case to brown versus grace line of cases involving a civil plaintiff's request for counsel under section one nine hundred fifteen of title twenty eight of the u s code we are i'm sorry to cut you off so quickly but before we get into the two brown factors isn't there a threshold you need to satisfy why why is your client entitle to the appointment of counsel under section one nine hundred fifty you're on it you're correct that there is a threshold standard under brown whereby a civil of must set forth a prima facia case and they must also demonstrate more than an extremely thin chance of success on the merits and i'm i'm going even one step prior to that as i understand it you're saying your client should have been appointed counsel under section one thousand and fifteen is that correct that's correct all right i as i also understand it your client had three strikes that's also correct right and as i read  section nine hundred fifteen g it prohibits your client from proceeding under section one thousand and fifteen by virtue of his three strikes is that correct that is not correct sir we would disagree on for several reasons the first reason is that this circuit has never had a case where by they concluded that in one nine hundred fifteen g baird on the ability to appoint counsel under one nine hundred fifteen easy and then also a plain reading of the under g your client cannot proceed under this section what does the word section referred to the word section refers to the one nine hundred fifteen a filing fee  of read any person may be appointed counsel if they can afford it unless they have three strikes and in addition this court has recognized the difference between proceeding in form of pop press as to the  vs inform populace as to the appointment of counsel that's why i'm standing here your honour's appointed me by an order and as a condition to that order granted a motion to proceed inform populace court and prohibited from appointing counsel simply because the the the plaintiffs had three strikes and that regarding you would lose you could lead to a very complicated record and and basically have the same problems that we have with this case we would say we would suggest that there are three important elements to mr bright wells motions request counsel first the district court did not adequately address  mr bright was put in a catch twenty two of sorts after the district court denied his motions request counsel and then in summary judgment considered his inability to reduce expert medical testimony to be dispositive of his claims the district court's orders considering mr bright wiles motions for counsel did not address the to bron threshold standard or way that to run factors judge sentences order simply wrote denied on mr bright w motion and referred to a report recommendation dated october thirtieth two thousand and three and judge one hands orders i've noted the shortage of pro bono counsel and then gave mr bright while the opportunity to refile  complete and that after the completion discovery the judge would be in a better position to assess the need for counsel and in none of these orders did the judges address that to brown threshold standard or the to brown factors and we would suggest that the judge went to hands reasoning in simply noting the shortage of pro bono counsel and then deferring in some sense a determination as mr bright was motions has dangerous implications for the to bronze standard itself  patients the dangerous implications is that the brown factors that involve the need for discovery such as the plaintiff's ability to present its case and the need for factual the discovery and factual determination won't be given their due a court if counsel is not available during three summary judgment discovery because that time as you know is one many cases live or die and if those factors are not given there you consideration and so after s y judgment then the motion to appoint counsel won't be fully considered we would also argue that the shortage of pro bono counsel while it certainly is a consideration for the course the way it doesn't rise to the level of a gibran factor and there are good reasons for that the bron framework and factors itself will serve as a gate keeping function and will preserve the supply of pro bono attorneys for only those cases that are the most deserving factor is actually weighs in our favor as to the to bron threshold standard which requires that mr bright will show not only a prima facia case but that he also demonstrate more than an extremely thin chance of success on the basically whole the way or to be removed so that the asian imprint is it your claim that there was actually a foreign object object whether be a foreign object that was necessary as part of the surgery or part of the capsule remains in his eye in a foreign place and such that it's causing headaches and also vision problems what and i think what what cases and if they can't get a lawyer to take the case and they don't have the money you know they're in a similar situation who mr bright well i think they they would be your honor yes in this case however mr bright was deliberate indifference claims require internally and so far as a medical expert would have been ultimately were required to use is my question why do why does one need a lawyer to get a medical expert one can get a medical expert in his right well family or his friends could have hired a doctor to go to the prison and examine him and do a little report and that would at least give us some proffer of evidence apart from what we have now which as far as i can tell is simply mr bright will saying there's a foreign object in my heart i'm not aware of mr bright was friends or family would have been in a position to hire a medical expert in that case and in fact that's one of the brown factors that is so where it is so we should treat somebody who's at liberty in a worst way that we treat somebody who's in course aerated who's faced in the same with the same situation mr right now i think that you have to treat mr bright well fairly in a way that gives him the opportunity if he has a merit where they claim to have counsel sort through those claims and to get medical expert testimony let's go back numerous grievances to the a pelleas as to the foreign object in his eye that he received responses to those grievances and that no immediate follow up surgery was performed wasn't the  mean i have nothing in the record suggests that he did not any point try on the bifocals but i know that he continued to experience pain after that recommendation and in fact whether or not he he used the this is this court has recognized that expert medical testimony is connected in many ways to the request for counsel and it's recognized that in the gibran vs grace case itself and as well as in other cases in applying to corrections at least in this case my colleague is a canyon represents physician's assistant rush and will be presenting separate argument if you allocated your time we have your honor i have latter is that in fact mr bright was not even eligible for consideration of appointment of counsel you don't want us to fall away and publish northern district of illinois case your you want to the fall of two thousand and seven seventh's or to case i didn't understand well the b if you read the seventh circuit case your honor i feel you as well would agree with me that it it merely suggests that the southern district of illinois case is the appropriate response the seventh circuit case does not specifically hold as the southern district of illinois case holds specifically harrison versus blackman on the point the specific language is in the district court case but it is an article three judge and i think the more important point is it's the right thing to do it makes sense it's good law where wherever it's provenance we should in fact take a look at it and see how it stands on its own two feet obviously this court has far greater dignity and power to make the laws of the united states than a trial judge sitting in the southern district of illinois unpublished opinion and may i may i remarked in the highest positions of the bar on mr nanuk i know not because professionalism in presenting it himself when i had felt fin out which is an unpublished decision of this court the good versus rector decision which is in his response to my rule twenty eight j latter now that case in that case is as i recall it is not specifically on point in that the in the in form a proper wrist germination does not involve a prisoner it involves an individual who was informal pop or is in a title  i'm wrong but i think we all agree there's precious little law out there interpret in this particular issue but it is a question of statutory interpretation yes your honor let me ask you the same question i asked mr and i could when  fifteen that it's your point that he can't get counsel under nine hundred fifteen e or a or being or any other privilege correct is like any other place in the united states code or in the equitable powers of this court the courts have every right to ask an officer of the court to volunteer his or her services to assist them in the dispatch of their business i'm sure that they can they can request a volunteer to represent an individual and that person can in fact were covered tourney's fees if they are able to prevail in the case just as in an appointment under nineteen what we're talking about here is the right of an individual like bob wright while to complain subject one of use of discretion standard when the court decides not to do that and let's let's also remember that when we're talking about point nine hundred nine fifty one we're not actually it's a quasar appointment i think it's easier to talk about it calling it an appointment but actually what it really is as we all know is a request to the members of the bar or particular member the bar to volunteer to represent this individual and that is is what we're talking about in this particular instance the difference between a situation where the court ask someone to do that and it's and the issue we have here today is whether or not if the court does not do that or rejects a motion by mr bright well or someone in his situation to do that we know under tavern vs grace that that ruling and failure to appoint so to speak is subject to an abuse of discretion seen and there have been cases montgomery versus pension arm versus johnson which actually reverse if he or she wants it why are you so sure that gives what gives the courts of the united states the right to require a lawyer to represent somebody  the courts the united states have no have no right except in cases such as body first connecticut involving certain fundamental rights to compel an attorney  the appointment of an attorney and the payment of public funds well that's saying saying a litigant is entitled to counsel as a matter of constitutional right is different is it not than the court constitutional right but statutes may give litigants informal operates the right to move for the court to request the appointment of counsel i assure you every every member of the bar takes it quite and it's actually a term of art a frequent flyer so to speak like mr bright well who's been denied act the opportunity to proceed in court without the payment of  filing fee in installments never the last should have the ability to call on the court subject to appellate review for its assistance in getting him a lawyer which is the most important aspect as far as i can see going back to get him versus one right other right to counsel in any particular context it just doesn't it just seems paradoxical under the circumstances and as i think the statutory language indicates subsection g doesn't mean anything what evidence is there of the failure to address mr bright wells post surgery condition well there's a great deal of evidence particularly in his amended complaint that he was under the treatment of medical professionals with whose treatment suggestions he disagreed so  attached to my colleague's summary judgment and to tell a factual way through two thousand and four apparently according to the vision professionals his situation mature to the point where it seemed that further surgery was the appropriate response and then there was further surgery what i want to emphasize briefly in this respect before i leave the podium if i may is that this is not a case like montgomery be pincheck or parm versus johnson where we have individuals who aren't medical professionals and not my clients or medical professionals who are looking at a situation where somebody has been told they have to have a cardiac catheterization they have to have a back operation there's blood and pos running out of his ear and the medicine bottle itself says he shouldn't be putting it in his ear and somebody just the liberal were indifferent to all of these complaints and all of these representations here we have a situation where we have a man who is in fact complaining that he thinks he suffered medical malpractise which is not a constitutional ind scored and that was before the district court the filings provide absolutely no reason to believe that counsel could have obtained any different results looking at the medical and the grievance records which are truly the only records only exhibits that would have been at issue in this case they do not rise to the level of deliberate indifference this is not a case of medical malpractise this is a case in which mr bright was obligated to prove both components of the deliberate indifference t must prove a i must establish a subjective intent and interview in the medical records it's clear that mr bright was sent for repeated care peeta treatment repeated examinations sent outside specialists he chose he made the decision of self not to wear the bifocals he he might have had headaches due to sinusitis which i can extremely relate to this morning he chose not to take his medications he chose not even to go to clinics that were available to him so he's in his view he's got something in design what we're bifocal going to do to help him be a something of the well and outside specialist a physician who is trained in i care and not within the correctional health care setting looked at his eyes examined him and said where the bifocals you don't need surgery at this point well but an optometrist in the record indicated the right will need surgery right several months if not years later the surgery was recommended in march thousand and five the consul visit was approved he had the fall of visit in april two thousand and five yeah cataract surgery in early may two thousand and five i'm not sure if you get that speedy service outside a correctional health care setting so as soon as a specialist professional finds that mr bright well was needy after surgery it was approved and he had the surgery brain the only evidence that i can see and i inherited this case somewhat late in the proceedings was that its mr bright was belief in his thoughts that there was some foreign object left behind that caused him this pain these headaches blurred vision however it was a judgment call made by the medical fresheners treating him both within and outside the correctional health care setting that the vision problems the headaches he was having were typical to other causes the not wearing the bifocals si tis not taking medications the record has not been developed as to what exactly occurred in the one thousand nine hundred surgery and what happened afterwards other than mr bright was belief by his perception of what happened work as any work that's my understanding your there's been a lot of focus on the eye surgery that certainly seems to be the crux of mr bridles claims however he also has a claim of retaliation assistant rasch position is a rush is just that a physician's assistant he is not empowered to soley independently prescribe medications prefer recommend surgery feet his every step needs to be signed off on approved by a treatment and mr bright will simply dissatisfied with the extent of the treatment provided that same dissatisfaction is really the crux of his deliberate difference claim with regard to the eyes surgery as well the last component of mr pratt was claims as a physician assistant rash is this diabetic diet however reading the many complaints there is simply no allegation that physician assistant russian anything to do with the diet and the record is quite clear that mr receiving the healthy heart diet which is a diabetic approved diet and that mr brett will suffer no injury as a result so i know that there's been a lot of emphasis on the procedure aspect of this but i think in order to evaluate whether or not counsel was warranted review of the factual record is necessary as well because it simply shows that even if counsel had been appointed there simply would have been no difference in the outcome of this case which was summary judgment in favor of  not thank you your honor and just i'll take a few moments to make a point on cued it was an unpublished decision and it did not address the three strikes issue it only addressed it only had language that said that well was under the care of a medical professional that the the non medical professional police can be insulated from liability and that's that's not the approach that this court has taken for example unscrupulous in which the court held that aging non medical prison official can be held liable if they know or if they have reason to know that the medical professional is not providing adequate treatment and we would suggest that mr bright well submission of numerous grievances the responses that he received suggesting that bifocals were an adequate remedy for the pain that he was experiencing as well as the headaches and the vision problems as to the deliberate in difference standard itself counsel points out there's an objective and a subjective upon the objective prong here as is clearly met in that the serious medical need which he's complaining involves if an object in his right eye and that he's continuing to experience pain as a result of that and we would suggest that meets the deliberately in the the objective prong in that a lay person would recognize the need for medical treatment in connection with such a condition and