Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No S 79 C 101 -- Allen Sharp, Judge .
Before Swygert, Sprecher and Wood, Circuit Judges.
Plaintiff Jerome Maclin, a prisoner at the Indiana State Prison, sued prison Medical Services Administrator Dr. Ronald Freake, alleging Dr. Freake's deliberate indifference to Maclin's serious medical needs violated Maclin's eighth amendment rights. Maclin sought one million dollars in damages, but no injunctive or declaratory relief. Maclin also requested that counsel be appointed to represent him. Judge Sharp denied the request, stating appointment is a privilege, not a right and is a matter within the district court's discretion. Maclin proceeded pro se.
The allegations contained in Maclin's complaint and in his response to Dr. Freake's "Motion for a More Definite Statement" are as follows. Maclin alleged that he is a paraplegic and is confined to a wheelchair. When he entered the Indiana State Prison on June 28, 1978, he requested a prescription for Valium, the only drug administered to him before his incarceration. Dr. Freake denied the request, informing Maclin that Valium was not available at the prison. Maclin's subsequent request for Percodan was denied for the same reason. However, he was given an unspecified substitute medication which, he alleged, caused serious side effects (weakness and upset stomach) and failed to relieve the pain or muscle spasms related to his paralysis. Maclin further alleged that he entered the prison hospital (though he did not indicate when he entered or how long he stayed there) and requested physical therapy, and that Dr. Freake told him therapy would be available when suitable equipment was installed at the prison. According to Maclin, Dr. Freake never made any effort to obtain such equipment. Maclin complained that because of the lack of adequate medical treatment he can no longer do the "range of motion exercises" of which he was previously capable; his legs "now remain locked in one position," causing him physical and mental suffering.
On May 24, 1979, Dr. Freake moved for dismissal or in the alternative for summary judgment on the ground that he is not a medical doctor and had no direct personal responsibility for the medical treatment or lack thereof accorded Maclin, and therefore, under Adams v. Pate, 445 F.2d 105 (7th Cir. 1971), he could not be sued for damages under § 1983. In an affidavit attached to his motion, Dr. Freake alleged that his responsibility at the prison was "to ensure that inmates receive the medicine or therapy that has been prescribed for them by physicians." Therapy was available, to those inmates for whom it was prescribed, at two nearby hospitals, but since no therapy had been prescribed for Maclin, Dr. Freake alleged he had no authority to send him to either hospital. However, Dr. Freake also stated that he was investigating the possibility of sending Maclin to one of the hospitals for evaluation of his condition.
Shortly after Dr. Freake moved to dismiss, Maclin filed a "Request for Production of Documents," seeking his complete prison record, including all medical records, interdepartmental memoranda and written statements identifiable as reports concerning him. The trial judge never acted upon this request. Instead, the judge dismissed Maclin's complaint "without prejudice," ruling that Dr. Freake was not responsible for Maclin's treatment and that, since the possibility of sending Maclin to the hospital was under investigation, there was no deliberate indifference to Maclin's medical needs. Maclin appealed.
We hold the district court abused its discretion in denying Maclin's request for appointed counsel. We therefore reverse and remand.
It is true that the district court has broad discretion to appoint counsel for indigents under 28 U.S.C. § 1915(d), and its denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights. La Clair v. United States, 374 F.2d 486, 489 (7th Cir. 1967); see Heidelberg v. Hammer, 577 F.2d 429, 431 (7th Cir. 1978); Chapman v. Kleindienst, 507 F.2d 1246, 1250 n.6 (7th Cir. 1974). However, it is also well established that "to say that a district court may exercise discretion is not to say that such discretion is unreviewable. Discretionary choices "are not left to a court's inclination, but to its judgment; and its judgment is to be guided by sound legal principles.' " Ekanem v. Health & Hospital Corp. of Marion County, 589 F.2d 316, 319 (7th Cir. 1978), quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S. Ct. 2362, 2370, 45 L. Ed. 2d 280 (1975).
There are few hard and fast rules governing appointment of counsel under section 1915(d). The statute provides, in pertinent part:
1915. Proceedings in forma pauperis
(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor.
(d) The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.
Thus by its terms section 1915(d) suggests not simply refusal of the request for counsel but outright dismissal of the case either where the movant's financial status is misrepresented or where the claim is frivolous or malicious.*fn1 Where neither of these conditions exists, however, the district court's decision whether to appoint counsel is not so simple. The decision must rest upon the court's careful consideration of all the circumstances of the case, with particular emphasis upon certain factors that have been recognized as highly relevant to a request for counsel.
First, the district court should consider the merits of the indigent litigant's claim. Even where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim. See, e. g., Miller v. Pleasure, 296 F.2d 283 (2d Cir. 1961), cert. denied, 370 U.S. 964, 82 S. Ct. 1592, 8 L. Ed. 2d 830 (1962). In Miller, a state mental hospital patient sued the hospital superintendent for damages, alleging the defendant had kept him in the hospital illegally. He brought an interlocutory appeal from the denial of his request for counsel. The Second Circuit affirmed the denial because of the apparent availability to the defendant of the defenses of immunity, timeliness, and the regularity of the state's confinement procedures. Similarly, this court has refused to appoint counsel on appeal where it determined, because the law was clearly settled, "such action would be futile." Ligare v. Harries, 128 F.2d 582, 583 (7th Cir. 1942). As one district court has stated, "(t)he general rule seems to be that, before the Court is justified in exercising its discretion in favor of an appointment, it must ...