James v. Eli

• Citation: 889 F.3d 320
• Decision Date: 02 May 2018
• Docket Number: No. 15-3034,15-3034
• Parties: Thomas JAMES, Plaintiff–Appellant, v. Lorenzo ELI, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

889 F.3d 320

Thomas JAMES, Plaintiff–Appellant,

v.Lorenzo ELI, et al., Defendants–Appellees.

No. 15-3034

United States Court of Appeals, Seventh Circuit.

Argued April 10, 2018

Decided May 2, 2018

Nicole C. Henning, Attorney, Chicago, IL, Robert N. Stander, Attorney, Washington, DC, Jones Day, for Plaintiff–Appellant.

Michael B. Brennan, Attorney, Gass Weber Mullins LLC, Milwaukee, WI, Jeb A. Crandall, Attorney, James F. Bleeke, Attorney, Bleeke Dillon Crandall, PC, Indianapolis, IN, for Defendant–Appellee Lorenzo Eli, Doctor.

Bryan H. Babb, Attorney, Bose McKinney & Evans, LLP, Indianapolis, IN, for Defendant–Appellee Nicolas P. Villanustre, Doctor.

Before Wood, Chief Judge, and Flaum and Kanne, Circuit Judges.

Flaum, Circuit Judge.

Plaintiff-appellant Thomas James, an inmate with the Arizona Department of Corrections, filed a pro se complaint against defendants-appellees, Dr. Lorenzo Eli and Dr. Nicolas Villanustre, for alleged deliberate indifference towards his medical care while he was incarcerated in Indiana. Plaintiff now appeals the summary judgment entered in favor of defendants, arguing that the district court abused its discretion by failing to recruit counsel to assist him. For the reasons stated below, we vacate the judgment and remand for further proceedings.

I. Background

A. Factual Background

Plaintiff has been incarcerated since 2002. He began his confinement in Arizona, but was transferred to New Castle Correctional Facility ("New Castle") in Indiana in April 2007. He returned to Arizona in April 2008.

In October 2007, plaintiff developed an infected ingrown toenail

while confined at New Castle. He submitted a "Health Needs Request" form to the prison’s Health Unit on October 23, 2007. Eli, a New Castle staff physician, evaluated plaintiff the same day. Eli ordered culture and sensitivity tests and prescribed ointment, antibiotics, and dressing changes. He also prescribed Tylenol and a "lay-in pass," which allowed plaintiff to receive meals in his cell for ten days. He scheduled a follow-up appointment in two weeks and referred plaintiff to the facility’s foot doctor.

Plaintiff returned to the Health Unit on October 30, 2007, complaining of pain. Eli informed plaintiff "that he needed to give the antibiotics a chance to work" and provided him a box of Ibuprofen

. Eli saw plaintiff again at his two-week follow-up on November 6, 2007. Eli claims that by that time, plaintiff’s toenail "looked much better." As a result, Eli continued plaintiff’s antibiotic and pain prescriptions for another ten days and extended his lay-in pass for seven days.

Eli had no further involvement in the treatment of plaintiff’s toe. According to medical records, plaintiff saw another New Castle physician on November 20, 2017 and requested that his entire toenail be removed. The doctor granted plaintiff’s request and afterwards prescribed crutches, pain medication, and antibiotics.

Sometime later, plaintiff fell on a set of prison stairs and hit his chin on the handrail, injuring his jaw. He blames the fall on his injured toe, pain medications, and lack of adequate bedrest following his toenail removal procedure. According to plaintiff, his jaw "got better" and the swelling "went down" over the next few weeks. However, the swelling returned on December 25, 2007 after his left jaw "cracked" while he was eating. Two days later, on December 27, 2007, plaintiff explained the situation to Eli and submitted another Health Needs Request form.¹

On December 29, 2007, plaintiff was evaluated by another New Castle physician who ordered x-rays and prescribed Ibuprofen

. When Eli examined plaintiff’s x-rays on January 2, 2008, he observed a "fractured left mandible." He immediately transferred plaintiff to the emergency room at nearby Wishard Hospital and prescribed him pain medication. Wishard physicians confirmed plaintiff’s diagnosis—a "comminuted left mandibular subcondylar fracture with anterior dislocation and displacement of the condyle"—and referred him to a plastic surgeon. In the meantime, Eli examined plaintiff again on January 3, 2008. He put plaintiff on a soft diet, continued his pain medication, and placed him in the infirmary.

Dr. Villanustre, a plastic surgeon at Wishard Hospital, evaluated plaintiff on January 7, 2008. According to medical records, although plaintiff "still complain[ed] of pain" in his jaw, Villanustre noted that he had a "four fingerbreadth’s mouth opening" with only "slight deviation of the chin towards the left." Villanustre further observed that plaintiff had "normal occlusion with no intraoral wounds

," and "minimal swelling on the left angle of the jaw." As a result, given "the length of time since the injury," "good function" of plaintiff’s jaw, and "normal occlusion," Villanustre decided surgery was unnecessary. Instead, he prescribed a soft diet and a follow-up x-ray in two weeks.

B. Procedural Background

In September 2009, plaintiff filed a pro se Eighth Amendment complaint against Eli and Villanustre pursuant to 42 U.S.C. § 1983, alleging that they were deliberately indifferent to his toenail and jaw infirmities. Specifically, plaintiff claimed Eli’s treatment to his toenail caused a staph infection and unnecessary suffering, while Villanustre’s decision against surgery for his jaw resulted in long-term temporomandibular joint disorder

and chronic migraine headaches.

Plaintiff requested counsel on the same dates he filed his original, first, and second amended complaints. He argued, inter alia , that his case would require "substantial investigation and discovery" and that his imprisonment in Arizona would "greatly limit" his ability to litigate the case in Indiana. He further asserted that the relevant issues were "complex" and that he did not have access to necessary legal materials. He also claimed he would have "a hard time with writing documents" due to his migraines. The district court denied all of these motions as premature. The court noted that because plaintiff’s complaints were still subject to initial screening under 28 U.S.C. § 1915A, it could not yet conclude that he presented a viable claim for relief.

In July 2010, the court completed its § 1915A screening and allowed the claims against Eli and Villanustre to proceed. Plaintiff requested counsel again on March 21, 2011 and claimed he was having trouble obtaining written discovery. The district court denied the motion on May 19, 2011. The court acknowledged that plaintiff "[had] been unsuccessful in recruiting representation," but nonetheless found he had "demonstrated familiarity with his claims and the ability to present them." The court further noted that the issues presented were "not complex," and that it did "not appear to be a case in which the presence of counsel would make a difference in the outcome." Finally, the court stated that plaintiff’s discovery concerns were "a routine matter" it expected the parties to overcome "without its intervention."

Plaintiff filed a renewed motion for counsel on February 3, 2014. He argued that an attorney was necessary to "fully and fairly" litigate his case by eliciting expert medical testimony, obtaining discovery, and taking depositions. He also reiterated that his migraines impeded his ability to represent himself. The district court denied this motion on February 6, 2014. Once again, the court conceded that plaintiff had "made a reasonable effort to secure representation," but found he was nonetheless "competent to litigate on his own" given his "comprehensible filings, ... use of the court’s processes, and ... familiarity with the factual circumstances surrounding his legal claims."

Plaintiff filed another motion for counsel on June 23, 2014, restating his belief that counsel should be appointed "to hire a medical expert." The court denied this motion on November 6, 2014, stating that plaintiff had "demonstrated his awareness of the facts surrounding [his] claims and his understanding of the applicable legal standard."

On September 18, 2014, while plaintiff’s last motion for counsel was still pending, the district court granted Villanustre summary judgment. In its ruling, the district court noted that plaintiff had neither responded to Villanustre’s summary judgment motion nor presented any evidence supporting his claims. As a result, the court deemed Villanustre’s proposed facts as admitted and concluded that plaintiff had not shown deliberate indifference in Villanustre’s medical treatment.

Eli filed his own motion for summary judgment on October 22, 2014, which the district court granted on August 11, 2015. Although this time plaintiff filed numerous written responses, the court found they were "insufficient to create a genuine issue of material fact" because almost all of them were unsupported by admissible evidence.² The court entered final judgment the same day.

II. Discussion

In federal civil litigation, litigants possess neither a constitutional nor statutory right to a court-appointed attorney. Pruitt v. Mote , 503 F.3d 647, 649 (7th Cir. 2007) (en banc). Nevertheless, under the in forma pauperis statute, a district court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). Thus, "an indigent civil litigant may ask the district court to request an attorney to represent him pro bono publico ." Pruitt , 503 F.3d at 649. "[T]he language of § 1915(e)(1) is entirely permissive; it says the court ‘may ’ request an attorney." Id. at 654 (emphasis added). As a result, "the decision whether to recruit pro bono counsel is left to the district court’s discretion." Id.

"This ‘does not mean that no legal standard governs that discretion.’ " Id. (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 139, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) ). "[A] motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." Id. (second alteration in original) (quoting Martin , 546...