Thomas M. James, Plaintiff-Appellant,
Lorenzo Eli and Nicolas P. Villanustre, Defendants-Appellees.
Submitted December 21, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:13-cv-00541-WTL-TAB - William T. Lawrence, Judge.
WOOD, Chief Judge, and POSNER and Flaum, Circuit Judges.
POSNER, Circuit Judge.
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 deliberately indifferent to
his need for medical treatment for an infected toenail and an
injury to his jaw.
October 2007, not long after his transfer to the New Castle
prison from another prison, James completed a medical-request
form for treatment of an ingrown toenail that he said was
both bleeding and pushing into the left side of the toe. Dr.
Lorenzo Eli, one of the two defendants in James's suit,
examined him the next day, diagnosed the nail as infected,
ordered antibiotics for treatment of the infection, and
referred him to a foot specialist. A week later, when James
saw him again because of continued pain in his toe, Dr. Eli
prescribed additional drugs. Almost a month after that visit
the doctor removed the infected toenail.
following month, James, who was taking a narcotic prescribed
to deal with continued pain from the foot that had had the
infected toenail and that was healing from the surgery to
remove it, fell while "hopping up the steps" to his
housing unit, and hurt his jaw. Thrice he submitted forms
requesting emergency treatment of the jaw but they went
unanswered. About a month later his jaw "cracked"
while he was eating. He reported the injury to Dr. Eli, who
told him to fill out another medical-request form, and he did
so (and the doctor signed it), requesting x-rays of his jaw
as soon as possible. The x-rays were taken and revealed a
fractured left mandible (i.e., lower jaw bone on the left
side of the mouth).
with a plastic surgeon was advised, and Dr. Nicolas
Villanustre, the other defendant in this case, who is a
plastic surgeon, examined James and advised against surgery
because of the passage of time since his jaw injury and what
Dr. Villanustre deemed to be the "good function" of
James's jaw, but recommended a soft diet for James for
two weeks and a follow-up appointment at the end of that
was that for the time being. But two years later James filed
the present suit, a pro se suit against a variety of medical
and other prison personnel, whom he accused of deliberate
indifference to his infected toenail and broken jaw because
of their failure to provide emergency treatment for those
injuries. He contended that Dr. Eli's failure to obtain
timely treatment for the toenail had resulted in a staph
infection and unnecessary suffering, that the failure to
perform surgery on his jaw had been motivated by what the
surgery (which would have been performed in a hospital rather
than in the prison infirmary) would have cost the prison, and
that-seven years later-he still suffers pain and
temporomandibular joint dysfunction from the jaw injury.
(Temporomandibular joint disorder (TMD) is a congeries of
conditions that affect jaw muscles, joints, and nerves,
causing facial pain, sometimes chronic. Symptoms may occur on
one or both sides of the face, head or jaw, or develop after
an injury. See Know Your Teeth:
"Temporomandibular Joint Disorder, " Nov. 2008,
article/?abc=t&iid=334&aid=1351 (visited Jan. 24,
2017). The district judge eventually dismissed all the
defendants except Eli and Villanustre.
had asked the district judge to recruit a lawyer for him,
pointing out that he was now the inmate of a prison in a
different state, far from Indiana (the prison is in Arizona),
and was suffering from daily migraine headaches. He also said
he needed a medical expert to assist him in his case, and
added that he had limited access to legal materials, limited
education, and no litigation experience, and that he had
tried to obtain a lawyer but had not succeeded. He had been
treated in Arizona by a dental surgeon named Dr. Ronald
Quintia and had tried but failed to obtain his medical record
from the doctor for possible use in his case.
Junior v. Anderson, 724 F.3d 812, 815-16 (7th Cir.
2013), we reversed the district court for declining to try to
recruit a lawyer for a prisoner who needed help to locate and
depose witnesses while housed in another prison more than 300
miles away (in James's case, more than a thousand miles
away, for remember that he is in prison in Arizona). The
district judge in the present case said that James "is
within the spectrum of 'most indigent parties'
because he has had a meaningful opportunity to present his
claims, he has demonstrated familiarity with his claims and
the ability to present them, because the issues presented by
his claims are not complex, and because this does not appear
to be a case in which the presence of counsel would make a
difference in the outcome." Without a lawyer and a
medical expert, however, James would be totally outclassed by
the defense, just like the plaintiff in Rowe v.
Gibson, 798 F.3d 622 (7th Cir. 2015), an Indiana state
prisoner claiming deliberate indifference by prison medical
staff to his gastroesophageal reflux disease, but unable to
obtain counsel or a medical witness, resulting in the
district judge's grant of summary judgment to the
defendants. We reversed and told the judge to try to recruit
counsel for the plaintiff and find a medical expert to assist
him. (The case was then settled.)
the focus in James's case on his medical treatment, he
was never able to obtain a full set of the medical records
regarding his jaw injury, and prison staff kept taking away
boxes of his legal materials during the case. His discovery
requests to Drs. Villanustre and Eli yielded nothing. At
summary judgment the judge remarked that when informed of
James's jaw injury Dr. Eli had provided "timely and
appropriate care/' but without his medical records James
had no opportunity to make a case that the care he'd
received hadn't been timely and appropriate. A lawyer
would have been particularly helpful with discovery in
James's case. Moreover, the facts on which James bases
his suit are straightforward; assisting him with discovery
would not have been an onerous task for a lawyer.
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. District 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 lawsuits 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 success were the plaintiff
represented by counsel, the trial judge should endeavor to
obtain them for him. Rowe v. Gibson, supra, 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).
an expert witness James could challenge the defendants'
assertions that they had provided adequate care only by
offering his own opinion on the matter -an offer the district
court thrice dismissed as mere "disagreement [by a lay
person] with medical professionals." In his final order
refusing to recruit counsel for James the judge invoked
James's "well-written submissions/'
"awareness of the facts/' and "understanding of
the applicable legal standard" to conclude that he could
litigate effectively without counsel's assistance. But
none of these supposed "assets" could transform
James into a medical expert or find him medical ...