Ladell Henderson v. Parthasarathi Ghosh , 755 F.3d 559 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2035
LADELL HENDERSON,
Plaintiff-Appellant,
v.
PARTHASARATHI GHOSH, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10-cv-06836 — George M. Marovich, Judge.
____________________
ARGUED JANUARY 8, 2014 — DECIDED JUNE 18, 2014
____________________
Before BAUER, WILLIAMS, and TINDER, Circuit Judges.
PER CURIAM. Ladell Henderson, a prisoner at the Stat-
eville Correctional Center in Illinois, sued health care pro-
viders and other corrections employees alleging deliberate
indifference to his serious medical needs. The district court
denied his motions for recruitment of counsel filed during
the pleading and discovery phases of the litigation. The de-
fendants filed a motion for summary judgment, and Hen-
derson filed another motion for recruitment of counsel,
2 No. 13-2035
which was granted. After counsel filed Henderson’s sum-
mary judgment response, the district court granted the de-
fendants summary judgment. Henderson now appeals from
that judgment, contending that it should be overturned be-
cause of error in the denials of his requests for recruitment of
counsel. We reverse.
I. Background
Henderson has been an inmate at Stateville since 1995.
He was diagnosed with high blood pressure in 1999 and
with diabetes in 2000. He has received some medical treat-
ment for both conditions. In September 2009, Henderson suf-
fered diabetic hypoglycemia and tremulous convulsions in
his cell and was taken to Stateville’s emergency room for
evaluation. He underwent diagnostic testing, which revealed
that his blood urea nitrogen, potassium, and creatinine levels
were “out of range.” At an appointment with Dr. Liping
Zhang in early October 2009, Henderson was informed that
he had a “bad kidney problem.”
Later that month, Henderson was seen by a nephrologist
who recommended immediate hospital admission for he-
modialysis surgery and treatment. At the hospital Hender-
son was informed that he had “end-stage” or “Stage 5 kid-
ney failure,” which he understood to mean that he would
have to undergo dialysis or he would die. According to
Henderson, that was the first time anyone informed him that
he had kidney disease, renal insufficiency, or kidney failure.
Henderson underwent a surgical procedure in order to un-
dergo hemodialysis. He must undergo dialysis several times
a week.
No. 13-2035 3
In October 2010, Henderson sued the defendants alleging
that they acted with deliberate indifference to his serious
medical needs. His complaint alleges that diagnostic testing
revealed that his toxic waste levels were “out of range,” but
he was not notified of this fact nor treated for his kidney
problems until he had reached Stage 5 kidney disease. At the
same time he filed his complaint, Henderson filed a motion
for leave to proceed in forma pauperis and a motion for re-
cruitment of counsel under 28 U.S.C. § 1915(e)(1). The latter
motion stated that Henderson was an inmate at Stateville,
was “illiterate to” civil litigation, was “not competent to
prosecute” his case, had a fifth grade education, and had
presented his claims through the assistance of other inmates
who had no obligation to help him. The affidavit of Lester
Dobbey, the inmate who assisted Henderson in preparing his
filings, was attached to the motion for counsel. The affidavit
stated that Dobbey had only a GED and no formal legal edu-
cation. It also said that Henderson had stated that he had a
low IQ and was “incompetent” to prosecute his case himself.
In February 2011, the district court granted Henderson
leave to proceed in forma pauperis and denied his motion
for recruitment of counsel. The court found that Henderson
had made a reasonable attempt to secure counsel on his
own, but concluded that recruitment of counsel was unnec-
essary at that time. The court acknowledged Henderson’s
assertion “that his filings have been prepared by other in-
mates,” but noted the filings’ “high quality for a pro se pris-
oner litigating his own case.” In the court’s determination,
Henderson was “competent to litigate his own case.” The
motion for counsel was denied “without prejudice,” and the
order stated that Henderson “may renew his motion should
circumstances change.”
4 No. 13-2035
In July, Henderson filed an amended complaint. He also
filed a motion for a discovery order, including a request for
leave to depose the defendants, and a settlement proposal. A
few defendants moved to dismiss the amended complaint;
Henderson filed a response in opposition and moved for a
default judgment against the defendants based on their non-
compliance with his discovery requests. The district court
denied that motion and directed the parties to attempt to re-
solve any discovery disputes among themselves before
bringing the matter before the court.
Then the district court set pretrial deadlines: Fact discov-
ery was ordered closed March 5, 2012; Rule 26(a)(2) expert
disclosures were due one month later; and expert discovery
was closed one month after that. The court granted the de-
fendants leave to depose Henderson; he was deposed in Feb-
ruary 2012. At his deposition, Henderson expressed his de-
sire to have representation of counsel, and he refused to an-
swer questions relating to the merits of his case without as-
sistance of counsel. This prompted the defendants to seek
discovery sanctions against him and a 63-day extension of all
discovery deadlines.
A few days later, Henderson filed his second motion for
recruitment of counsel under § 1915(e)(1). The motion indi-
cated that Henderson’s education was unchanged and that
“he does not have an adequate education to fully compre-
hend the … proceedings as they occur.” Henderson stated
that he “is incompetent to continue to represent himself in”
the discovery phase of the proceedings, including the depo-
sitions of the defendants and his own deposition. Henderson
expressed a need to depose the defendants to adequately
prepare for trial and asserted that “he is incapable of depos-
No. 13-2035 5
ing [them] due to his poor literacy.” He also stated that the
inmates who had been assisting him with his case could not
provide assistance any longer, and could not help him de-
pose the defendants.
Meanwhile, the district court granted the motion to dis-
miss, dismissing the claims against two defendants without
prejudice. The remaining defendants filed a response in op-
position to the second motion for recruitment of counsel.
They argued that Henderson’s refusal to answer questions at
his deposition was an attempt to indirectly obtain recruit-
ment of counsel and that granting his motion would encour-
age other pro se prisoners to engage in the same type of im-
proper conduct in an effort to obtain recruitment of counsel.
The magistrate judge denied the defendants’ motion for
discovery sanctions. Then the district judge denied the sec-
ond motion for recruitment of counsel, ruling that “[t]he
Court previously rejected plaintiff’s request for counsel …
and sees no change in circumstances to revisit that prior de-
cision. Plaintiff has demonstrated throughout this litigation
that he is competent to represent himself in all aspects in-
cluding discovery.” Thereafter, Henderson filed a reply to
the defendants’ response to his motion for counsel, again re-
questing counsel.
After fact discovery was closed, Henderson moved for
leave to file additional interrogatories, asserting that he was
not in any position to depose the defendants. He also moved
to compel compliance with subpoenas he had issued seeking
production of documents, including his medical records and
master inmate file. The magistrate judge held a hearing and
denied the motion for leave to file additional interrogatories.
His reasoning was two-fold: Henderson had not submitted
6 No. 13-2035
the interrogatories to be propounded and the motion was
made after discovery was closed. The magistrate judge or-
dered the defendants to produce Henderson’s medical rec-
ords, including his master file to the extent it contained in-
formation relating to his case, and denied the motion to
compel as moot. The judge also denied the motion to compel
compliance with a subpoena issued to a nonparty because
the subpoena was issued after discovery had closed.
The defendants moved for summary judgment, arguing
that Henderson’s lay opinion about what medical treatment
he should have received for his chronic medical conditions
and kidney disease was insufficient to find them deliberately
indifferent. They highlighted Henderson’s lack of knowledge
regarding the proper treatment for his kidney disease and
whether he had been taking renal medications. They also
pointed to evidence that he had attended chronic clinics for
his diabetes and hypertension every two or three months
and the absence of any claim that any defendant refused to
treat him for any chronic medical condition. Henderson re-
sponded by filing a motion to order the return of his legal
documents to his jailhouse lawyer (Dobbey) so he could re-
spond to the summary judgment motion. Henderson
claimed that his legal documents were confiscated during a
shakedown of Dobbey’s cell.
Henderson also filed a third motion for recruitment of
counsel and a motion for enlargement of time within which
to respond to the summary judgment motion. The latter mo-
tion cited Henderson’s inability to read and write and the
confiscation of his legal documents from Dobbey’s cell.
Shortly thereafter, the district court granted the third motion
for recruitment of counsel, recruited counsel to represent
No. 13-2035 7
Henderson pursuant to the United States District Court for
the Northern District of Illinois Trial Bar Pro Bono Program
(“Pro Bono Program”), and extended the time for Hender-
son’s summary judgment response. 1
Counsel entered an appearance for Henderson and
moved for an additional extension of time within which to
respond to the summary judgment motion. The motion was
granted. In opposing summary judgment, Henderson ar-
1 Recognizing the number of indigent plaintiffs who cannot afford to
pursue their cases in court and how challenging it is for judges to ask
lawyers to volunteer their time to take these assignments, the United
States District Court for the Northern District of Illinois created a com-
mittee composed of both judges and attorneys roughly thirty years ago
to address this issue. The judges, adopting the committee’s recommenda-
tion, created the Pro Bono Program. Any attorney who seeks admittance
to the N.D. Ill. Trial Bar has the responsibility to serve as an appointed
attorney in pro se civil or appellate matters pursuant to N.D. Ill. Local
Rule 83.11(g). When the need arises, the clerk selects names at random
from a panel of potential counsel. N.D. Ill. L.R. 83.35. Each panel member
gives their relevant background, type of matter they would prefer being
appointed to, and other relevant information. Id. Trial Bar admission fees
are used to reimburse the attorneys for out-of-pocket expenses, such as
paying for transcripts of depositions, travel expenses or hiring expert
witnesses, up to $3,000, but the attorneys are not paid their fees for the
pro bono work. This program has been successfully run for roughly
three decades and it has been a great assistance in ensuring that indigent
plaintiffs get access to justice. See Synergy Assocs. v. Sun Biotechnologies,
Inc., 350 F.3d 681, 684 (7th Cir. 2003) (noting the program “ensure[s] that
all deserving litigants, including those without financial means, have
access to the counsel in the federal court system”); see also N.D. Ill. L.R.
83.35 (setting forth the requirements of the pro bono program). As dis-
cussed above, Henderson’s counsel was appointed pursuant to the Pro
Bono Program. Several other district courts in this circuit have similar
procedures for requesting lawyers to represent indigent plaintiffs. See,
e.g., C.D. Ill. L.R. 83.5(J); N.D. Ind. L.R. 83-7; S.D. Ind. L.R. 4-6, 83-7.
8 No. 13-2035
gued that October 2009 was the first time a medical profes-
sional told him he had kidney disease and that the Stateville
doctors knew of his declining kidney health as early as Feb-
ruary 2007 but did not provide him with the required medi-
cal care until his kidneys completely failed. Henderson
acknowledged that he had received some medical care, but
argued that there were questions about whether that care
was appropriate and whether it met the standards of medi-
cal practice and protocols. He relied on his observations of
other inmates receiving different treatment for kidney dis-
ease and the failure to refer him to a nephrologist for more
than two years after test results first revealed abnormalities.
In ruling on the summary judgment motion, the district
court noted the evidence that Henderson attended clinics for
diabetes and/or hypertension and that on several occasions
between 2007 and January 2009, his blood and urine were
tested. The court also noted that Henderson did not know
whether he was taking medication for kidney disease during
this time period. Finding that Henderson failed to produce
any evidence that the treatment he received between Febru-
ary 2007 and September 2009 “was so far afield of accepted
professional standards as to raise the inference that it was
not based on medical judgment,” the court granted the de-
fendants summary judgment. Henderson now appeals the
denials of his first two motions for recruitment of counsel.
II. Discussion
Although “[t]here is no right to court-appointed counsel
in federal civil litigation,” Olson v. Morgan, No. 12-2786, —
F.3d —, 2014 WL 1687802, at *2 (7th Cir. Apr. 30, 2014), a dis-
trict court has discretion to recruit counsel to represent an
indigent plaintiff under 28 U.S.C. § 1915(e)(1). If the plaintiff
No. 13-2035 9
has made a reasonable attempt to obtain counsel, the court
asks, “given the difficulty of the case, does the plaintiff ap-
pear competent to litigate it himself?” Santiago v. Walls, 599
F.3d 749, 761 (7th Cir. 2010) (quoting Pruitt v. Mote, 503 F.3d
647, 654 (7th Cir. 2007) (en banc)) (internal quotation marks
omitted). As we recently observed, deciding whether to re-
cruit counsel “is a difficult decision: Almost everyone would
benefit from having a lawyer, but there are too many indi-
gent litigants and too few lawyers willing and able to volun-
teer for these cases.” Olson, 2014 WL 1687802, at *2. Conse-
quently, “[d]istrict courts are … placed in the unenviable po-
sition of identifying, among the sea of people lacking coun-
sel, those who need counsel the most.” Id. This emphasizes
the importance and need of such programs like the Pro Bono
Program. See footnote 1, supra.
We review denials of motions for recruitment of counsel
under § 1915(e)(1) for an abuse of discretion, id., asking “not
whether [the judge] was right, but whether he was reasona-
ble.” Pruitt, 503 F.3d at 659 (internal quotation mark omit-
ted). Even if the district court abuses its discretion, we will
not reverse unless there has been a showing of prejudice—
that “there is a reasonable likelihood that the presence of coun-
sel would have made a difference in the outcome of the liti-
gation.” Id.In deciding whether the district court abused its discre-
tion, we ask “whether the difficulty of the case—factually
and legally—exceeds the particular plaintiff’s capacity as a
layperson to coherently present it to the judge or jury him-
self.” Pruitt, 503 F.3d at 655. “We … examine both the diffi-
culties posed by the particular case and the capabilities of
the plaintiff to litigate such a case.” Santiago, 599 F.3d at 761.
10 No. 13-2035
The district court erred in assessing Henderson’s compe-
tence to litigate his claims. “The inquiry into the plaintiff’s
capacity to handle his own case is a practical one, made in
light of whatever relevant evidence is available on the ques-
tion.” Pruitt, 503 F.3d at 655. In its first denial of Henderson’s
request for counsel, the district court mentioned only that
Henderson alleged “that he is not competent to litigate” and
that he has a fifth grade education. It did not mention that he
has a low IQ. (Although not in the record before the district
court, we know that a psychologist testified in Henderson’s
state criminal case that Henderson has a “below average I.Q.
of 64.” People v. Henderson, 529 N.E.2d 1051, 1053 (Ill. App.
Ct. 1988).) Thus, the court failed to focus on Henderson’s ca-
pabilities. Instead, it relied on the abilities of his jailhouse
lawyer who had been preparing his filings for him, noting
that they were “high quality for a pro se prisoner litigating
his own case.” (The jailhouse lawyer had only a GED and no
formal legal training.) This is problematic for several rea-
sons.
First, the fact that an inmate receives assistance from a
fellow prisoner should not factor into the decision whether
to recruit counsel. See, e.g., Pruitt, 503 F.3d at 655 (“The ques-
tion is whether the plaintiff appears competent to litigate his
own claims, given their degree of difficulty, and this includes
tasks that normally attend litigation … .”) (first emphasis
added). The jailhouse lawyer likely would be unavailable to
assist Henderson with certain aspects of discovery. For ex-
ample, he could not attend or assist in Henderson’s deposi-
tion. Henderson’s second motion for recruitment of counsel
points out that the inmate who had assisted him could not
assist him in the discovery phase, specifically identifying the
task of deposing the defendants. The district court seems to
No. 13-2035 11
have overlooked this fact in denying the second motion for
recruitment of counsel. Compare Feb. 22, 2011 Minute Entry 2
(“The Court understands plaintiff’s assertion that his filings
have been prepared by other inmates.”) with Mar. 12, 2012
Minute Entry 1 (“The Court previously rejected plaintiff’s
request for counsel … and sees no change in circumstances
to revisit that prior decision.”). Furthermore, the jailhouse
lawyer had no obligation to continue to assist Henderson (or
to assist him at all).
If the district court had focused on Henderson’s capabili-
ties, it would have given greater consideration to his low IQ,
his functional illiteracy and inexperience with civil litigation,
his fifth grade education, and his reliance on the assistance
of other inmates to present his claims. Henderson’s limita-
tions were exacerbated by his incarceration, which further
restricted his ability to investigate the facts. See, e.g., Junior v.
Anderson, 724 F.3d 812, 815 (7th Cir. 2013) (“[A] plaintiff’s in-
ability to investigate crucial facts by virtue of his being a
prisoner … is a familiar ground for regarding counsel as in-
dispensable to the effective prosecution of the case.”), and
cases cited therein. Henderson was severely limited in his
capacity to litigate his own case.
Moreover, the factual and legal complexity of this case
necessitated appointment of counsel. “[C]ases involving
complex medical evidence are typically more difficult for
pro se defendants.” Santiago, 599 F.3d at 761; see also Pruitt,
503 F.3d at 655–56 (same); Greeno v. Daley, 414 F.3d 645, 658
(7th Cir. 2005) (concluding that pro se prisoner’s case was
“legally more complicated than a typical failure-to-treat
claim because it require[d] an assessment of the adequacy of
the treatment that [the plaintiff] did receive, a question that
12 No. 13-2035
will likely require expert testimony”). And prisoners often
face difficulty “when litigating constitutional claims that in-
volve the state of mind of the defendant.” Santiago, 599 F.3d
at 761; see also id. at 762 (stating that presenting state-of-mind
evidence “is one of the more challenging aspects of section
1983 litigation”); Olson, 2014 WL 1687802, at *3 (acknowledg-
ing that “some state-of-mind issues may involve subtle ques-
tions too complex for pro se litigants” but rejecting the prop-
osition that “state-of-mind questions are categorically too
difficult for pro se litigants”); Swofford v. Mandrell, 969 F.2d
547, 552 (7th Cir. 1992) (pointing out that the “difficult and
subtle question of the state of mind required” for deliberate
indifference is “‘too complex’ for a pro se plaintiff to under-
stand”) (citation omitted).
Henderson’s case involves complex medical terms and
concepts: kidney disease, end stage renal failure, creatine
and blood urea nitrogen levels, “out of range” lab results,
and dialysis, to name a few. This case also requires proof of
the defendants’ state of mind. To prevail on his Eighth
Amendment deliberate indifference claim, Henderson
would have to establish that defendants “knew of a substan-
tial risk of harm to [him] and acted or failed to act in disre-
gard of that risk.” Norfleet v. Webster, 439 F.3d 392, 396 (7th
Cir. 2006) (citations omitted). In addition, he would have to
prove that the defendants’ treatment of his kidney disease
was “such a substantial departure from accepted profession-
al judgment, practice, or standards, as to demonstrate that
the person responsible actually did not base the decision on
… [accepted professional] judgment.” McGee v. Adams, 721
F.3d 474, 481 (7th Cir. 2013) (citation and internal quotation
mark omitted). Expert medical evidence is required to prove
this aspect of his claim. For example, as the district court
No. 13-2035 13
noted, Henderson’s only evidence that his kidney disease
was improperly treated comes from his lab results, “which
he, as a layman, clearly cannot properly interpret for a jury,”
and Henderson does not even know whether he has been
taking renal medications all along for his kidney disease. In
addition, as an inmate, Henderson lacked the ability to en-
gage a medical expert. Given Henderson’s capabilities, his
incarceration, and the legal and factual complexities of the
case, the district court abused its discretion by denying
Henderson’s first two requests for appointment of counsel.
And Henderson can show prejudice. As noted, prejudice
in this context means “a reasonable likelihood that the presence
of counsel would have made a difference in the outcome of
the litigation.” Pruitt, 503 F.3d at 659. “[P]rejudice may be
established by a litigant’s poor performance before or during
trial.” Id. If the plaintiff “was incapable of engaging in any
investigation[] or locating and presenting key witnesses or
evidence” he can establish the requisite prejudice. Santiago,
599 F.3d at 765 (quoting Pruitt, 503 F.3d at 659); see also Jun-
ior, 724 F.3d at 816 (reversing grant of summary judgment in
favor of defendant and remanding to the court to recruit
counsel for plaintiff where “[a]ll these gaps [in the record]
cry out for evidence that a lawyer could obtain but the plain-
tiff could not”).
Because of his documented low IQ, functional illiteracy,
poor education, inexperience with civil litigation, and incar-
ceration, Henderson was incapable of obtaining the witness-
es and evidence he needed to prevail on his claims. He of-
fered no medical evidence in opposing the defendants’
summary judgment motion because he had none. This was
fatal to his claims: the district court granted the defendants
14 No. 13-2035
summary judgment because Henderson “put forth [no] evi-
dence from which a reasonable jury could conclude that the
treatment provided to him … was so far afield of accepted
professional standards as to raise the inference that it was
not based on medical judgment.” Had counsel been recruit-
ed during the discovery phase, counsel could have served
discovery requests; could have deposed the defendants,
probing them about their subjective knowledge of Hender-
son’s kidney health and the accepted standards of care;
could have deposed the hospital nephrologist regarding
Henderson’s medical condition and the proper treatment for
kidney disease; and could have produced other evidence on
the accepted standard of care, including an expert report, if
necessary. Because appointed counsel could have obtained
this evidence that Henderson could not, Henderson has
shown prejudice.
Furthermore, Henderson was unable to identify three
“John or Jane Doe” defendants who were dismissed for fail-
ure to prosecute. See Santiago, 599 F.3d at 766 (finding preju-
dice from failure to appoint counsel when plaintiff “was
forced to drop Dr. John Doe as a defendant” because he “was
unable to ascertain his identity”). Henderson did not obtain
answers to interrogatories and a response to a third-party
subpoena because he failed to serve them within the dead-
line for fact discovery. He did not depose any witnesses. A
lawyer would have accomplished all these things. And a
lawyer would have prepared Henderson for his own deposi-
tion, made objections to questions at his deposition, assisted
him in reading exhibits, and even checked the transcript to
ensure its accuracy, which Henderson could not do. See
Pruitt, 503 F.3d at 660 (finding prejudice when attorney
No. 13-2035 15
would have helped plaintiff “avoid common deposition pit-
falls”).
The defendants argue that counsel could have moved to
reopen discovery or to reopen the deadline for expert disclo-
sures in order to defeat the summary judgment motion.
Henderson responds that counsel had no reason to believe
that the district court was willing to reopen discovery. He
points to the magistrate judge’s denial of his pro se motion
for additional discovery, which was denied because discov-
ery was closed. Given that counsel was appointed seven
months after fact discovery closed, five months after expert
discovery closed, and two months after the defendants filed
their motion for summary judgment and the denial of Hen-
derson’s motion for additional discovery, we tend to agree
that the court was not likely to grant a motion to reopen. See
Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725, 733 (7th Cir.
2004) (finding no abuse of discretion in district court’s deci-
sion to reject motion to reopen filed “after the close of dis-
covery [and] in the midst of summary judgment briefing”);
Grayson v. O’Neill, 308 F.3d 808, 816 (7th Cir. 2002) (affirming
denial of motion for additional discovery to respond to
summary judgment when requesting party “had more than
ample opportunity to discover and present evidence”). Alt-
hough Henderson’s counsel was not expressly recruited for a
limited purpose as in Santiago, 599 F.3d at 766, the proceed-
ings in the district court suggest that counsel was recruited
only to assist Henderson with formulating a response to the
pending summary judgment motion and, if necessary, at tri-
al. And even if a motion to reopen were granted, it seems
likely that discovery would have been limited; the district
court wasn’t apt to rewind to the beginning of the case and
allow a “do over” of the discovery phase. Finally, reopening
16 No. 13-2035
discovery would not have cured Henderson’s failure to iden-
tify and serve the John and Jane Doe defendants.
The record establishes that Henderson needed counsel
and needed counsel’s assistance at every phase of litigation.
And there is a reasonable likelihood that the presence of
counsel would have made a difference in the outcome of this
case. In the sea of indigent litigants without counsel, Hen-
derson should have stood out as someone who needed
counsel the most.
III. Conclusion
We REVERSE the district court’s judgment and REMAND
the case for further proceedings consistent with this opinion.