7th Circuit vacates denial of prisoner’s request for help finding counsel

January 25, 2017

The 7th Circuit Court of Appeals has vacated a district court order denying a request to help an inmate living in another state recruit counsel for an Indiana case, noting that without counsel or a medical expert, the inmate will be unable to build a strong legal case.

After being transferred into the New Castle Correctional Facility in the fall of 2007, Thomas James completed a medical request form for treatment of an ingrown toenail. When Dr. Lorenzo Eli examined James the next day, he diagnosed the nail as infected, ordered antibiotics and referred him to a foot specialist. Eli prescribed additional drugs a week later and removed the toenail a month after James’ first visit.

A month later, James fell while “hopping up the steps” to his housing unit and hurt his jaw. Three requests for emergency treatment went unanswered, and a month later James’ jaw “cracked” while he was eating. Subsequent X-rays revealed a fractured left mandible.

Rather than recommending surgery, Dr. Nicolas Villanustre, a plastic surgeon, recommended that James eat only a soft diet for two weeks. Two years later, James filed the present suit pro se, arguing that Eli’s failure to timely treat his toe resulted in a staph infection, that the decision not to perform surgery was motivated by the cost to the prison, and that he still suffers pain and joint dysfunction from the jaw injury seven years after the fact.

James asked U.S. District Court for the Southern District of Indiana Judge William Lawrence to recruit a lawyer for him because he had been moved to a prison in Arizona. He also said he would need a medical expert to assist in his case. Lawrence declined, finding that, among other things, “this does not appear to be a case in which the presence of counsel would make a difference in the outcome.”

However, in an earlier opinion, the 7th Circuit Court of Appeals reversed Lawrence’s decision and ordered the judge to try to recruit counsel and a medical expert to help James, thus settling the case.  But James was never able to obtain a set of full records related to his jaw injury, and the prison staff kept taking away boxes of his legal materials. Similarly, discovery requests to Eli and Villanustre were fruitless.

Judge Richard Posner, writing Wednesday for a unanimous 7th Circuit panel, noted that there is no right to an appointed lawyer in civil litigation. Further, Posner wrote that it is possible that now, nine years later, James is incorrectly attributing pain and jaw dysfunction to his earlier injury. However, without a medical expert, the judge said James can only make his arguments based on his own, non-expert opinion.

“That may be mistaken, but it definitely is possible that he has a meritorious Eighth Amendment claim if his current difficulty with his jaw is attributable to the injury and if there was some type of treatment or surgery that could have prevented it, which he would have received had he been given adequate medical treatment,” Posner wrote. “On the basis of the record compiled so far, all we know is that he may have suffered terribly because of inadequate treatment and may have sustained permanent injury.”

Thus, the 7th Circuit panel vacated the grant of summary judgment in favor of the defendants and urged the district court on remand to expedite the litigation, which is entering its eighth year.

The case is Thomas M. James v. Lorenzo Eli and Nicolas P. Villanustre, 15-3034.


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