Jackson, Michael F. v. Kotter, Officer ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1922
M ICHAEL F. JACKSON,
Plaintiff-Appellant,
v.
O FFICER K OTTER, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 97 C 157—John Daniel Tinder, Judge.
____________
A RGUED A PRIL 4, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
K ANNE, Circuit Judge. After suffering back injuries on
two occasions while incarcerated at the United States
Penitentiary in Terre Haute, Indiana, Michael Jackson
brought a lawsuit against employees of the prison. He
raised a negligence claim under the Federal Tort Claims
Act (FTCA), see 28 U.S.C. § 2679, and constitutional claims
pursuant to Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971). Jackson amended his original complaint to
2 No. 06-1922
name the United States as the proper defendant of his
FTCA action, but the district court dismissed the claim
against the United States because the amendment was
filed after the applicable six-month statute of limitations
specified in 28 U.S.C. § 2401(b)(1). Jackson appeals the
district court’s dismissal of the United States, as well as
the district court’s dismissal of three individual defen-
dants; its grant of summary judgment in favor of Physi-
cian’s Assistant (“P.A.”) Williams, whom Jackson
alleged was deliberately indifferent to his medical needs;
its refusal to allow an amendment naming a new
defendant after the applicable statute of limitations had
expired; and its refusal to assist Jackson in securing
counsel. We affirm all of the district court’s decisions
except for its dismissal of the United States of America
in the FTCA action, because Jackson’s amendment
naming the United States related back to his original
pleading, which was timely filed. See Fed. R. Civ. P. 15(c).
I. H ISTORY
Jackson suffered injuries on two occasions while incar-
cerated at the Terre Haute penitentiary. On May 16, 1996,
the day Jackson was transferred to the facility, he fell
while walking across a freshly mopped floor. At the time,
Jackson was being escorted to his housing unit by four
officers—Bushy, Gregg, Robinson, and an unknown
individual—with his hands cuffed behind his back. The
officers walked behind Jackson and two other prisoners
as they cautiously crossed the wet floor, but according to
Jackson, the officers did not place their hands on the
No. 06-1922 3
inmates to help them maintain balance. Because his
hands were cuffed behind his back, Jackson was unable to
break his fall when he slipped, and he landed “full force”
on the concrete floor. As Jackson laid on the floor, one
officer ordered him to get up. Another officer grabbed
Jackson’s cuffs and arms to help him to his feet. As he
was being helped up, Jackson began experiencing back
pain, which worsened after the officers left the area.
Jackson had difficultly sitting and bending over, and
the stretches he attempted provided him no relief. Jackson
was seen by a physician’s assistant and given pain medica-
tion. When the pain did not subside, Jackson was taken
for an x-ray and referred to orthopedics. He did regular
exercises and took medication for the pain for a pro-
longed period (at least until December 16, 1997).
A second incident occurred on October 8, 1996, when
Jackson was escorted out of his cell for a strip search. The
details of this incident are not at issue in this appeal, so a
condensed version of the facts will suffice. Jackson
alleged that Officers Kotter and Grenier, and Counselor
Rodriguez, used excessive force in violation of the
Eighth Amendment by pressing him against a window,
dragging him down the hall, ramming him against walls,
and dragging him down a stairway. Jackson also alleged
that a lieutenant watched the guards as they did these
things, and failed to intervene.
Later that day or early the next morning (Jackson’s
affidavit suggests it was the same day, but prison medical
records indicate it was the following morning at 7:30 a.m.),
Jackson talked with P.A. Williams during Williams’s
4 No. 06-1922
medical rounds. Jackson says he told Williams about his
back and the incident with the guards, and explained to
Williams that he needed an x-ray. Jackson alleges that
Williams told him that nothing was wrong with his back,
and refused to give Jackson the pain medication he
took on a daily basis for his back pain.
Having not received the medical treatment he desired,
Jackson purposefully clogged his toilet and flooded his
cell. Jackson told an officer that he was causing trouble
in an attempt to get medical attention. P.A. Williams then
returned to Jackson, provided him with pain medication,
and according to Jackson, was “trying to act concerned.”
Shortly thereafter, Jackson was taken to get an x-ray
of his spine. The accounts vary regarding the date of the
x-ray—Jackson says it was the next day, but prison
medical records indicate that it occurred on October 18.
The x-ray showed “no evidence of any recent fracture
or any destructive bone disease.”
On June 3, 1997, Jackson brought a lawsuit against
numerous defendants, raising three distinct grounds for
relief. First, in an FTCA claim, Jackson alleged that, on
May 16, 1996, Officers Bushy, Gregg, Robinson, and “John
Doe” negligently led him across a wet floor while his
hands were cuffed behind his back, allowing him to
fall. Second, Jackson alleged that Lieutenant John Doe #2,
Officers Kotter and Grenier, and Counselor Rodriguez
violated the Eighth Amendment on October 8, 1996,
by beating him and dragging him with deliberate indif-
ference, causing harm to his back and right leg. Jackson’s
final count was against P.A. Williams for knowingly and
No. 06-1922 5
intentionally, with deliberate indifference, denying Jack-
son’s medical needs after the October 8 incident, in viola-
tion of the Eighth Amendment.
On June 24, 1997, the district court dismissed the
claims against Officers Bushy, Gregg, and Robinson for
the May 16 incident, because the officers were not proper
defendants under the FTCA. See 28 U.S.C. § 2679(b)(1).
The district court instructed Jackson that he would have
30 days to amend his complaint to name the United
States as the proper FTCA defendant. Jackson complied
with the court’s instruction by filing a First Amended
Complaint on July 23, 1997. The district court first rein-
stated Jackson’s FTCA claim against the United States, but
then later decided that Jackson’s amended complaint
against the United States was time-barred because it
was filed more than six months after the date Jackson
had exhausted his administrative remedies under the
FTCA. See 28 U.S.C. § 2401(b). Jackson missed the FTCA
deadline by nine days.
The district court also denied Jackson’s request to
amend his complaint to specify and name Lieutenant
Canada in the place of John Doe #2. For some time, Jackson
believed that Lieutenant “Brickbuild” was the lieutenant
who witnessed the October 8 incident. That per-
son—actually Lieutenant Brechbill—later proved that he
was not present at the scene. By the time Jackson learned
the proper identity of the lieutenant—Canada—the
statute of limitations period had expired for bringing a
Bivens claim against him. The district court did not
grant Jackson’s motion to add Lieutenant Canada as a
6 No. 06-1922
defendant because the amendment would have been
futile in light of the court’s duty to dismiss the untimely
claim. See 28 U.S.C. 1915A(b).
Throughout his litigation in the district court, Jackson
asked the court to appoint an attorney to represent him.
His first request was denied because he had not demon-
strated to the court that he had made an effort to retain
an attorney from the private bar. Thereafter, Jackson
attempted to secure an attorney, to no avail. He renewed
his request for counsel, but the district court again
denied his request. The court stated that Jackson’s claims
were not of sufficient complexity such that they surpassed
Jackson’s ability to properly develop and litigate them.
Several times after that ruling, Jackson requested ap-
pointed counsel but the district court also denied those
requests. The court reiterated that Jackson appeared to
be “fully capable of presenting his claim.”
Ultimately, Jackson represented himself throughout the
entire case. He served requests for production of docu-
ments and interrogatories; obtained copies of medical
records; filed affidavits in response to notices that the
defendants’ factual assertions would be accepted as true
unless contradicted by Jackson; filed his own motion
for summary judgment; and succeeded in withstanding
Officer Kotter and Counselor Rodriguez’s motion for
summary judgment.
After waiving a jury trial, Jackson represented himself
during a bench trial on his excessive force claims against
Kotter and Rodriguez, the remaining defendants. He
made an opening statement and called as witnesses
No. 06-1922 7
Kotter, Rodriguez, and his own parents. He cross-exam-
ined the government’s witnesses, which included Kotter
and Rodriguez. Jackson successfully had deposition
testimony of two of his prisonmates admitted into evi-
dence. Ultimately, the district court made factual findings
that Kotter and Rodriguez did not apply excessive force
on October 8, 1996, and concluded that Jackson had
failed to demonstrate by a preponderance of the evi-
dence that his federally secured rights were violated.
Jackson appealed, and we appointed an attorney to
represent him.
II. A NALYSIS
On appeal, Jackson claims that the district court improp-
erly dismissed Officers Bushy, Gregg, and Robinson,
who, Jackson argues, were defendants in his Bivens
action—not just defendants in his FTCA claim. He also
argues that the district court abused its discretion by
dismissing the FTCA claim against the United States, and
by refusing to allow Jackson to add Lieutenant Canada as
a defendant after the statute of limitations period had
ended. Additionally, Jackson challenges the district
court’s grant of summary judgment in favor of P.A.
Williams, and the district court’s denial of his repeated
requests for appointed counsel.
A. The district court’s dismissal of defendants Bushy, Gregg,
and Robinson
The district court dismissed Officers Bushy, Gregg, and
Robinson on the grounds that they were improper FTCA
8 No. 06-1922
defendants. See 28 U.S.C. § 2679(b)(1). Jackson argues
that his complaint stated a constitutional Bivens claim
against these individuals, see 403 U.S. at 389, in addition to
an FTCA claim.
We review the district court’s dismissal of claims
against these defendants de novo, see Evans ex rel. Evans v.
Lederle Labs., 167 F.3d 1106, 1108 (7th Cir. 1999), accepting
well-pled factual allegations as true and construing all
reasonable inferences in favor of Jackson, see Savory v.
Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
The only proper defendant in an FTCA action is the
United States. See Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir.
2006) (“[T]he United States . . . would be the proper
defendant for tort claims involving acts of the named
officials within the scope of their employment.”); Stewart v.
United States, 655 F.2d 741, 742 (7th Cir. 1981) (“Plaintiff has
no cause of action . . . [under the FTCA] against an em-
ployee, her exclusive remedy being an action against the
United States.”); see also 28 U.S.C. § 2679(b)(1).
Jackson argues on appeal that he also sued Bushy, Gregg,
and Robinson pursuant to a Bivens action—but the orig-
inal complaint belies this argument.1 Even though Jackson
wrote the words “ ‘Bivens’ action” at the top of the com-
1
We refer to the original complaint for this argument because
the district court dismissed the claims against these three
defendants before Jackson’s second amended complaint and
specifically instructed Jackson to “omit from that document
the claims which have been determined through this Entry to
be legally insufficient.” In his first amended complaint, Jackson
did not bring FTCA claims against the individual defendants.
No. 06-1922 9
plaint, the facts he pled relating to these three defendants
and the legal grounds for relief sounded entirely in negli-
gence. He stated the “act of negligence” of these defen-
dants “violated a nondiscretionary for which the FTCA
provides redress.” He later stated that he was “knowingly
and intentionally escorted across a wet floor, in a
negligent manner, by defendants officers Bushy, Gregg[,]
Robinson, and John Doe.” (emphasis added). Admittedly,
Jackson did list these three defendants in a section of his
complaint titled “Name and Address of Individual(s)
You Allege Violated Your Constitutional Rights,” but
nowhere in the complaint does he identify a constitutional
right that the three defendants violated. The complaint
demonstrates that Jackson understood the difference
between negligence claims and constitutional Bivens
claims, but chose to raise only negligence claims against
Bushy, Gregg, and Robinson. With respect to the other
individual defendants, Jackson stated that they had acted
with “deliberate indifference” “in violation of the Eighth
Amendment.”
Perhaps most tellingly, however, is Jackson’s own
classification of his legal claim for the May 16 incident in
his later filings. In a document titled “Further Opposition
to Entry Discussing Selected Matters,” Jackson stated
that the May 16 incident “was a negligence act but a very
serious one.” Then, in a “Statement of Genuine Issues,”
Jackson refers to “the negligence act that happened on
May 16, 1996 when plaintiff fell.”
Jackson did not raise a Bivens claim against these three
defendants in his original complaint—nor did he try to
10 No. 06-1922
reassert one in his amended complaint. The district court
correctly dismissed the claims against Officers Bushy,
Gregg, and Robinson because they were improper defen-
dants under the FTCA.
B. The district court’s dismissal of the United States
Jackson next argues that the district court erred by
dismissing his FTCA claim against the United States as
untimely. Jackson acknowledges that he added the United
States as a party to his suit more than six months after
the denial of his claim for administrative relief. See 28
U.S.C. § 2401(b). But Jackson argues that his substitution
of the United States as a party related back to his original
complaint, see Fed. R. Civ. P. 15(c), which was filed before
the six-month statute of limitations had expired.
Federal Rule of Civil Procedure 15(c)(1)(A) provides that
an amendment will relate back to the original pleading
if, first, “the law that provides the applicable statute of
limitations allows relation back.” The FTCA does not
specifically address relation back of amendments, but it
clearly prohibits actions “begun” after the statute of
limitations period: “A tort claim against the United States
shall be forever barred . . . unless action is begun within
six months after . . . notice of final denial of the claim by
the agency to which it was presented.” 28 U.S.C. § 2401(b).
Because the FTCA effects a waiver of the United States’s
sovereign immunity, see United States v. Olson, 546 U.S. 43,
44-45 (2005), we must be sure that relation back of FTCA
claims filed outside the statutorily prescribed period does
not infringe on the government’s baseline immunity
No. 06-1922 11
from lawsuits brought against it by private parties, see
United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is
axiomatic that the United States may not be sued
without its consent and that the existence of consent is
a prerequisite for jurisdiction.”).
The district court decided that the six-month window
in the FTCA constituted a jurisdictional bar that could
not be altered, and accordingly dismissed Jackson’s
FTCA claim against the United States. At first glance, the
district court’s inclination seems sound in light of “the
traditional principle that the Government’s consent to
be sued must be construed strictly in favor of the sover-
eign, and not enlarged . . . beyond what the language
requires.” United States v. Nordic Vill. Inc., 503 U.S. 30, 34
(1992) (internal citations and quotation marks omitted).
Bearing that principle in mind, the district court
apparently attempted to strictly construe the govern-
ment’s waiver to include only suits properly naming the
United States within the six-month limitations window.
But recent Supreme Court caselaw concerning the relation-
back doctrine (handed down after the district court’s
decision) suggests that Jackson’s amendment, having
met the requirements of Rule 15(c), should have been
allowed.
In Scarborough v. Principi, the Supreme Court confronted
a litigant’s pleading mistake that the government argued
implicated the government’s waiver of sovereign immu-
nity. 541 U.S. 401, 405-06 (2004). After prevailing on the
merits in an action against the Department of Veterans
Affairs, Scarborough filed a timely application to receive
fees from the government for his litigation costs. Id.
12 No. 06-1922
However, in his application for fees, Scarborough mis-
takenly failed to allege that “the position of the United
States was not substantially justified”—a requirement
under the statutory fee award provision. Id.; see also 28
U.S.C. § 2412(d)(1)(A). By the time Scarborough rectified
his mistake, the 30-day fee-application period had lapsed,
so the Supreme Court had to decide whether the late
amendment could cure the original, defective pleading.
Scarborough, 541 U.S. at 412-13.
Citing two earlier relation-back cases, Becker v. Montgom-
ery, 532 U.S. 757, 767-78 (2001), and Edelman v. Lynchburg
College, 535 U.S. 106, 109 (2002), the Supreme Court de-
cided in Scarborough that the amendment related back
to the original, timely filed fee application. Scarborough,
541 U.S. at 411-12, 415-19. In Becker, the Court had
decided that a late signature on a pro se litigant’s notice
of appeal related back to the original filing, allowing the
appeal to proceed on the merits. 532 U.S. at 767-68. And
in Edelman, the Court had upheld an EEOC regulation
that allowed a late amendment to a discrimination
charge—after the filing period—to cure the defect of an
omitted verification. 535 U.S. at 109. The Scarborough
Court explained that the relation-back doctrine allowed
the amendment because the amendment “‘arose out of
the conduct, transaction, or occurrence set forth or at-
tempted to be set forth’ in the initial application”—that is,
it met the requirements under the then-current version
of Federal Rule of Civil Procedure 15(c). 541 U.S. at 418-19
(quoting Fed. R. Civ. P. 15(c)(2)).
The government argued in Scarborough that allowing
deviation from the statutorily prescribed deadline by
No. 06-1922 13
way of the relation-back provision of the Federal Rules
would infringe on the government’s sovereign immunity.
541 U.S. at 420. In response to this argument, the Court
reminded the government that it had already decided
that equitable-tolling principles “applicable to suits
against private defendants should also apply to suits
against the United States.” See id. at 420-21 (discussing
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990),
and Franconia Assocs. v. United States, 536 U.S. 129, 144-45
(2002)). In the same vein, the Court decided that relation-
back principles that apply to litigation between private
parties also apply to litigation between a private party
and the United States. Id. at 421 (“Once Congress waives
sovereign immunity, . . . judicial application of a time
prescription to suits against the Government, in the
same way the prescription is applicable to private suits,
‘amounts to little, if any, broadening of the congressional
waiver.’ ” (quoting Irwin, 498 U.S. at 95)).
We believe that this Supreme Court precedent applies
with equal force to the judicial application of Federal
Rule 15(c) to an FTCA action against the United States.
Therefore, assuming Jackson’s amendment meets the
other relation-back requirements of Rule 15(c), his claim
is not jurisdictionally barred even though his amendment
occurred outside the six-month statute of limitations
period.
The second requirement under Rule 15(c)(1) for
relation back is that the amendment “asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the
14 No. 06-1922
original pleading.” Fed. R. Civ. P. 15(c)(1)(B). This re-
q u i re m e n t is ob v io u s ly m e t— t h e a m e nd m e nt
substituting the United States arose out of the same
facts alleging negligence for which Jackson brought suit
against the individual officers.
The third requirement is that “the party to be brought
in . . . (i) received such notice of the action that it will not
be prejudiced in defending on the merits; and (ii) knew or
should have known that the action would have been
brought against it, but for a mistake concerning the
proper party’s identity.” Fed R. Civ. P. 15(c)(1)(C). The
notice portion of this requirement is met as well. Both the
Attorney General and the United States Attorney’s Office
received copies of the summonses that erroneously
named the individual officers as defendants to Jackson’s
FTCA action on July 7, 1997, well within the service
period prescribed by Federal Rule of Civil Procedure 4(m),
and within the six-month statute of limitations period of
28 U.S.C. § 2401(b).
As for the mistake requirement of Rule 15, we questioned
at oral argument whether Jackson’s legal mistake—naming
the wrong type of defendant—precluded application of
the relation-back doctrine. Jackson’s mistake could be
likened to a “lack of knowledge” about the defendant,
which we held in Worthington v. Wilson, would not provide
grounds for relation back. 8 F.3d 1253, 1257 (7th Cir. 1993).
But our holding in Worthington, which we have since
applied on numerous occasions, see King v. One Unknown
Fed. Corr. Officer, 201 F.3d 910, 914 (7th Cir. 2000); Baskin
v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998); Eison
No. 06-1922 15
v. McCoy, 146 F.3d 468, 471-72 (7th Cir. 1998), was that
plaintiffs cannot, after the statute of limitations period,
name as defendants individuals that were unidentified
at the time of the original pleading. Not knowing a defen-
dant’s name is not a mistake under Rule 15.
On the other hand, it seems that the legal mistake
Jackson made (which appears to be somewhat of a com-
mon mistake, see e.g., Kaba v. Stepp, 458 F.3d 678, 687-88
(7th Cir. 2006); Ezekiel v. Michel, 66 F.3d 894, 895 (7th Cir.
1995); Moore v. U.S. Postal Service, No. 95-1021, 1995 WL
632365, at *1 (7th Cir. Oct. 16, 1995) (unpublished table
decision)) is the very type of mistake Rule 15 contem-
plates. We have explained that “a legal mistake con-
cerning whether to sue an institutional or individual
defendant brings the amendment within the purview of
Rule 15 . . . .” Donald v. Cook County Sheriff’s Dep’t, 95 F.3d
548, 557 (7th Cir. 1996). Likewise, our decisions in Hughes
v. United States, 701 F.2d 56, 58-59 (7th Cir. 1982), and
Stewart v. United States, 655 F.2d 741, 742 (7th Cir. 1981),
imply that so long as the United States receives actual
notice within the six-month limitations period for com-
mencement of an FTCA lawsuit, the identification of the
United States as the proper FTCA defendant after the six-
month period would relate back to the timely filed
action—assuming the other Rule 15(c) requirements are
met.
We abide by our own precedent and follow the direction
of the Supreme Court in concluding that the relation-back
doctrine of Rule 15(c) applies to FTCA suits against the
United States. The United States was not prejudiced by
16 No. 06-1922
Jackson’s amendment because it received actual notice
within the statutory six-month time period that, but for
Jackson’s mistake, it was the intended defendant in his
FTCA claim. Jackson’s amendment related back under
Rule 15(c), so the district court erred by dismissing
his claim against the United States.
C. The district court’s grant of summary judgment in favor of
Williams
The district court granted P.A. Williams’s motion for
summary judgment because Jackson proffered no evi-
dence demonstrating that Williams’s actions may have
amounted to deliberate indifference to Jackson’s medical
needs. We review the grant of summary judgment de novo,
and “draw all reasonable and justifiable inferences in
favor of the non-moving party,” Jackson. Zentmyer v.
Kendall County, 220 F.3d 805, 810 (7th Cir. 2000). Summary
judgment is proper if “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). Jackson’s description of his interactions
with Williams after October 8 contained in his com-
plaints and his evidentiary affidavits differs from
the prison’s medical records. But even with the incon-
sistencies, Jackson’s version of the events does not
support a claim for deliberate indifference to his medical
needs.
For a medical professional to be liable for deliberate
indifference to an inmate’s medical needs, he must make
No. 06-1922 17
a decision that represents “ ‘such a substantial departure
from accepted professional judgment, practice, or stan-
dards, as to demonstrate that the person responsible
actually did not base the decision on such a judg-
ment.’ ” Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)
(quoting Collingnon v. Milwaukee County, 163 F.3d 982,
988 (7th Cir. 1998)); see also Johnson v. Doughty, 433 F.3d
1001, 1013 (7th Cir. 2006).
Jackson claims that P.A. Williams violated his Eighth
Amendment rights by refusing to treat him following his
injury on October 8, 1996. In his second amended com-
plaint, Jackson stated that he requested medical attention
in the afternoon, and “after a long while,” Williams
came to his cell while making medical rounds. Jackson
allegedly explained to Williams that he “needed medical
attention,” but he claims that “Williams refused to give
Plaintiff medical attention.” Jackson later stated in the
complaint that Williams had a duty under United States
law “to administer proper medical treatment to Plaintiff”
and that Williams “denied Plaintiff medical attention.”
Jackson was incorrect in his recitation of Williams’s
duty—medical professionals are not required to provide
“proper” medical treatment to prisoners, but rather they
must provide medical treatment that reflects “professional
judgment, practice, or standards.” See Sain, 512 F.3d at 895.
There is not one “proper” way to practice medicine in a
prison, but rather a range of acceptable courses based on
prevailing standards in the field. See Snipes v. DeTella, 95
F.3d 586, 592 (7th Cir. 1996) (“[T]he Constitution is not a
medical code that mandates specific medical treatment.”);
18 No. 06-1922
see also Estelle v. Gamble, 429 U.S. 97, 107 (1976) (“But the
question whether an X-ray or additional diagnostic tech-
niques or forms of treatment is indicated is a classic
example of a matter for medical judgment. A medical
decision not to order an X-ray, or like measures, does not
represent cruel and unusual punishment. At most it is
medical malpractice, and as such the proper forum is
the state court . . . .”). A medical professional’s treat-
ment decisions will be accorded deference “unless ‘no
minimally competent professional would have so re-
sponded under those circumstances.’ ” Sain, 512 F.3d at
895 (quoting Collignon, 163 F.3d at 988).
Jackson submitted an affidavit in which he further
detailed his interactions with Williams. He stated that
he complained to Williams when Williams was con-
ducting his medical rounds after the October 8 incident.
Jackson does not specify the actual date of his first
meeting with Williams following the October 8 incident,
but states that it was “later.” The prison medical records
show that the interaction happened on October 9 at
7:30 a.m. Jackson claims that Williams told him nothing
was wrong with his back, and that Williams refused him
his medication. In order to get somebody’s attention,
Jackson flooded his toilet. Williams returned later that
day with Jackson’s medication and was “trying to act
concerned.” In another filing, Jackson explained that when
Williams came back to give him medication, Williams
“rudely threw [it] around, but at the same time act[ed]
concerned and left quickly.” Jackson stated that the next
morning he was taken to get an x-ray by Physician’s
Assistant Smith.
No. 06-1922 19
Accepting Jackson’s version of the events as true, there
is not a genuine issue of material fact surrounding this
claim. See Jones v. Union Pacific R. Co., 302 F.3d 735, 744
(7th Cir. 2002) (“[W]e do accept [the plaintiff’s] version of
the facts as true . . . .”). Assuming without deciding
that Jackson’s back pain presented a sufficiently serious
medical condition warranting attention from prison
officials, see Pinkston v. Madry, 440 F.3d 879, 891 (7th Cir.
2006) (discussing Davis v. Jones, 936 F.2d 971, 972 (7th Cir.
1991)), Jackson’s own averments about Williams’s actions
following the October 8 incident quell his deliberate
indifference claim. As in Gutierrez v. Peters, 111 F.3d 1364,
1374 (7th Cir. 1997), “at most [Jackson] experienced an
isolated occasion or two where he did not receive
prompt treatment.”
Williams saw Jackson shortly after his alleged injuries
and ordered an x-ray for Jackson, which took place on
either October 9 or 10 (as Jackson alleged), or on October
18, 1996 (as the prison medical records show). Jackson
does not contest that Williams personally observed his
condition, and took into consideration prior x-rays of
Jackson’s spine and the report of an orthopedic surgeon
who had previously assessed Jackson. Williams afforded
Jackson some of the treatment that he demanded—pain
medication the same day it was requested and an x-ray
shortly thereafter. Williams decided that, based on Jack-
son’s account of his pain and Jackson’s medical history,
an MRI and a referral to an orthopedic surgeon were not
appropriate. “What we have here is not deliberate indif-
ference to a serious medical need, but a deliberate decision
by a doctor to treat a medical need in a particular man-
20 No. 06-1922
ner.” Snipes, 95 F.3d at 591; see also Duckworth v. Ahmad,
532 F.3d 675, 680 (7th Cir. 2008). The district court did not
err in granting Williams’s motion for summary judgment.
D. The district court’s denial of Jackson’s motion to add
Lieutenant Canada as a defendant
At the time of his original complaint, Jackson had not
determined the name of “Lt. John Doe #2.” Jackson claimed
that this person provided permission for, and failed to
intervene in, the incident in which Officers Kotter and
Grenier, and Counselor Rodriguez, allegedly beat Jackson
and dragged him down stairs. In his second complaint,
Jackson had identified John Doe #2 as Lieutenant
“Brickbuild.” He averred that Brickbuild was part of the
cohort of individuals that harmed him “in a concerted
act” by beating and dragging him down the stairs while
he was handcuffed, and slamming him into walls and
doorways.
Several months after Jackson filed his amended com-
plaint, it became clear that “Brickbuild” was actually
Lieutenant Brechbill. And shortly therafter it was learned
that Brechbill was not personally involved in the incident.
Eventually, Jackson learned the real name of the
intended defendant—Lieutenant Canada. But by that
time, the two-year statute of limitations for the Bivens
claim had expired. See Bailey v. Faulkner, 765 F.2d 102, 103
(7th Cir. 1985) (“The state statute of limitations that the
federal courts must borrow in a section 1983 suit is the
statute of limitations for personal-injury suits, which is
two years in Indiana.” (internal citations omitted)); Lewellen
No. 06-1922 21
v. Morley, 875 F.2d 118, 119 (7th Cir. 1989) (“Suits under
Bivens must meet the same schedule.”).
Jackson argues that his amendment adding Canada’s
name should have related back to the original complaint.
He cites Donald v. Cook County Sheriff’s Dep’t, 95 F.3d
548, 557 (7th Cir. 1996), for the proposition that his failure
to name this particular individual defendant was a
“mistake” about the individual’s identity. We addressed
an argument like this in King v. One Unknown Federal
Correctional Officer, and explained that reliance on Donald
is misplaced in this type of situation. 201 F.3d 910, 914 (7th
Cir. 2000). In Donald, the district court abused its discretion
by not helping the plaintiff differentiate between the
proper type of defendant in a § 1983 action—that is,
individuals as opposed to government entities. 95 F.3d at
557. Donald did not change our stance on actions
against unknown defendants: “We have consistently
held that Rule 15(c)(3) does not provide for relation back
under circumstances, such as here, in which the plaintiff
fails to identity the proper party.” King, 201 F.3d at 914.
Jackson argues that the United States employed “dila-
tory” tactics throughout discovery to prevent Jackson
from learning Canada’s identity within the statute of
limitations period, but the record does not support his
claim. The government was not asked about the identity of
John Doe #2 until October 13, 1998, which was already
beyond the two-year statute of limitations period for
Jackson’s Bivens claim—Jackson’s cause of action against
Lieutenant Canada accrued on October 8, 1996. His claim
against Canada does not relate back because Jackson
22 No. 06-1922
simply failed to identify the proper defendant, as opposed
to mistaking the type of defendant (i.e., institutional or
individual) or mistaking, misspelling, or otherwise con-
fusing, the defendant’s name.
E. The district court’s denial of Jackson’s requests for counsel
Jackson repeatedly requested the court’s assistance in
attaining counsel, and the district court repeatedly denied
his requests because, in the court’s view, Jackson’s
legal claims against the defendants were not sufficiently
complex and Jackson was capable of developing and
litigating the claims himself. The court explained that “the
presence of counsel would not make a difference in the
outcome.”
We review a district court’s decision not to assist a
litigant in obtaining counsel for an abuse of discretion. See
Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007) (en banc).
Jackson had no constitutional or statutory right to counsel
in his civil case against the government and its employees.
See Johnson v. Doughty, 433 F.3d 1001, 1019 (7th Cir. 2006).
The decision of whether to recruit pro bono counsel for
Jackson—or, as it is often called, to “appoint coun-
sel”—rested within the sound discretion of the district
court. See Pruitt, 503 F.3d at 653-54; Johnson, 433 F.3d at
1019. As part of its exercise in discretion, the district court
was required to consider both “the difficulty of the plain-
tiff’s claims and the plaintiff’s competence to litigate
those claims himself.” Pruitt, 503 F.3d at 655.
In determining whether the district court abused its
discretion, we do not engage in an independent analysis
No. 06-1922 23
of the plaintiff’s claims and competency in order to decide
for ourselves whether we think the plaintiff needed
counsel. Id. at 658-59. Instead, we determine whether the
district court applied the correct legal standard, and
whether the court’s ultimate conclusion was reasonable
given the information available to the court at the time
the decision was made. Id. “ ‘We ask not whether [the
judge] was right, but whether he was reasonable.’ ” Id.
at 659 (quoting Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.
1993)).
The district court applied the proper legal standard
when assessing Jackson’s requests. In response to Jackson’s
first request, the court correctly explained that a request
for appointment of counsel will be considered by the
court only after the plaintiff has made reasonable efforts to
obtain counsel from the private bar. See id. at 654; Gil v.
Reed, 381 F.3d 649, 658 (7th Cir. 2004) (“[T]he threshold
consideration in determining whether to appoint counsel
is whether the inmate has attempted and failed to procure
counsel on his own . . . .”). Jackson again requested the
court’s assistance because, after reasonable efforts, he
was unable to secure counsel himself.
The court then addressed the substance of Jackson’s
request by assessing the complexity of Jackson’s claims,
and his ability to litigate his claims. See Pruitt, 503 F.3d
at 655. The court denied Jackson’s request because his
claims were not “of sufficient complexity or merit as [to]
surpass the plaintiff’s ability to properly develop and
present them in this action.” It is evident that the district
court undertook an inquiry into both the types of claims
24 No. 06-1922
raised, and Jackson’s ability to litigate such claims. Because
it applied the correct legal standard, our only task now is
to decide whether the district court’s decision was rea-
sonable. Id. at 658-59.
Given the evidence before the district court at the time
of Jackson’s requests, see id. at 659, the decision not to
recruit counsel was reasonable and thus, not an abuse of
discretion. “This case was not overly difficult.” Johnson, 433
F.3d at 1007. Jackson had filed two acceptable complaints,
save for the misidentification of the proper FTCA defen-
dant (a mistake that others have made and for which
Jackson is getting relief on appeal). His claim against
Williams did not survive summary judgment, but not for
lack of his own abilities or the complexity of the claim.
Jackson simply did not have a claim against Williams
because none of the facts he alleged demonstrated deliber-
ate indifference on Williams’s part—an attorney could not
have refashioned his meritless claim into a meritorious
one. See Snipes, 95 F.3d at 592-93 (“The presence of counsel
would not have made a difference in the outcome of this
case. . . . From the beginning this was at best a suit
for medical malpractice and negligence, not a plausible
action for violation of constitutional rights.”).
Jackson’s claims against the prison officials for excessive
force survived summary judgment because Jackson
sufficiently alleged facts establishing a genuine issue of
material fact about the officials’ behavior on October 8.
Jackson demonstrated competence both in his preparation
for trial and in his presentation of his case to the district
court at trial. Jackson’s submissions to the district court
were coherent and organized, as were his requests for
No. 06-1922 25
documents and interrogatories. And although this case
involved “an issue of medical treatment, it [did] not
involve technical facts.” Forbes v. Edgar, 112 F.3d 262, 264
(7th Cir. 1997). Jackson was able to testify about his own
injuries, and he successfully secured medical records that
were not overly complex. Jackson submitted exhibits for
trial, including a prison disciplinary record, a medical
history report, and a medical classification report.
At the bench trial, even though Jackson conflated his
testimony with his opening statement, the district court
treated his statement as testimony. Jackson took direct
testimony from several witnesses, and conducted cross-
examination of the government’s witnesses. Further,
Jackson successfully entered the deposition transcripts of
two other inmates into evidence. Unlike the situation in
Pruitt, where the plaintiff’s “incompetent preparation
and presentation” of his case may have affected the
outcome and led the jury to believe the defendants’
testimony over the ill-prepared plaintiff’s, Pruitt, 503
F.3d at 661, Jackson was prepared for his trial and per-
formed satisfactorily throughout. The district court ex-
plained that Jackson “demonstrated familiarity with the
facts and circumstances he intended to establish to prove
his claim, and with the legal principles involved in doing
so.” The district court as the fact-finder ultimately
credited the testimony of the prison officials over Jack-
son’s.
Jackson argues that had he been appointed counsel, the
attorney would have ensured timely filing of the
amended FTCA claim, requested initial disclosures and
26 No. 06-1922
a scheduling order, deposed the defendants’ witnesses,
hired an expert, conducted FOIA requests, and ensured a
more speedy trial. And Jackson is probably correct in
believing that his “case might have improved had he been
represented by counsel.” Johnson, 433 F.3d at 1008. “How-
ever, just because counsel might have added opportunities
to improve the presentation of [Jackson’s] case does not
mean that the case itself was so overly complex that
counsel was required. Furthermore, speculating about how
counsel might have done a better job prosecuting the case
is neither necessary nor appropriate.” Id. at 1008-09.
The only time we will reverse a district court’s refusal
to appoint counsel for abuse of discretion is when that
refusal resulted in a “fundamental unfairness infringing
on due process rights.” Gil, 381 F.3d at 657 (internal
quotations omitted). The district court’s decision to not
request counsel for Jackson did not result in a funda-
mental unfairness, because Jackson was able to compe-
tently litigate the straightforward claims he brought
against the defendants.
III. C ONCLUSION
The district court’s dismissal of the FTCA claim against
the United States is REVERSED, and that claim is REMANDED
to the district court for further proceedings. The district
court’s remaining judgments are AFFIRMED.
9-2-08