Henderson v. Ghosh

• Decision Date: 18 June 2014
• Docket Number: No. 13–2035.,13–2035.
• Citation: 755 F.3d 559
• Parties: Ladell HENDERSON, Plaintiff–Appellant, v. Parthasarathi GHOSH, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

755 F.3d 559

Ladell HENDERSON, Plaintiff–Appellant,

v.Parthasarathi GHOSH, et al., Defendants–Appellees.

No. 13–2035.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 2014.

Decided June 18, 2014.

Leslie D. Davis, Attorney, Drinker Biddle & Reath, LLP, Chicago, IL, for Plaintiff–Appellant.

Michael John Charysh, Attorney, Charysh & Schroeder, Ltd., Chicago, IL, for Defendants–Appellees.

Before BAUER, WILLIAMS, and TINDER, Circuit Judges.

PER CURIAM.

Ladell Henderson, a prisoner at the Stateville Correctional Center in Illinois, sued health care providers and other corrections employees alleging deliberate indifference to his serious medical needs. The district court denied his motions for recruitment of counsel filed during the pleading and discovery phases of the litigation. The defendants filed a motion for summary judgment, and Henderson filed another motion for recruitment of counsel, which was granted. After counsel filed Henderson's summary judgment response, the district court granted the defendants summary judgment. Henderson now appeals from that judgment, contending that it should be overturned because of error in the denials of his requests for recruitment of counsel. We reverse.

I. Background

Henderson has been an inmate at Stateville since 1995. He was diagnosed with high blood pressure in 1999 and with diabetes in 2000. He has received some medical treatment for both conditions. In September 2009, Henderson suffered diabetic hypoglycemia and tremulous convulsions in his cell and was taken to Stateville's emergency room for evaluation. He underwent diagnostic testing, which revealed that his blood urea nitrogen, potassium, and creatinine levels were “out of range.” At an appointment with Dr. Liping Zhang in early October 2009, Henderson was informed that he had a “bad kidney problem.”

Later that month, Henderson was seen by a nephrologist who recommended immediate hospital admission for hemodialysis surgery and treatment. At the hospital Henderson was informed that he had “end-stage” or “Stage 5 kidney failure,” which he understood to mean that he would have to undergo dialysis or he would die. According to Henderson, that was the first time anyone informed him that he had kidney disease, renal insufficiency, or kidney failure. Henderson underwent a surgical procedure in order to undergo hemodialysis. He must undergo dialysis several times a week.

In October 2010, Henderson sued the defendants alleging that they acted with deliberate indifference to his serious medical needs. His complaint alleges that diagnostic testing revealed that his toxic waste levels were “out of range,” but he was not notified of this fact nor treated for his kidney problems until he had reached Stage 5 kidney disease. At the same time he filed his complaint, Henderson filed a motion for leave to proceed in forma pauperis and a motion for recruitment of counsel under 28 U.S.C. § 1915(e)(1). The latter motion stated that Henderson was an inmate at Stateville, was “illiterate to” civil litigation, was “not competent to prosecute” his case, had a fifth grade education, and had presented his claims through the assistance of other inmates who had no obligation to help him. The affidavit of Lester Dobbey, the inmate who assisted Henderson in preparing his filings, was attached to the motion for counsel. The affidavit stated that Dobbey had only a GED and no formal legal education. It also said that Henderson had stated that he had a low IQ and was “incompetent” to prosecute his case himself.

In February 2011, the district court granted Henderson leave to proceed in forma pauperis and denied his motion for recruitment of counsel. The court found that Henderson had made a reasonable attempt to secure counsel on his own, but concluded that recruitment of counsel was unnecessary at that time. The court acknowledged Henderson's assertion “that his filings have been prepared by other inmates,” but noted the filings' “high quality for a pro se prisoner litigating his own case.” In the court's determination, Henderson was “competent to litigate his own case.” The motion for counsel was denied “without prejudice,” and the order stated that Henderson “may renew his motion should circumstances change.”

In July, Henderson filed an amended complaint. He also filed a motion for a discovery order, including a request for leave to depose the defendants, and a settlement proposal. A few defendants moved to dismiss the amended complaint; Henderson filed a response in opposition and moved for a default judgment against the defendants based on their non-compliance with his discovery requests. The district court denied that motion and directed the parties to attempt to resolve any discovery disputes among themselves before bringing the matter before the court.

Then the district court set pretrial deadlines: Fact discovery was ordered closed March 5, 2012; Rule 26(a)(2) expert disclosures were due one month later; and expert discovery was closed one month after that. The court granted the defendants leave to depose Henderson; he was deposed in February 2012. At his deposition, Henderson expressed his desire to have representation of counsel, and he refused to answer questions relating to the merits of his case without assistance of counsel. This prompted the defendants to seek discovery sanctions against him and a 63–day extension of all discovery deadlines.

A few days later, Henderson filed his second motion for recruitment of counsel under § 1915(e)(1). The motion indicated that Henderson's education was unchanged and that “he does not have an adequate education to fully comprehend the ... proceedings as they occur.” Henderson stated that he “is incompetent to continue to represent himself in” the discovery phase of the proceedings, including the depositions of the defendants and his own deposition. Henderson expressed a need to depose the defendants to adequately prepare for trial and asserted that “he is incapable of deposing [them] due to his poor literacy.” He also stated that the inmates who had been assisting him with his case could not provide assistance any longer, and could not help him depose the defendants.

Meanwhile, the district court granted the motion to dismiss, dismissing the claims against two defendants without prejudice. The remaining defendants filed a response in opposition to the second motion for recruitment of counsel. They argued that Henderson's refusal to answer questions at his deposition was an attempt to indirectly obtain recruitment of counsel and that granting his motion would encourage other pro se prisoners to engage in the same type of improper conduct in an effort to obtain recruitment of counsel.

The magistrate judge denied the defendants' motion for discovery sanctions. Then the district judge denied the second motion for recruitment of counsel, ruling that “[t]he Court previously rejected plaintiff's request for counsel ... and sees no change in circumstances to revisit that prior decision. Plaintiff has demonstrated throughout this litigation that he is competent to represent himself in all aspects including discovery.” Thereafter, Henderson filed a reply to the defendants' response to his motion for counsel, again requesting counsel.

After fact discovery was closed, Henderson moved for leave to file additional interrogatories, asserting that he was not in any position to depose the defendants. He also moved to compel compliance with subpoenas he had issued seeking production of documents, including his medical records and master inmate file. The magistrate judge held a hearing and denied the motion for leave to file additional interrogatories. His reasoning was two-fold: Henderson had not submitted the interrogatories to be propounded and the motion was made after discovery was closed. The magistrate judge ordered the defendants to produce Henderson's medical records, including his master file to the extent it contained information relating to his case, and denied the motion to compel as moot. The judge also denied the motion to compel compliance with a subpoena issued to a nonparty because the subpoena was issued after discovery had closed.

The defendants moved for summary judgment, arguing that Henderson's lay opinion about what medical treatment he should have received for his chronic medical conditions and kidney disease was insufficient to find them deliberately indifferent. They highlighted Henderson's lack of knowledge regarding the proper treatment for his kidney disease and whether he had been taking renal medications. They also pointed to evidence that he had attended chronic clinics for his diabetes and hypertension every two or three months and the absence of any claim that any defendant refused to treat him for any chronic medical condition. Henderson responded by filing a motion to order the return of his legal documents to his jailhouse lawyer (Dobbey) so he could respond to the summary judgment motion. Henderson claimed that his legal documents were confiscated during a shakedown of Dobbey's cell.

Henderson also filed a third motion for recruitment of counsel and a motion for enlargement of time within which to respond to the summary judgment motion. The latter motion cited Henderson's inability to read and write and the confiscation of his legal documents from Dobbey's cell. Shortly thereafter, the district court granted the third motion for recruitment of counsel, recruited counsel to represent Henderson pursuant to the United States District Court for the Northern District of Illinois Trial Bar Pro Bono Program (“Pro Bono Program”), and extended the time for Henderson's summary judgment response.¹

Counsel entered an appearance for Henderson and moved for an additional extension of time within which to respond to the summary judgment motion. The motion was granted. In opposing summary judgment, Henderson argued that October 2009 was the first time a...