# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted January 7

, 2019 *
Decided January 8 , 2019

Before

DIANE P

. WOOD

, Chief Judge

DIANE S. SYKES

, Circuit Judge

AMY J. ST. EVE

, Circuit Judge

No. 1 8

- 1272

STEVEN D

. SCOTT

, Plaintiff

- Appellant

,

v

.

JAMES RICHTER, et al.

, Defendant s

- Appellee s

. Appeal from the United States District
Court for the Eastern District
of Wisconsin

.

No. 14

- cv

- 864

- pp

Pamela Pepper

, Judge

.

O R D E R

Steven Scott, a Wisconsin inmate, sued a prison doctor, an optometrist, and the manager of the prison’s Health Servic es Unit for alleged medical malpractice and
violations of the Eighth Amendment through their deliberate indifference to his “scalp pain and hair loss,” his serious eye condition, and his nerve, muscle, neck, and lower

back pain. Scott moved four times for the district court to recruit counsel to represent

* We have agreed to decide the case without oral argument because the appellate
brief s and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 1 8

- 1 272 Page 2

him. The district judge denied the first three motions after finding each time that Scott was able to litigate his own case . Months after the close of briefing on the defendants’

motion s for summary judgment, Scott filed his fourth motion for counsel. Ultimately,
the judge entered summary judgment for the defendants and at the same time d enied

Scott’ s motion as “moot.” T his appeal concerns only the district judge’s denial s of

Scott’ s moti ons for counsel. We see no abuse of discretion and therefore affirm.

Scott alleged in his complaint that Dr. Richard Heidorn, the prison’ s physician,
and Jeananne Greenwood, the prison’ s health services manager, ignored for years his persistent pain, scal p lumps, and “ exces sive hair loss” resulting from acne k eloidalis

n uchae. He complained that Dr. Heidorn’ s treatment method

— special shampoos, instead of surgery or freez ing the keloids

— did not produce “sufficient improvement”
for his pain. Scott also claim ed that Dr. Heidorn and Greenwood recklessly disregarded
his requests for an MRI to address “constant pain” in his neck, back, and muscles from a pinched nerve. Scott also a sserted that Dr. James Richter, a n optometrist, failed to treat his migraines or di agnose Scott ’ s anterior uveitis, an inflammatory eye condition that an ophthalmologist discovered months later and treated . Scott further faulted Dr. Heidorn and Greenwood for disregarding a doctor’s recommendation that he see a rheumatologist. Scott alleg ed that “the entire time” that he had complained of unrelenting pain and other symptoms, he had been suffering from lupus.

After prevailing on Richter’ s motion to dismiss, Scott filed his first motion for
recruited counsel on March 8, 2016. Scott stated that he had contacted five attorneys who declined to represent him and that his blurred vision made it difficult to prosecute
his case. The judge denied the motion on March 23 , finding that Scott was competent to litigate the case himself . Scott had submi tted a “ clear and concise response ” to Richter’ s motion to dismiss, “ cited appropriate case law, and applied th e facts of his case to the
law.” The judge added that Sc ott’ s blurred vision had not stopped him from filing “understandable pleadings.”

Two day s later, Scott moved again for counsel. He reiterated that his blurred vision impaired his ability to litigate the case and that he needed an attorney to help him find an expert to explain his eye condition. After not receiving a ruling by May,
Scott filed a “motion for reconsideration” of his need for recruited counsel. Scott argued
that counsel was “ necessary ” because he required an expert witness to support his
claim. The judge denied both motions , finding that Scott’s “ blurred vision has not
interfered with his ability to file motions, p leadings, and briefs to date.” A nd Scott d id not contend that he is otherwise incompetent to litigate , the judge noted, only that anNo. 1 8

- 1 272 Page 3

attorney would be better able to find an expert witness

. Scott’ s motion to reconsider
fa iled too, the judge said, because he did not demonstrate any manif est error of law or
fact in the denial of his first motion for counsel.

Discovery continued, and on August 12, 2016, Scott moved a third time for
recruited counsel. He argued that the case had become too complex for him to litigate
because he did not know how to depose the defendants . T he termino l ogy in the medical
treatises was “b eyond the scope for a lay person to understand,” he said, so he “d[id] not understand what he [wa]s doing.” The judge again denied Scott’ s motion, observing
that Scott had served interrogatories and requ ests for production of documents

“ see king information that is relevant to his Eighth Amendment claim.” Th e judge
added that Scott might not need to depose anyone aft er he received discovery. And though the ability to understand medical terms might become necessary, “that tim e has not yet come at this stage.” M oreover, the judge thought, Scott had continued to
demonstrate his competen ce to represent himself “based on what the court has
observed thus far.”

The defendants filed two motions for summary judgment on October 6, 2016, and Scott responded substantively on October 31. Briefing wrapped up in November with the filing of the defendants’ reply briefs and Scott’s “ declaration” in response to
them (a sur

- reply). Five months passed, and then Scott filed his fourth motion for
recruitment of counsel on April 24, 2017. Scott asserted that he was unable to gather
evidence necessary to contest the defendants’ motions for s ummary judgment effectively

. He required expert witnesses , he explained, wh om he could not find on his

own. Scott also averred that he suffered from serious mental illness es that impair ed his ability to litigate and that a fellow inmate had been assisting him earlier

.

The district judge granted the defendants’ motions for summary judgment on January 29, 2018, without having ruled on the fourth motion for recruitment of counsel in the intervening months. The judge primarily concluded that Scott lacked suff icient evidence that the defendants acted with deliberate indifference when they made the challenged decisions. Further, (as Scott had predicted) the medical malpractice claim against Dr. Richter failed because Scott did not submit expert testimony to demo nstrate the applicable standard of care. Without addressing its merits, the judge denied Scott’ s fourth motion for counsel as “ moot ” when s he entered judgment for the defendants

.

Scott argues on appeal that the district judge should have recruited counsel to represent him. Litigants have no right to appointed counsel in federal civil litigation,No. 1 8

- 1 272 Page 4

see Olson v. Morgan , 750 F.3d 708, 711 (7th Cir. 2014), but district courts may ask an attorney to represent any person unable to afford counsel, see 28 U. S.C. § 1915(e)(l). To
determine whether to recruit counsel, district courts must ask: “ (1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and, if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?” Olson , 750 F.3d at 711 (quoting Pruitt v. Mote , 503 F.3d 647, 654 (7th Cir. 2007) ( en banc ) )

. No one has disputed that Scott met the first requirement by showing t hat he contacted five attorneys who would not take the case

.

Nonetheless, w e see no abuse of discretion with respect to the denials of Scott’s first three motions for attorney representation and his motion to reconsider because the
district judge properly assessed the complexity of the case together with Scott’ s capabilities. See Olson , 750 F. 3d at 711. In response to Scott’ s first three motions, the judge applied the correct inquiry, evaluating whether Scott was competent to litigate the case given its difficulty. See Pruitt , 503 F.3d at 654. “The inquiries are necessarily intertwined; the difficulty of the case is c onsidered against the plaintiff’ s litigation capabilities, and those capabilities are examined in light of the challenges specific to the

case at hand.” Id

. a t 655. The judg e addressed th e particular challenges at hand

— the
defendants’ motion to dismiss, the n eed for a medical expert, Scott’ s blurred vision, his
need to depose witnesses, and his under standing of medical terminology

— and reasonably determined that Scott’ s litiga tion performance up to that point demonstrated his competence. S ee Romanelli v. Suliene , 615 F.3d 847, 853 (7th Cir. 2010).

Scott also demonstrated that he was able to manage discovery, to a point: he issued interrogatories and requests for admission that were relevant to the facts of his case

. See

Zarnes v. Rhodes

, 64 F.3d 285, 289 (7th Cir. 1995). Although Scott likely would have benefitted from recruited counsel, that is not the proper inquiry in assessing the difficulty of the case or his relative competence. See Pruitt , 503 F.3d at 655.

The more difficult question relates to the judge’s denial of Scott’s fourth motion
for counsel. In the abstract, Scott was correct to flag his need for an expert witness, at least for the medical malpractice claim and in this case possibly also for the Eighth
Amendment c laim. But the district court had left the door ope n to a later motion fo r counsel’s assistance in this respect if the case progressed to the point at which th e need for an expert had crystallized. In denying Scott’s third motion for counsel, the judge had said that Scott might need assistance understanding the medical dimensio n of his case, but “that time has not yet come at this stage.” But Scott dropped the ball. He did not file
his fourth motion

— the critical one because it responded to the defendants’ showing on summary judgment

— until five months after the summary

- judgment b riefing hadNo. 1 8

- 1 272 Page 5

ended

. Before then, t he judge had no obligation spontaneously to re visit her earlier rulings

. See Bracey v. Grondin , 712 F.3d 1012, 1018 (7th Cir. 2013). I nstead of moving for
counsel at the close of discovery, Scott contested summary judgment on the merits and waited for months after briefing ended. If Scott believed that he was incapable of effectively re s ponding to defendants’ summary

- judgment motions, he should have
renewed his motion for counsel when he received them

. See id

. Or he could ha ve moved
for an order under Federal Rule of Civil Procedure 56 (d) based on his inability to “present facts essential to justify [his] opposition,” which was the crux of the fourth motion (despite his already h aving responded substantively). He did neither until months had passed. The district court was within its discretion to regard this as an untimely effort and to deny it.

It is true, as Scott contends, that Eighth Amendment and medical malpractice
claims can pose particular challenges to pro se litigan ts for reasons including th e need to produce medical evidence and obtain expert testimony. See Nally v. Ghosh , 799 F.3d 768, 785 (7th Cir. 2015); Santiago v. Walls , 599 F.3d 749, 761 (7th Cir. 2010); Greeno v. Daley

, 414 F.3d 645, 658 (7th Cir. 2005)

. But Scott seems to argue that cases like his are always

too complex, factually and legally, for pro se litigants

— a proposition we have rejected

. Olson , 750 F.3d at 712. Scott’s case involved multiple medical conditions spanning years,

see Greeno , 414 F.3d at 658, and he might well have needed a medical expert to support some parts of his claim (as the district judge’s ruling on the medical

- malpractice claim suggests). But we reiterate that the time for Scott to argue his case’s factual and legal complexity was before respond ing to the motions for summary judgment. It was then
that Scott had all the evidence and saw what he was up against to establish his claims

. H is decision to respond substantively to the motions signaled that he believed he had enough informa tion. The refore, the district judge did not abuse her discretion in addressing the merits of the summary

- judgment motions and denying the later

- filed
fourth request for counsel

. AFFIRMED