IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51069
CHARLES EDWARD GARNER, JR.,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Texas (99-CV-386)
July 11, 2002
Before HIGGINBOTHAM, JONES and BARKSDALE, Circuit Judges.
PER CURIAM:*
Following a bench trial on this Federal Tort Claims Act action
for negligence and medical malpractice, Charles Edward Garner, Jr.,
pro se, federal prisoner number 08955-035, appeals from the
district court’s grant of partial summary judgment to the
government and denial of his motions to subpoena witnesses and for
appointment of counsel. Garner filed a complaint in federal
district court against the United States pursuant to the FTCA
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. alleging that he received negligent medical treatment while housed
at the Federal Prison Camp (“FPC”) in El Paso and later the Federal
Correctional Institution (“FCI”) at La Tuna, Texas, from February
1997 through early 1999. He alleged that the wardens refused him
proper medical care and also denied him access to prescribed
medical devices. He also alleged that Drs. Enrique Spiegler,
Catalino Layumas, and Lawrence Leyva and other medical staff failed
to diagnose properly and treat his pseudoarthrosis1 and that, as a
result of the negligence of the government defendants, the
condition of his cervical vertebrae worsened, resulting in pain and
a loss of range of motion in his neck, shoulders, and arms as well
as bilateral carpal tunnel syndrome.
At various times after filing his complaint, Garner moved for
appointment of counsel and to subpoena witnesses, including Drs.
David Masel, Gregory Smith, George Beach, and Brian Willis, which
motions the district court denied. Prior to trial, the government
filed a motion to dismiss or for summary judgment. The district
court granted summary judgment to the government on the medical
malpractice portion of the Garner’s claims but declined to grant
summary judgment on the simple negligence portion of the claims
against the prison officials, which was tried to the bench.
Following Garner’s case-in-chief, the district court entered
1 Pseudoarthrosis involves the failure of bones, in Garner’s case the spine, to fuse following surgery.
2 judgment as a matter of law for the government on the negligence
claim.
Garner now appeals. For the reasons that follow, we affirm.
I
We will first trace the procedural history of this prisoner
FTCA case. By way of background, Garner is a federal inmate
serving an 84-month prison sentence. From February 1997 to October
1998, he was designated for service of his sentence at the FPC in
El Paso, and he was subsequently transferred to the FCI at La Tuna,
Texas and then the FCI at Big Spring, Texas. Finally, in May 1999,
he was designated for service of his sentence to the Federal
Medical Center at Fort Worth, Texas.
Garner filed his FTCA complaint on November 23, 1999, and paid
the filing fee. On March 27, 2000, Garner filed a motion for
appointment of counsel, arguing that counsel should be appointed
because he was incarcerated, indigent, and lacked access to legal
materials. He attached to his motion an affidavit in support of a
motion to proceed in forma pauperis (IFP). The district court
denied the motion two days later.
Thereafter, on March 30, 2000, Garner filed a pleading,
pursuant to the court’s scheduling order, providing the court with
names of witnesses, including clinical directors at the FCIs at La
Tuna and El Paso; neurosurgeons Drs. Masel, Smith, Beach, and
Willis; physicians assistants Berry, Brunus, and Dunigan of the FPC
3 in El Paso; and wardens Aguirre and Maldonado. He stated that Drs.
Beach and Willis performed “two pre-incarceration surgeries on
[him]” and that, therefore, they “could provide the court with
[valuable] information on the etiology of [his] injuries and
requisite standard of care.”
On April 21, 2000, Garner filed a motion to proceed IFP. The
record indicates that the district court did not formally rule on
the motion to proceed in the district court IFP or grant Garner IFP
status.2
On June 16, 2000, Garner filed a second motion to appoint
counsel. He argued, among other things, that under 28 U.S.C. §
1915, the district court had the authority to appoint counsel in a
civil case. The court treated the motion as a motion for
reconsideration of the original denial of the appointment of
counsel and denied it on July 18, 2000.
On July 28, 2000, Garner filed a motion to subpoena witnesses
to appear in court on October 3, 2000, including Drs. Masel, Smith,
Beach, and Willis; a motion for writ of habeas corpus ad
testificandum; and a motion to depose the witnesses identified by
2 After final judgment, the district court considered a motion by Garner to proceed IFP on his perfected appeal to this court, but, because Garner had already paid the appellate filing fee, the court considered the motion for the limited purpose of determining whether a transcript should be provided at government expense. The court found that Garner was eligible to proceed IFP on appeal, but denied the motion to proceed IFP and for a transcript on the ground that Garner had not presented a substantial question of law or fact.
4 the government in its proposed witness list, which included Drs.
Masel, Beach, and Willis but not Dr. Smith. That same day, the
district court denied Garner’s motion requesting the court to issue
subpoenas, noting that “[i]t appears the Plaintiff is asking that
nine witnesses, located in various parts of the United States, be
subpoenaed at Government expense.” The district court found that
“the motion fails to disclose the subject matter of the testimony
of any of these proposed witnesses or the way in which such
testimony would be material to his case” and therefore denied the
motion without prejudice.
On August 8, 2000, the government objected to Garner’s motion
to depose the more than fifty witnesses identified in the
Government’s proposed witness list on the ground that the motion
came too late and is unduly burdensome and moved for a protective
order, and the district court referred the matter to a magistrate
judge on August 9, 2000. The magistrate judge granted the
Government’s motion for a protective order on August 23,
effectively denying Garner’s motion to depose. The judge noted
that the government “is not required to pay for discovery costs on
behalf of an indigent party” and that Garner “has presented no
evidence that would justify the exercise of any discretionary power
the Court may have” where “[h]e submits only an extremely general
request.”3
3 The magistrate judge’s order further observed that Garner’s “request provides no indication of the nature of the testimony
5 On August 3, 2000, Garner filed a second motion to subpoena
witnesses. In this motion, Garner set forth briefly the
anticipated testimony of each witness. Most pertinent to the
instant appeal are the following descriptions: (1) “Dr. Brian
Willis will be called as a witness to testify to the fact that the
condition of pseudoarthrosis warranted surgery, or at least, the
attention of a neurosurgeon and that the defendant was negligent in
not providing plaintiff with the proper care”; (2) “Dr. Beach will
be called as a witness to testify to the fact that the defendant
failed to give plaintiff treatment equal to the required Standard
of Care for the treatment of pseudoarthrosis whereby causing
damages to plaintiff”; (3) “Dr. Smith will be called as a witness
to testify to the fact that the delayed union at C5-6 caused
further damages to plaintiff and warrant treatment equal to the
Medical Standard of Care”; and (4) “Dr. Masel will be called as a
witness to testify to a statement he made that related his opinion
that Pseudoarthrosis at C5-6 contributed significantly to the
herniation of the disc at C6-7.”
On August 17, 2000, the district court denied the motion,
again without prejudice, on the ground that “it is not necessary to
sought, what, if any, relevance it may have, the importance of the expected testimony, what, if any, other means of discovery have been attempted to obtain this information, the proposed logistics for taking more than 50 depositions at a prison, the expense of such an endeavor, and, most importantly, what legal obligation exists that requires the United States to pay for his discovery.” The judge concluded, “[i]n short, Plaintiff’s request lacks both legal and factual substance.”
6 rule on Plaintiff’s motion at this time since the Government
recently submitted a proposed witness list showing that it plans to
call as potential witnesses all the individuals named in
Plaintiff’s motion.” The district court stated that, “[i]f closer
to the date of trial the Court learns that the Government will not
call one of more of the witnesses in Plaintiff’s motion, Plaintiff
may renew his motion for subpoena of witness for the Court’s
consideration at that time.”
On August 24, 2000, the government filed a motion to dismiss
or for summary judgment. The government argued that Garner was
unable to provide the expert testimony required to prove his
medical malpractice claim and submitted in support of this
contention the following evidence: 1) Garner’s response to the
government’s first set of interrogatories, in which Garner stated
that he had not employed an expert; 2) an excerpt of Garner’s
deposition, in which he stated that he had not hired an expert; and
3) affidavits from three doctors on the FPC medical staff who
treated Garner and asserted that their actions comported with the
applicable standard of care and that no act or omission on their
part caused any injury to Garner. On September 11, Garner filed a
response and a supplemental response, submitting in support
statements of Drs. Smith, Beach, and Willis.
On September 18, 2000, Garner filed a third, renewed motion to
subpoena witnesses, including the same information as in his prior
motion. The district court did not expressly rule on this motion
7 prior to trial or prior to granting partial summary judgment for
the government.
On September 22, 2000, in a written order ruling on summary
judgment, the district court determined that Garner’s complaint
raised both medical malpractice and simple negligence issues. The
court held that Garner had not provided the expert testimony
required to prove two essential elements of his malpractice claim:
(1) breach of the duty of care by the government’s physicians and
(2) that such breach was the proximate cause of his injuries. The
court observed that Garner argued that he could prove the
applicable standard of care with statements from three of his
previous treating physicians, Drs. Beach, Willis, and Smith. The
court noted, however, that the statements from the physicians did
not even discuss a standard of care and did not indicate that the
government’s medical staff breached the applicable standard of
care. The district court also reasoned that, because the
statements were written before Garner entered the FPC in El Paso,
they could not show that the FPC medical staff breached the
applicable standard of care. The court also held that Garner
failed to raise a fact issue as to causation. The court granted
summary judgment in favor of the government as to the medical
malpractice portion of the case only, declining to grant summary
judgment as to the simple negligence portion against the wardens
and clinical directors because neither party requested summary
judgment on that issue.
8 The court conducted a bench trial as to the negligence portion
of the case on October 3-4, 2000. During the trial, Garner reurged
his motion to subpoena witnesses, arguing that Drs. Smith and Beach
could testify as to the applicable standard of care. The court
denied the motion, stating that “I can’t think of any conceivable
thing that they could testify to that would be material in this
trial” and that the standard of care was no longer relevant because
the court had granted summary judgment on the medical malpractice
portion of the case and the only issue left in the case was
“whether the personnel at FPC El Paso ... or FCI La Tuna denied you
treatment or ... any instrumentation or appliances or equipment or
anything of that kind that was necessary for the maintenance or
treatment of your condition at that time.”
After Garner rested his case, the court granted the
government’s motion for judgment as a matter of law pursuant to
Federal Rule of Civil Procedure 52(c). In its written order of
October 4, 2000, the district court identified the remaining issues
for trial after its grant of partial summary judgment: “(1) whether
the Defendant’s agents and employees had negligently deprived the
Plaintiff of the use of a cervical collar or neck brace; (2)
whether they were negligent in removing the medical restrictions
placed on the Plaintiff and allowing him to return to regular
duty[;] and (3) whether they were negligent in failing to refer him
to a doctor specializing in neurology or neurosurgery for diagnosis
and treatment.” The court found that no reasonable trier of fact
9 would be convinced by a preponderance of the evidence that the
agents and employees of the government were negligent or that
negligence was a proximate cause of any injury or harm to Garner.
Accordingly, the district court entered judgment for the government
on October 4, 2000.
II
We turn first to the district court’s grant of summary
judgment on Garner’s medical malpractice claim. Garner argues that
on the record before the district court, even without the benefit
of the testimony Garner sought to obtain by subpoena, the district
court erred in granting summary judgment. He contends that the
statements of Drs. Smith, Willis, and Beach, offered in response to
the government’s summary judgment motion, reveal “that
pseudoarthrosis required surgery to correct [and] makes it obvious
that, in the presence of the condition of non-union at C5-6, a
reasonable person would seek a neurosurgical consultation.” He
further contends that these physicians’ “collective opinions
represent the Standard of Care for the treatment of
pseudoarthrosis.”
We review a grant of summary judgment de novo, applying the
same standard as the district court.4 Under the FTCA, because the
4 Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 257 (5th Cir. 2001).
10 alleged medical malpractice occurred in Texas, Texas law controls.5
A plaintiff in a Texas medical malpractice action must prove four
elements to establish liability: “(1) a duty owed by the defendant
to the plaintiff, (2) a breach of that duty, (3) actual injury to
plaintiff, and (4) . . . [that] the breach [was] a proximate cause
of the injury.”6 Additionally, “Texas law places the burden of
proof on the plaintiff to establish by expert testimony that the
act or omission of the defendant physician fell below the
appropriate standard of care and was negligent.”7 We have held
that, “[w]hen state law requires a plaintiff to prove negligence by
expert testimony, summary judgment can be granted where the
defendant presents expert affidavits and the plaintiff presents no
such affidavits.”8
In this case, Garner was required to demonstrate by competent
medical expert evidence that his treatment fell below the
applicable standard of care. The district court held that Garner
did not present competent evidence by a medical expert to counter
the government’s evidence and that Garner therefore failed to
create a genuine issue of material fact regarding breach of duty.
5 Urbach v. United States, 869 F.2d 829, 831 (5th Cir. 1989). 6 Id. 7 Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014, 1020 (5th Cir. 1993). 8 Id.
11 Here, the district court correctly reasoned that Garner did
not prove the applicable standard of care by the statements of Drs.
Beach, Willis, and Smith because 1) the “statements [do not] even
discuss a standard of care, much less state that the FPC medical
staff failed to meet that standard” and 2) “the statements . . .
could not possibly show that the FPC medical staff breached the
applicable standard of care because each of these statements were
written before Garner entered the FPC in El Paso.” On the summary
judgment record before it, the district court did not err in
granting summary judgment for the government on Garner’s medical
malpractice claims.9
III
Garner argues that the district court abused its discretion
and violated his right to due process in denying him the benefit of
expert witnesses during the summary judgment proceeding and bench
trial. He contends that the district court abused its discretion
in denying his three motions to subpoena witnesses, particularly
Drs. Smith, Willis, and Beach because these witnesses, the “three
neurosurgeons who operated on him” (prior to his incarceration),
would have provided expert testimony as to the standard of care,
testimony which was essential for him to prove the elements of his
9 To the extent that Garner argues that the district court abused its discretion in not allowing him the benefit of expert testimony prior to ruling on summary judgment, we discuss this issue below.
12 medical malpractice claim and relevant to his negligence claim at
issue in the bench trial.10
The government contends that the district court did not abuse
its discretion in refusing to issue subpoenas for the witnesses
because Garner failed to tender the required witness fees and a
party proceeding pro se and IFP is not entitled to have the
witnesses’ fees under 28 U.S.C. § 1821 waived. In his reply brief,
Garner contends that the issue of the tendering of witness fees is
“moot because the district court never mentioned witness fees” in
denying the motions to subpoena.
Before turning to the district court’s refusal of Garner’s
request for subpoenas, we address several preliminary matters.
First, the district court’s scheduling order required that the
parties designate any “testifying experts” and submit a written
summary of their expected testimony by April 25, 2000. Gardner did
not designate Drs. Masel, Smith, Beach, and Willis as testifying
experts. On the witness list filed March 30, Garner indicates that
“Doctors Beach and Willis are the doctors who performed the two
pre-incarceration surgeries on the plaintiff and therefor[e] could
provide the court with valued information on the etiology of
plaintiff’s injuries and requisite standard of care.” To the
10 Garner’s motions to subpoena witnesses requested that the witnesses be subpoenaed to appear on October 3, 2000, or, in his final motion, on October 2, 2000. The district court granted the government partial summary judgment prior to the bench trial but after Garner filed each of his three written motions to subpoena witnesses.
13 extent this could be liberally construed as a designation of Drs.
Beach and Willis as testifying experts, Garner failed to provide a
further, written summary of their expected testimony. Furthermore,
in his March 29 answers to the government’s interrogatories and at
his July 28 deposition, Garner clearly stated that he had not hired
an expert physician.
Second, Garner does not appeal the order granting the
government’s protective order against Garner’s July 28, 2000 motion
to depose, inter alia, Drs. Mazel, Beach, and Willis.11 The record
reflects that Garner never made another request to depose any of
these potential witnesses or Dr. Smith.
Third, Garner never formally moved for the appointment of an
expert, pursuant to Federal Rule of Evidence 706(a) or any other
provision.12 Garner’s motions to subpoena and his responses to the
11 We note that Garner’s motion to depose did not identify any particular witness he needed to depose or the reason why it was important for him to obtain any witness’s deposition testimony. 12 Federal Rule of Evidence 706(a) provides:
(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may
14 government’s motion for summary judgment may be read to indicate
that he wished to obtain trial testimony from these doctors that
would be in the nature of expert testimony, including “that the
defendant was negligent in not providing plaintiff with the proper
care” (Dr. Willis) and “that the defendant failed to give plaintiff
treatment equal to the required Standard of Care for the treatment
of pseudoarthrosis whereby causing damages to plaintiff” (Dr.
Beach).
However, even if, apart from the issue of whether the district
court abused its discretion in denying Garner’s requests for
subpoenas, we were to construe Garner’s arguments on appeal as
raising the issue of whether the district court erred in failing to
appoint an expert, we would find no error. Rule 706(a) does not
apply to authorize the appointment of the experts which Garner
sought because, beyond his motions to depose and to subpoena
witnesses, Garner “never requested the appointment of an expert
pursuant to Rule 706” and, to the extent his motions can be
construed as requests for an expert, he “requested an appointment
only for his own benefit,” such that “Rule 706 is not applicable.”13
be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. 13 Pedraza v. Jones, 71 F.3d 194, 197 n.5 (5th Cir. 1995). Because Garner was never granted IFP status, a decision which he does not appeal, the prohibition on appointing an expert under 28 U.S.C. § 1915 is not relevant on this appeal. See id. at 196-97.
15 We turn then to the denial of Garner’s subpoena requests. We
review a district court’s refusal to issue a subpoena only for
abuse of discretion.14 We have held there is no abuse of discretion
where a prisoner litigant did not state why he needed a witness’s
testimony and where the prisoner did not in fact need the testimony
to prove his claim at trial.15 So, too, there was no abuse of
discretion where the witnesses’ testimony would be “merely
repetitious and cumulative of testimony already introduced.”16
In his motions before us on appeal, Garner simply sought to
subpoena Drs. Masel, Smith, Beach, and Willis to testify at trial
on October 2 or 3, 2000. The district court’s refusal of those
requests was not, we conclude, an abuse of discretion insofar as
Garner was without sufficient evidence in the form of expert
witness reports, affidavits, or deposition testimony to survive
summary judgment on his medical malpractice claim. The relief
Garner sought in the motions which he appeals–the doctors’
testimony at trial–would not have benefitted him in responding to
the government’s pretrial motion for summary judgment.
Furthermore, there is no abuse of discretion in the district
court’s denial of Garner’s first motion to subpoena, which did not
indicate the anticipated substance of or need for the testimony of
14 Gibbs v. King, 779 F.2d 1040, 1047 (5th Cir. 1986). 15 See id.; see also Cupit v. Jones, 835 F.2d 82, 86-87 (5th Cir. 1987). 16 Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir. 1985).
16 the witnesses at issue. The district court also did not abuse its
discretion in denying without prejudice the second motion to
subpoena on the ground that the government itself might well call
all of the witnesses Garner sought to subpoena.17
The district court’s denial, by inaction, of Garner’s third,
renewed request for subpoenas and its express denial of his fourth
request for subpoenas at trial require somewhat more discussion.
Garner followed the terms of the district court’s own order denying
his second motion to subpoena by renewing his motion to subpoena
witnesses at a time when it perhaps should have been clear to the
court that the government would not call one of more of the
witnesses.18 Garner noted on his third motion that he would “not
have another opportunity to submit this witness list because he is
in transit” to arrive at the court for trial in early October. The
record does not indicate that the district court took any action at
this point to ascertain whether the government would be calling
Drs. Masel, Smith, Beach, or Willis at trial, which would have
obviated the need for subpoenaing any of these witnesses.
Thereafter, at trial, Garner renewed his request for subpoenas of
Drs. Smith and Beach a fourth and final time, arguing they could
17 In addition to Drs. Masel, Smith, Beach, and Willis, Garner sought to subpoena Drs. Leyva, Spiegler, Layumas, Payne, and O’Leary. Drs. Leyva, Spiegler, and Layumas were all made available and testified at trial during Garner’s case-in-chief. 18 In fact, the government did not call Drs. Masel, Smith, Beach, or Willis to testify at trial.
17 testify to the standard of care and, at least as to Dr. Smith, the
history of his injury. The district court denied the request but
agreed to consider the medical records from Dr. Smith for all
purposes.
The district court’s refusal to subpoena Drs. Masel, Smith,
Beach, or Willis on the basis of these third and fourth requests
only constitutes an abuse of discretion if the these witnesses’
testimony at trial was materially necessary to prove Garner’s
simple negligence claim. As we have already indicated, Garner
failed to take the other steps necessary to obtain expert
testimony, affidavits, or reports from any of these physicians in
time to preserve his medical malpractice claim from summary
judgment. The fact that Garner filed his third motion to subpoena
four days before the district court granted partial summary
judgment is of no moment, since that motion turned on the evidence
in the summary judgment record and not testimony which might come
in at trial.19
19 However, it is equally irrelevant, despite the government’s argument on appeal, that Garner did not tender the witness fees to accompany the subpoenas he requested and that he was not entitled to have those fees waived. We have cited with approval one of our sister circuit’s cases for the proposition that “an indigent litigant is [not] constitutionally entitled to subpoena an unlimited number of witnesses, including prisoners, without the payment of witness fees, and without a more substantial showing of need for the testimony of the requested witnesses.” Cupit, 835 F.2d at 86 (citing Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir. 1986)). We have also recently cited with approval our sister circuits’ consensus “that federal courts are not authorized to waive or pay witness fees on behalf of an IFP litigant.” Pedraza,
18 In reviewing this claim of error, we must analyze the
potential testimony of Drs. Masel, Smith, Beach, and Willis as lay
witnesses, not experts. As we have noted, Garner failed to comply
with the scheduling order’s requirement that he designate any
testifying experts and submit a written summary of their expected
testimony by April 25, 2000. Moreover, even if Garner arguably
designated Drs. Willis and Beach as testifying experts, he never
provided any expert report as required by Federal Rule of Civil
Procedure 26(a)(2)(B).20 Indeed, Garner did not even first seek to
subpoena or depose Drs. Masel, Smith, Beach, and Willis until July
71 F.3d at 196 n.4. Here, however, Garner was never granted IFP status, and he never sought to have witness fees waived. It would have been simple enough for the district court to grant his request conditioned on his payment of the required witness fees. Indeed, the district court’s denial of four different requests for subpoenas did not turn on Garner’s failure to tender any witness fees required under 28 U.S.C. § 1821. 20 Federal Rule of Civil Procedure 26(a)(2)(B) provides:
Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
19 28, 2000, three months after the deadline for designating
testifying expert witnesses.
In light of the deficiencies in Garner’s simple negligence
case on which the district court granted the government’s motion
for judgment as a matter of law pursuant to Rule 52(c), and based
on our review of the record, we conclude that there was no abuse of
discretion in the district court’s denial of Garner’s third and
fourth requests for subpoenas of Drs. Masel, Smith, Beach, and
Willis. At the bench trial, the only issues of simple negligence
remaining included whether the government’s agents and employees
(1) negligently deprived Garner of the use of a cervical collar or
neck brace, (2) negligently removed the medical restrictions placed
on Garner and allowed him to return to regular duty, and (3)
negligently failed to refer him to a doctor specializing in
neurology or neurosurgery for diagnosis and treatment. Without
testifying as experts, these doctors’ potential testimony would not
be material to Garner’s proof of the first two negligence issues at
trial.
Further, the district court granted judgment to the government
on the third issue in part on the basis of the evidence showing
that Garner was seen by Dr. Masel, a neurologist, in November 1998,
at which time Dr. Masel found that surgery was not required, and
again in February 1999, when Dr. Masel recommended considering
offering Garner surgery “as soon as reasonably possible” but noted
that it did “not appear to be an emergency” but rather “is
20 something that should be offered as a treatment alternative.” In
light of this undisputed evidence, in a simple negligence case,
rather than a medical malpractice case, the potential testimony of
Drs. Smith, Beach, or Willis, and certainly of Dr. Masel, would not
have materially affected the district court’s conclusion “that no
reasonable trier of fact could find by a preponderance of the
evidence that the agents and employees of the [government] were
negligent in not referring [Garner] to a neurosurgeon sooner”
because, upon referral to a neurosurgeon, Garner was found not to
require surgery until a time shortly before he was transferred for
purposes of receiving surgery. In short, the lay testimony of Drs.
Smith, Beach, or Willis would not have materially affected the
trial of Garner’s simple negligence case.
Accordingly, we find no abuse of discretion and therefore
affirm the district court’s denial of Garner’s motions to subpoena
witnesses, particularly Drs. Masel, Smith, Beach, or Willis. We
further conclude that there was no error in the district court’s
failure to appoint or otherwise provide Garner with an expert
witness.
IV
Finally, Garner argues that the district court erred in
denying his motions for appointment of counsel. Garner argues that
the court had the authority under 28 U.S.C. § 1915(e) to appoint
counsel and contends that the case was complex and required expert
testimony.
21 We review a district court’s denial of a prisoner litigant’s
motion for appointment of counsel for abuse of discretion only.21
28 U.S.C. § 1915(e)(1) provides that the district court “may
request an attorney to represent any person unable to afford
counsel.” Under this provision, “the court may appoint an attorney
to represent a litigant in federal court, but there is no automatic
right to appointment of counsel,”22 absent “exceptional
circumstances.”23 We have held that, “[i]n evaluating whether the
appointment of counsel is proper, the district court considers the
type and complexity of the case, the litigant's ability to
investigate and present the case, and the level of skill required
to present the evidence.”24
The district court denied Garner’s first request on the
grounds that the facts asserted by Garner were not unusual or
complex and that, to the extent his claim had merit, he was
qualified to represent himself. The court treated Garner’s second
motion as a motion to reconsider its denial of his first request.
We have reviewed the record in this case, and we cannot say that
the district court abused its discretion. The pleadings in the
21 Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998). 22 Castro Romero v. Becken, 256 F.3d 349, 353-54 (5th Cir. 2001). 23 Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001) (per curiam). 24 Castro Romero, 256 F.3d at 354.
22 district court and briefs on appeal demonstrate Garner’s ability to
adequately represent himself, and we cannot disagree with the
district court’s assessment that Garner’s case was neither unusual
nor especially complex. We therefore affirm the district court’s
denial of Garner’s motions for appointment of counsel.
23 V
For the foregoing reasons, we AFFIRM the district court’s
judgment in favor of the government on Garner’s FTCA medical
malpractice and simple negligence claims.