United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING PLAINTIFF'S MOTION TO APPOINT
COUNSEL, MOTION FOR FUNDING AND MOTION TO STAY
Jane Magnus-Stinson, Judge.
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. 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
Motion for Appointment of Counsel
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.
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).
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 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.
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.
Motion for Funding for Expert Review
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.
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.
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.
(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
Motion to Stay
the denial of the request for appointment of counsel and
motion for expert witness funding, the motion to stay all