Tom Tuduj v. Steven Newbold ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐1699
TOM TUDUJ,
Plaintiff‐Appellant,
v.
STEVEN NEWBOLD, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 15‐CV‐1294‐NJR‐GCS — Nancy J. Rosenstengel, Chief Judge.
____________________
SUBMITTED APRIL 30, 2020* — DECIDED MAY 1, 2020
____________________
Before EASTERBROOK, SYKES, and ST. EVE, Circuit Judges.
PER CURIAM. Tom Tuduj, an Illinois prisoner, received the
privilege of court‐recruited counsel in this deliberate‐indiffer‐
ence suit under 42 U.S.C. § 1983 about his dental care. After
*We have agreed to decide this case without oral argument because the
briefs and record adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. FED. R. APP. P.
34(a)(2)(C).
2 No. 19‐1699
counsel amended his complaint to comply with the Federal
Rules, staved off summary judgment for failure to exhaust,
and opposed another motion for summary judgment, Tuduj
asked to litigate pro se, unless his case was going to survive
summary judgment. Because the district court permissibly
denied his equivocal request, we affirm.
Tuduj has a long history of dental issues, and at times he
declined the treatment recommended. Before his incarcera‐
tion in 2006, Tuduj had metal fillings replaced and root‐canal
treatments. In 2009, shortly after his transfer to Menard Cor‐
rectional Facility, a dentist at Menard saw more problems
with Tuduj’s teeth and pulled two of them. A year later, a den‐
tist examined another tooth that Tuduj had earlier injured. It
had an abscess and dead tissue, so the dentist urged removing
it—but Tuduj refused treatment. That dentist also scheduled
an extraction of a different tooth, but Tuduj skipped the ap‐
pointment. The following year, another dentist offered Tuduj
treatment for severe tooth decay, but once again he never fol‐
lowed up. After an examination a year later, the same dentist
recommended an x‐ray to evaluate the need for oral surgery.
Tuduj refused the x‐ray. At an examination two years later, a
dentist noted severe tooth decay and other problems. He rec‐
ommended extractions and an x‐ray; Tuduj again refused the
x‐ray.
Starting in 2014, after experiencing some jaw problems,
Tuduj agreed to an x‐ray and dental treatment. A dentist
found that some of Tuduj’s teeth were unrestorable; he ex‐
tracted one tooth, put Tuduj on the waiting list to restore an‐
other, and recommended another extraction. When another
dentist told Tuduj the next month that his recent x‐ray
showed the start of an abscess in one tooth, Tuduj consented
No. 19‐1699 3
to an extraction after learning that a root canal was not avail‐
able. Later, Tuduj wanted more treatment on account of se‐
vere tooth pain. Based on a new x‐ray, a dentist concluded
that two teeth were unrestorable and extracted them. A few
months later, after Tuduj filed a grievance about a lost filling,
a dentist confirmed the lost filling and received approval to
have an oral surgeon extract three severely decayed teeth. Af‐
ter those extractions, this dentist planned to attempt to restore
two other teeth. Because another tooth had broken during the
extraction, the dentist later attempted to restore that tooth as
well. Over the next few years, Tuduj’s teeth continued to de‐
cay, and several more were removed. In late 2016, a dentist
requested partial dentures for Tuduj; the request was initially
denied, but the dentist successfully appealed, and Tuduj re‐
ceived partial dentures in mid‐2017.
Tuduj initially sued 18 defendants, including three of his
dentists, and other prison officials. The court recruited coun‐
sel to assist Tuduj in filing an amended complaint that com‐
plied with Rules 8 and 10 of the Federal Rules of Civil
Procedure. The amended complaint alleged that the three
dentists had been deliberately indifferent to Tuduj’s serious
dental problems by declining to consider alternatives to ex‐
traction, and that prison officials had a policy of denying ap‐
propriate dental care. Defendants moved for summary
judgment twice. First, they argued, unsuccessfully, that Tuduj
had not exhausted his administrative remedies. Defendants
then moved for summary judgment on the merits (filing two
separate motions). Tuduj’s counsel filed a three‐page brief op‐
posing both motions.
While the motions for summary judgment were pending,
Tuduj moved “for leave to represent himself.” In his motion,
4 No. 19‐1699
he explained that he was “concerned that his counsel has filed
a structurally, technically and legally insufficient response
doomed to be denied.” He asked to file his own brief, except
“in the event this Honorable Court deems counsel’s response
… legally sufficient and Grants same[,] Plaintiff would be
open to continued effective representation of counsel … .” A
magistrate judge denied Tuduj’s motion. The judge explained
that Tuduj “varie[d] between saying he would like to, and is
competent to, represent himself and indicating that he is
happy with counselʹs representation as long as he prevails.”
His “desire to have counsel if he prevails but to represent him‐
self if he does not fails to leave the Court with the firm con‐
viction that it is proper to relieve counsel of his representation
of Mr. Tuduj at this time.”
With the motion for self‐representation denied, the next
day the district judge granted the pending motions for sum‐
mary judgment. The judge observed Tuduj’s “long history of
treatment” and explained that Tuduj only “conjecture[d]”
that the dentists should have used treatments other than those
based on their professional judgment. As for the prison offi‐
cials, the court concluded there was “no competent evidence”
of any policy at Menard that unlawfully influenced dental‐
treatment decisions.
On appeal, Tuduj focuses solely on the denial of his re‐
quest to represent himself. He argues that the court wrongly
denied his right to proceed pro se under 28 U.S.C. § 1654 and
under the due process clause, equal protection clause, and
Seventh Amendment, because the right is “unqualified” if in‐
voked unequivocally before trial.
In civil cases, the right to self‐representation is statutory.
See 28 U.S.C. § 1654 (“In all courts of the United States the
No. 19‐1699 5
parties may plead and conduct their own cases personally or
by counsel … .”). Tuduj does not challenge the constitutional‐
ity of this statute, so our analysis begins and ends with it.
See New York City Transit Auth. v. Beazer, 440 U.S. 568, 582
(1979). He asks us to apply the statute as the court did in
OʹReilly v. New York Times Co., 692 F.2d 863 (2d Cir. 1982).
That court ruled that “a party seeking to assert his statutory
right of self‐representation must clearly and unequivocally
discharge any lawyer previously retained.” Id. at 868.
By the standard of O’Reilly, and regardless of whether we
review the district court’s decision to deny his request with
deference or de novo, Tuduj must lose because he did not un‐
equivocally seek to discharge his lawyer. To the contrary, he
conditioned his request on whether the district court was per‐
suaded by his lawyer’s brief. Tuduj replies that, if he equivo‐
cated, he did so out of respect for counsel and the district
court’s decision to recruit an attorney for him. That may be,
but in deciding motions, a district court reasonably takes mo‐
vants “at their word” in those motions, rather than trying to
divine some alternative meaning. United States v. Chube II,
538 F.3d 693, 697 (7th Cir. 2008). Tuduj’s words were condi‐
tional: “in the event” that the court deemed his lawyer’s brief
sufficient, he remained “open” to his lawyer’s continued rep‐
resentation. Furthermore, his lawyer had shown reasonable
diligence in the case, amending the complaint and twice op‐
posing summary judgment (once successfully). Without an
unequivocal request for self‐representation, the district court
rightly denied the motion.
We have considered whether, on appeal, Tuduj has also
challenged the entry of summary judgment on the merits. He
has not. Despite filing an oversized opening brief on appeal,
6 No. 19‐1699
in it Tuduj focuses solely on his belief that the magistrate
judge erred in denying his motion for self‐representation. He
raises no challenge to the district court’s summary judgment
order. Defendants point out this failure in their response, and
we agree with them that arguments not raised in an opening
brief are waived. See Lisle v. Welborn, 933 F.3d 705, 722 n.4
(7th Cir. 2019). In any event, we have recounted at the start of
this order the record in this case. It reveals no deliberate in‐
difference.
As a final matter, we address Tuduj’s motion in this court
to correct or modify the record under Federal Rule of Appel‐
late Procedure 10(e). Tuduj seeks leave to add thirteen affida‐
vits from other inmates stating they also had teeth extracted
that could have been saved with different treatment. But the
affidavits were never part of the district court record and Rule
10(e) “does not give this court authority to admit on appeal
any document which was not made a part of the record in the
district court.” Midwest Fence Corp. v. U.S. Depʹt of Transp.,
840 F.3d 932, 946–47 (7th Cir. 2016) (quoting Borden, Inc.
v. Fed. Trade Comm’n, 495 F.2d 785, 788 (7th Cir. 1974)). We
therefore deny the motion.
We have considered Tuduj’s remaining arguments, and
none has merit.
AFFIRMED