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Wednesday, January 25, 2017

Ind. Decisions - 7th Circuit decides second Indiana case today, a prisoner appeal

In Thomas James v. Lorenzo Eli (SD Ind., Lawrence), a 7-page opinion, Judge Posner writes:

James, a former inmate of Indiana’s New Castle Correctional Facility, appeals from an adverse judgment, following the district judge’s grant of summary judgment for the defendants, in his suit under 42 U.S.C. § 1983 against two doctors who he contends were deliberate‐ ly indifferent to his need for medical treatment for an infect‐ ed toenail and an injury to his jaw. * * *

We are mindful that there is no right to an appointed lawyer in civil litigation. We are mindful too that despite lawyers’ ethical obligation to assist those who are too poor to afford counsel, there may be a dearth of lawyers in a district who are willing and able to serve in this sort of case, and 28 U.S.C. § 1915 does not authorize a district court to command unwilling lawyers to represent prisoners. Mallard v. U.S. Dis‐ trict Court for the Southern District of Iowa, 490 U.S. 296, 310 (1989). When there is a scarcity of willing lawyers, a trial judge can and should exercise discretion to assign those lawyers to cases in which they are most needed. But we have also recognized (and not only in Rowe v. Gibson) that law‐ suits involving complex medical evidence are particularly challenging for pro se litigants. See, besides Rowe, Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th Cir. 2014); Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014); and Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010). If a pro se plaintiff in such a case is unable despite his best efforts to obtain a lawyer and a medical expert, and if the case would have a chance of suc‐ cess were the plaintiff represented by counsel, the trial judge should endeavor to obtain them for him. Rowe v. Gibson, su‐ pra, 798 F.3d at 631–32; Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015); Henderson v. Ghosh, supra, 755 F.3d at 566; Montgomery v. Pinchak, 294 F.3d 492, 504–05 (3d Cir. 2002). * * *

Now it is possible that, more than nine years having elapsed since the injury to his jaw, the plaintiff is incorrectly attributing his present pain and jaw dysfunction to the inju‐ ry; and it is also possible that he received adequate treatment from the two defendant doctors and wouldn’t have benefit‐ ted from surgery on his jaw. Yet he says he still experiences jaw pain and dysfunction (difficulty eating, sleeping, etc.) and recently he’s been diagnosed with a tumor in his neck, which he attributes to his jaw injury because the tumor is close to his jaw. That may be mistaken, but it definitely is possible that he has a meritorious Eighth Amendment claim if his current difficulty with his jaw is attributable to the in‐ jury and if there was some type of treatment or surgery that could have prevented it, which he would have received had he been given adequate medical treatment. On the basis of the record compiled so far, all we know is that he may have suffered terribly because of inadequate treatment and may have sustained permanent injury.

We close by noting that this suit began in 2009 and will soon be in its eighth year even though it should have been apparent from the start that the plaintiff would need counsel and a medical expert witness in order to get to first base. We are vacating the judgment of the district court for the reasons explained in this opinion, and we urge the district court on remand to expedite the litigation.

Posted by Marcia Oddi on January 25, 2017 12:36 PM
Posted to Ind. (7th Cir.) Decisions