ELLISON v. UNITED STATES OF AMERICA

Filing 35

Entry Discussing Plaintiff's Motion to Appoint Counsel, Motion for Funding and Motion to Stay: For the reasons explained below, these requests [dkts. 31 , 32 and 34 ] are denied ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 11/29/2016. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

KYLE ELLISON,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

Case No. 2:15-cv-00385-JMS-MJD

Entry Discussing Plaintiff’s Motion to Appoint Counsel,
Motion for Funding and Motion to Stay
Plaintiff Kyle Ellison (“Ellison”), an inmate within the Federal Bureau of Prisons (“BOP”),
brings this action against the United States of America under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2675(a) contending that the BOP’s medical staff acted negligently by
failing to properly treat a contusion on his forehead. On November 21, 2016, the Court received
three motions filed by Mr. Ellison. 1 First, Mr. Ellison requests that the court appoint an attorney
to represent him in this action. He states that he needs a lawyer so that the lawyer can hire an expert
witness for him. Next, he requests money to hire an expert. Finally, he seeks a stay of all
proceedings until counsel appears on his behalf. For the reasons explained below, these requests
[dkts. 31, 32 and 34] are denied.

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A fourth motion seeking a court sponsored mediation was also received on this date. This motion
will not be addressed until after the defendants have had the opportunity to respond with their view
regarding the possibility of settlement.
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I. Motion for Appointment of Counsel
Mr. Ellison seeks the Court’s assistance in recruiting counsel. Pursuant to 28 U.S.C.
§ 1915(e)(1), courts are empowered only to “request” counsel. Mallard v. United States District
Court, 490 U.S. 296, 300 (1989). If this Court had enough lawyers willing and qualified to accept
a pro bono assignment, it would assign a pro bono attorney in almost every pro se case. But there
are not nearly enough attorneys to do this. For example, during the 12-Month Period Ending
September 30, 2015, there were more civil cases filed pro se (1,463) than non-pro se cases (1,414)
in the Southern District of Indiana. There are simply not enough federal practitioners available to
serve as pro bono counsel in every pro se case. As a result, this Court has no choice but to limit
appointment of counsel to those cases in which it is clear under the applicable legal test that the
plaintiff must have the assistance of a lawyer.
“When confronted with a request . . . for pro bono counsel, the district court is to make the
following inquiries: (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?” Pruitt v. Mote, 503 F.3d 647, 654-655 (7th Cir.
2007). The court must deny “out of hand” a request for counsel made without a showing of such
effort. Farmer v. Haas, 990 F.2d 319 (7th Cir.), cert. denied, 114 S. Ct. 438 (1993).
The plaintiff has demonstrated that he has been unsuccessful in recruiting representation
on his own. Thus, the court proceeds to the second inquiry required in these circumstances. The
court’s task in this second inquiry is to analyze the plaintiff’s abilities as related to “the tasks that
normally attend litigation: evidence gathering, preparing and responding to motions and other
court filings, and trial.” Pruitt, 503 F.3d at 655. Accordingly, the question is not whether an

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attorney would help the plaintiff’s case, but whether, given the difficulty of the case, the plaintiff
seems competent to litigate it himself. Id. at 653-655.
After considering the claims raised in the complaint, Mr. Ellison’s comprehensible filings,
his use of the court’s processes, and his familiarity with the factual circumstances surrounding his
medical care, this Court finds that Mr. Ellison is competent to litigate on his own. In addition,
counsel is not needed to hire an expert witnesses for the reasons set forth in Part II of this Entry.
If Mr. Ellison’s claims survive summary judgment, he may renew his request. Accordingly, the
motion to appoint counsel [dkt. 31] is denied.
II. Motion for Funding for Expert Review
Mr. Ellison requests that the Court approve funding for an expert medical witness. Putting
aside the fact that the Court does not have a fund designated to finance prisoner litigation, such
funding is not necessary. This conclusion is based on the claims alleged in the complaint which
must be proven for Mr. Ellison to prevail.
The complaint alleges that Mr. Ellison hit his forehead in the shower area and subsequently
sought treatment. Mr. Ellison alleges that the BOP medical staff misdiagnosed the swelling and
growth in his forehead and denied him treatment, eventually necessitating surgery by a contracting
surgeon to remove the growth. On July 21, 2015, Dr. Brett Guinn, a contract physician, performed
surgery at an outside hospital to remove a lipoma from Mr. Ellison’s forehead area. After the
surgery, Mr. Ellison contends that, on July 30, 2015, Kimberly Rhoads, a dental hygienist,
prematurely removed his sutures, contrary to the orders of the contracting surgeon. According to
Mr. Ellison, the premature removal of the sutures caused the surgical incision to reopen,
contributing to his permanent injury, scarring, pain and suffering, and mental anguish and anxiety.

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According to the Mayo Clinic’s website, a lipoma is a slow-growing fatty lump that’s most
often situated between the skin and the underlying muscle layer. A lipoma, which feels doughy
and usually isn’t tender, moves readily with slight finger pressure. A lipoma is not cancer and
usually is harmless. Treatment generally isn’t necessary, but if the lipoma is bothersome, painful
or

growing,

it

can

be

removed.

Available

at:

http://www.mayoclinic.org/diseases-

conditions/lipoma/basics/definition/con-20024646 (November 28, 2016). Given this background,
hiring an expert to opine on Mr. Ellison’s allegation that his lipoma went untreated for a period of
time before it was removed is highly unlikely to advance his claim. Further, Mr. Ellison’s medical
records would be sufficient evidence to establish that his lipoma was removed. In addition, if a
dental hygienist prematurely removed the surgical sutures from Mr. Ellison’s forehead against the
surgeon’s orders, no expert witness would be necessary to establish negligence in this regard. Thus,
the Mr. Ellison’s motion for funding for expert review [dkt. 34] is denied.
III. Motion to Stay
Given the denial of the request for appointment of counsel and motion for expert witness
funding, the motion to stay all deadlines pending recruitment of counsel [dkt. 32] is denied.
IT IS SO ORDERED.

Date: November 29, 2016

Distribution:

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

KYLE ELLISON
88432-054
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
All Electronically Registered Counsel
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