James Pennewell v. James Parish , 923 F.3d 486 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-3029
JAMES V. PENNEWELL,
Plaintiff-Appellant,
v.
JAMES PARISH, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:17-cv-00213-LA — Lynn Adelman, Judge.
ARGUED APRIL 10, 2019 — DECIDED MAY 3, 2019
Before BAUER, MANION, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. James Pennewell is a Wisconsin state
prisoner who became legally blind while incarcerated. He
filed a pro se complaint alleging numerous defendants were
deliberately indifferent to his serious medical needs in viola-
tion of the Eighth Amendment. The district court held that
based on his adequate pleadings he was competent to litigate
2 No. 18-3029
the case alone during the advanced pre-trial stages of the
litigation. Because this determination was an abuse of discre-
tion and the district court failed to give Pennewell’s motion
particularized consideration, we reverse and remand with
instructions to recruit counsel.
I. BACKGROUND
A. Factual Background
When Pennewell’s incarceration began at Dodge Correc-
tional Institution on February 3, 2015, he was blind in his left
eye. Shortly thereafter, Pennewell complained to an eye
technician of pain and vision abnormalities in his right eye. On
February 11, 2015, Pennewell received an eye examination
from optometrist James Richter. Pennewell informed Richter
the vision in his right eye was declining and that he was
seeing spots and flashes of light, which were symptoms
consistent with those he experienced when he lost the vision in
his left eye due to retinal detachment. He also told Richter his
right eye had a cataract that had been present for some time.
Richter ordered him new glasses and referred him to the
University of Wisconsin Eye Clinic, but failed to follow up.
On March 17, 2015, Pennewell was transferred to John
Burke Correctional Center. During his transfer screening
Pennewell informed a nurse he was blind in his left eye and
experiencing foggy vision and seeing spots in his right eye.
Pennewell expressed concern to several nurses over losing the
sight that remained in his right eye. On March 30, Pennewell
submitted a health services unit request stating:
No. 18-3029 3
I am scheduled for an eye appointment in Madi-
son. My right eye is painful the Tylenol is not
working for pain. It feels like there is a tear in
my eye. I am very red it drains then dries up. I
have to put warm water on a washcloth to get it
open.
A nurse saw Pennewell later that day and she told
Pennewell to wash his hands regularly and not touch his eyes.
On April 6, 2015, Pennewell submitted another request which
stated: “The pain in my left eye is getting bad and the vision in
my right eye is deteriorating, it’s as if there is a retinal detach-
ment. The vision in my right eye has a shadow in the lower
right limiting my vision, some flashes of light[.]” The next
morning Pennewell saw a nurse and informed her that half of
his vision was gone and that he thought he was going to lose
vision in his right eye due to retinal detachment. Pennewell
was transferred to the Waupun Memorial Hospital Emergency
Room that morning. Upon arriving he was immediately
transported to the University of Wisconsin Hospital in Madi-
son where he was diagnosed with a retinal detachment that
required emergency surgery. Dr. Michael Altaweel performed
the surgery later that day.
After surgery Pennewell continued to experience vision
problems and filed a medical request on June 29, 2015, that
stated his vision was declining. He informed the medical staff
that he was experiencing fogginess, double vision, and seeing
halos around objects. Pennewell was diagnosed with a macular
tear that required surgery. Pennewell requested a second
opinion, but was informed by a nurse that the department of
corrections did not allow second opinions. On July 16, 2015,
4 No. 18-3029
Dr. Altaweel performed surgery that resulted in Pennewell
being blind for several weeks. During this time Pennewell
was not assisted by prison staff in using the restroom or
showering, and had to get his own meals.
Pennewell continued to experience serious problems with
his right eye over the next year and filed several complaints
seeking medical attention. He was transferred again on
March 22, 2016, this time to Sanger B. Powers Correctional
Center. There he filed administrative complaints on March 22,
2016, and November 9, 2016, alleging denial of medical
attention. Just two days after filing his second administrative
complaint, he received notice that his follow-up appointment
with the University of Wisconsin Eye Clinic was cancelled due
to a staffing shortage. Pennewell again reported eye pain and
requested the appointment be rescheduled. He was unable to
see a doctor, however, until December 7, 2016, at which time
the doctor simply removed loose stitches that had been causing
his pain. Pennewell never recovered the vision in his right eye
and as a result is legally blind.
B. Procedural History
Pennewell filed a pro se complaint on February 15, 2017, in
the United States District Court for the Eastern District of
Wisconsin asserting claims that more than a dozen defendants
were deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment.1
1
The complaint included claims against several defendants including
many Pennewell was unable to identify. The defendants included the State
(continued...)
No. 18-3029 5
In his complaint Pennewell asked the district court to
recruit counsel for him. He claimed he could not litigate the
case because he was indigent, legally blind, feared retaliation
from the department of corrections, and because the depart-
ment of corrections had refused to provide records or names of
defendants. The district court denied this motion because
Pennewell had failed to show that he had made reasonable
attempts to obtain pro bono counsel. Pennewell filed a subse-
quent motion that demonstrated he had reached out to several
lawyers, but this motion was denied; the district court found
Pennewell had demonstrated an understanding of his case
through his pleadings.
Pennewell braved discovery alone. He was unable to obtain
the opinion of a medical expert, despite the fact that the case
involved complex ocular issues. He was unable to depose a
single witness or any defendant; his interrogatories often went
unanswered. The defendants filed motions for summary
judgment arguing that Pennewell had not produced evidence
sufficient to support his claims. Pennewell’s reply contained
essentially no legal argument and failed to cite a single case.
The unnamed eye technicians were dismissed because
Pennewell was unable to identify them. Several other defen-
dants were dismissed because Pennewell failed to present
evidence of their personal involvement. The district court
entered summary judgment in favor of the remaining defen-
1
(...continued)
of Wisconsin Department of Corrections, Dodge Correctional Institution,
John Burke Correctional Center and its superintendent, two doctors, two
nurses, eye technicians, and security personnel.
6 No. 18-3029
dants, holding that despite the existence of evidence that
plaintiff had been experiencing serious eye pain for two
months, “it[] [was] entirely possible that plaintiff first suffered
the condition when he complained about it to [Nurse] Bruns
the day before” his surgery.
Pennewell’s appeal raises two issues: (1) did the district
court err in failing to appoint him counsel, and (2) did the
district court err in granting summary judgment in favor of the
defendants. We find that the district court abused its discretion
by failing to appoint Pennewell counsel; we therefore need not
reach the second issue.
II. DISCUSSION
The district court correctly identified the appropriate legal
standard we articulated in Pruitt v. Mote, 503 F.3d 647 (7th Cir.
2007), but the analysis was limited to a single sentence. The
question presented on appeal is whether this was an abuse of
discretion. Because the district court failed to provide particu-
larized analysis regarding Pennewell’s ability to litigate this
case and failed to consider the legal and practical difficulties
his case presented, we reverse and remand with instructions to
appoint counsel.
We review for abuse of discretion a district court’s denial
of a motion to appoint counsel. Walker v. Price, 900 F.3d 933,
938 (7th Cir. 2018). A district court abuses its discretion if “(1)
the record contains no evidence upon which the court could
have rationally based its decision; (2) the decision is based on
an erroneous conclusion of law; (3) the decision is based on
clearly erroneous factual findings; or (4) the decision clearly
appears arbitrary.” Id. Our inquiry is limited to whether the
No. 18-3029 7
district court erred based on what it reasonably could have
known when it ruled. Pruitt, 503 F.3d at 659. Even if the district
court abused its discretion, we will reverse only if prejudice is
shown. Id. Prejudice exists if there is a reasonable likelihood
that the presence of counsel would have made a difference in
the outcome of the litigation. Id.There is no constitutional right to court appointed counsel
in federal civil litigation but Congress has vested district courts
with discretion to appoint an attorney for any litigant who
cannot afford one. 28 U.S.C. § 1915(e)(1); see Pruitt, 503 F.3d at653 (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 136
(2005)). Discretion is a nebulous thing, but it is tethered by
sound legal principles; the two part test established by this
Court is: (1) “has the indigent plaintiff made a reasonable
attempt to obtain counsel or been effectively precluded from
doing so,” and (2) “given the difficulty of the case, does the
plaintiff appear competent to litigate it himself?” Pruitt, 503
F.3d at 654. If the answer to the first question is yes and the
second question no, the district court must request counsel.
Walker, 900 F.3d at 935. The parties here dispute only the
answer to the second question.
When determining whether to appoint counsel, the district
court must examine the difficulty of litigating specific claims
and the plaintiff’s individual competence to litigate those
claims without counsel. Pruitt, 503 F.3d at 655. Competence
and difficulty are intertwined, therefore “[t]he difficulty of the
case is considered against the plaintiff’s litigation capabilities,
and those capabilities are examined in light of the challenges
specific to the case at hand.” Id. The question is not whether
the pro se litigant would be as effective as a lawyer, but rather
8 No. 18-3029
whether the difficulty of the case, factually, legally, and
practically, exceeds the litigant’s capacity as a layperson to
coherently litigate the case. Id. The inquiry considers all tasks
that normally attend litigation including evidence gathering,
preparing and responding to court filings and motions,
navigating discovery, and putting on a trial. Id. To the extent
it is able, the district court must consider the plaintiff’s literacy,
communication skills, education level, litigation experience,
intellectual capacity, psychological history, physical limita-
tions, and any other characteristics that may limit the plaintiff’s
ability to litigate the case. Id. The district court must also
consider the complexities of the advanced stages of litigation
when the case has moved past the pleading stage. Perez v.
Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015).
Some factors this Court has deemed important are worth
repeating. We have noted on several occasions that a prisoner
who is transferred to a facility where the events underlying his
claims did not take place faces additional hurdles. When that
happens it must be addressed by the district court because the
plaintiff may not have access to witnesses, documents, or
defendants necessary to make his case. See James v. Eli, 889 F.3d
320, 327 (7th Cir. 2018) (collecting cases). We have also recog-
nized that prisoners may be ill-equipped to litigate constitu-
tional claims that involve the state of mind of the defendant
because “even a relatively sophisticated litigant may find it
difficult to identify and present the right type of evidence.” Id.(citing Pruitt, 503 F.3d at 664 (Rovner, J., concurring)). This
Court has also noted that cases involving complex medical
issues are difficult for pro se litigants, “particularly … where a
prisoner has received at least some medical treatment, because
No. 18-3029 9
he must show a substantial departure from accepted profes-
sional judgment, practice, or standards, and expert medical
evidence is often required to prove this aspect of his claim.” Id.(collecting cases).
Considering all of the above, we find that the district court
abused its discretion by failing to give Pennewell’s request for
counsel particularized consideration. The district court failed
to address the difficulty presented by Pennewell’s claims,
which involved proving a culpable state of mind of several
medical professionals, security personnel, and prison
policymakers. Pennewell’s complaint indicates that he received
some treatment, putting him in the untenable and abstruse
position of unearthing evidence that a substantial departure
from accepted medical standards occurred. Eli, 889 F.3d 320,
328 (citing Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2013);
Greeno v. Daley, 414 F.3d 645, 658 (7th Cir. 2005); Jackson v. Cty.
of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). Pennewell’s
complaint also noted his claims involve complex medical
issues including retinal detachment, macular tears, virectomy,
artificial lens implants, laser surgery, and artificial plug
implants in his tear ducts. Additionally, Pennewell informed
the district court that discovery would be especially difficult
because the defendants had already engaged in uncooperative
behavior. See Dewitt v. Corizon,Inc., 760 F.3d 654, 658 (7th Cir.
2014) (holding the district court abused its discretion by failing
to address the plaintiff’s challenges “as a blind and indigent
prisoner with a tenth-grade education and no legal experience,
faced in being able to investigate crucial facts and depose
witnesses, doctors, and other allegedly resistant prison
personnel.”). Further complicating discovery was the fact that
10 No. 18-3029
the underlying claims span two years, occurred at two differ-
ent prisons, and Pennewell had been transferred a third time
which created the additional challenge of identifying several
defendants while at a different facility.
And Pennewell faced other problems. First, and most
obvious, he was legally blind and required visual aids to read
and write. He also informed the court that his experience as a
blind inmate had caused his mental health to deteriorate. See
Walker, 900 F.3d at 933 (“Not every cognitive limitation will
require the district court to recruit a lawyer, but the court
should have considered how [plaintiff’s] mental health history
would affect his ability to think on his feet at trial.”).
Appellees assert that Pennewell was not prejudiced by the
denial of his requests for counsel because additional discovery
and improved briefing would not have resulted in a different
outcome.
Prejudice may be established by a litigants poor perfor-
mance before or during trial. Pruitt, 503 F.3d at 659–60. We will
find prejudice if there is a reasonable likelihood that the
presence of counsel would have made a difference in the
outcome of the litigation. Id. at 659. Pennewell did not procure
a medical expert or any evidence that indicated what a
reasonable medical professional would have done under the
circumstances. Furthermore, he failed to take depositions of
any defendant or witness and many of the interrogatories he
sent to defendants went unanswered. Id. (noting that prejudice
might exist “if the record demonstrates that the pro se plaintiff
was incapable of engaging in any investigation or locating and
presenting key witnesses or evidence.”). Finally, Pennewell’s
No. 18-3029 11
motion in opposition to summary judgment contained neither
legal arguments nor citations to any relevant case law. The
appointment of counsel will remedy these deficiencies. We
reject the defendants argument that a lawyer would not have
made a difference in this case and find that there is a reason-
able likelihood that the appointment of counsel would have
made a difference in the outcome of the litigation.
III. CONCLUSION
For the foregoing reasons we vacate the district court
judgment and remand the case for further action consistent
with this opinion.