April 10, 2018
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. 1:13-cv-541 -
William T. Lawrence, Judge.
Wood, Chief Judge, and Flaum and Kanne, Circuit Judges.
Thomas James, an inmate with the Arizona Department of
Corrections, filed a pro se complaint against
defendants-appellees, Dr. Lorenzo Eli and Dr. Nicolas
Villanustre, for alleged deliberate indifference towards his
medical care while he was incarcerated in Indiana. Plaintiff
now appeals the summary judgment entered in favor of
defendants, arguing that the district court abused its
discretion by failing to recruit counsel to assist him. For
the reasons stated below, we vacate the judgment and remand
for further proceedings.
has been incarcerated since 2002. He began his confinement in
Arizona, but was transferred to New Castle Correctional
Facility ("New Castle") in Indiana in April 2007.
He returned to Arizona in April 2008.
October 2007, plaintiff developed an infected ingrown toenail
while confined at New Castle. He submitted a "Health
Needs Request" form to the prison's Health Unit on
October 23, 2007. Eli, a New Castle staff physician,
evaluated plaintiff the same day. Eli ordered culture and
sensitivity tests and prescribed ointment, antibiotics, and
dressing changes. He also prescribed Tylenol and a
"lay-in pass, " which allowed plaintiff to receive
meals in his cell for ten days. He scheduled a follow-up
appointment in two weeks and referred plaintiff to the
facility's foot doctor.
returned to the Health Unit on October 30, 2007, complaining
of pain. Eli informed plaintiff "that he needed to give
the antibiotics a chance to work" and provided him a box
of Ibuprofen. Eli saw plaintiff again at his two-week
follow-up on November 6, 2007. Eli claims that by that time,
plaintiff's toenail "looked much better." As a
result, Eli continued plaintiff's antibiotic and pain
prescriptions for another ten days and extended his lay-in
pass for seven days.
no further involvement in the treatment of plaintiff's
toe. According to medical records, plaintiff saw another New
Castle physician on November 20, 2017 and requested that his
entire toenail be removed. The doctor granted plaintiff's
request and afterwards prescribed crutches, pain medication,
later, plaintiff fell on a set of prison stairs and hit his
chin on the handrail, injuring his jaw. He blames the fall on
his injured toe, pain medications, and lack of adequate
bedrest following his toenail removal procedure. According to
plaintiff, his jaw "got better" and the swelling
"went down" over the next few weeks. However, the
swelling returned on December 25, 2007 after his left jaw
"cracked" while he was eating. Two days later, on
December 27, 2007, plaintiff explained the situation to Eli
and submitted another Health Needs Request
December 29, 2007, plaintiff was evaluated by another New
Castle physician who ordered x-rays and prescribed Ibuprofen.
When Eli examined plaintiff's x-rays on January 2, 2008,
he observed a "fractured left mandible." He
immediately transferred plaintiff to the emergency room at
nearby Wishard Hospital and prescribed him pain medication.
Wishard physicians confirmed plaintiff's diagnosis-a
"comminuted left mandibular subcondylar fracture with
anterior dislocation and displacement of the
condyle"-and referred him to a plastic surgeon. In the
meantime, Eli examined plaintiff again on January 3, 2008. He
put plaintiff on a soft diet, continued his pain medication,
and placed him in the infirmary.
Villanustre, a plastic surgeon at Wishard Hospital, evaluated
plaintiff on January 7, 2008. According to medical records,
although plaintiff "still complain[ed] of pain" in
his jaw, Villanustre noted that he had a "four
fingerbreadth's mouth opening" with only
"slight deviation of the chin towards the left."
Villanustre further observed that plaintiff had "normal
occlusion with no intraoral wounds, " and "minimal
swelling on the left angle of the jaw." As a result,
given "the length of time since the injury, "
"good function" of plaintiff's jaw, and
"normal occlusion, " Villanustre decided surgery
was unnecessary. Instead, he prescribed a soft diet and a
follow-up x-ray in two weeks.