Taylor v. Dickel, 01-2102.

• Decision Date: 07 June 2002
• Docket Number: No. 01-2102.,01-2102.
• Parties: William L. TAYLOR, Plaintiff-Appellant, v. Gregory DICKEL; Cynthia Donahue; Martin Siebert, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

293 F.3d 427

William L. TAYLOR, Plaintiff-Appellant, v. Gregory DICKEL; Cynthia Donahue; Martin Siebert, Defendants-Appellees.

No. 01-2102.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2001.

Filed: June 7, 2002.

Jerry L. Anderson, argued, Des Moines, IA, for appellant.

Scott J. Beattie, argued, Des Moines, IA (Gary Mattson, Anjela A. Shutts, Des Moines, IA, on the brief), for appellee.

Before WOLLMAN,¹ Chief Judge, JOHN R. GIBSON, and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

William Taylor brought a civil action, under 42 U.S.C. § 1983 (1994 & Supp. IV 1999), against Gregory Dickel² and other police officers for excessive use of force in effectuating his arrest. The jury returned a verdict in favor of defendants. Taylor now appeals, claiming the district court³ abused its discretion in denying his motion for substitute counsel, and that his counsel was ineffective. We affirm.

On October 7, 1997, Taylor was arrested after leading police on a high-speed motor vehicle chase through the city of Des Moines, Iowa. Taylor later filed a pro se complaint under § 1983, alleging the officers used excessive force in his arrest, and was granted permission to proceed in forma pauperis under 28 U.S.C. § 1915 (Supp. II 1996). On December 22, 1998, a magistrate judge⁴ granted Taylor's motion for appointed counsel and ordered the designated counsel to enter an appearance within 20 days. See 28 U.S.C. § 1915(e)(1) ("The court may request an attorney to represent any person unable to afford counsel.").⁵ Counsel did not enter an appearance, and on January 29, 1999, Taylor filed a second motion for appointed counsel. (Taylor states he believed at the time that no one was representing him because no one had contacted him.) The magistrate judge denied the second motion as moot on February 4, 1999, pointing out that counsel had already been appointed, and ordering counsel to enter an appearance within fourteen days.

On February 19, 1999, Taylor again complained to the court that no counsel had contacted him, and attempted to compel discovery on his own. He repeated his concerns in two letters written in early March. On March 12, 1999, the magistrate judge extended the time for counsel to file an appearance in Taylor's case to April 1, 1999, and denied Taylor's motions to compel. Taylor's counsel entered an appearance on March 17, 1999.

On June 22, 2000, Taylor filed a document entitled in part "Motion for Transport," in which he claimed his attorney was providing "ineffectual counseling (i.e. none at all)."⁶ Specifically, Taylor alleged that none of his witnesses had been contacted, that no photographs had been taken of his injuries or medical examinations conducted, and that no medical expert had been procured on his behalf. This time the district court judge responded, stating that he would take no action on the motion "at this time," and advising Taylor that "he must work with his counsel and not file documents pro se." Taylor v. Dickle, No. 4-98-CV-80238 (S.D.Iowa July 17, 2000) (order responding to "plaintiff's report to court & change of address, motion for transport"). Taylor repeated his request for new counsel in October 2000, alleging that he continued to be left in the dark by his appointed counsel despite repeated attempts to contact the attorney by phone and mail. His witnesses had still not been contacted, he had not been asked any questions by the attorney regarding his case beyond what he had filed in the original claim, and he had not received any of the court documents he had requested. The magistrate judge denied Taylor's motion and directed the appointed counsel "to take whatever action he deems appropriate in response to plaintiff's concerns." Taylor v. Dickle, No. 4-98-CV-80238 (S.D. Iowa October, 13 2000) (order denying plaintiff's pro se motion).

Two weeks before trial, Taylor attempted one last time to obtain new counsel, complaining again that "I've received absolutely no responses or reply or any correspondence from [my appointed counsel]." The district court took no action on this request, and the case proceeded to trial. Taylor's appointed counsel filed no trial brief, submitted no jury instructions, and, at trial, presented no witnesses except Taylor himself, and offered no medical evidence on Taylor's behalf. The jury returned a verdict in favor of the defendants after deliberating less than two hours.

I.

Taylor claims the district court abused its discretion by summarily denying his repeated requests for new counsel. While acknowledging he has no constitutional right to counsel as a civil litigant, Taylor argues that once the district court has exercised its discretion in appointing counsel, it must thereafter take some responsibility for the quality of that representation—particularly where it refuses to allow the litigant to proceed pro se—and thus must at the very least investigate complaints and provide some reasoning for its decisions relating to appointed counsel.

In the criminal context, a defendant represented by appointed counsel must show "justifiable dissatisfaction" to have counsel replaced. Hunter v. Delo, 62 F.3d 271, 274 (8th Cir.1995) (quoting United States v. Swinney, 970 F.2d 494 (8th Cir.1992)). Where a criminal defendant alleges facts sufficient to give rise to such justifiable dissatisfaction, the district court "has an obligation to inquire thoroughly into the factual basis of the defendant's dissatisfaction." Id. (quoting United States v. Hart, 557 F.2d 162, 163 (8th Cir.1977) (per curiam)). Taylor argues that we should extend the standard of justifiable dissatisfaction to the civil context where counsel has been appointed by the district court. He cites the Seventh Circuit's decision in Dunphy v. McKee in support of this proposition. 134 F.3d 1297 (7th Cir.1998) (holding that it would be an abuse of discretion for the district court to dismiss a § 1983 action for want of prosecution without reviewing the effectiveness of appointed counsel).

We review the district court's refusal to substitute counsel for abuse of discretion. See Rayes v. Johnson, 969 F.2d 700 (8th Cir.1992) (concluding district court abused discretion in failing to appoint substitute counsel in § 1983 action). Failure to provide a hearing, see Lewis v. Lane, 816 F.2d 1165 (7th Cir.1987), or a thorough explication of the reasons for denying substitute counsel, see Howland v. Kilquist, 833 F.2d 639 (7th Cir.1987), may constitute abuse of discretion in and of itself. However, because we find any error in this case was harmless, we deny Taylor relief on this ground. See Howland, 833 F.2d at 646 (stating that it was an abuse of discretion to deny motion to appoint counsel in § 1983 action without setting out reasons, but concluding the error was harmless); Gilliam v. City of Omaha, 524 F.2d 1013, 1015 (8th Cir.1975) ("To constitute reversible error, it must be established that the error complained of affected the substantial rights of the objecting party.") (citing 28 U.S.C. § 2111 (1994) ("On the hearing of any appeal ... the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.")).

Here, Taylor's appointed counsel served requests for admissions, requests for production of documents, and interrogatories upon, and personally deposed, the defendants. The defense's evidence, however, was overwhelming. Testimony of two independent witnesses corroborated the police officers' claim that there was no beating.⁷ Two separate independent physicians (one of whom had prior experience with Taylor), who saw Taylor at times ranging from immediately after the incident to three days thereafter, testified that the only injury apparent was consistent with the officers' and witnesses' reports that Taylor tripped and fell while running from police. The medical records from treating physicians who saw Taylor after his arrest did not show any of the injuries that Taylor alleges he received. Our study of the transcript reveals appointed counsel strenuously cross-examined all the witnesses, presented Taylor in the best light, and argued vigorously on Taylor's behalf. In light of all this, we cannot say that the denial of substitute counsel affected Taylor's substantial rights.⁸ See Brown-Bey v. United States, 720 F.2d 467, 471 (7th Cir. 1983) (concluding that magistrate judge's failure to rule on request to appoint counsel was harmless due to "the clear lack of merit in appellant's case").

II.

Taylor argues he was denied effective assistance of counsel. However, this court has previously held that "there is no constitutional or statutory right to effective assistance of counsel in a civil case," and that the proper remedy in such cases is an action for malpractice. Watson v. Moss, 619 F.2d 775, 776 (8th Cir.1980) (per curiam). Taylor seeks to distinguish Watson as a Sixth Amendment case not involving a situation like the one presented here, where a civil litigant is arguably being required by the district court to rely on a particular attorney after alerting the court to potential problems. He again cites Dunphy v. McKee, this time for the proposition that effectiveness of counsel is subject to due process review in certain civil contexts. 134 F.3d 1297 (7th Cir.1998). We read Dunphy as standing for the limited proposition that before a district court dismisses a suit for want of prosecution ("an extraordinarily harsh sanction") in a § 1983 action where it has appointed counsel, it should "satisfy itself that appointed counsel is on the job." Id. at 1299, 1302. We therefore do not find Taylor's basis for distinguishing Watson compelling. Because one panel of this court may not overrule a previous panel's decision, United States v. Prior, 107 F.3d 654, 660 (8th Cir.1997), Watson dictates that Taylor's claim here must fail. See Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988)...