NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 6, 2011*
Decided April 7, 2011
Before
JOEL M. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐2500
MOISES MERAZ‐CAMACHO, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of Wisconsin.
v. No. 09‐cv‐13
UNITED STATES OF AMERICA, Barbara B. Crabb,
Defendant‐Appellee. Judge.
O R D E R
Federal inmate Moises Meraz‐Camacho appeals the district court’s denial of his
motion to recruit counsel during his unsuccessful lawsuit under the Federal Tort Claims
Act, 28 U.S.C. §§ 1346(b)(1), 2671‐80, in which he claimed that a prison doctor provided
negligent medical care. We affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐2500 Page 2
Meraz‐Camacho was imprisoned at the Federal Correctional Institution in Oxford,
Wisconsin, when he experienced numbness and stiffening of his left arm and side. He was
seen by Dr. James Reed, the prison’s clinical director, who determined that he did not
require immediate medical attention. Several hours later he returned with obvious left‐
sided weakness, decreased motor skills, and an apparent seizure; Dr. Reed promptly
transferred him to an outside hospital for further treatment. He was ultimately diagnosed
with thrombosis of a cortical vein (a blood clot on the brain) that had ruptured, leading to
hemorrhage and stroke.
Meraz‐Camacho sued the United States Attorney General, the Bureau of Prisons, the
warden, and Dr. Reed for inadequate medical assistance and medical malpractice. The
district court construed his claims as arising under the FTCA and substituted the United
States as the defendant. The court later dismissed two unrelated claims based on Meraz‐
Camacho’s failure to exhaust administrative remedies, but allowed him to proceed on his
claim that Dr. Reed negligently failed to diagnose the onset of his stroke. The court then
conducted a preliminary pretrial conference, issued a pretrial conference order setting filing
deadlines, and gave Meraz‐Camacho various materials for pro se litigants to help them
follow the court’s procedures concerning summary judgment motions. Eventually the
government did move for summary judgment, and in support offered affidavits prepared
by Dr. Reed and a third‐party medical expert. Meraz‐Camacho responded by disputing
certain facts, expressing an intent to call doctors and hospital staff as witnesses, and
mentioning at one point that he would be “greatly assisted by the Court assigning him
counsel to assist him. (The subject of a Motion being prepared for submission to the Court
shortly).” More than a month later, after the government replied, Meraz‐Camacho filed his
motion for “appointment” of counsel (more accurately, for the court’s help in recruiting a
lawyer, because there is no statutory authority to “appoint” a lawyer in civil actions). In the
motion he asked the court for assistance in helping him complete discovery, contact
witnesses, and conduct pretrial proceedings, and he also sought leave to file a surreply.
The district court granted summary judgment for the government, determining that
Meraz‐Camacho failed to create a fact issue on the question of negligence or causation. The
court also denied Meraz‐Camacho’s request for counsel as moot. The court denied as well
his request for leave to file a surreply, explaining that he did not substantiate his assertion
that his medical records had been tampered with, and in any event nothing in his proposed
surreply would change the outcome of the summary judgment motion. The court
subsequently denied Meraz‐Camacho’s postjudgment motion to alter or amend judgment.
Meraz‐Camacho appeals, but the government argues that his appeal is untimely. The
government notes that Meraz‐Camacho, in his response to our request for a memorandum
concerning the timeliness of his notice of appeal, did not specify that he prepaid first‐class
No. 10‐2500 Page 3
postage when he placed his notice of appeal in the prison’s internal mailing system.
Although proof of timely mailing and postage is required when a prisoner mails his own
filing, United States v. Craig, 368 F.3d 738, 740 (7th Cir. 2004), he need not show proof of
postage if he proves that he used the prison’s internal mailing system, see FED. R. APP. P.
4(c)(1); Ingram v. Jones, 507 F.3d 640, 644 (7th Cir. 2007). Meraz‐Camacho asserted in his
jurisdictional memorandum that he did so, and he offered as proof a copy of the relevant
envelope bearing appropriate postage and a designation “legal mail.”
Meraz‐Camacho confines his appeal to arguing that the district court abused its
discretion by denying his request to recruit counsel to represent him. He maintains that he
was incapable of carrying out this litigation on his own: he filed documents in the wrong
court, sued the wrong defendants, failed to conduct discovery, responded inappropriately
to the summary judgment motion, and filed an ineffective postjudgment motion.
But Meraz‐Camacho’s motion for the court’s assistance in recruiting a lawyer came
too late. (It was not “moot,” as the district court ruled; the case was live when the motion
was filed. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980); Gates v. City of
Chicago, 623 F.3d 389, 413 (7th Cir. 2010)). Delay was a sufficient reason for denial. He did
not file his request for assistance until after the close of briefing on the summary judgment
motion; by that stage, however, a lawyer could assist him only by filing a surreply. The
decision to permit the filing of a surreply is purely discretionary and should generally be
allowed only for valid reasons, such as when the movant raises new arguments in a reply
brief. See Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 631 n.2 (7th Cir. 2010); Jencks
v. Modern Woodmen of Am., 479 F.3d 1261, 1268‐69 (10th Cir. 2007). The district court found
nothing in Meraz‐Camacho’s surreply that would alter the case’s outcome. Although a
pro se litigant may request the need for counsel as his case develops, Romanelli v. Suliene,
615 F.3d 847, 852‐53 (7th Cir. 2010), the judge “can only make a determination based on the
record as it exists when the motion is brought, and our review is limited to the record at the
time the decision was made,” Pruitt v. Mote, 503 F.3d 647, 656 (7th Cir. 2007) (en banc). If no
surreply would have made a difference, then Meraz‐Camacho would not have benefitted
from the assistance of any lawyer.
The remainder of Meraz‐Camacho’s contentions are undeveloped and are therefore
waived. See FED. R. APP. P. 28(a)(9); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
AFFIRMED.
