### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-40378

NICOLAS MARQUEZ Plaintiff - Appellant
v. TONYA WOODY; MS. UNIDENTIFIED HOLLIDAY, RDA University of Texas Medical Branch; K. WALLACE, University of Texas Medical Branch Practice Manager; UNIDENTIFIED LEMASTER, Correctional Officer III; NELDA WILLIAMS, Defendants - Appellees

Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:09-CV-71

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM: * In this 42 U.S.C. §1983 action, Nicolas Marquez (“Marquez”), a pri s oner currently confined in the Polunsky Unit in Texas, appeals th e d i s trict court’s decision granting summary judgment to several employees of t h e T e xas Department of Criminal Justice (“TDCJ”) and the University of Texas Medical Bra n c h (“UTMB”). Marquez alleges that the employees were deliberately U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 6 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-40378 Document: 00511593457 Page: 1 Date Filed: 09/06/2011No. 10-40378

indifferent to his serious medical n e ed for dentures and/or for a soft diet. Marquez contends that the di s t r ict court erred by: (1) granting summary j u d g m e nt t o R e gi s t e r e d D e nt al A s s i s tant Holliday (“Hol li d ay” ) , P r a c ti c e M a n a g e r Williams (“Williams”), Correctional Officer K. Wallace (“Wallace”), Unidentified L e m a s t e r (“L e m a s ter”), and Dr. Tonya Woody (“Woody”); (2) dismissing his c l ai m for injunctive relief against Rick Thaler (“Thaler”), Director of the TDCJ, Senior 1 Warden Timothy Simmons (“Simmons”), and Mr. Guy Smith (“Smith”), Region I A d m i ni s t r at o r , T D C J G ri e v a n c es ; (3) unfairly applying Local Rule CV-3, wh i c h 2 limits the page limit for filings by those proceeding pro-se b u t not those

r e p r e s e n t ed by counsel; and (4) failing to grant Marquez’s motion for the appointment of counsel. We AFFIRM the grant o f s u m m a ry judgment to Holliday, Williams, Wall a c e , and Woody, and we REVERSE as to Lemaster. Additionally, we REVERSE the decision to dis m i s s Marquez’s claim for prospective relief against Thaler.

I. FACTS AND PROCEDURAL HISTORY Marquez, TDCJ prisoner number 01451935, is currently confined in the Polunsky Unit—a state facility in Texas. It is undisputed that Marquez does not have any teeth. Marquez requested dentures several times but his request was denied because his body mass index (“BMI”) was within the normal range of 18.5 to 25. He then requested a soft food diet and obtained a prescription for such a diet; however, he alleges that those in charge of food services refused to provide him with soft food. Specifically, he complained that when he approached Lemaster, a food services officer, abou t o b t aining a soft food diet, Lemaster

Purs uant to Fede ral Rule of App ellat e Proc edur e 43(c ), we sub st itut e Thaler—ac ting 1 Di rec torof

t he TDCJ—f

or Nat hanielQ uart erm an, the for me r dir ect or of the TDCJ

. Alt hough Mar quez me ntio ns Sm ith and Sim mo ns in his st atem ent of the iss ues , he 2 fai ls to pr ovide any legal or fac tual argum ents rela ted to Sm ith or Sim mo ns; ther efo re, he has
wa ived thes e i ss ues
. See Yohe y v
. Coll ins , 985 F.2d222 , 224- 25 ( 5th Cir. 199 3).

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crossed out “soft food” on Marquez’s diet card and wrote “vegg i e ” in its place. Marquez states that he has experienced severe gastrointestinal problems as a

r esult of the lack of dentures and/or a soft food diet because he is forc e d t o e a t primarily peanut butter. Marquez complains that Holliday, a dental technician, interfered with his ability to see the dentist and misled him a s t o w h e t her he would be able to receive dentures. He alleges that Williams, a nurse, ignored his complaints that those in the food se rv i c e s d e p a rtment would not provide him with a soft food diet. He also complains t h at Wallace ignored his grievances concerning the refusal of those in the food services department to provide him with soft food. Marquez filed several grievances through the prison’s grievance system. He complained that the dentists refused to give him dentures despi t e the fact that he had no teeth because he had a “normal” BMI, and that even though he 3 had been prescribed a soft food diet, the food services department—specifically, Lemaster—failed to provide him with such a diet. His grievances were denied. Marquez f

i l e d s uit against the TDCJ and UTMB employees on April 24, 2009. Marquez and the defendants consented to proceed b e f o r e a magistrate judge pursuant to 28 U.S.C. § 636(c). The magistrate judge conducted a Spears 4 5 hearing an d s u b sequently dismissed Quarterman and Simmons after 6

No evide nce wa s pr off ere d that a “nor mal ” BMI nece ss aril y me ans a per so n is not 3 mal nouri she d.
Wood y did not expli cit ly cons ent to pr oce ed bef ore a magis tra te judge, as an att orne y 4 fr om the Atto rney Ge nera l’ s o f f i c e w a s the one to sign the cons ent for m on behalf of the def enda nts , and she wa s not rep res ente d by the Texas Atto rney Ge nera l’s off ice. Ho we ver, the Sup rem e Court has held that “co nse nt can be infe rre d fr om a par t y ’ s c ondu ct dur ing liti gation .” Roel l v. Withr ow , 538 U. S. 580, 582 (200 3). In this cas e, Wood y’s cond uct indi cat es thats he cons ente d to pr oce ed bef ore a magis tra te judge. Spea rs v. M

cCotter , 766 F.2d179 ( 5th Cir. 198 5). 5
As no tedabo ve, on app eal, w e h ave s ubs tit utedThal er forQ uart erm an. 6
3 Case: 10-40378 Document: 00511593457 Page: 3 Date Filed: 09/06/2011No. 10-40378

concluding that they had no pe r sonal involvement in Marquez’s treatment. Woody, H o l l i d ay, Williams, Wallace, and Lemaster later filed motions for summary judgment. Although Marquez timely mailed a response to Holliday, Williams, Wallace, and Lemaster’s motions for summary judgment to the clerk’s office, the clerk refused to enter the response onto the docket because it was too lengthy, citing Local Rule CV-3, which imposes a page limit of 20 pages, 7 including attachments, on pro se litigants. The magistrate judge granted summary judgment to Woody, Holliday, Williams, and Wallace, concluding that Marquez failed to show that they were deliberately indifferent. The judge also held that Holliday, Willi a m s , and Wallace were entitled to qualified i m m u n i ty, because their actions were not objectively unreasonable. Finally, the magistrate judge granted summary judgment to Lemaster, concludi ng that Marquez failed to exhaust his administrative remedies with respect to his claim against Lemaster. Marquez timely filed a notice of appeal.

II. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursua n t to 28 U.S.C. § 1331. As the parties consented to proceed before a magistrate judge, we have jurisdiction to hear this appeal directly from the final judgment issued by the magistrate judge. See 28 U.S.C. § 636(c); 28 U.S.C. § 1291. We review “the grant of summary judgme n t de novo, applying the same standard as the district court.” QT Trading, L.P. v. M/V Saga Morus , 641 F.3d 105 (5th Cir. 2011) (internal quotation marks and citation omitted). Summary judgment sho uld only be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F E D

. R. C I V

. P. 56(a). “We construe all facts and inferences in the light most favorable

E. D. T E X

. R. CV-3(b). 7
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to the nonmoving party when reviewing grants of motio n s f o r summary judgment.” Hernandez v. Yellow Transp., Inc. , 641 F.3d 118, 124 (5th Cir. 2011) (quoting Murray v. Earle , 405 F.3d 278, 284 (5th Cir. 200 5)). III. DISCUSSION We pretermit the question of whether denial of dentures can qualify as a violation of the Eighth Amendment because we conclude that Marquez did not show that any of the medical providers acted with deliberate indifference to his medical needs. Lyng v. N o r thwest Indian Cemetery Protective Ass’n , 485 U.S. 439, 445 (1988) (“A fundamental and long-standing principle of judicial restraint requires that courts avoid rea c h i n g c onstitutional questions in advance of the necessity of deciding them.”); R e p u b l i c an Nat’l Comm. v. FEC (In re Cao), 619 F.3d 410, 436 (5th Cir. 2010) (en banc) (“The usual path o f c o n stitutional adjudication is first to consider the fact-based issue a n d t o r each broader constitu t i o nal questions only if they are inescapably presented.”), cert. denied sub nom. Cao v. FEC, 131 S. Ct. 1718 (2011). A. Did the district court err in granting summary judgment to the medical and dental providers? 1. Holliday Holliday was a registered dental assistant in the Polunsky Unit. Marquez

a l l e g e d that she denied him adequate dental care and refused to provide h i m with dentures “even though she could see he is malnourished.” The competent summary judgment evidence indicates that she performed the duties assigned by the attending dentist and did not have the authority to provide Marquez with dentures or to change the policy on dentures. As the evidence fails to show that Holliday acted unreasonably in not providing Marquez with dentures, much less with deliberate indifference, we conclude that the magistrate judge did not err in granting summary judgment to Holliday.

2. Williams and Wallace

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Williams was a n u r s e i n the Polunsky Unit. Marquez’s only allegation concerning Williams states t h a t s h e “[a]ided UTMB and TDCJ officials in denying plaintiff food he could eat.” Williams provided an affidavit of a nursing
manager e m p loyed by the UTMB stating that Marquez’s records indicate that Williams’s only contact with Marquez was to answer sick call requests by “either scheduling a Nursing call visit, a Provider sick call visit, or by response only.

.

. . Ms. Williams R.N. d o e s not have the authority to order a diet or provide dentures for a patient.” Marqu e z all e g e d that Wallace , a Practice Manager in the UTMB Polunsky Unit Infirmary, “[d]enied plaintiff dentures although he has no teeth and cannot properly digest food available in unit chow hall per UTMB/TDCJ policy.” The
summary judgment evidence indicates that as a practice manager, Wallace’s job

was to ensure that processes were available to “ f a c i l itate access to health care for routine, specialty cl i nic appointments, and to assure that they were scheduled within the timelines set forth by TDCJ policy.” The evidence shows that Wallace had no role in p r o v iding medical care; instead, her job was to

ensure that patients received appropriate medical care. Wallace advised Marquez about the criteria for obtaining dentures. We conclude that the magistrate judge did not err i n g r anting Williams and Wallace’s motion for summary j u d g ment, as the evidence shows that Williams and Wallace took the actions that they were empowered to take with respect to Marquez’s complaints. The record indicates that W i l l iams and Wallace referred Marquez to a nurse or a doctor or otherwise responded to Marquez’s requests. Marquez’s conclusory statements in his verified complaint

are insufficient to o v e r c o m e Williams and Wallace’s motion for summary judgment. See H

a r v i l l v. Westward Commc’ns, L.L.C. , 433 F.3d 428, 440 (5th Cir. 20 0 5 ) (upholding a decision granting summary judgment to a defendant

6 Case: 10-40378 Document: 00511593457 Page: 6 Date Filed: 09/06/2011No. 10-40378

when the onl y e vidence presented by the plaintiff consisted of conclusory allegations).3. Woody The magistrate judge granted Woody’s motion for summ a ry judgment because it determined that Marquez failed to raise a genuine issue of material fact as to whether Woody treated Marquez and failed to raise a genuine issue of material fact as to whet h e r Woody was deliberately indifferent to his serious medical needs. Al t h o u gh we find that Marquez did raise a genuine issue of material fact as to whether Woody treated him, t he competent summary 8 jud g m e n t e v i dence shows that even if she did treat Marquez, Woody was not deliberately indifferent to Marquez’s dental needs. The evidence fails to indicate that Woody ignored Marque z ’ s r e q uests for treatment, and Marquez does not address any actions that Woody might have taken d i fferently that could have changed his outcome. The evidence s h o w s that Woody did not have the auth o r i ty to physically give Marquez dentures or to change the policy on d e n t u r es. We do not construe the law as requiring a dentist to pay f o r a p r isoner’s dentures out of her own pocket. The evidence does not show th a t Woody acted with deliberate indifference; therefore, we conclude that the magistrate judge did not err in granting her motion for summary judgment. B. Did the district court err in granting summary judgment to Lemaster? Marquez contends that the district cou r t erroneously concluded that Marquez failed to exhaust his a d m i ni strative remedies with respect to his claims against Lemaster and erroneously concluded that there was no evidence in the record to show that Marquez had contact with Lemaster. We agree.

Altho ugh Wood y’s aff idavit indi cat es that she never me t or tre ated Mar quez, 8 Mar quez’s aff

idavit indi cat es that she did , in fac t, se e him

. De sp ite t h i s f a c t iss ue, we nonet heles s conc lude that the magis tra te judge pr ope rly grant ed sum mar y j u dgme nt to Wo ody beca use he fai led to pr ov i d e c o m pet ent sum mar y judgm ent evide nce that Wood y wa s del iber atel y ind iff

ere nt to his ne ed ford entu res
. 7 Case: 10-40378 Document: 00511593457 Page: 7 Date Filed: 09/06/2011No. 10-40378

Before filing suit, a prisoner m u st exhaust the available administrative remedies. See 42 U.S.C. § 1997e(a); Jones v. Bock , 549 U.S. 199, 212 (2006). The record ind i c a t e s that Marquez specifically named Lemaster in a step one grievance. Indeed, Lemaster concedes this point on appeal

. Therefore, we conclude that the district court erred in dismiss i ng Marquez’s claim against Lemaster for failure to exhaust his administrative remedies. Additionally, the r e c o r d shows that the magistrate judge erred in concluding that there was no evidence in the record that Lem a s t e r w as deliberately indifferent to Marquez’s serious medical need for a soft food d iet. In his grievance, which was a t t a c h ed to his verified complaint and which was also sworn, Marquez specifically stated that Lemaster ignored Marqu e z’s prescription for a soft food diet by taking Marquez’s diet pass, crossing out the
p o r tion describing the soft food requirement, and writing “veggie” on it

. Marquez alleged that Lemaster ignored him when he explained that he co u ld not eat a veggie tray because he had no teeth. In his verifie d c o m p l a i nt, Marquez also stated that Lemaster “actually has thrown the plaintiff out of the chow hall

r e f u s i n g to provide him with any sustanance [sic] whatever.” Thus, Marquez ha s shown that there is a fact issue as to whether Lemaster was aware that Marquez had a prescription for a soft food diet and deliberately denied him the prescribed diet. 9 Additionally, Lemaster is not entitled to qualified immunity at this stage in the proceedings. “Government officials pe rf o r m i n g di s c r e ti o n ary f

u n c ti o n s are entitled to qualified immunity from civil liability to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a

Lem a s t e r cont ends , and Mar quez adm its , that to the exten t Mar quez’s clai m for 9 dam ages is agains t Lem ast er in her off icia l cap acit y, it is barr ed. See Uni te d S ta te s ex rel

. Barr on v. De loi tte & Touc he, L.L. P. , 381 F.3 d 438, 443 (5t h Cir. 2004) (“An indi vidual st ate off icer sue d in her off

icia l cap acit y for dam ages is enti tle d to Elevent h Ame ndm ent im mun ity

. . . beca use t he st ate thatem plo ys her is the realp art y in inte res t. ”)

. 8 Case: 10-40378 Document: 00511593457 Page: 8 Date Filed: 09/06/2011No. 10-40378

reasonable person would have known.” Longoria v. Texas , 473 F.3d 586 , 5 92 (5th Cir. 2006). It is clearly established that “state prisone r s a r e e ntitled to reasonably adequate food.” Cooper v. Sheriff, Lubbock County , 929 F.2d 1078, 1084 (5th Cir. 1991). The Eighth Amendment is violated if the denial of food constitutes a denial of “the ‘minimal civilized measure of life’s necessities.” Talib

v. Gilley , 138 F.3d 2 1 1 , 214 n.3 (5th Cir. 1998). Indeed, we have held that “[b]ecause depriving a prisoner of adequate f o o d i s a form of corporal punishment, the [E]ighth [A]mendment imposes limits on prison officials’ power to so deprive a prisoner.” Cooper , 929 F.2d at 1083. Accepting Marquez’s competent summary judgment evidence as true, as

we must at this stage, Le m a s t e r ’ s actions clearly violated the Eighth Amendment because she refused to provide Marquez with a soft food despite the fact that a doctor prescribed him such a diet. It would be difficult to argue that Marquez did not need to eat soft food when it is apparent that Marquez has no teeth and when Marquez presented a prescription for a soft food diet to Lemaster which indicated that such a diet was medically necessary. We therefore rejec t Lemaster’s qualified immunity defense at this stage based on the competent

s u m m ary j u d g m e nt evidence before this court, recognizing that th e f a c t s a c t u ally proven may be different from those sworn to by Marquez. C. Did the district court erroneously dismiss Marquez’s claims against Thaler? Marquez contends that the district court erred in dismissing his claim for prospective relief against Thaler. The district c o urt dismissed Marquez’s complaint against Thal e r b e cause the doctrine of respondeat superior does not apply to suits under 42 U.S.C. § 1983, and Thaler was not pers onally involved in the alleged violation of Marquez’s constitutional rights. We review dismissal of a complaint under 28 U.S.C. § 1915A de novo. Geiger v. Jowers , 404 F.3d 371, 373 (5th Cir. 2005) (per curiam).

9 Case: 10-40378 Document: 00511593457 Page: 9 Date Filed: 09/06/2011No. 10-40378

A plaintiff may not sue a state officer in her official capacity for damages because the official is entitled to Eleventh Amendment immunity. United States

ex rel. Barron , 381 F.3d at 443. “[H]owever, the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law.” Frew ex rel. Frew v. Hawkins , 540 U.S. 431, 437 (2004). An official cannot be held liable under § 1983 based solely o n t h e theory of respondeat superior

. See City of Canton v. Harris , 489 U.S. 378, 385 (1989). “The individual officials may be liable only for implementing a policy that is ‘ i t s e l f [] a repudiation of constitutional rights’ and ‘the moving force of the constitutional violation.’” Oliver v. Scott , 276 F.3d 736, 742 (5th Cir. 2002) (quoting Grandstaff v. City of Borger , 767 F.2d 161, 169, 170(5th Cir. 1985)). Here, Marquez’s complaint specifically alleges that Tha ler was “[r]esponsible for implimentation [sic] of TDCJ policy denying plaintiff dentures and a soft diet in lieu of dentures.” The magistrate judge erroneously concluded that Marquez was suing Thaler solely because of his supervisory role, ignoring the fact that Thaler may be held liable if he implemented a policy that itself

causes a c o n stitutional violation. See Oliver , 276 F.3d at 742. Additionally, Thaler would not be entitled to qualifi e d i m munity for Marquez’s claim for prospective injunctive relief under § 1983 , a s qualified immunity does not extend to suits for prospective relief. See Orellana v. Kyle , 65 F.3d 29, 33 (5th Cir. 1995) (per curiam). The magistr a t e j u d ge thus erroneously dismissed Thaler’s complaint with o u t c o n s i d e ri n g wh e th e r Th al e r i m p l e m e nt e d o r h a d the authority to modify or contravene the policy on dentures and whether such policy in fact resulted in a violation of Marquez’s Eighth Amendment rights. For this reason,

we reverse the dismissal of Marquez’s claim for injunctive relief against Thaler and remand for consideration of these issues in the first instance. 1 0

Altho ugh Mar quez origi nally so ught injunct ive and mo neta ry reli ef fr om Thaler , his 1 0 brie f requ e s t s o nly that this cour t “re st ore De fen dant [Thal er] for th[ e] lim ite d pur pos e” of 10 Case: 10-40378 Document: 00511593457 Page: 10 Date Filed: 09/06/2011No. 10-40378

D. Is Local Rule CV-3 unconstitutional? Although Marquez raises the constitutionality of L ocal Rule CV-3 as an issue before t h i s c o u r t , he failed to raise it below, and his brief contains no 1 1 further factual or legal discussion of his contention that L o c a l R u le CV-3 is unfair or unconstitutional. As such, he has wa i v e d this issue. See Condrey v. SunTrust Bank of Ga. , 429 F.3d 556, 571 (5th Cir. 2005) ( a r g u m e n t s not presented to the district c o u r t are waived); Douglas W. ex rel. Jason D.W. v. Houston Indep. Sch. Dist. , 158 F.3d 205, 210–11 n.4 (5th Cir. 1998) (per curiam) (“[F]ailure to provide any legal or factual analysis of an issue on appeal waives that issue.”).

pr ovidi ng injunct ive reli ef. Mar quez ther e f o r e abando ned his clai m for dam ages agains t Thaler

. Mar quez als o requ es ts that this cour t allow him t o ame nd his com plai nt to add Dr

. Billy H o r ton, DD S, Di rec tor of the UTM B – Corr ect ional Man aged Care, as a def enda nt. Mar quez did not se ek to ame nd his com plai nt to add Ho rto n in the dis tri ct cour t; ther efo re, we do not cons ide r the iss ue at this tim e. On rem and, the dis tri ct cour t may add res s wh ethe r Mar quez sho uld be per mi tte d to ame nd his com plai nt. See Ch a n c e r y Cle rk of Chika sa w Coun ty, Mi ss. v. Wal la ce , 646 F.2d 151, 160 (5t h Cir. 1981) (no ting that plai ntif fs had the opp ort unity on rem and to cor rec t a n e r r or by sub st itut ing as def enda nts thos e wi th the
res pons ibili ty forc hallen ged act ion)

.

Local Rule CV-3 is an adm itt edl y unus ual rule that tre ats pr o se liti gants dif fer entl y 1 1 f rom thos e rep res ente d by couns el for pur pos es of det erm ining how man y pages of evide nce each may sub mi t. See E

. D

. T E X

. R. CV-3(b). The rec ord als o indi cat es that Fede ral Rule of Civil Proc edur e 5(d)( 4) wa s not fol low ed in this cas e, as the cler k ref use d to acc ept Mar quez’s
res pons e. See F E D

. R. C IV

. P. 5(d)( 4) (“ The cler k mus t not ref use to fil e a pap er so lely beca use it is not in the for m pr es cri bed by thes e rule s or by a loca l r u l e o r p r a c t ice. ”)

. None thel es s, Mar quez has not sho wnthat thi s fa ilure harme d him , as he did notbring for wa rdon appea l the evide nce that he wo uld have i n c l uded in his res pons e but wa s pr event ed fr om fil ing. Indeed , the magis tra te judge had bef ore her a great dea l of evide nce in the for m of the me dic al
rec ord s and grievanc es fil ed in the rec ord by the d e fen dant s (as to wh om ther e wa s no page res tri cti on) as we ll as Mar quez’s sw orn ple adin gs, all of wh ich t h e m a g i s tra te judge
cons ide red

. Fina lly, he didr es pondt o D r. Woody’ s m oti on fors umm ary judgm ent, andt hat
res pons e wa s fil ed and not st ric ke n suc h that the evide nce pr es ente d ther e wa s als o bef ore the
cour t. 11 Case: 10-40378 Document: 00511593457 Page: 11 Date Filed: 09/06/2011No. 10-40378

E. Did the district court err in denying Marquez’s mo tion for appointment of counsel? Marquez contends that t h e magistrate judge erroneously denied his motion for appointment of counsel. By sta t u t e, the court has discretion to appoint counsel in a civil case, see 28 U.S.C. § 1915(e)(1); however, “there is no automatic right to appointment of counsel in a civil rights case
. . . .” Romero v. Becken , 256 F.3d 349, 353- 5 4 (5th Cir. 2001). A court has no obligation to appoint counsel for an individual raising a claim under 42 U.S.C. § 1983 “unless the c a se presents exceptional circumstances.” Ulmer v. Chancellor , 691 F.2d 209, 212 (5th Cir. 1982). In deciding whethe r t o a p p o i nt counsel, the court should consider “the type and complexity o f t h e c ase, the litigant’s ability to investigate and present the case, an d the level of skill required to present the evidence.” Baranowski v. Hart , 486 F.3d 112, 126 (5th Cir. 2007). “The district court should also consider whether the a p p o i n t ment of counsel would be a service to [the plaintiff] a n d , p erhaps, the court and defendant as well, by sharpening the issues in the case, shaping the examination of witne s s e s , and thus shortening the trial and assisting in a just determination.” Ulmer , 691 F.2d at 213. We find no error in the decision not to appoint counsel with respect to the claims against the defendants other than Lemaster and Thaler. The magistrate judge viewed Marquez’s claims as b e ing “not unduly complicated” and denied counsel on that basis. In light of our d e c ision that Marquez has raised a fact issue as to Lemaster’s deliberate indifference and that the magistrate judge
p r e m at u r e ly dismissed Marquez’s c l ai m a g ai n s t Th al e r f o r p r o s p e c tiv e i n

j u n c tiv e

r e l i e f, we leave it to the magistrate judge to consider on remand whether appointment of counsel would now be appropriate.

12 Case: 10-40378 Document: 00511593457 Page: 12 Date Filed: 09/06/2011No. 10-40378 IV. CONCLUSION In conclusion, we AFFIRM the magistrate judge’s decision granting
summary judgment to Holliday, Williams, Wallace, and Woody, REVERSE the grant of summary judgment to Lemaster in he r i n d ividual capacity, and R E V E RSE dismissal of Marquez’s claim for prospective relief against Thaler. We leave the question of couns e l o n the surviving claims on remand to the district court’s discretion in the first instance.

13 Case: 10-40378 Document: 00511593457 Page: 13 Date Filed: 09/06/2011