Leonard DeWitt v. Corizon, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2930
LEONARD DEWITT
Plaintiff-Appellant,
v.
CORIZON, INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 11-CV-295 — William T. Lawrence, Judge.
____________________
SUBMITTED DECEMBER 9, 2013 * — DECIDED JULY 25, 2014
____________________
Before CUDAHY, ROVNER, and WILLIAMS, Circuit Judges
WILLIAMS, Circuit Judge. Leonard Dewitt, a 51-year-old
former inmate at the Indianapolis Re-Entry Educational Fa-
cility, challenges the grant of summary judgment against
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See FED. R. APP. P. 34(a)(2)(C).
2 No. 13-2930
him in his deliberate indifference suit and also appeals the
district court’s denial of his three motions to recruit counsel.
Because we find that the district court abused its discretion
in denying the motions for recruitment of counsel, and those
denials affected Dewitt’s ability to develop and litigate his
case, we will not reach the merits of the summary judgment
order. Therefore, we reverse and remand so that the court
may recruit counsel and so Dewitt can conduct further dis-
covery in order to litigate the case.
I. BACKGROUND
Because the district court decided this case on a motion
for summary judgment, we recite the facts in the light most
favorable to the nonmoving party, Dewitt. See Greeno v. Da-
ley, 414 F.3d 645, 652 (7th Cir. 2005). Dewitt’s eye problems
began in 2007 during his first incarceration at the Wabash
Correctional Facility, which is a part of the Indiana Depart-
ment of Corrections (“IDOC”). The IDOC contracts with
Appellee Corizon, Inc. to provide medical care to Indiana
prisoners. Dewitt submitted the first of many Requests for
Healthcare to Corizon stating something was very wrong
with his bloodshot left eye and his vision was “like looking
through a dirty piece of plastic.” Corizon’s eye doctor diag-
nosed him with astigmatism and presbyopia (old-age near-
sightedness causing slightly blurry vision), and prescribed
eyeglasses.
Three months later, Dewitt submitted another Request
for Healthcare after being transferred to a local work-release
facility. IDOC medical staff contacted the Plainfield Correc-
tional Facility to set up an appointment for him since the
work-release facility did not have any specialists on staff.
But Appellee Patty Wirth said that no appointment would
No. 13-2930 3
be available for three months, so IDOC medical staff sent
Dewitt to a prison physician who noted no obvious abnor-
malities in his left eye.
In May 2008, Dewitt was released on parole. A doctor de-
termined that Dewitt had a form of glaucoma in his left eye
and he was advised in late 2008 to undergo laser-eye surgery
to prevent any future attacks. He underwent a surgical pro-
cedure on his right eye in early 2009 to remove part of the
iris to decrease eye pressure. His left eye continued to have
higher than normal intra-ocular pressure.
Dewitt was again incarcerated in 2009, this time at the
Putnamville Correctional Facility, where he filed another
Request for Healthcare, noting exceptional irritation in his
left eye. He was referred to Wishard Hospital where an oph-
thalmologist prescribed medicated eye drops in order to de-
crease the pressure. The ophthalmologist told Dewitt if they
did not work, he might need to have the eye or portions of it
removed. The drops did not work, and, believing he had no
real alternative, Dewitt submitted another Request for
Healthcare in November to have his left eye removed.
Dewitt received treatment both inside and outside the fa-
cility over the next several months, and filed another Re-
quest for Healthcare to have his eye removed in February
2011. Corizon’s regional medical director, Appellee Dr. Mi-
chael Mitcheff, viewed removal as an extreme last resort and
suggested a more conservative approach, including medi-
cated eye drops and pain medication. Dewitt was prescribed
medication, including a 90-day prescription for Vicodin by
defendant Dr. Naveen Rajoli, ultimately received a glaucoma
evaluation at the Midwest Eye Institute and eye removal
4 No. 13-2930
was recommended. In May 2012, he underwent surgery to
remove part of his left eye’s ciliary body.
Dewitt filed suit under 42 U.S.C. § 1983 against Corizon,
Wirth, and Mitcheff, asserting that they were deliberately
indifferent to his glaucoma condition. He also sued Dr.
James Stewart and Dr. Rajoli, but Stewart was dismissed
from the suit and Dewitt does not mention Rajoli in his brief.
In April 2012, Dewitt moved for assistance of counsel, stat-
ing his vision problems combined with his tenth-grade edu-
cation made it difficult for him to conduct discovery and lit-
igate his case. The district court denied his request, finding
that Dewitt’s claims were not overly complex or meritorious,
that Dewitt was familiar with his claims and able to present
them, and he was “within the spectrum of most indigent
parties.” Six months later, Dewitt moved again for assistance
of counsel, repeating his earlier statements. He also com-
plained that Appellees had abused discovery rules and de-
layed their responses. The court denied this request using
the same language as the first denial and without addressing
the alleged discovery abuses.
After Appellees moved for summary judgment, Dewitt
filed a “reply” to Appellees’ reply in support of summary
judgment, and a request under Federal Rule of Civil Proce-
dure 56(f) (now Rule 56(d)) for further discovery. He again
begged the court to recruit counsel so he could conduct dis-
covery. The district court did not address Dewitt’s Rule 56(d)
motion, but granted Appellees’ motion for summary judg-
ment, in part, because Dewitt failed to show Corizon had
any “official policy or custom” to delay medical treatment
and because Dr. Mitcheff exercised reasoned professional
judgment. Dewitt now appeals.
No. 13-2930 5
II. ANALYSIS
Though Dewitt argues the merits of the summary judg-
ment order, we do not reach that issue because we hold that
Dewitt should have had an attorney throughout the litiga-
tion. There is no right to recruitment of counsel in federal
civil litigation, but a district court has discretion to recruit
counsel under 28 U.S.C. § 1915(e)(1). See Henderson v. Ghosh,
--- F.3d ---, No. 13-2035, 2014 WL 2757473, at *4 (7th Cir. June
18, 2014) (per curiam). If an indigent plaintiff has made a
reasonable attempt to obtain counsel and then files a motion
for recruitment of counsel, the district court should 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 himself.” Pruitt v.
Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc). We
acknowledge this is a “difficult decision” since “[a]lmost
everyone would benefit from having a lawyer, but there are
too many indigent litigants and too few lawyers willing and
able to volunteer for these cases.” Olson v. Morgan, 750 F.3d
708, 711 (7th Cir. 2014). So we review the denial of the re-
cruitment of counsel for an abuse of discretion and will re-
verse only if the plaintiff was prejudiced by the denial—e.g.,
if there is a reasonable likelihood that the recruitment of
counsel would have made a difference in the outcome of the
litigation. See Santiago v. Walls, 599 F.3d 749, 765 (7th Cir.
2010). In so deciding, our case law is clear that a plaintiff can
be prejudiced by the lack of counsel pretrial just as easily as
during the briefing or trial itself. See id. at 765 (noting preju-
dice when plaintiff “was incapable of engaging in any inves-
tigation[] or locating and presenting key witnesses or evi-
dence” (quoting Pruitt, 503 F.3d at 659)); see also Henderson,
6 No. 13-2930
2014 WL 2757473 at *7 (finding prejudice where plaintiff
“was incapable of obtaining the witnesses and evidence he
needed to prevail on his claims”); Bracey v. Grondin, 712 F.3d
1012, 1017 (7th Cir. 2013) (“Complexities anticipated (or aris-
ing) during discovery can justify a court’s decision to recruit
counsel”).
The first question, then, is whether the district court
abused its discretion in denying the motions for recruitment
of counsel. In his first motion, Dewitt requested the recruit-
ment of counsel because of his tenth-grade education, the
fact that he was incarcerated and unable to investigate and
discover relevant facts. He also pointed out that he was
“now totally blind in his left eye and the vision in his right
eye is impaired.” He discussed the medical complexity of his
case, his reliance on “jailhouse lawyers,” and his inability “to
comprehend with any legal understanding, the discovery
rules and the Defendants [sic] motions.” The court denied
the motion and stated that “the claims by the plaintiff are not
of sufficient complexity or merit as to surpass the plaintiff’s
ability to properly develop and present them,” and that “the
plaintiff is within the spectrum of ‘most indigent parties’ be-
cause he has and will have a meaningful opportunity to pre-
sent his claim, he has demonstrated familiarity with his
claims and the ability to present them.” The court stated that
it had considered the complexity of the case and Dewitt’s
ability to litigate the case—without delving into any of
Dewitt’s personal characteristics or the specifics of the case—
before denying the motion.
The court abused its discretion by failing to explain its
reasoning and failing to address all the relevant arguments
Dewitt raised. For example, the court characterized Dewitt
No. 13-2930 7
as fitting within the spectrum of most pro se litigants and
said it had considered his personal characteristics, but it did
not identify those characteristics. However, the court did not
address the challenges that Dewitt, as a blind and indigent
prisoner with a tenth-grade education and no legal experi-
ence, faced in being able to investigate crucial facts and de-
pose witnesses, doctors, and other allegedly resistant prison
personnel. See Pruitt, 503 F.3d at 655 (noting the court
“should review any information submitted in support of the
request for counsel, as well as the pleadings, communica-
tions from, and any contact with the plaintiff”); see also
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (noting
judge should have considered plaintiff’s “limited education,
mental illness, language difficulties, and lack of access to fel-
low prisoners or other resources for assistance after his
transfer from Stateville”). Moreover, the court’s statement
that Dewitt “has demonstrated familiarity with his claims
and the ability to present them” does not demonstrate that
the district court specifically examined Dewitt’s personal
ability to litigate the case, versus the ability of the “jailhouse
lawyer” who Dewitt said in his motion was helping him.
The analysis should be of the plaintiff’s ability to litigate his
own claims, and the “fact that an inmate receives assistance
from a fellow prisoner should not factor into the decision
whether to recruit counsel.” Henderson, 2014 WL 2757473 at
*5.
Nor did the court explain why the claims were not of
“sufficient complexity” to merit recruitment of counsel. In
fact, the case presents complicated medical matters, involves
varying recommended courses of treatment by numerous
physicians, and required discovery into what constitutes
reasonable care for medical professionals. Though not every
8 No. 13-2930
deliberate indifference case is so complex and beyond the
individual plaintiff’s capacity as to warrant the recruitment
of counsel, this one was. See Henderson, 2014 WL 2757473 at
**6–7 (noting case required recruitment of counsel because it
“involves complex medical terms and concepts,” requires
proof of the “defendants’ state of mind” and proof of doc-
tor’s knowledge of a substantial risk of harm and disregard
of that risk). But see, e.g., Olson, 750 F.3d at 711–12 (holding
no abuse of discretion in denying recruitment of counsel mo-
tion for medical indifference case when disputed issue was
whether defendant knew of plaintiff’s physical condition);
Romanelli v. Suliene, 615 F.3d 847, 854 (7th Cir. 2010) (finding
no abuse of discretion in denying motion in medical indif-
ference case when neither side contested that plaintiff was
ill). We are aware that the appointment of counsel in civil
cases can pose challenges for judges, who ask lawyers to
volunteer their time to take these assignments, and the at-
torneys who are asked by the judges and who ultimately
take the assignments. As a way to combat those issues, we
again highlight the work done by the Pro Bono Program for
the United States District Court for the Northern District of
Illinois Trial Bar, which mandates that members of the Trial
Bar serve as an appointed attorney in pro se civil or appel-
late matters. See N.D. Ill. L.R. 83.35; N.D. Ill. L.R. 83.11(g). See
also Henderson, 2014 WL 2757473 at *3 n.1; Synergy Assocs. v.
Sun Biotechnologies, Inc., 350 F.3d 681, 684 (7th Cir. 2003).
While other districts in this circuit have similar procedures,
see C.D. Ill. L.R. 83.5(J), N.D. Ind. L.R. 83-7, S.D. Ind. 4-6, 83-
7, the mandatory nature of the Northern District of Illinois’s
program ensures that judges are not put in the position of
repeatedly asking the same counsel to take on appointments,
and attorneys are not put in the position of being asked time
No. 13-2930 9
and again to take cases by the judges in front of whom they
appear on a regular basis.
In Dewitt’s second motion to recruit counsel, Dewitt
made basically the same arguments while adding that “De-
fendants are intentionally abusing the discovery rules, they
have delayed their responses to the Plaintiff’s interrogatories
so as to gain an upper hand with the closing of the deadlines
the Court has imposed, and [are] now claiming that they
have no obligation to answer further interrogatories.” The
court denied Dewitt’s motion without addressing this new
argument. Though the district court need not address every
point raised in recruitment motions, it must address those
that bear directly on whether “the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s ca-
pacity as a layperson to coherently present it to the judge or
jury himself.” Pruitt, 503 F.3d at 655. That includes whether
Dewitt was capable of putting a stop to alleged discovery
abuses. See, e.g., Henderson, 2014 WL 2757473 at *6 (finding
court erred by not considering substantive issue, namely ap-
pellant’s personal capabilities, that was raised in recruitment
motion).
Moreover, in his Federal Rule of Civil Procedure 56(f)
(now 56(d)) “reply” to Appellees’ reply in support of sum-
mary judgment, Dewitt requested more time for discovery
as well as the recruitment of counsel to aid him in conduct-
ing such discovery. Although this was not a separate formal
motion requesting counsel, the court should have addressed
it. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e
have insisted that the pleadings prepared by prisoners who
do not have access to counsel be liberally construed”); Santi-
ago, 599 F.3d at 765 (noting “the magistrate judge’s methodo-
10 No. 13-2930
logical lapse in failing to give full consideration to each fac-
tor constitutes an abuse of discretion”); Pruitt, 503 F.3d at
658.
Finding that the district court abused its discretion does
not end our inquiry. We must now determine whether
Dewitt was prejudiced. Based on the reasons the court gave
in granting the motion for summary judgment, we find
Dewitt was. For example, the district court determined that
Dr. Mitcheff exercised “reasoned professional judgment” in-
consistent with deliberate indifference. But could a lawyer
have helped Dewitt present sufficient facts to create a genu-
ine issue about why the doctor declined to follow a special-
ist’s recommendations or advised a continuation of ineffec-
tive treatments that prolonged his pain? We think there is a
reasonable likelihood counsel could have aided here and
made a difference in the outcome. See Greeno, 414 F.3d at 658(holding 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 [plaintiff] did receive, a
question that will likely require expert testimony”); Ortiz v.
Webster, 655 F.3d 731, 735 (7th Cir. 2011) (analyzing complex-
ities of deliberate indifference claims).
Counsel also could have assisted Dewitt in addressing
his concerns about the alleged discovery violations. Dewitt
filed a motion to compel, to which Appellees responded that
they had replied to all outstanding discovery. The court
found the issue moot based on Appellees’ response and de-
nied the motion. Yet, two months later, Dewitt stated in his
second motion for recruitment of counsel that Appellees
were not complying with all discovery requests. That was
still a problem when Dewitt filed his Rule 56(f) request for
No. 13-2930 11
more time to conduct discovery. We do not make any deter-
minations on the merits of Dewitt’s allegations relating to
discovery abuses, but find that had Dewitt had counsel to
navigate through discovery, there is a reasonable likelihood
that he could have better advocated his position and
changed the outcome of the litigation. See Santiago, 599 F.3d
at 765–66 (noting Appellant’s “later attempts to conduct rel-
evant discovery were not successful” and “[t]he treatment
afforded him by the defendants was not, it is safe to say, the
same treatment that would have been afforded a member of
the bar”).
Finally, we observe the district court disregarded Dewitt’s
request under Federal Rule of Civil Procedure 56(f) seeking
more time to conduct discovery before the court ruled on
Appellees’ motion for summary judgment. While a district
court has broad discretion to deny such motions, see Kalis v.
Colgate-Palmolive Co., 231 F.3d 1049, 1056 (7th Cir. 2000), it is
improper to decide summary judgment without first ruling
on a pending 56(f) motion. Doe v. Abington Friends School, 480
F.3d 252, 257 (3d Cir. 2007).
III. CONCLUSION
Accordingly, we REVERSE the district court’s denial of
Appellant’s motions for recruitment of counsel, VACATE the
district court’s judgment in favor of Appellees, and
REMAND for proceedings consistent with this order.