FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 20, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12282

Non-Argument Calendar

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D. C. Docket No. 05-61798-CV-WPD

DARYL LENARD GERMAN,

Plaintiff-Appellant,

versus

BROWARD COUNTY SHERIFF'S OFFICE,

TOMOKA CORRECTIONAL INSTITUTION,

MS. ASKEW, DR. SCHOCOFF,

JOHN DOE, Dr., DR. KIM,

Defendants-Appellees,

LAQUAY JONES, et al.,

Defendants.

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Appeal from the United States District Court

for the Southern District of Florida

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(February 20, 2009)

Before BIRCH, BARKETT and KRAVITCH, Circuit Judges
PER CURIAM:

Daryl Lenard German, a state prisoner proceeding pro se, appeals the district

court’s denial of his motions for appointment of counsel/medical expert and

summary judgment, and the grant of the defendants’ motions for summary

judgment in his 42 U.S.C. § 1983 action.

German alleged that Wackenhut Corrections Corp. and/or GEO (GEO), the

company charged with operating South Bay Facility, where German was

incarcerated, and Askew, South Bay’s Health Service Administrator, violated his

rights when they showed deliberate indifference to a neck injury he suffered during

a beating in 1994 by ignoring his complaints of pain, swelling, loss of movement,

and loss of strength and by denying him proper testing despite a specialist’s, Dr.

Jerez’s, recommendations, both resulting in his condition worsening to the point

that it became a permanent injury and required major surgery three years later.

German alleged that Assistant Warden Clark, a senior representative of

GEO, and Askew fraudulently responded to a grievance he filed against the prison,

indicating that Dr. Jerez had not ordered further treatment for German, because

they were in a conspiracy to save money by denying him medical care.

Specifically, while German was incarcerated at South Bay, defendant Askew

refused to follow Dr. Jerez’s recommendation to have German undergo a

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myelogram and CT scan and told South Bay physician Dr. Schocoff that “the

facilities budget for that month could not cover the cost.”

I. Summary Judgment

German argues that the district court improperly resolved factual disputes

between the parties in granting summary judgment for the defendants, but instead

should have granted summary judgment in his favor because neither Askew nor

GEO rebutted his allegations against them. Specifically, German’s affidavit in

opposition to summary judgment asserted that Dr. Schocoff told him that Askew

denied him medical care based on financial restrictions and budgetary concerns,

while the defendants gave two other reasons for denying him treatment: (1) Dr.

Schocoff’s medical notes indicating that, after independent review, it was

determined that the treatment was unnecessary; and (2) responding to his grievance

by stating that the treatment was never ordered by a specialist. Askew’s claim that

Dr. Schocoff independently decided that further treatment was not necessary was

not reasonable because Dr. Schocoff would not likely request Dr. Jerez’s opinion

and then reject his prescribed course of treatment. The district court prejudiced

German when it excluded his evidence regarding the responses to his grievance

because the evidence created a reasonable inference that the prison officials must

have ignored the specialist’s prescriptions when they responded to the grievance

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because they had no reason for denying the prescribed care. Additionally, the

defendants’ refusing to provide the medical care that Dr. Jerez prescribed showed

deliberate indifference because it interfered with German’s ability to receive

prescribed health care, and canceling prescriptions written by a specialist and

refusing the specialist’s request for authorization to conduct more testing did not

amount to a difference in medical judgment between Drs. Schocoff and Jerez.

Further, German argues that summary judgment should not have been

granted for Askew because the magistrate and the district court agreed that there

was arguably a serious medical need in this case, and Askew did not present any

evidence demonstrating the contrary. Moreover, while Askew gave an alternate

explanation for failing to carry out the specialist’s orders, German presented

sufficient facts to create a genuine issue as to her state of mind in refusing to

follow the specialist’s advice for three years, especially since she knew that the

three-year denial of treatment posed an excessive risk of pain and bone

deterioration. Askew did not have to rely on directions by Dr. Schocoff as she had

contended, but rather had the authority to intervene and override his decisions as

demonstrated by her own job description. Moreover, Askew’s statement that the

treatment merely was delayed was also untrue because the treatment did not occur

until Dr. Schocoff was terminated and German approached a new prison doctor

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about receiving the prescribed treatment. As for GEO, German claims that he

demonstrated a causal connection between one of GEO’s decisionmakers,

Assistant Warden Clark, and the alleged constitutional violation because Clark

signed the response to German’s grievance fraudulently indicating that Dr. Jerez

had not requested any further appointments, thereby participating in the unlawful

denial of medical care.

Finally, German argues that the district court erred in not granting, or even

addressing, his cross-motion for summary judgment against GEO because he

showed that there were no genuine issues of material fact in question regarding

GEO’s fraudulent response to his grievance, and GEO, in neither filing an

affidavit nor a response in opposition, failed to dispute such allegations.

We review pro se pleadings liberally, holding them to a less stringent

standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160

(11th Cir. 2003). However, we will not act as de facto counsel for pro se parties.

GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998).

A district court’s order granting summary judgment is reviewed de novo,

“viewing all evidence, and drawing all reasonable inferences, in favor of the

non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th

Cir. 2005). Summary judgment is appropriate if the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue of any material fact and that the moving

party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Where

the nonmoving party has failed “to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial,”

no genuine issue of material fact exists. Celotex Corp., 477 U.S. at 322-23, 106

S.Ct. at 2552.

Section 1983 provides a civil cause of action for “a claimant who can prove

that a person acting under color of state law committed an act that deprived the

claimant of some right, privilege, or immunity protected by the Constitution or

laws of the United States.” Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th

Cir. 1995) (citing 42 U.S.C. § 1983). To state a claim under § 1983 against a

private entity performing public functions, there must be a policy or custom by

which the constitutional deprivation was inflicted. Buckner v. Toro, 116 F.3d 450,

452-53 (11th Cir. 1997). A policy or custom is established by showing a persistent

and widespread practice and an entity’s actual or constructive knowledge of such

customs, though the custom need not receive formal approval. Depew v. City of St.

Marys, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986). However, “normally random

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acts or isolated incidents are insufficient to establish a custom or policy.” Id.

We conclude that the district court erred in granting Askew’s motion for

summary judgment. German alleged that she refused him medical care based on

budgetary and financial concerns. While Askew testified that she had no control

over Dr. Schocoff’s decision not to pursue further testing, her job description,

which included overseeing services rendered by contractors and professional staff

and evaluating referrals to outside consultants for necessity, contradicts such

testimony. Accordingly, we conclude that the allegations in German’s verified

complaint and affidavit as well as discovery material were sufficient to prevent

summary judgment because, in the light most favorable to German, they bring up a

genuine issue of material fact that Askew does not sufficiently rebut, specifically

whether or not Askew had the authority or power to override Drs. Schocoff’s and

Jerez’s recommendations.

We also conclude that analysis as to whether a serious medical need existed

or whether Askew was deliberately indifferent to that medical need is not

necessary at this point in German’s appeal. On remand, the record must be further

developed to determine whether Askew was deliberately indifferent to German’s

serious medical need.

Conversely, we conclude that the district court did not err in granting

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summary judgment in favor of GEO. German failed to present evidence alleging

that GEO had a policy or custom of depriving inmates of medical care for

financial reasons. The fact that a GEO employee signed the allegedly fraudulent

response to German’s grievance does not show (1) a policy or custom on GEO’s

part; or (2) that Assistant Warden Clark was deliberately indifferent to German’s

medical care. Accordingly, no genuine issue of material fact exists, and we affirm

the district court’s grant of summary judgment in favor of GEO.

Finally, the district court did not err in denying German’s cross-motion for

summary judgment against GEO because, as noted above, no genuine issues of

material fact exist. Accordingly, summary judgment in German’s favor was not

appropriate, and we affirm the district court’s denial of German’s cross motion.

II. Appointment of Counsel

German argues that his incarceration prevented him from effectively

presenting his claims, especially given the level of discovery necessary since

credibility is such a major issue in his case. German repeatedly encountered legal

obstacles both in the defendants’ resistence to provide him with pertinent

information, such as Drs. Schocoff’s and Kim’s addresses so he could serve them

with the complaint, and in the intricacies of the discovery rules. He claims he could

not rely on the same prison officials at the prison where he was currently

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incarcerated to disclose evidence relevant to his lawsuit against them. The

numerous technical rulings against German indicated that he was experiencing

significant difficulty in proving elements of his legal claim because he lacked the

ability to take oral depositions and locate certain defendants. Moreover, he argues

that the district court’s finding that German addressed in numerous filings the legal

and factual claims at hand did not translate into his adequately presenting the

necessary legal and factual claims because it did not inquire into the factual and

legal issues that German was prevented from presenting.

We review a district court’s denial of a motion for appointment of counsel

for an abuse of discretion. Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999).

Pursuant to 28 U.S.C. § 1915(e)(1), the district court may appoint counsel to any

party unable to afford counsel. However, like other civil litigants, prisoners raising

civil rights claims “have no absolute constitutional right to counsel.” Kilgo v.

Ricks, 983 F.2d 189, 193 (11th Cir. 1993). In civil cases, appointment of counsel

is “justified only by exceptional circumstances such as the presence of facts and

legal issues which are so novel or complex as to require the assistance of a trained

practitioner.” Id. (internal quotations omitted). “The key is whether the pro se

litigant needs help in presenting the essential merits of his or her position to the

court,” but when the facts and issues in the case are simple, appointment of counsel

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is not required. Id.

We conclude that while German has alleged disputed facts sufficient to

preclude summary judgment, the district court’s failure to appoint him counsel

prohibited him from presenting the full merits of his case. Specifically, as a pro se

prisoner, German was unable to conduct effective discovery, which led to his being

unable to locate and serve two key parties, namely Drs. Schocoff and Kim, and

Dr. Schocoff’s testimony in particular would presumably be highly relevant to

German’s case. Moreover, while the legal claims German raises are not complex,

his claim is based on very detailed factual allegations regarding Askew’s job

responsibilities, and on remand, it will need to be determined whether Askew was

deliberately indifferent to a serious medical need. Accordingly, counsel was

necessary for German to effectively present his case, and the district court abused

its discretion in denying his request to appoint counsel.

III. Appointment of an Expert Witness

German also argues that his nerve and spine conditions did not manifest

themselves in ways that were obvious and ascertainable to a lay person, and thus in

order to prove the alleged deterioration in his arm, bones, and health, he required a

medical expert witness. Additionally, while the district court found that German’s

condition might arguably qualify as a serious medical need, a medical expert

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witness was necessary to solidify such a determination, especially since German

lacked medical or scientific evidence to demonstrate his alleged injury to a jury or

explain the medical consequences of the defendants’ failure to provide treatment in

a timely manner. Moreover, both defendants filed pleadings noting that German

did not have an expert witness to substantiate his medical claims and expressing

their belief that expert testimony would be necessary in this case.

We review a district court’s denial of a motion for appointment of an expert

witness for an abuse of discretion. Bass, 170 F.3d at 1319. Federal Rule of

Evidence 706 “provides the court with discretionary power to appoint an expert

witness either on the court’s own motion or the motion of a party.” Steele v. Shah,

87 F.3d 1266, 1271 (11th Cir. 1996); Fed.R.Evid. 706(a). Moreover, the district

court’s discretion on whether or not to appoint an expert should be exercised and

reflected in a reasoned ruling. Steele, 87 F.3d 1266 at 1271.

We conclude that the district court did not abuse its discretion in denying

German’s motion for the appointment of an expert witness. German asserted that

he needed an expert witness because his case involved serious medical

conclusions. However, in her motion for summary judgment, Askew did not assert

that German did not have a serious medical need or that she was not deliberately

indifferent to that need. She asserted that she did not have the power to overrule

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Dr. Schocoff’s determination not to pursue further testing. Conversely, GEO

argued in its motion for summary judgment that it did not have a custom or policy

of denying medical care or providing inadequate health care to inmates. However,

German failed to allege that Assistant Warden Clark’s action in signing the

allegedly fraudulent grievance response was part of a custom or policy of GEO’s.

Accordingly, the district court did not abuse its discretion in denying German’s

motion to appoint an expert witness because medical conclusions were not at issue

in Askew’s or GEO’s being granted summary judgment. Nevertheless, on remand,

the appointment of a medical expert may be warranted because the district court

will need to determine whether Askew was deliberately indifferent to German’s

serious medical need.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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