Hill v. Smithkline Beecham Corp., 04-1053.

• Citation: 393 F.3d 1111
• Decision Date: 28 December 2004
• Docket Number: No. 04-1053.,04-1053.
• Parties: Ernest J. HILL, III, Plaintiff-Appellant, v. SMITHKLINE BEECHAM CORPORATION, doing business as Glaxosmithkline; Wyeth Pharmaceuticals; Lawrence Leyba, D.O., individually and in his official capacity; James M. Watterson, Ph.D., individually and in his official capacity; Michael W. Morrison, Ph.D., individually and in his official capacity; United States of America; Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

393 F.3d 1111

Ernest J. HILL, III, Plaintiff-Appellant, v. SMITHKLINE BEECHAM CORPORATION, doing business as Glaxosmithkline; Wyeth Pharmaceuticals; Lawrence Leyba, D.O., individually and in his official capacity; James M. Watterson, Ph.D., individually and in his official capacity; Michael W. Morrison, Ph.D., individually and in his official capacity; United States of America; Defendants-Appellees.

No. 04-1053.

United States Court of Appeals, Tenth Circuit.

December 28, 2004.

COPYRIGHT MATERIAL OMITTED

Ernest J. Hill, III, pro se.

John W. Suthers, United States Attorney, and Megan McDermott, Assistant United States Attorney, Denver, CO, for Defendants-Appellees Lawrence Leyba, James Watterson, Ph.D., Michael Morrison, Ph.D., and United States of America.

Charles L. Casteel and Marilyn S. Chappell of Davis Graham and Stubbs, LLP, Denver, CO, for Defendant-Appellee Wyeth Pharmaceutical Laboratories, and Mary A. Wells and Greg W. LePage of Wells, Anderson & Race, LLC, Denver, CO, for Defendant-Appellee SmithKline Beecham Corporation.

Before LUCERO, McKAY, and PORFILIO, Circuit Judges.

LUCERO, Circuit Judge.

Ernest J. Hill, III, a prisoner appearing pro se, appeals the district court's grant of summary judgment for defendant pharmaceutical companies and motion to dismiss for the United States and Bureau of Prisons staff members on his tort claims arising from injuries allegedly caused from taking prescription medication. We exercise jurisdiction under 28 U.S.C. § 1291, and AFFIRM.^*

I

By his own admission, Hill suffers from a number of mental disorders, including anxiety and panic disorder. While incarcerated at the United States Penitentiary, Administrative Maximum at Florence, Colorado ("ADX"), mental health officials prescribed "Paxil," manufactured by Smithkline Beecham Corporation (GSK), and "Effexor," manufactured by Wyeth as medications for his mental health conditions. Defendants Leyba (Clinical Director), Watterson (Chief Psychologist), and Morrison (Staff Psychologist) were all ADX staff members whom Hill contends were involved in the relevant decisions regarding his mental health treatment.

In August 2002, Hill sued defendants under Colorado law and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671 et seq., alleging that he had suffered physical injuries, including liver damage and withdrawal symptoms, from using Paxil and Effexor. His complaint against GSK and Wyeth included products liability, failure to warn, breach of express and implied warranty, and negligence claims, and his complaint against the individual defendants included prescribing drugs without a medical license, illegal practice of medicine, medical malpractice, and negligence claims. In an amended complaint, Hill added the United States as a defendant and asserted claims against it under the FTCA for the acts and omissions of the individual defendants. Additionally, the district court allowed Hill to amend his complaint to assert claims of constitutional violations against the individual defendants pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

During the litigation, the parties traded numerous filings, resulting in a district court docket containing more than 250 entries. Filings relevant to this appeal include multiple requests by Hill for the district court to appoint counsel under 28 U.S.C. § 1915(e)(1), each of which the magistrate judge denied; many objections by Hill made under Federal Rule of Civil Procedure 72(a) to rulings by the magistrate judge; motions for summary judgment by GSK and Wyeth; and motions to dismiss by the United States and the individual defendants.

Issuing a comprehensive analysis of defendants' various dispositive motions, the magistrate judge recommended granting GSK's and Wyeth's motions for summary judgment and granting the remaining defendants' motions to dismiss. Hill timely filed his objections to the magistrate judge's recommendations. On February 9, 2004, the district court accepted the magistrate judge's recommendations and granted judgment in favor of all defendants. Hill now appeals.

II

Hill first argues that the district court erred in failing to grant his repeated motions for appointment of counsel under § 1915(e)(1). GSK and Wyeth assert that because Hill failed to object to an initial ruling denying his request for appointed counsel that Hill therefore waived his right to appeal the denial, even though he timely objected to the district court's denials of both his third and fourth requests for appointed counsel.

We have a "firm waiver rule when a party fails to object to the findings and recommendations of the magistrate." Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). If the parties fail to make a timely objection, they "waive[] appellate review of both factual and legal questions." Id. Here, however, Hill did timely object to the magistrate judge's rulings denying his third and fourth requests for counsel, each of which occurred at later stages of the litigation. Although we agree with GSK and Wyeth's contention that a party may not revive a waived issue simply by renewing a motion and then objecting to the later ruling, we note in the present case that the later denials of counsel were predicated upon the circumstances as they existed at the time of each particular ruling. Thus, to the extent that Hill's later requests were based on evolving circumstances, they were not merely attempts to revive waived issues. For this reason, "application of the firm waiver rule here would be pointless," and we will consider Hill's arguments. Garrett v. Fleming, 362 F.3d 692, 695 n. 5 (10th Cir.2004).

We review a district court's refusal to appoint counsel for an indigent prisoner in a civil case for an abuse of discretion. See Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.1995). "The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel." McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir.1985). "Only in those extreme cases where the lack of counsel results in fundamental unfairness will the district court's decision be overturned." Id. at 839 (holding a prisoner with multiple sclerosis attending court in a wheelchair who had diminished eyesight, hearing, and ability to communicate and needed to present complex medical issues requiring expert opinion should have been appointed counsel).

We have previously directed district courts to evaluate, in connection with a request to appoint counsel under § 1915, the merits of a prisoner's claims, the nature and complexity of the factual and legal issues, and the prisoner's ability to investigate the facts and present his claims. Rucks, 57 F.3d at 979; see also, Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir.1981).

We acknowledge that this case may be factually and legally complex, but Hill's many pleadings and filings in the district court, as well as his appellate briefs and filings, indicate a much higher degree of legal sophistication than is generally found in pro se parties. In adopting a totality of the circumstances test, the district court found that even assuming Hill had a colorable claim, he was able to present his case adequately. See e.g., McCarthy, 753 F.2d at 839. Although courts have often appointed counsel for indigent prisoners in cases requiring expert testimony, we cannot say that the district court abused its discretion here, especially considering the record's failure to reflect that Hill tried and failed to retain potential experts. We note that Hill's Bivens claims against the individual defendants for violations of his Eighth Amendment right to medical care were dismissed for failure to state a claim, and Hill does not appeal that judgment. Thus, this appeal for appointed counsel is one enabling Hill to pursue money damages for alleged torts, and not one concerning continued violations of constitutional rights. Furthermore, we agree with the district court that Hill's alleged inability to access Colorado law did not cause his case to be dismissed; even with his limited resources, Hill was aware of his need for expert testimony and the Colorado certificate-of-review requirement. Even though we recognize that it might have been easier for Hill to obtain an expert witness if he had counsel, under these circumstances, we cannot conclude that the district court's ruling resulted in fundamental unfairness to Hill or was an abuse of the court's discretion.

III

Hill next argues that the district court erred by failing to consider his various Rule 72(a) objections to the magistrate judge's rulings.¹ Hill contends that the district court's failure to resolve his objections shows that the district court did not even consider them.

We note that many of the objections Hill identifies as remaining unresolved were either (1) actually addressed by the district court (including his objections to the magistrate judge's refusal to appoint counsel and certain discovery issues), (2) rendered moot prior to the district court's dispositive decisions (such as Hill's objections to the magistrate judge's refusal to allow him to join the United States as a party without filing an amended complaint), or (3) not objections at all, but separate motions to the district court requesting rulings on previously filed objections. As for the remainder of his objections, the district court's failure to address Hill's arguments may be properly construed as an implicit denial of those arguments. See Stewart v. Oklahoma, 292 F.3d 1257, 1260 (10th Cir.2002) (construing the district court's silence on the issue of Eleventh Amendment immunity as an implicit denial of the state's claim to immunity); Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 220 (5th Cir.2000) (interpreting lack of explicit statement on Rule 72(a) objections as refusal to overrule the magistrate...