On petition for writ of certiorari to the United States Court of
Appeals for the Seventh Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr.
Justice MARSHALL join, dissenting.
Petitioner, an inmate at the Stateville Correctional Center in
Joliet, Ill., filed pro se a civil rights action pursuant to 42
U.S.C. 1983, alleging that the defendants he named (the warden and
three officers of the prison guard) had deprived him of his
constitutional rights by failing to afford him appropriate medical
treatment for glaucoma, a sight- threatening eye condition.
According to appointed counsel's statement of the case,
petitioner's condition, while made known to the prison authorities
at the beginning of his incarceration, did not receive the
attention of an eye doctor during his first four months at
Stateville, and he was denied the medication that eventually was
prescribed for him until he was hospitalized some eight months
after entering the prison. Pet. for Cert. 2. After being released
from the hospital, petitioner continually had to prod the guards to
give him his medicine, and they sometimes denied it to him. His
eyes were permanently injured. Ibid.
The United States District Court for the Northern District of
Illinois initially granted the defendants' motion for summary
judgment on all of petitioner's claims. Although granting leave to
proceed in forma pauperis, that court failed to act upon
petitioner's motion, under 28 U.S. C. 1915(d), for the appointment
of counsel. [
Footnote 1] The
United States Court of Appeals for the Seventh Circuit, after
appointing counsel
Page 446 U.S.
989 , 990
to represent petitioner on appeal, reversed the District Court's
judgment in part, remanding the case for further proceedings on
petitioner's claim that respondents intentionally had deprived him
of medication.
On remand, petitioner again moved the District Court for the
appointment of counsel, and, unlike the Court of Appeals, the
District Court denied his motion. Petitioner presented his own case
in a 4-day jury trial. At the conclusion of his presentation of
evidence, the District Court granted directed verdicts in favor of
the warden and two of the guards, who evidently had little
responsibility for petitioner's treatment on a day-to-day basis.
Petitioner based his case against the fourth defendant, Lt. James
L. Rickman, on allegations that this officer had sometimes denied
petitioner medication on weekends. The case was submitted to the
jury but they were unable to reach a verdict. Following a second
trial, during which petitioner again represented himself, the jury
found for Rickman.
Petitioner appealed a second time, and the Court of Appeals
again appointed counsel to represent him. Petitioner argued that
the District Court's failure to appoint counsel to represent him at
trial had been an abuse of discretion and reversible error because
his claim in fact was colorable (as evidenced by the Court of
Appeals' earlier reversal of the District Court's entry of summary
judgment), because the trial issues were factually and legally
complex, because the constitutional right at stake was serious, and
because the presence of counsel would have substantially aided
petitioner in presenting his case. The Court of Appeals rejected
this argument, holding, in an unpublished opinion, that the
decision to appoint counsel for a civil rights litigant proceeding
in forma pauperis rests with the discretion of the trial court. It
repeated the standard it had articulated in earlier cases, that
"[o]nly when a 'denial [of counsel] would result in fundamental
unfairness impinging on due process rights' . . . will an appeals
court overturn a decision of the district court
Page 446 U.S.
989 , 991
not to appoint counsel." App. to Pet. for Cert. 3 (quoting
Heidelberg v. Hammer,
577 F.2d
429, 431 (CA7 1978)).2
The Court of Appeals found no abuse of discretion in this case
because the record revealed that petitioner understood the issue
that was remanded for trial and had introduced evidence on that
issue. Even conceding that counsel may have amended petitioner's
complaint after the first appeal to expand his claim concerning the
denial of medical treatment, the court concluded that petitioner
had received a fair opportunity to state his case.
Petitioner contends that if his motion for the appointment of
counsel had been granted by the District Court, counsel no doubt
would have amended petitioner's complaint to add as defendants the
prison physicians who were most responsible for his inadequate
medical treatment. Counsel, unlike petitioner, would not have
focused the jury's attention on isolated instances in which a
single guard failed to give petitioner his medication, but rather
would have concentrated on the lengthy period during which
petitioner received no treatment at all for his sight-threatening
condition. Appointed counsel would have obtained expert testimony
to testify that glaucoma, if not treated properly, progressively
leads to total blindness and irreversible damage.
I believe that under the controlling standards governing the
appointment of counsel in civil rights cases that have been
Page 446 U.S.
989 , 992
adopted by other Courts of Appeals, a district court would have
granted petitioner's 1915(d) motion. See Gordon v. Leeke,
574 F.2d
1147, 1153 ( CA4), cert. denied,
439 U.S. 970 (1978) ("If
it is apparent to the district court that a pro se litigant has a
colorable claim but lacks the capacity to present it, the district
court should appoint counsel to assist him"); Shields v. Jackson,
570 F.2d
284, 286 (CA8 1978) (where an indigent prisoner is in no
position to investigate his case, his complaint states a cause of
action, and the appointment of counsel will advance the
administration of justice, the case will be remanded with
directions to the district court to appoint counsel). See also
Chubbs v. City of New York,
324 F.
Supp. 1183, 1191 (E. D.N.Y.1971) ("If the case has merit and a
trial is required counsel should be appointed. The prisoner himself
can simply not prepare and try the case effectively"); and n.2,
supra.
Questions concerning the standards by which district courts are
to exercise their discretion in appointing counsel under 1915(d),
and the degree to which the exercise of that discretion is to be
controlled, are of obvious importance to the administration of
justice, and to the enforcement of federal civil rights,
particularly in our Nation's penal institutions. Because I believe
that petitioner's motion for the appointment of trial counsel would
have been granted in other circuits, and that he may well have been
prejudiced in presenting his case by the failure of the District
Court to appoint counsel, I would grant certiorari and set the case
for argument.
Footnotes
Footnote 1 Title 28 U.S.C.
1915(d) provides that in in forma pauperis cases , "[t]he court may
request an attorney to represent any such person unable to employ
counsel. . . ."
Footnote 2 The standard of
review articulated by the court in this case is derived from its
earlier decision in LaClair v. United States,
374
F.2d 486, 489 (CA7 1967). In Chapman v. Kleindienst,
507 F.2d
1246, 1250, n. 6 ( CA7 1974), the court refrained from deciding
whether LaClair's standard should be replaced by that articulated
in Dreyer v. Jalet,
349 F.
Supp. 452, 486 (S.D.Tex.1972), affirmance order,
479 F.2d
1044 (CA5 1973): "[I]f a civil action brought by an indigent
acting pro se, including prison inmates, has merit requiring an
evidentiary hearing, then counsel should be appointed to properly
present the claim." In Heidelberg v. Hammer, 577 F.2d, at 431, the
court stated: "We are not now disposed to overrule the holding of
LaClair. . . ."
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