plaintiffs. See Parham, 126 F.3d at 460 (“The

Tabron court noted that courts should consider a prisoner's predicament in

attempting to obtain facts, i.e. the confines of prison.” (citing Taabron, 6 F.3d

at 156 and Rayes v. Johnson, 969 F.2d 700, 704 (8th Cir. 19992))). Finally,

although Cogley is concerned about taking depositions of witnesses, his

other filings in this case show that he is capable of puirsuing those

depositions and other discovery.

4. Extent to Which the Case is Likely ito Turn on

Credibility Determinations.

“[W]hen considering the role of credbility determinations; as a factor,

‘courts should determine whether the case [will be] solely a swearing

contest.” Montgomery, 294 F.3d at 505 (quoting Parham, 126 F.3d at 160).

Heire, Cogley argues that “[t]he case will depend heavily on wheather medical

and correctional staff acted with deliberate iridifference or nag ligence,” and

“[s]uch claims inevitably turn on credibility.” ([Doc. 7 at 4.)

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Cogley correctly points out that he will have to prove that Defenaants

acted with deliberate indifference or negligence. However, it is unclear at this

stage that this case will turn into a “swearing contest.” Parham, 126 F.3d at

160. Defendants have not yet filed responses to Cogley’s complaint, and it

is unclear whether they will challenge the facts as alleged in the complaint.

It is possible that they will admit to some of his factual allegatioris (especially

considering many of them appear to be based on his medical records) but

argue that those allegations do not demonstrate deliberate indifference or a

deviation from the applicable standard of care. Regardless, without more

information about the contested issues in itis case, the Ccurt cannot find

that the case will turn on credibility determinations. Therefore, tris factor also

weighs against appointing counsel.

5. Whether Expert Testimony Will Be Required

Cogley contends that he needs an expert to proceed on his medical

malpractice/professional negligence claims. See (Doc. 7 at 4.). The Court

“racognize[s] the need for expert testimony iin providing a claim based on

medical injury.” Montgomery, 294 F.3d at £05; see Parham, 1215 F.3d at 460

(“A medical malpractice case involves complex facts and medical records

that even most lawyers struggle to compreherid. Hence, mos: of these cases

require expert testimony.”). As such, Cogley’s. “need for an expert witness to

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support his medical malpractice claims . . . favor[s] the appointment of

counsel.” Begandy, 2022 WL 22888807, at *3 (citations omitted).

6. Ability to Retain Counsel on His Own Behalf

Cogley contends that he is unable to retain counsel on his own behalf

and points to his efforts to obtain counsel by reaching out to private

attorneys, law clinics, and advocacy organizations. (Doc. 7 at 4.) He asserts

that “[mJost declined due to institutional bias against correctiional-medical

litigation or uncertainty over Wellpath LLC’s bankruptcy implicaitions.” /d.

Although Cogley states that he has made substantial efforts in

attempting to obtain counsel, he has not submitted any evidence of those

efforts. In addition, he does not provide evidence showing that: he is unable

to afford counsel to represent him. Even if the Court considers the IFP

Application, it is unclear that Cogley cannot afford private counsel.

Therefore, this factor does not weigh in favor of appointing counsel.

7. Consideration of the Tabron Factors

After reviewing and balancing the Teron factors, the Ciourt will deny

Cogley’s motion for appointment of counsel without prejudice to him refiling

it or the Court reconsidering the issue sua sponte if the circumstances so

warrant. Although Cogley will need expert testimony for his medical

malpractice claim, the other Tabron factors outweigh this and do not

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justify the appointment of counsel at this time. Nevertheless, because Cogiey

is proceeding pro se, the Court will consider any motions to extend the time

for him to obtain COMs or identify experts in support of his claims. See

Begandy, 2022 WL 22888807, at *3.

C. Motion for a Ruling on the IFP Application and Motion to

Appoint Counsel

After less than thirty (30) days from the filing of the IFP Application and

his motion to appoint counsel, Cogley filed a motion seeking to have the

Court rule on those submissions. (Doc. 10.) The Court will deny this motion,

noting that such a motion is improper and, if ‘Cogley is concerned about the

deadline for him to file COMs expiring while the Court considered his

submissions, he should have filed a motion seeking additional time to file

COMs and not a request to expedite ruling on his motions. See Pa. R. Civ.

P. 1042.3(d) (“The court, upon good cause sliown, shall extend the time for

filing a certificate of merit for a period notto exceed sixty days.”); see also

id., Note (“There are no restrictions on the nurnber of orders that a court may

enter extending the time for filing a certificate of merit provided that each

order is ertered pursuant to a new motion timely fiieéd and based on cause

shown as of the date of filing the new motion. ”).

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lll. CONCLUSION

For the reasons stated above, the Court will deny Cogley’s IFP

Application as moot, deny without prejudice his motion to appoint counsel,

and deny his motion to rule on the IFP Application and motion to appoint

counsel. An appropriate Order follows.

; United States District Judge

DATE: 4 (es

25-1938-01

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