Thomas M. James v. LORENZO ELI and NICOLAS P. VILLANUSTRE

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3034
T HOMAS M. J AMES,
Plaintiff‐Appellant,
v.
LORENZO ELI and NICOLAS P. VILLANUSTRE ,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13‐cv‐00541‐WTL‐TAB — William T. Lawrence, Judge.
____________________
SUBMITTED D ECEMBER 21, 2016 — D ECIDED J ANUARY 25, 2017
____________________
Before WOOD, Chief Judge, and P OSNER and F LAUM, Circuit
Judges.
P OSNER , Circuit Judge. James, a former inmate of Indiana’s
New Castle Correctional Facility, appeals from an adverse
judgment, following the district judge’s grant of summary
judgment for the defendants, in his suit under 42 U.S.C.
§ 1983 against two doctors who he contends were deliberate‐
ly indifferent to his need for medical treatment for an infect‐
ed toenail and an injury to his jaw.

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2 No. 15‐3034
In October 2007, not long after his transfer to the New
Castle prison from another prison, James completed a medi‐
cal‐request form for treatment of an ingrown toenail that he
said was both bleeding and pushing into the left side of the
toe. Dr. Lorenzo Eli, one of the two defendants in James’s
suit, examined him the next day, diagnosed the nail as in‐
fected, ordered antibiotics for treatment of the infection, and
referred him to a foot specialist. A week later, when James
saw him again because of continued pain in his toe, Dr. Eli
prescribed additional drugs. Almost a month after that visit
the doctor removed the infected toenail.
The following month, James, who was taking a narcotic
prescribed to deal with continued pain from the foot that
had had the infected toenail and that was healing from the
surgery to remove it, fell while “hopping up the steps” to his
housing unit, and hurt his jaw. Thrice he submitted forms
requesting emergency treatment of the jaw but they went
unanswered. About a month later his jaw “cracked” while
he was eating. He reported the injury to Dr. Eli, who told
him to fill out another medical‐request form, and he did so
(and the doctor signed it), requesting x‐rays of his jaw as
soon as possible. The x‐rays were taken and revealed a frac‐
tured left mandible (i.e., lower jaw bone on the left side of
the mouth).
Consultation with a plastic surgeon was advised, and Dr.
Nicolas Villanustre, the other defendant in this case, who is a
plastic surgeon, examined James and advised against sur‐
gery because of the passage of time since his jaw injury and
what Dr. Villanustre deemed to be the “good function” of
James’s jaw, but recommended a soft diet for James for two

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No. 15‐3034 3
weeks and a follow‐up appointment at the end of that peri‐
od.
That was that for the time being. But two years later
James filed the present suit, a pro se suit against a variety of
medical and other prison personnel, whom he accused of
deliberate indifference to his infected toenail and broken jaw
because of their failure to provide emergency treatment for
those injuries. He contended that Dr. Eli’s failure to obtain
timely treatment for the toenail had resulted in a staph infec‐
tion and unnecessary suffering, that the failure to perform
surgery on his jaw had been motivated by what the surgery
(which would have been performed in a hospital rather than
in the prison infirmary) would have cost the prison, and
that—seven years later—he still suffers pain and temporo‐
mandibular joint dysfunction from the jaw injury. (Tem‐
poromandibular joint disorder (TMD) is a congeries of con‐
ditions that affect jaw muscles, joints, and nerves, causing
facial pain, sometimes chronic. Symptoms may occur on one
or both sides of the face, head or jaw, or develop after an in‐
jury. See Know Your Teeth: “Temporomandibular Joint Disor‐
der,” Nov. 2008, www.knowyourteeth.com/infobites/abc/
article/?abc=t&iid=334&aid=1351 (visited Jan. 24, 2017). The dis‐
trict judge eventually dismissed all the defendants except Eli
and Villanustre.
James had asked the district judge to recruit a lawyer for
him, pointing out that he was now the inmate of a prison in
a different state, far from Indiana (the prison is in Arizona),
and was suffering from daily migraine headaches. He also
said he needed a medical expert to assist him in his case, and
added that he had limited access to legal materials, limited
education, and no litigation experience, and that he had tried

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4 No. 15‐3034
to obtain a lawyer but had not succeeded. He had been
treated in Arizona by a dental surgeon named Dr. Ronald
Quintia and had tried but failed to obtain his medical record
from the doctor for possible use in his case.
In Junior v. Anderson, 724 F.3d 812, 815–16 (7th Cir. 2013),
we reversed the district court for declining to try to recruit a
lawyer for a prisoner who needed help to locate and depose
witnesses while housed in another prison more than 300
miles away (in James’s case, more than a thousand miles
away, for remember that he is in prison in Arizona). The dis‐
trict judge in the present case said that James “is within the
spectrum of ‘most indigent parties’ because he has had a
meaningful opportunity to present his claims, he has
demonstrated familiarity with his claims and the ability to
present them, because the issues presented by his claims are
not complex, and because this does not appear to be a case in
which the presence of counsel would make a difference in
the outcome.” Without a lawyer and a medical expert, how‐
ever, James would be totally outclassed by the defense, just
like the plaintiff in Rowe v. Gibson, 798 F.3d 622 (7th Cir.
2015), an Indiana state prisoner claiming deliberate indiffer‐
ence by prison medical staff to his gastroesophageal reflux
disease, but unable to obtain counsel or a medical witness,
resulting in the district judge’s grant of summary judgment
to the defendants. We reversed and told the judge to try to
recruit counsel for the plaintiff and find a medical expert to
assist him. (The case was then settled.)
Despite the focus in James’s case on his medical treat‐
ment, he was never able to obtain a full set of the medical
records regarding his jaw injury, and prison staff kept taking
away boxes of his legal materials during the case. His dis‐

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No. 15‐3034 5
covery requests to Drs. Villanustre and Eli yielded nothing.
At summary judgment the judge remarked that when in‐
formed of James’s jaw injury Dr. Eli had provided “timely
and appropriate care,” but without his medical records
James had no opportunity to make a case that the care he’d
received hadn’t been timely and appropriate. A lawyer
would have been particularly helpful with discovery in
James’s case. Moreover, the facts on which James bases his
suit are straightforward; assisting him with discovery would
not have been an onerous task for a lawyer.
We are mindful that there is no right to an appointed
lawyer in civil litigation. We are mindful too that despite
lawyers’ ethical obligation to assist those who are too poor to
afford counsel, there may be a dearth of lawyers in a district
who are willing and able to serve in this sort of case, and 28
U.S.C. § 1915 does not authorize a district court to command
unwilling lawyers to represent prisoners. Mallard v. U.S. Dis‐
trict Court for the Southern District of Iowa, 490 U.S. 296, 310
(1989). When there is a scarcity of willing lawyers, a trial
judge can and should exercise discretion to assign those
lawyers to cases in which they are most needed. But we have
also recognized (and not only in Rowe v. Gibson) that law‐
suits involving complex medical evidence are particularly
challenging for pro se litigants. See, besides Rowe, Dewitt v.
Corizon, Inc., 760 F.3d 654, 658 (7th Cir. 2014); Henderson v.
Ghosh, 755 F.3d 559, 566 (7th Cir. 2014); and Santiago v. Walls,
599 F.3d 749, 761 (7th Cir. 2010). If a pro se plaintiff in such a
case is unable despite his best efforts to obtain a lawyer and
a medical expert, and if the case would have a chance of suc‐
cess were the plaintiff represented by counsel, the trial judge
should endeavor to obtain them for him. Rowe v. Gibson, su‐
pra, 798 F.3d at 631–32; Miller v. Campanella, 794 F.3d 878, 880

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6 No. 15‐3034
(7th Cir. 2015); Henderson v. Ghosh, supra, 755 F.3d at 566;
Montgomery v. Pinchak, 294 F.3d 492, 504–05 (3d Cir. 2002).
Without an expert witness James could challenge the de‐
fendants’ assertions that they had provided adequate care
only by offering his own opinion on the matter—an offer the
district court thrice dismissed as mere “disagreement [by a
lay person] with medical professionals.” In his final order
refusing to recruit counsel for James the judge invoked
James’s “well‐written submissions,” “awareness of the
facts,” and “understanding of the applicable legal standard”
to conclude that he could litigate effectively without coun‐
sel’s assistance. But none of these supposed “assets” could
transform James into a medical expert or find him medical
evidence to establish that reputable medical professionals
would have strongly disagreed with the treatment that he
received for his injuries.
Now it is possible that, more than nine years having
elapsed since the injury to his jaw, the plaintiff is incorrectly
attributing his present pain and jaw dysfunction to the inju‐
ry; and it is also possible that he received adequate treatment
from the two defendant doctors and wouldn’t have benefit‐
ted from surgery on his jaw. Yet he says he still experiences
jaw pain and dysfunction (difficulty eating, sleeping, etc.)
and recently he’s been diagnosed with a tumor in his neck,
which he attributes to his jaw injury because the tumor is
close to his jaw. That may be mistaken, but it definitely is
possible that he has a meritorious Eighth Amendment claim
if his current difficulty with his jaw is attributable to the in‐
jury and if there was some type of treatment or surgery that
could have prevented it, which he would have received had
he been given adequate medical treatment. On the basis of

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No. 15‐3034 7
the record compiled so far, all we know is that he may have
suffered terribly because of inadequate treatment and may
have sustained permanent injury.
We close by noting that this suit began in 2009 and will
soon be in its eighth year even though it should have been
apparent from the start that the plaintiff would need counsel
and a medical expert witness in order to get to first base. We
are vacating the judgment of the district court for the reasons
explained in this opinion, and we urge the district court on
remand to expedite the litigation.
VACATED AND R EMANDED

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