Smith v. Correctional Medical Services , 207 F. App'x 737 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4056
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W. L. Smith, *
*
Appellant, *
*
v. *
*
Correctional Medical Services; Ashraf * Appeal from the United States
Diab, M.D., Correctional Medical * District Court for the
Services; Scott Boone, M.D., * Eastern District of Arkansas.
Correctional Medical Services *
(originally sued as Boone); Holli *
Banks-Giles, Correctional Medical * [UNPUBLISHED]
Services (originally sued as Holly Giles *
Banks); Gail Stephens, Correctional *
Medical Services (originally sued as *
Gail Stephenson); Millicent E. *
Young, M.D., Correctional Medical *
Services (originally sued as Milicent *
Young), *
*
Appellees. *
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Submitted: November 27, 2006
Filed: December 5, 2006
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Before SMITH, MAGILL, and BENTON, Circuit Judges.
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PER CURIAM.
W. L. Smith, an Arkansas prisoner, appeals the district court’s1 dismissal of his
42 U.S.C. § 1983 action following a pre-jury evidentiary hearing. We affirm.
We conclude the denial of Smith’s motions for appointment of counsel was not
an abuse of discretion: the record (including the audio recording of the evidentiary
hearing) reveals that Smith adequately presented the facts and theories of liability for
his standard Eighth Amendment claim, and he received assistance from the magistrate
judge at the hearing. See Phillips v. Jasper County Jail, 437 F.3d 791, 794 (8th Cir.
2006) (standard of review; relevant criteria for appointing counsel in civil case). Nor
was the denial of Smith’s motion to compel production of his medical records an
abuse of discretion, given that prison policy allowed Smith some access to his medical
records, and that relevant portions of the records were read aloud at the hearing. See
Toghiyany v. AmeriGas Propane, Inc., 309 F.3d 1088, 1093 (8th Cir. 2002) (standard
of review).
Upon de novo review of the merits, see Randle v. Parker, 48 F.3d 301, 303 (8th
Cir. 1995) (standard of review), we agree with the district court that Smith failed to
make a jury-submissible case that defendants were deliberately indifferent to the
problems he suffered in his left ear. See Phillips, 437 F.3d at 795 (deliberate-
indifference standard). Based on the medical expert’s testimony, when Smith
presented with intermittent ear drainage, defendants provided typical care: topical
drops to treat an apparent external ear infection. See Logan v. Clarke, 119 F.3d 647,
649-50 (8th Cir. 1997) (prison doctors were not deliberately indifferent because they
treated prisoner on numerous occasions and offered sensible medication and
treatment); cf. Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001) (medical treatment
may so deviate from applicable standard of care as to evidence physician’s deliberate
indifference). Further, the expert testified that Smith’s actual ear problem--
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable H.
David Young, United States Magistrate Judge for the Eastern District of Arkansas.
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cholesteatoma--is a condition easily overlooked by primary care physicians, and that
his patients often presented with a lengthy history of ear drainage. See Smith v.
Clarke, 458 F.3d 720, 723-24 (8th Cir. 2006) (prison doctor’s failure to detect tumor
in inmate’s eye was not deliberate indifference where specialist attested that inmate
had received appropriate diagnostic care and treatment and that tumor was difficult
to detect in ordinary examination).
Accordingly, we affirm the judgment of the district court. We deny Smith’s
request for preparation of a transcript at government expense.
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