Harper v. Dart et al

Filing 45

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 7/21/2014:Mailed notice(jms, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BEDNAQO HARPER,
Plaintiff,
v.
OFFICER BOLTON, ET AL.,

Defendants.

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No. 1:13-cv-08595
No. 1:13-cv-09265
No. 1:14-cv-01984
No. 1:14-cv-01986
No. 1:14-cv-00848
Judge Tharp
Magistrate Judge Cole

MEMORANDUM OPINION AND ORDER
INTRODUCTION
The plaintiff, currently in custody in a maximum security tier at the Cook County Jail, has
brought five pro se civil rights actions pursuant to 42 U.S.C. § 1983.1 The plaintiff alleges that
several Cook County Department of Corrections (“CCDOC”) officers and employees violated his
constitutional rights by: ignoring his warnings that his cellmate’s behavior posed a risk to his safety,
which led to plaintiff being stabbed by his cellmate in his left forearm; (13 C 8595 Dkt. 6); by
inadequately treating pain caused by a pre-existing hernia (13 C 9265 Dkt. 6); inadequately treating
pain in his left eye (14 C 1984 Dkt. 5); causing ankle soreness and swelling by confiscating his
medically prescribed, orthopedic shoes (14 C1986 Dkt. 5); and inadequately treating pain in his left
shoulder (14 C 0848 Dkt. 8).

1

As the plaintiff explained at a status conference, he and others on his tier are not in solitary confinement
and he has considerable freedom of movement. It is just that there is greater security on his tier than in other
parts of the Jail.

The plaintiff has filed five motions for appointment of counsel – recruitment is the
appropriate term – in each of the cases because he is unable to afford counsel. See (13 C 8595 Dkt.
29), (13C 9265 Dkt. 12), (14 C 1984 Dkt.11), (14C 1986 Dkt. 10), (14C 0848 Dkt. 12). The motions,
which are skillfully drafted reflect an awareness of the principles governing motions for the
recruitment of counsel. They allege that the plaintiff’s imprisonment will greatly limit his ability to
litigate, that the issues involved are complex and will require significant research and investigation
and that plaintiff has limited access to the law library and limited knowledge of the law. The
motions also contend that a trial in these cases would “likely involve” conflicting testimony and
counsel would “better enable plaintiff to present evidence and help in matters of which plaintiff may
not be legally competent and aware.” (Pl.’s Mot. ¶ 4) (Dkt. 29, 12, 10, 12).
Judge Tharp has referred the motions here for decision. See 28 U.S.C. 1§636(b)(1)(A); Rule
72(a), Federal Rules of Civil Procedure.
B.
Analysis
1.
There is no constitutional or statutory right to counsel in federal civil litigation. Pruitt v.
Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en banc); Romanelli v. Suliene, 615 F.3d 847, 851 (2010);
McKinley v. Harrington, 2014 WL 1292798, 16 (N.D.Ill.2014)(Tharp, J.). Nevertheless, an indigent
litigant may request that counsel be recruited for him pursuant to 28 U.S.C. § 1915(e)(1). Pruitt, 503
F.3d at 654. Deciding whether to recruit counsel “‘is a difficult decision: Almost everyone would
benefit from having a lawyer, but there are too many indigent litigants and too few lawyers willing
and able to volunteer for these cases.’ Consequently, ‘[d]istrict courts are ... placed in the unenviable

2

position of identifying, among the sea of people lacking counsel, those who need counsel the
most.’”Henderson v. Ghosh, _F.3d._, 2014 WL 2757473, 4 (7th Cir.2014)(citations omitted).
The language of § 1915(e)(1) is “entirely permissive” and does not suggest a “congressional
preference for recruitment of counsel in any circumstance or category of case.” Pruitt, 433 F.3d at
654. Indeed, even in cases reversing a district judges’s refusal to enlist counsel, the Seventh Circuit
has stressed that the reversal must not be construed as manifesting a judicial preference for counsel.
As the Court has forcefully reminded, decisions on the issue of recruitment of counsel are limited
by the unique facts and circumstances of each case, and thus any particular “holding, like a special
railroad fare, is limited to this day and this train only.” Santiago v. Walls, 599 F.3d 749, 766 (7th Cir.
2010)(emphasis in original). Accord Bracey v. Grondin, 712 F.3d 1012, 1018, n.4 (7th Cir. 2013).
Thus, while the majority in Santiago, concluded that counsel was necessary under the
particular facts of the case,2 it rejected “the dissent’s suggestion that our colleagues in the district
court will read this case as placing a ‘thumb on the scale’ in favor of recruitment” and pointedly said
that the dissent’s prediction that district judges would henceforth feel obligated to routinely recruit
counsel “misapprehends our holding and underestimates our colleagues on the district bench.” 599
F.3d at 762, 766 n. 15.
The requirement that counsel be recruited is not determined by the precise classification,
category, or nature of the claim being made. Santiago, supra. Rather, decisions under § 1915(e)(1)
involve an exercise of the informed discretion possessed by the district court. Santiago; Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006).3 When confronted with a request under § 1915(e)(1)

2

Judge Sykes dissented.

3

This does not mean that a judge is free to do as he pleases. “ In a government of laws, judges are not
(continued...)

3

for pro bono counsel, the threshold inquiry is whether the plaintiff made a reasonable attempt to
obtain counsel or has been effectively precluded from doing so. There is no bright-line rule as to
what constitutes a reasonable attempt. Nor could there be since in all contexts reasonableness is a
flexible concept that depends on circumstances. Cf. American Nat. Bank and Trust Co. v. Hoyne
Industries, Inc., 966 F.2d 1456, *7 (7th Cir. 1982); Shields v. Burge, 874 F.2d 1201, 1204 (7th Cir.
1989). The inherent flexibility of the reasonableness analysis necessitates a case-by-case basis
assessment.
Mr. Harper’s motions demonstrate that he has made reasonable efforts to obtain private
counsel. (Pl.’s Mot., ¶ 2) (Dkt. 11). Four lawyers have declined to take his case without payment.4
Each of the named attorneys is known to the court to take cases on a contingency fee basis, and it
is therefore fair to assume all were unwilling to take the plaintiff’s cases on that basis. While the
plaintiff’s submission could have been more informative on the question of his attempts to recruit
private counsel, I think it is sufficient.

3

(...continued)
permitted to make unreasonable rulings. ‘[D]iscretionary choices are not left to a court's ‘inclination, but to
its judgment; and its judgment is to be guided by sound legal principles.’ Albemarle Paper Co. v. Moody,
422 U.S. 405, 416 (1975).... ‘We must not invite the exercise of judicial impressionism. Discretion there may
be, but ‘methodized by analogy, disciplined by system.’ Cardozo, The Nature of the Judicial Process 139,
141 (1921). Discretion without a criterion for its exercise is authorization of arbitrariness..’.... In the
influential formula of Judge Calvert Magruder, a discretionary ruling by a lower court must be set aside if
the reviewing court ‘has a definite and firm conviction that the court below committed a clear error of
judgment in the conclusion it reached upon a weighing of the relevant factors.’” Wells Fargo Bank, N.A. v.
Younan Properties, Inc. 737 F.3d 465, 467-468 (7th Cir.2013)(Posner, J.).

4

The names of the four attorneys, as well as their respective firms, addresses, and phone numbers , are listed.
(Pl.’s Mot., ¶ 2) (Dkt. 11).

4

2.
We turn then to the second inquiry under Pruitt, which is whether, given the legal and factual
complexities of the case, the plaintiff is competent to develop the evidence and coherently present
it to a judge or jury. Pruitt, 503 F.3d at 655. “We...examine both the difficulties posed by the
particular case and the capabilities of the plaintiff to litigate such a case.” Santiago, 599 F.3d at 761;
Pruitt, 503 F.3d at 654-55; Henderson, 2014 WL 2757473, 4. The cases state pellucidly that the
requirement that counsel be recruited is not determined by the precise classification, category, or
nature of the claim being made. Santiago, supra. Thus, although transfer of a plaintiff from one
prison to another can require recruitment of counsel, not all cases involving such a transfer require
that counsel be recruited. See, e.g., Olson v. Morgan, 750 F.3d 708 (7th Cir. 2014); Millbrook v.
United States, _Fed.Appx._, 2014 WL 1801732, *3 (7th Cir. 2014) (recognizing that while plaintiff’s
transfer may create burdens, transfer alone does not require automatically that plaintiff is entitled to
counsel, especially where plaintiff knew the identities of all employees involved, and participated
in relevant discovery).5
So, too, with cases involving claims of deliberate indifference to a plaintiff’s safety or
medical needs. State-of-mind questions are not categorically deemed too difficult for pro se
plaintiffs. See, e.g., Olson, 750 F.3d at 712 (finding that plaintiff was capable of handling claims
for deliberate indifference to his medical needs and safety); Rowe v. Morton, 525 Fed.Appx 426, 429
(7th Cir. 2013)(finding that plaintiff was not entitled to counsel because his allegation that
defendants acted with deliberate indifference to his safety when denying his request for placement

5

While Collins and a number of other cases cited in this Opinion are nonprecedential, they nonetheless ought
not be overlooked since unpublished decisions can “offer helpful guidance.” United States v. Ramirez, 675
F.3d 634, 636 (7th Cir.2011).

5

in protective custody due to potential threats from inmates was not complex and did not require
expert testimony); Romanelli, 615 F.3d at 852 (finding that proving deliberate indifference was not
too complex for a pro se litigant).6 Thus, Mr. Harper’s claim that the defendants ignored his repeated
warnings that his cellmate posed a risk to his safety, (13 C 8595),7 does not necessarily mean that
he is entitled to have counsel
3.
Mr. Harper’s five cases do not appear complex – or at least not any more complex than many
of the cases in which the district court’s refusal to recruit counsel have been sustained on appeal.
Neither the legal issues raised in the complaints nor the evidence that might reasonably be necessary
to support the claims are so complicated as to exceed a layperson’s grasp. So far as thus far can be
ascertained, Mr. Harper’s Complaints will involve straightforward testimony from the plaintiff,
himself, the defendants, and any witnesses who may have overheard the alleged warnings and
requests for protection and interactions with medical staff.
The testimony will not be complex or lengthy or present any difficult legal issues. Either he
told the guards of the claimed risk from his cellmate or he did not. Either he complained of pain and
sought medical attention or he did not.8 There is nothing difficult in developing this testimony or
6

Numerous other cases have refused to recruit counsel where the Complaints alleged conscious indifference
to medical needs. See e.g., Parker v. Dart, 2013 WL 4506958, 4 (N.D.Ill.2013); Gibson v. Dart, 2013 WL
3490722, 4 (N.D.Ill. 2013); Dear v. Dart, 2013 WL 3270680, 4 (N.D.Ill..2013); Smith v. Dart, 2012 WL
965115 (N.D.Ill. 2012).

7

It is alleged that plaintiff repeatedly told Officer Bolton that his cellmate’s behavior was erratic and
abnormal. (Compl. ¶ 1, Dkt. 6). Thereafter, plaintiff’s cellmate allegedly stabbed plaintiff in the left forearm
with an ink pen. The plaintiff received medical treatment in the prison’s dispensary as well as further
treatment at John Stroger, Jr. Hospital. Plaintiff alleges no serious consequences resulting from any sort of
delay in treatment or inadequacy of treatment.

8

Of course, there will be no hearsay problem with this sort of evidence. See Junior v. Anderson, 724 F.3d
(continued...)

6

obtaining relevant documentary or testimonial evidence if it exists. Mr. Harper knows the identities
of all of the employees and witnesses involved and all are amenable to discovery. Cf. Millbrook,
supra. That there may be conflicting testimony is not, standing alone, a sufficient basis to recruit
counsel. See e.g. Barrett v. Wallace, _ Fed.Appx._, 2014 WL 3058289, 3 (7th Cir.2014).
There are, to be sure, cases in which the evidence will be too complex and intricate for an
incarcerated plaintiff to be able to obtain, develop, and present without the aid of counsel. Junior v.
Anderson, 724 F.3d 812, 813 (7th Cir. 2013) is a conspicuous example of such a case. There, the
plaintiff, a pretrial detainee in a maximum-security tier of the Cook County Jail in Chicago, brought
suit under 42 U.S.C. § 1983 against a prison guard, alleging she had failed to protect him from an
attack by other inmates. Prior to the attack, the plaintiff alleged that he heard other prisoners ask
Anderson to unlock certain cells from another section of the maximum-security tier so more
prisoners could use the dayroom, which is specifically against jail regulations that only allow half
of the maximum-security tier in the dayroom at any one time for security reasons. 724 F.3d at 814.
Shortly thereafter, the plaintiff heard the sound of new cells unlocking, but instead of the
prisoners entering the dayroom, they crowded in a dark corner of the corridor. Upon exiting the
dayroom, a group of prisoners armed with shanks attacked the plaintiff from behind; some attackers
had also been in the dayroom with the plaintiff while two other prisoners were from cells unlocked
against prison regulations. Id. One of the two attackers, from the cells not supposed to be released,
occupied a cell that Anderson had noted earlier as being a “security risk” – meaning it was not
locked properly – yet she did nothing more than note the risk, and did not attempt to fix the problem.
Id. at 813.
8

(...continued)
812, 814 (7th Cir. 2013).

7

The plaintiff managed to escape the attackers and fled to Anderson’s station for help.
However, the defendant was not present. The defendant alleged that she did not leave her station,
yet oddly claimed she did not witness the attack despite the fact that her station faced the dayroom.
The defendant also alleged that she did not release any cells that were not supposed to be released
even though the record indicated that one of the attackers was from a cell that was supposed to
remain locked. Following the attack, the plaintiff was transferred to a new prison 300 miles from
Chicago. This caused the plaintiff extreme difficulties in preparing his case because there was no
way to obtain Cook County Jail records or depose witnesses unless possibly deposing witnesses via
video conferencing. Id. at 814-815.9
The district court denied the plaintiff’s motion for counsel, reasoning that his claim was
simple, and that the plaintiff was fully capable of litigating his case, despite having little education
and being 300 miles away from where the incident occurred. Id.10 On appeal, the Seventh Circuit
reversed, concluding that “a plaintiff’s inability to investigate crucial facts by virtue of his being a
prisoner or the remoteness of the prison from essential evidence is a familiar ground for regarding
counsel as indispensable to the effective prosecution of the case.” Id. Moreover, the Court found that
there were large gaps in the evidence that only counsel could have been in a position to investigate.
Here is how Judge Posner put it:
9

See also Navejar v. Iyiola, 718 F.3d 692, 698 (7th Cir. 2013)(concluding that the plaintiff was prejudiced
by proceeding without a lawyer after being transferred to a new prison because he faced “significant
problems” in “identifying key witnesses, deposing the defendants, and gathering pertinent evidence.”);
Santiago, 599 F.3d at 760-62 (plaintiff was unable to gather evidence or to take depositions because he was
no longer incarcerated at Menard, the prison where he was assaulted by other prisoners, and where all of the
defendants, witnesses and evidence were located). No such logistical problems exist here.

10

The plaintiff explained there was no way he could obtain Cook County jail records, depose witnesses
(notably the defendant), or otherwise prepare the case. Judge Posner noted that maybe he could have
conducted depositions from afar by video, but no evidence concerning the feasibility of that approach was
presented; nor had the defendant argued that it would have been feasible. 724 F.3d at 815.

8

Unanswered questions abound. Had there been a time when all the
prisoners in the tier had been allowed to mingle in the dayroom? If so,
had there been violence, which the rule permitting only half the
prisoners to be in the dayroom at the same time had been adopted to
prevent from recurring? How frequently under the current rule of
separation (though flouted when the attack occurred) do prisoners
from the two rows mingle in the dayroom, and with what
consequences? Did the defendant know that just a few weeks earlier
the plaintiff's cellmate had been assaulted and stabbed in the dayroom
and that according to him prisoners from the supposedly locked-down
side of the tier had been in the dayroom at the time? And how, by the
way, are prisoners assigned to one row or the other? Randomly? Or
is an attempt made to keep prisoners who are likely to get into fights
with each other apart? Also useful would be the criminal records of
the prisoners at the time of the attack—just how dangerous were
those prisoners? And finally there is the question whether the two
Andersons are related—a question the plaintiff can't investigate on his
own.
All these gaps cry out for evidence that a lawyer could obtain but the
plaintiff could not. The judge should have realized this and tried to
get him a lawyer.
724 F.3d at 816.
The facts in this case are not remotely comparable to those in Junior. Here, there will be, at
least so far as one can tell now, no “gaps [that] cry out for evidence that a lawyer could obtain but
the plaintiff could not.”
4.
Mr. Harper’s claim in 13 C 9265 that defendants, Mansour and Patel, provided inadequate
treatment for a hernia suffered prior to his incarceration despite his continual assertions that the pain
was severe and worsening does not automatically entitle him to counsel. See supra at 5. The facts
in this claim are not comparable to the complexity to those found in Jackson v. Hepp, 558 Fed.Appx
689 (7th Cir. 2014), where the court found that counsel was required .

9

In Jackson, the plaintiff, an inmate at Jackson Correctional Institution (“JCI”), brought suit
under 42 U.S.C. § 1983 claiming a JCI doctor, nurses, and other employees violated the Eighth
Amendment by inadequately treating his chronic back pain and disregarding an outside podiatrist’s
instructions for postoperative care following the plaintiff’s foot surgery. 558 Fed. Appx. at 690, 692.
In November 2009, plaintiff was transferred to JCI and shortly thereafter began complaining
about hip and back pain. Id. Hip x-rays later indicated Jackson suffered from degenerative hip
disease and prison doctors subsequently prescribed Jackson a pain reliever to help alleviate some of
the pain. Id. Not long after, Jackson repeatedly complained of worsening back pain, the pain being
so severe at night that Jackson could not make it to the toilet in time, could not sleep, and could not
sit for long periods. Id. Over the course of the year, Jackson continued to complain of severe back
pain and saw the prison physician on numerous occasions, but to no avail. Id.
Furthermore, Jackson alleged that the prison physician misrepresented his medical records
because the doctor indicated that Jackson was not currently taking any pain medications, which
Jackson said was untrue; that Jackson was prescribed physical therapy, which Jackson claims did
not result in actual therapy, yet the physician indicated that Jackson’s condition improved with
therapy; and that Jackson lifted weights and played basketball daily, which Jackson asserted was
impossible because JCI inmates are not granted daily recreational privileges. Id.
In December 2010, although Jackson had an x-ray taken of his back which indicated
degenerative changes, the nurse practitioner declared additional treatment was unnecessary, and the
physician and nurse practitioner did not investigate any additional treatments. They merely
prescribed different pain relievers and a second physical therapy evaluation, which again did not
result in actual therapy. Id. at *2.
10

In addition to Jackson’s back complications, Jackson underwent surgery in April 2011, to
remove the nail on both of his big toes to correct a recurring infection. Id. Following the surgery,
the podiatrist instructed that Jackson’s feet be soaked in soapy water daily for four to six weeks in
order for the wounds to properly heal; however, after Jackson’s second day back at JCI the foot soaks
stopped. Id. Jackson repeatedly called down to the infirmary and after three days was finally given
his own supplies for foot soaks, which were difficult for him to perform on his own due to his back
pain and the supplies only lasted thirteen days. Id.
On May 6, Jackson reported to the infirmary where the prison physician declared Jackson’s
wounds to be properly healed, and that foot soaks were no longer required; this being only twentytwo days post-surgery. Id. at *3. Two days later, Jackson complained that his big toes were seeping
blood and pus, yet, Jackson did not receive medical attention until eight days later. Id. By this point,
Jackson’s toes had once again become infected
During litigation, Jackson filed three separate motions for counsel, which were denied. Id.
Summary Judgment was ultimately entered in favor of the defendant. The plaintiff was still
unrepresented by counsel. The Seventh Circuit reversed, reasoning that given the nature of Jackson’s
claims, he would most likely need expert witness testimony in order to prove that the treatment he
received was inadequate. Id. at *4. Furthermore, as in Junior, the “district court’s observations
about the gaps in the evidence, and Jackson’s inability to exploit those gaps in fending off the
defendants’ motion for summary judgment show why help for counsel was essential.” Id.
Additionally, the Court noted that the district court failed to consider Jackson’s assertions that his
new medication made it difficult for him to focus, and that his placement in segregation hampered

11

his ability to respond to the defendants’ motion for summary judgment as well as hindered his ability
to identify and contact witnesses who were not present at JCI. Id.
The Court referenced Santiago, Navejar, Bracey, and Pruitt. As was the case in Junior,
Jackson’s claims were not too complex for a pro se litigant to comprehend; however, the severity
of each ailment, the introduction of parties outside of JCI, the costly delay in treating his surgery
wounds, and the misrepresentation of his medical records created unique circumstances that
necessitated the appointment of counsel in that case. The dramatic differences between that case and
this warrant a different outcome.
Plaintiff admits to being examined by both defendants on at least four occasions and after
each examination defendants informed him that unless the pain was debilitating there was nothing
the medical staff could do to correct the issue. Again, either the facts are as alleged or they are not.
But no one is better equipped than Mr. Harper, himself, to explain what happened or to testify about
his suffering. While it appears that this particular complaint might involve some medical testimony
– and it is not at all certain that is the case - there are no categorical rules establishing a clear line
when a case involving medical evidence necessitates appointment of counsel. Henderson, 2014 WL
2757473, 6.
Of course, where claims of indifference to medical needs involve complicated testimony
requiring expert testimony by doctors, the situation is different. Compare Henderson, 2014 WL
2757473 (reversing district court’s refusal to recruit counsel where the plaintiff had a documented
low IQ, was functionally illiterate, had a poor education, was inexperienced with civil litigation, and

12

the case involved quite complicated medical evidence requiring medal experts in order for the
plaintiff to prevail).11
Mr. Harper’s case is simply not comparable to Henderson or Jackson and cases like them.
No medical evidence is necessary to prove that Mr. Harper was in pain. No one is a more competent
witness than he to testify about the pain he claims to have experienced and the extent of his
suffering. Indeed, a plaintiff’s testimony cannot be ignored or found not credible even if a doctor
cannot find a verifiable cause for the claimed pain. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.
2010); Metzger v. Astrue, 263 Fed.Appx. 529, 533 (7th Cir. 2008). Compare United States v.
Vrdolyak, 593 F.3d 676, 679 (7th Cir. 2010)(a witness can always testify about his own intent).
Rivera v. Schultz, 556 Fed.Appx 500, 501 (7th Cir. 2014) held that the plaintiff was not
entitled to appointment of counsel despite his alleged mental impairments because he prepared
motions and interrogatories, participated in a pre-trail phone conference, and his claim was simple
and not beyond his ability to litigate. Olson, 750 F.3d 712 held that notwithstanding his “mental
health problems,” plaintiff was not entitled to counsel because his allegations that defendants acted
with deliberate indifference in delaying treatment for his broken tooth did not involve a state-of-mind
issue that was too complex for a pro se litigant. And Collins v. Alevizos, 404 Fed Appx.58, 62 (7th
Cir. 2010) concluded that plaintiff was not entitled to counsel where the claim was for deliberate

11

In fact, it was the absence of the requisite medical testimony that paradoxically led to the granting of the
defendants’ motion for summary judgment in Jackson. 2014 WL 2757473, 7. As the Court of Appeals
pointed out that had counsel been recruited during the discovery phase, counsel could have served discovery
requests; could have deposed the defendants, probing them about their subjective knowledge of Henderson's
significant kidney problems – he had end stage renal failure allegedly as a result of the defendants’
indifference to his situation – and the accepted standards of care; could have deposed the hospital
nephrologist regarding Henderson's medical condition and the proper treatment for kidney disease; and could
have produced other evidence on the accepted standard of care –none of which the plaintiff or any other nonexpert could do.

13

indifference in denying medical treatment for glaucoma and other eye injuries since the evidence
involved was not “unique and difficult.”
5.
In plaintiff’s third Complaint, he alleges Officer Keating and Dr. Salim Dawaliki acted with
deliberate indifference to his serious medical needs when Officer Keating delayed his requests to
visit the dispensary because of redness and irritation in his left eye. (14 C 1984) (Compl. ¶ 2-4)
(Dkt. 5). Plaintiff admits, however, that he had seen the nurse three days earlier about his left eye,
and was informed by a nurse that she could find nothing wrong with his eye. Id. After pleading with
a different correctional officer, defendant Dawaliki examined the plaintiff’s eye and prescribed a
topical cream for dry eyes which did not cure the redness, irritation, and swelling, so plaintiff had
to see another physician five days later before being prescribed antibiotics. Id. at ¶ 5, 6. Plaintiff
asserts that defendant Dawaliki’s wrong diagnosis caused him “needless suffering” for the five days
following his examination. Id. Again, these are factual matters uniquely within the plaintiff’s own
knowledge and memory and about which he is more competent to testify than anyone else and which
do not involve “unique or difficult” medical evidence. Collins, 404 Fed Appx. at 62.
Plaintiff’s fourth Complaint alleges that defendants, Greer, Iracheta, and Dart acted with
deliberate indifference to his serious medical needs of weak arches, corns, and calluses on his feet
by confiscating his prescribed, orthopedic shoes, which he wore from November 12, 2011, to
February 1, 2014, before they were confiscated. (14 C 1986)(Compl. ¶ 2-4). Plaintiff alleges he
suffers continual ankle pain and swelling stemming from the improper support provided by his new
shoes.12 Once again, the facts of the Complaint are straightforward: either the shoes were confiscated
12

Plaintiff provides no explanation as to why his shoes were confiscated other than the order came from
(continued...)

14

or they were not, and either the plaintiff’s ankles were red and swollen or they were not. And finally,
either Mr. Harper was in pain and complained or he did not. Like the evidence involved in Mr.
Harper’s other Complaints, the various allegations of conscious indifference to his medical needs
and safety present straightforward factual questions, not requiring complicated, medical or expert
testimony. Lynch v. Northeast Regional Commuter R.R. Corp. 700 F.3d 906, 915 (7th Cir. 2012).
The Seventh Circuit has repeatedly held that expert testimony is unnecessary where a layperson can understand an injury or condition. See Wallace v. McGlothan, 606 F.3d 410, 420 (7th
Cir.2010). For example, when an individual suffers from a basic and obvious injury when hit by a
vehicle, he or she need not produce expert testimony to show that the collision was the cause of the
injury. Moody v. Maine Central Railroad Co., 823 F.2d 693, 695 (1st Cir.1987). This reasoning
extends to the scope of a physical limitation which is obvious to an observer and easily described
by the sufferer. E.E.O.C. v. AutoZone, Inc., 630 F.3d 635, 644 (7th Cir.2010); Gil v. Reed, 381 F.3d
649, 659 (7th Cir. 2004). “Jurors do not leave their knowledge of the world behind when they enter
a courtroom and they do not need to have the obvious spelled out in painstaking detail.” Dawson
v. Delaware, 503 U.S. 159, 171 (1992). Cf. Jones v. Hamelman, 869 F.2d 1023, 1028 (7th Cir.
1989); Ledford v. Sullivan, 105 F.3d 354, 360 (7th Cir. 1997) (no expert was needed in a deliberate
indifference case where plaintiff experienced nausea);Tullis v. Townley Engineering & Mfg. Co.,
Inc., 243 F.3d 1058, 1066-1068 (7th Cir.2001)(no physician or other professional necessary to prove
plaintiff suffered psychologically from defendant’s conduct).

12

(...continued)
defendant Greer and was carried out by defendants Iracheta and Dart causing immediate aggravation of his
pre-existing condition. (Pl.’s Compl. at ¶ 4-5) (Dkt. 5).

15

Lastly, the plaintiff alleges that he continually told defendants, Mansour and Patel, that his
shoulder pain was unabated and worsening due to a displaced rotator cuff, but that they provided
inadequate treatment. ( Pl.’s Comp. ¶ 2-9)(Dkt. 8). He admits that both defendants examined his left
shoulder, and they do not deny that he suffers from a displaced rotator cuff and arthritis.
Additionally, he admits that he has received physical therapy to combat the pain, although it has been
ineffective, and defendant Patel has informed him that the prison used to have a specialist that could
“give a shot in the shoulder,” but the specialist was no longer an employee of CCDOC. Id.
The particular claims of indifference to plaintiff’s medical needs may well involve conflicting
testimony about what happened. But that is a common feature of all cases, and is not, itself, a basis
to recruit counsel, unless, of course, as in cases like Junior and Jackson the evidentiary matrix of the
case is sufficiently complicated that only a lawyer can make his way through the labyrinth. As all the
cases recognize, if the rule were otherwise, every indigent, incarcerated plaintiff would be entitled
to counsel, and we would have an automatic rule of appointment, rather than a discretionary decision
for each judge to make under the unique circumstances of the case before him.
Of course, as we discussed earlier, there are cases where the factual disputes and the potential
and likely conflicts in testimony may be so significant, so pervasive, and so complicated that the
assistance of counsel will be necessary to enable the plaintiff to adequately present his case.
Santiago was such a case. So too were Junior and Jackson. But a comparison of those cases with
the instant case supports the conclusion that an attorney need not be enlisted for Mr. Harper.
6.
In the instant case,“the plaintiff’s literacy, communication skills, educational level, and
litigation experience,” Pruitt, F.3d at 655, support the conclusion that he is capable of proving the
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allegations in his several Complaints. He has not been transferred from the facility where the events
at issue occurred and the witnesses and relevant documentary evidence are readily available. Given
the nature of the claims and the plaintiff’s thus far demonstrated capacities, it can fairly be concluded
that the plaintiff is more than capable of procuring witness testimony and documentary evidence in
the form of medical records, grievances (if any), reports and other documents which refer, reflect,
or relate to the allegations in his various clear and concise Complaints.
The plaintiff has alleged no physical or mental disability that might preclude him from
adequately investigating and developing the uncomplicated facts underlying his Complaints. And
it may be noted parenthetically that even in cases where a pro se plaintiff may have some
“mental–health problems,” the Seventh Circuit has sustained a district courts refusal to enlist
counsel. See e.g., Olson, 750 F.3d at 712. The reasons he does list to support his request for counsel
are insufficient to warrant the relief he seeks.
First is the claimed limited access to the law library. But that is a circumstance common to
every incarcerated person. The inescapable reality is that incarceration imposes constraints on a
prisoner’s ability to prosecute (or defend) a case that do not exist for plaintiffs who are not in jail.
Cf. Bracey, 712 F.3d at 1018 & n. 4 (sustaining the district court’s denial of plaintiff’s request for

counsel and noting that all inmates confront discovery restrictions similar to those experienced by
the plaintiff).
But, as all the cases have emphasized, incarceration obviously cannot and does not translate
into an entitlement to counsel. If it were otherwise, there would be a blanket rule of automatic
appointment. The inquiry remains, given the plaintiff’s litigation capabilities, which necessarily
includes the limitation inherent in being incarcerated, is he competent to litigate his claims. The
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record in this case supports the conclusion that Mr. Harper is more than competent to litigate his
claims without the assistance of counsel.
The plaintiff has clearly exhibited a reasonable understanding of the basic components of the
claims in his Complaints and of the theory and underlying evidence involved in his cases. His five
separate, coherent and articulate Complaints spell out succinctly what he says occurred and attach
a number of exhibits consisting of prison grievances and other internal jail records. Also, they quote
an excerpt from a July 11, 2008, Department of Justice Findings letter regarding conditions at the
Cook County Jail. Three of the Complaints include relevant medical orders, and one attaches a
signed and notarized witness affidavit corroborating plaintiff’s allegation. (14-1984 Dkt. 5, Ex. C).
In short, it would appear that the plaintiff has not had and will not have obstacles in obtaining
documentary evidence and identifying and deposing witnesses. See Navejar, 718 F.3d at 698.
The second reason the plaintiff contends require counsel involves alleged misconduct on the
part of the defendants. It is Mr. Harper’s contention that defendants denied receiving his status
hearing conference call, delayed delivery of a piece of legal mail for approximately one month, and
opened clearly marked “legal mail” without him being present. (Pl.’s Mot., ¶ 2-4) (Dkt. 29, 12, 10,
12). These allegations have nothing to do with the plaintiff’s competency to represent himself.
Moreover, the motions allege only one instance of each infraction, and nothing indicates they are
likely to be ongoing issues or that what has occurred has hindered plaintiff’s ability to pursue his
litigation.
In sum, under the particular facts of this case, I believe the plaintiff is able to competently
obtain relevant evidence and effectively develop and present it in support of his claims without
counsel. The facts alleged and the claimed omissions are not complicated and will not be difficult
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to pursue. There are not “gaps [that] cry out for evidence that a lawyer could obtain but the plaintiff
could not.” Junior, 724 F.3d at 816. Nor does it appear that expert medical testimony will be needed
and certainly if it were, it would not play the pivotal role it did in Jackson v. Hepp, supra.
Mr. Harper’s apparent contention that there has been post-filing misconduct by the
defendants does not alter the conclusions reached in this Opinion. Mr. Harper claims that defendants
denied receiving his status hearing conference call, delayed delivery of a piece of legal mail for
approximately one month, and opened clearly marked “legal mail” without him being present. (Pl.’s
Mot., ¶ 2-4) (Dkt. 29, 12, 10, 12). These allegations have nothing to do with the plaintiff’s
entitlement to counsel. Moreover, the motions allege only one instance of each infraction, and
nothing indicates they are likely to be ongoing issues or that what has occurred has hindered
plaintiff’s ability to pursue his litigation.
7.
The Complaints allege on information and belief that “Sheriff Dart has established a custom,
policy and practice that fails to adequately and timely provide inmates with serious and potentially
serious medical conditions with the appropriate care.” This allegation is based in part on the July 11,
2008 Department of Justice findings letter quoted above. See supra at 18. Plainly, this kind of
generalized allegation, based on a six-year-old findings letter, is not sufficient to automatically
require recruitment of counsel. If it were, in every case involving the Cook County Jail and
allegations of indifference to serious medical needs, there would have to be counsel appointed. That
would violate the prohibition against appointments based on categorical classifications and in any
event such appointments have not been automatic in cases involving the Cook County Jail. See e.g.,

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Parker v. Dart, 2013 WL 4506958, 4 (N.D.Ill.2013); Gibson, 2013 WL 3490722, 4; Dear, 2013 WL
3270680, 4; Smith, 2012 WL 965115.
8.
There is a final point that requires discussion. Often, requests for counsel are properly denied
as “premature,” even though changed circumstances may later require that the court enlist counsel.
See Luckett v. Heidorn, 2014 W L 2766202, 4-5 (7th Cir. 2014)(“The earlier requests were
appropriately denied because recruiting a lawyer would have been a premature step early in the
litigation when it was unknown if Luckett would need complex medical evidence. But that was no
longer the case once the litigation was well underway, particularly after the doctor had contended
at summary judgment that Luckett's bacterial infection was not a serious medical condition and had
been adequately treated.”)(citations omitted); Parker v. Dart, 2013 WL 4506958, 4
(N.D.Ill.2013)(“Therefore, Plaintiff's motion for attorney representation is denied at this time. Should
the case proceed to a point that assistance of counsel is appropriate, the Court may revisit this
request.”); Gibson v. Dart, 2013 WL 3490722, 4 (N.D.Ill. 2013).
While Mr. Harper is not now entitled to counsel, circumstances may change. Perhaps it will
become apparent that in one or more of his complaints is a good deal more complicated than it
currently appears or that complex medical testimony may be needed. Should that occur, Judge Tharp
is free to – and of course will – reassess the situation.
CONCLUSION
The plaintiff is more than capable of pursuing his cases without the court enlisting counsel.
Neither the legal issues raised, nor the evidence needed to prove the plaintiff’s allegations is too
complex for Mr. Harper to be able to obtain, develop and utilize effectively. His careful and
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insightful Complaints and motions are evidence of the requisite degree of skill. He remains
incarcerated where the alleged incidents took place, and thus there will be no logistical problems
making it difficult to obtain and develop evidence. In short, there is nothing to support a conclusion
that without counsel he will not be able effectively to prosecute his claims. Therefore, under the
circumstances of this case, the plaintiff’s motions for the appointment of counsel are denied.

ENTERED:_____________________________________
UNITED STATES MAGISTRATE JUDGE
DATE: 7/21/2014

Pursuant to Rule 72(a), Federal Rules of Civil Procedure, the plaintiff may “serve and file
objections to th[is] order within 14 days after being served with a copy.” Under Rule 6, Federal
Rules of Civil Procedure, the 14-day period shall include Saturdays, Sundays and legal
holidays. Under Rule 72(a), a party may not assign as error a defect in the order not timely
objected to. Failure to object to this Opinion will result in a waiver of review by Judge Tharp.

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