Whisenant v. Yuam, 83-6301
| Decision Date | 17 July 1984 |
| Docket Number | No. 83-6301,83-6301 |
| Citation | 739 F.2d 160 |
| Parties | Bobby WHISENANT, Appellant, v. Dr. Stanley YUAM; Chris Johnson, Administrator of Grace Hospital; Jerry Richards, Sheriff of Burke Co.; Bill Hamrick, Chief of Police, Morganton, NC; John Suttles; Johnny Wehunt; John McDevitt, Sheriff's Deputy, Morganton, NC; Ronnie Hudson, Chief Detective, Morganton, NC Police Dept.; Steve Whisnant, Detective, Sheriff's Dept., Morganton, NC; Charles Whitman, SBI Agent, Hickory, NC; Joe Clark, Chief Jailer, Burke County Jail, Morganton, NC, Appellees. Bobby WHISENANT, Appellee, v. Dr. Stanley YUAM; Chris Johnson, Administrator of Grace Hospital; Jerry Richards, Sheriff of Burke Co.; Bill Hamrick, Chief of Police, Morganton, NC; John Suttles; John McDevitt, Sheriff's Deputy, Morganton, NC; Steve Whisnant, Detective, Sheriff's Dept., Morganton, NC; Charles Whitman, SBI Agent, Hickory, NC; Joe Clark, Chief Jailer Burke County Jail, Morganton, NC, Defendants, and Johnny Wehunt; Ronnie Hudson, Chief Detective, Morganton, NC Police Dept., Appellants. Bobby WHISENANT, Appellee, v. Dr. Stanley YUAM; Chris Johnson, Administrator of Grace Hospital; Bill Hamrick, Chief of Police, Morganton, NC; John Suttles; Johnny Wehunt; Ronnie Hudson, Chief Detective, Morganton, NC Police Dept.; Charles Whitman, SBI Agent, Hickory, NC, Defendants, and Jerry Richards, Sheriff of Burke Co.; Steve Whisnant, Detective, Sheriff's Dept. Morganton, NC; Joe Clark, Chief Jailer, Burke County Jail, Morganton, NC; John McDevitt, Sheriff's Deputy, Morganton, NC, Appellants. Bobby WHISENANT, Appellee, v. Dr. Stanley YUAM; Chris Johnson, Administrator of Grace Hospital; Jerry Richards, Sheriff of Burke Co.; Bill Hamrick, Chief of Police, Morganton, NC; Johnny Wehunt; John McDevitt, Sheriff's Deputy, Morganton, NC; Ronnie Hudson, Chief Detective, Morganton, NC Police Dept.; Steve Whisnant, Detective, Sheriff's Dept., Morganton, NC; Joe Clark, Chief Jailer, Burke County Jail, Morganton, NC, Defendants, and John Suttles; Charles Whitman, SBI Agent, Hickory, NC, Appellants. (L |
| Court | U.S. Court of Appeals — Fourth Circuit |
C. Frank Goldsmith, Jr., Marion, N.C., for appellant.
Sam J. Ervin, IV, Morganton, N.C., (Robert B. Byrd, Byrd, Byrd, Ervin, Blanton, Whisnant & McMahan, P.A., Morganton, N.C., on brief); Thomas G. Smith, Valdese, N.C., (W. Harold Mitchell, Mitchell, Teele, Blackwell, Mitchell & Smith, Valdese, N.C., on brief); Daniel C. Higgins, Associate Atty. Gen., Raleigh, N.C., William C. Morris, Jr. (Morris, Golding & Phillips, Asheville, N.C., on brief), for appellees.
Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and BUTZNER, Senior Circuit Judge.
The district court entered judgment on the jury's verdict for defendants in plaintiff's pro se action under 42 U.S.C. Sec. 1983 against various North Carolina police officers, prison officials, and two private citizens. The plaintiff asserted that defendants' inattention to his serious medical needs while he was in pretrial custody deprived him of his rights under the fourteenth amendment. Although plaintiff had requested the appointment of counsel to assist him in presenting his case, the district court denied the request on the ground that federal funds were not available to pay counsel.
Plaintiff appeals, as do defendants, who contend that their motions for directed verdicts should have been granted, and we reverse. We conclude that this is a case in which the district court abused its discretion in refusing to appoint counsel notwithstanding the lack of federal funds to compensate him. We think that plaintiff is entitled to a new trial with counsel. Since we think that the original trial was tainted by the absence of counsel, we do not rule on defendants' claim to directed verdicts. Because the case must be retried, we also rule on the district court's instructions to the jury.
North Carolina police officers arrested plaintiff for murder around 5:00 p.m. on July 7, 1981, in the emergency room of a Morganton, N.C. hospital, where he was seeking treatment for injuries sustained in a motorcycle accident three days earlier. Although he had received medical attention for a broken ankle as well as broken ribs and toes shortly after the accident and was, by the 7th, able to walk on crutches, his injuries apparently continued to bother him. He also testified that he had gone to the hospital because he had vomited blood and experienced rectal bleeding, but the hospital records did not note any such complaints. Dr. Yuan, the physician who examined him in the emergency room, testified that these complaints were not mentioned.
The police officers apparently arrived at some point during Dr. Yuan's examination and took plaintiff into custody without objection from the doctor. Although plaintiff claimed the doctor merely grunted when asked whether plaintiff could leave, the officers and the doctor testified that he said it was permissible for the officers to take the plaintiff to jail. Plaintiff and his wife testified that they told the officers he was bleeding internally, but that the officers nonetheless took him to the Morganton police station for processing.
The processing took only about thirty minutes, and then plaintiff was taken to the Burke County Jail. Plaintiff claimed that he complained about internal bleeding from the time he arrived at the jail, but the jail had no record of any complaint until 4:25 a.m., July 8th. After being taken to court in a wheelchair around 2:00 the afternoon of the 8th, plaintiff finally saw a doctor's assistant in his jail cell at 2:30 p.m. Some hours later, the prison doctor, himself, advised the chief jailer that plaintiff should be hospitalized if possible. For security reasons, the chief jailer and sheriff made arrangements to transfer plaintiff to a prison unit at Salisbury, some seventy miles distant, where they apparently thought he could receive medical care, instead of returning him to the local hospital.
Whisenant arrived at Salisbury around 7:00 p.m., but because the prison unit was not equipped to treat him, he was taken about three hours later to the emergency room of a local hospital. He was found to be bleeding internally from a condition known as esophageal varices, and had a seriously reduced hemoglobin level. He was immediately given three units of blood. At approximately 2:00 a.m. on the 9th, plaintiff was transferred by ambulance to Central Prison Hospital. While there, he was given eight additional units of blood, and he remained in intensive care for eight days.
After he filed suit under 42 U.S.C. Sec. 1983, Whisenant made repeated requests for the appointment of counsel to represent him. He was seeking to press his suit from a jail cell. 1 According to him, he is barely able to read and write, and he has had no experience with the law or legal procedures. His requests were all denied on the ground that federal funds were not available to compensate counsel for services to a plaintiff in an action under Sec. 1983. 2
Although Whisenant makes no claim that he has a constitutional right to the appointment of counsel for civil litigation, the district court was authorized by 28 U.S.C. Sec. 1915(d) to appoint counsel. 3 The power to appoint is a discretionary one, but it is an abuse of discretion to decline to appoint counsel where the case of an indigent plaintiff presents exceptional circumstances. Cook v. Bounds, 518 F.2d 779 (4 Cir.1975); see also Branch v. Cole, 686 F.2d 264 (5 Cir.1982). The question of whether such circumstances exist in any particular case hinges on characteristics of the claim and the litigant. As we said in Gordon v. Leeke, 574 F.2d 1147, 1173 (4 Cir.1978):
If it is apparent to the district court that a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him.
See also Branch, 686 F.2d at 266. (
We think that in this case exceptional circumstances were present. Whisenant has a colorable claim. He is entitled to prevail if he can prove that the delay in providing him medical care stemmed from "deliberate indifference to his serious medical needs," Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 551 (1976). 4 Manifestly, because there was evidence that Whisenant was bleeding orally and rectally by at least 4:25 a.m. on July 8, if not before, but did not receive adequate medical treatment until 9:55 p.m. that night, when immediate life-sustaining measures were required, the claim of deliberate indifference is not frivolous.
Whisenant is ill-equipped to represent himself or to litigate a claim of this nature. He is relatively uneducated generally and totally uneducated in legal matters. He cannot leave prison to interview witnesses such as the doctors who eventually attended him. His version of events on July 7 and 8 is in sharp conflict with that of the defendants, so that the outcome of the case depends largely on credibility. Whisenant has no training in cross-examination.
The totality of these factors leads us to conclude that the denial of Whisenant's request for counsel denied him a fundamentally fair trial. The availability of federal funds is, of course, unrelated to the ...
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