USCA11 Case: 20-11229 Date Filed: 07/30/2021 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11229 Non-Argument Calendar ________________________
D.C. Docket No. 9:17-cv-80178-KAM
JOEL BARCELONA,
Plaintiff-Appellant,
versus
SERGEANT PARISH, South Bay Correctional Facility, OFFICER JONES, South Bay Correctional Facility, OFFICER MAGGIRT, South Bay Correctional Facility, NURSE CHANU, South Bay Correctional Facility, NURSE KELLY, South Bay Correctional Facility, WARDEN, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendants-Appellees,
LIEUTENANT WILSON, South Bay Correctional Facility, USCA11 Case: 20-11229 Date Filed: 07/30/2021 Page: 2 of 19
Defendant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 30, 2021)
Before JILL PRYOR, BRANCH, and LUCK Circuit Judges.
PER CURIAM:
Joel Barcelona, proceeding pro se, sued several Florida prison officials
under 42 U.S.C. § 1983, alleging that they were deliberately indifferent to his
serious medical needs, in violation of the Eighth Amendment. The district court
granted summary judgment to the defendants. With the benefit of counsel,
Barcelona appeals that order. He also argues that the district court erred in
dismissing his deliberate indifference claim against an officer without first giving
him an opportunity to amend his complaint and that the district court abused its
discretion in denying his motion for appointment of counsel. After careful
consideration, we affirm.
I. Background
Barcelona is a former inmate at Florida’s South Bay Correctional Facility
(“South Bay”). Barcelona filed a pro se 42 U.S.C. § 1983 complaint against four
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individual employees at South Bay, Nurses Chunnu,1 Nurse Kelly, 2 Sergeant
Parrish, and Officer Jones. He alleged that, while he was incarcerated at South
Bay, these defendants were deliberately indifferent to his serious medical needs, in
violation of the Eighth Amendment.
Barcelona’s complaint alleged the following pertinent facts. On the morning
of April 25, 2016, he “suffered . . . chest paint and shortness of breath” and “nearly
collapse[d].” Believing that he was facing “a life threatening illness,” Barcelona
“declared [a] medical emergency.” Nurse Chunnu allegedly told Barcelona that
“everything [was] normal” and that “you are not sick . . . . [y]ou lied to me” before
sending Barcelona back to his cell. The next morning on April 26, 2016,
Barcelona complained of the same symptoms, but Nurse Chunnu again stated that
he “lied to her” and that he did “[not] have . . . chest pain [or] shortness of breath.”
After determining that he was “not sick,” Nurse Chunnu sent Barcelona back to his
cell. Once more, on the morning of April 27, 2016, Barcelona complained of
“extreme chest pain and shortness of breath” and asked Nurse Kelly to call 911.
He “was assessed by Nurse [Kelly]” who told him that he “lied to [her],” he was
1 We note that Barcelona’s pro se complaint named “Nurse Chanu” as a defendant. We will use the correct spelling of her name: “Chunnu.” 2 Barcelona’s complaint also referred to “Nurse Major,” who was later identified as Nurse Kelly.
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“not sick,” and he had “no chest pain” or “shortness of breath.” Nurse Kelly
declined to call 911 and sent Barcelona back to his cell.
About an hour later, some South Bay correctional officers were inspecting
prison cells when they noticed that Barcelona was “lying down on [his] bed
suffering severe chest pain and shortness of breath.” The officers called “medical
emergency,” which prompted Nurses Kelly and Chunnu to arrive at Barcelona’s
cell. Nurse Chunnu allegedly said “you again,” accused Barcelona of lying, and
stood by her previous diagnoses that Barcelona was not experiencing chest pains or
shortness of breath.
Later that afternoon, a South Bay medical doctor determined that Barcelona
should see a doctor, and South Bay officials transported Barcelona to Lakeside
Medical Center (“Lakeside”). At Lakeside, “at least five doctors at the E.R.”
diagnosed Barcelona with a duodenal ulcer that caused “stomach bleeding,” low
blood pressure, and a loss of blood. Barcelona was given I.V.s, oxygen, and a
blood transfusion. On April 29, 2016, doctors performed a surgical procedure to
stop the stomach bleeding.
On the afternoon of April 30, 2016, Sergeant Parrish, Officer Jones, and one
additional correctional officer arrived at Lakeside, told Barcelona that “we are
leaving,” and ordered a Lakeside nurse to remove Barcelona’s I.V.s and oxygen
tube. As the officers were leaving with Barcelona, a doctor allegedly chased down
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the officers and asked them “what happened?” When Barcelona asked the doctor
for medication to treat his chest pain and shortness of breath, the doctor indicated
that he could not prescribe medications but would see Barcelona for a “follow up”
in two months. Barcelona alleged that Sergeant Parrish—rather than any doctor at
Lakeside—ordered his discharge.
After Barcelona returned to South Bay, a prison nurse stated that, “we [did]
not expect[] you to come back today.” Barcelona was placed in the South Bay
infirmary and continued to suffer chest pain and shortness of breath. On May 12,
2016, a prison doctor informed him that “everything [was] O.K.” and that he could
return to his cell.
Barcelona continued to complain of chest pain and shortness of breath,
which led to several follow up visits to prison medical staff. On May 18, 2016, a
South Bay nurse performed an electrocardiogram and informed Barcelona that
“everything [was] normal.” On May 23, 2016, a South Bay doctor prescribed
medications and vitamins. And on May 25, 2016, a South Bay doctor X-rayed
Barcelona, though he never received the results of that test. The doctor who
performed the X-ray told Barcelona that he should have been kept at Lakeside “for
at least 9 days for a full recovery.”
Barcelona was eventually transferred from South Bay to another facility,
allegedly because South Bay officials wanted to “avoid medical responsibility.”
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Based on these events, Barcelona alleged that Chunnu and Kelly were
deliberately indifferent to his serious medical needs by refusing to treat his chest
pain and shortness of breath. Barcelona also alleged that Sergeant Parrish and
Officer Jones were deliberately indifferent to his serious medical needs by forcibly
removing him from Lakeside before he had been properly discharged.
The defendants moved for summary judgment. Sergeant Parrish and Officer
Jones supported their motion with medical records from both South Bay and
Lakeside. Those medical records indicated that: (1) at 11:45 a.m. on April 30,
2016, Barcelona was ready “for discharge back to Correctional Facility, officers
were made aware” and that a Lakeside doctor “spoke with [Barcelona]” around
1:15 p.m. before he was “[d]ischarged . . . to correctional facility accompanied by
2 officers”; (2) prior to discharge, Barcelona was in “stable” condition and was
prescribed medication; and (3) Barcelona was in “stable” condition upon returning
to South Bay. 3 Sergeant Parrish and Officer Jones argued that there was no
evidence that they were subjectively aware of any serious medical need when they
removed Barcelona from Lakeside, and that Barcelona’s medical records from
South Bay confirm that Barcelona’s discharge was not premature.
3 The records also indicate that a Lakeside doctor spent 30 minutes with Barcelona on April 29, 2016. The doctor “recommend[ed] monitoring hgb today and reassessing tomorrow for potential d/c.” In other words, the Lakeside medical staff anticipated that Barcelona would likely be discharged on April 30, 2016.
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Nurses Chunnu and Kelly also relied on Barcelona’s medical records in their
motion for summary judgment. They noted that there was no record evidence that
either of them interacted with Barcelona on April 25, 2016. Next, they relied on
South Bay records to show that Barcelona was: (1) treated by a different nurse on
April 26, 2016, who assessed Barcelona, 4 performed diagnostic tests, made a plan
to “notify clinician,” and instructed Barcelona “to return if his symptoms
return[ed] or worsen[ed], or if he develop[ed] any new symptoms”; and (2) was
assessed by Nurse Kelly on the morning of April 27, 2016 for “dizziness,” who
concluded that “no treatment [was] required” and again instructed Barcelona “to
return if his symptoms return[ed] or worsen[ed], or if he develop[ed] any new
symptoms”; and (3) a different nurse also saw Barcelona on the afternoon of April
27, 2016 for complaints of dizziness and worsening chest pain, and ordered that
Barcelona be “sen[t] to emergency room for further evaluation.” Nurses Chunnu
and Kelly argued that there was no evidence that either of them refused to see
Barcelona or were deliberately indifferent to his serious medical needs.
Barcelona’s opposition to the defendants’ motions recited nearly identical
facts and allegations to those in his complaint. Barcelona maintained that on April
26, 2016, he complained of chest pain and shortness of breath, and Nurse Chunnu
4 Notably, the medical records included no report of chest pain or shortness of breath on this date. Rather, on April 26, 2016, Barcelona complained of “black, tarry stools” since the day before.
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insisted that “everything was normal” and accused him of lying. He also
contended that Nurse Kelly refused to call 911 and called him a liar. As to
Sergeant Parrish and Officer Jones, Barcelona identified a single Lakeside
discharge form from the record with his name on it that lacked a physician’s
signature as evidence that Sergeant Parrish and Officer Jones removed him from
Lakeside without authorization. Accordingly, Barcelona argued that genuine
issues of material fact precluded summary judgment in favor of the defendants.
A magistrate judge recommended ultimately granting summary judgment to
the defendants. The district court adopted that recommendation.
Barcelona timely appealed.
II. Discussion
Barcelona argues that the district court erred in granting summary judgment
to the defendants because there are genuine disputes of material fact concerning
whether the defendants were deliberately indifferent to his serious medical needs.
Barcelona also contends that the district court should have granted him leave to
amend his complaint. Finally, Barcelona argues that the district court abused its
discretion when it denied his motion for appointment of counsel. Barcelona’s
arguments lack merit.
A. Summary Judgment
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Barcelona contends that Nurse Chunnu was deliberately indifferent to his
serious medical needs because she knew that he was having chest pain and
shortness of breath and repeatedly refused to treat him. And, according to
Barcelona, Nurse Chunnu’s denial that she refused to treat him created a genuine
issue of material fact for a jury. 5 Barcelona also argues that Sergeant Parrish and
Officer Jones were deliberately indifferent because they removed him from
Lakeside before he had been properly discharged. Barcelona submits that their
denial of Barcelona’s version of events surrounding his removal from Lakeside
create a genuine issue of material fact for a jury. We disagree and conclude that
the defendants were entitled to summary judgment based on undisputed facts in the
record.
We review a district court’s grant of summary judgment de novo and apply
the same legal standards as the district court. Smith v. Fla. Dep’t of Corr., 713
F.3d 1059, 1063 (11th Cir. 2013). “Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the nonmoving party, presents no
5 Barcelona’s counseled brief does not argue that summary judgment was improperly granted to Nurse Kelly. A party “abandons a claim when he either makes only passing references to it [in his opening brief] or raises it in a perfunctory manner without supporting arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). Barcelona makes only passing references to Nurse Kelly in his initial brief, none of which can be construed as a colorable argument that summary judgment should be reversed as to Nurse Kelly. Accordingly, Barcelona’s claim against Nurse Kelly has been forfeited.
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genuine issue of fact and compels judgment as a matter of law.” Id.; see Fed. R.
Civ. P. 56(a).
The Eighth Amendment forbids “cruel and unusual punishments.” U.S.
Const. amend. VIII. A state actor’s “deliberate indifference to serious medical
needs of prisoners” constitutes cruel and unusual punishment. Estelle v. Gamble,
429 U.S. 97, 104 (1976). To establish an Eighth Amendment claim for deliberate
indifference to a serious medical need, a plaintiff must satisfy three elements.
Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007). First, the plaintiff
must show that he had an objectively serious medical need. Id. “[A] ‘serious’
medical need is one that has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d
1176, 1187 (1994) (quotation omitted), overruled in part on other grounds in Hope
v. Pelzer, 536 U.S. 730, 739 n.9 (2002); see also Andujar v. Rodriguez, 486 F.3d
1199, 1203 (11th Cir. 2007) (same). “[T]he medical need must be one that, if left
unattended, poses a substantial risk of serious harm.” Farrow v. West, 320 F.3d
1235, 1243 (11th Cir. 2003) (quotation omitted) (alteration adopted).
Second, a plaintiff must show that a prison official acted with deliberate
indifference to his serious medical need. Goebert, 510 F.3d at 1326. Deliberate
indifference involves: “(1) subjective knowledge of a risk of serious harm;
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(2) disregard of that risk; (3) by conduct that is more than mere negligence.”
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). Subjective knowledge
of a risk of serious harm is satisfied only if the official is “aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Farrow, 320 F.3d at 1245 (quotation
omitted). “Medical treatment violates the eighth amendment only when it is so
grossly incompetent, inadequate, or excessive as to shock the conscience or to be
intolerable to fundamental fairness.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th
Cir. 1991) (quotation omitted). “Mere incidents of negligence or malpractice do
not rise to the level of constitutional violations.” Id. Similarly, a difference of
opinion between a prison’s medical staff and the inmate as to the inmate’s
diagnosis or course of treatment cannot support a deliberate indifference claim.
Id.; see Estelle, 429 U.S. at 106 (“Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.”).
And third, a plaintiff must show that their injury was caused by prison
official’s wrongful conduct. Goebert, 510 F.3d at 1326. This element requires a
link between the injury and the constitutional violation. Id. at 1327.
The district court properly granted summary judgment to Nurse Chunnu. It
is undisputed that Barcelona’s ulcers posed a serious medical need. See Rouster v.
Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014) (holding that a duodenal ulcer
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condition was “a serious, indeed dire, medical need”); Barcelona v. Parish, 750
F. App’x 841, 844 (11th Cir. 2018) (explaining in the context of another § 1983
case describing Barcelona’s ulcers as “life-threatening” prior to surgery). And
because we must view the evidence in the light most favorable to Barcelona and
cannot resolve conflicting testimony, we accept Barcelona’s contentions that Nurse
Chunnu saw Barcelona on April 25, 26, and 27, and that she accused him of lying
about his medical condition on those same dates. See Smith, 713 F.3d at 1063
(explaining that we view the summary judgment evidence “in the light most
favorable to the nonmoving party”); Jones v. UPS Ground Freight, 683 F.3d 1283,
1292 (11th Cir. 2012) (“We may not weigh conflicting evidence or make
credibility determinations of our own.” (quotation omitted) (alteration adopted)).
Nevertheless, undisputed record evidence shows that Barcelona cannot
succeed on his deliberate indifference claim against Nurse Chunnu. First,
Barcelona’s own complaint and opposition to summary judgment concede that
Nurse Chunnu saw Barcelona on April 25–27 and determined that he was “not
sick,” “everything was normal,” and that he did not suffer chest pain or shortness
of breath. In other words, Nurse Chunnu assessed Barcelona’s condition on those
days. And Barcelona cannot show that Nurse Chunnu’s assessments amounted to
more than negligence or malpractice, which is required to succeed on a deliberate
indifference claim. See Harris, 941 F.2d at 1505 (“Mere incidents of negligence or
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malpractice do not rise to the level of constitutional violations.”). It is insufficient
to suggest, as Barcelona does, that a prison official erred in her diagnosis. See id.
(“[A] simple difference in medical opinion between the prison’s medical staff and
the inmate as to the latter’s diagnosis or course of treatment [cannot] support a
claim of cruel and unusual punishment.”); Hoffer v. Sec’y, Fla. Dep’t of Corr., 973
F.3d 1263, 1273 (11th Cir. 2020) (same). Thus, Barcelona has failed to show that
Nurse Chunnu acted with deliberate indifference.
Even assuming that Barcelona is correct that Nurse Chunnu refused to
render any care when she knew of his serious condition, the undisputed evidence
shows that Nurse Chunnu did not cause his injury. See Goebert, 510 F.3d at 1326.
Barcelona has failed to allege any facts to show that Nurse Chunnu’s alleged
refusal to treat him on April 25 resulted in the ulcers that were later treated at
Lakeside, worsened those ulcers, or resulted in any other subsequent injury.
Moreover, the record evidence demonstrates that Barcelona was assessed by—and
received a battery of tests from—prison nurses other than Nurse Chunnu on April
26 and 27. Therefore, even if Nurse Chunnu refused to treat Barcelona, other
nurses did treat him. And Barcelona never disputed this evidence in his opposition
to Nurse Chunnu’s motion for summary judgment. Accordingly, Barcelona failed
to establish a deliberate indifference claim against Nurse Chunnu, and the district
court did not err in granting summary judgment to her.
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Barcelona’s deliberate indifference claim against Sergeant Parrish and
Officer Jones likewise fails for the simple reason that he has not established that he
had an objectively serious medical need when the officers removed him from
Lakeside. Barcelona’s fundamental claim is that Sergeant Parrish and Officer
Jones ordered a nurse to remove his I.V.s and oxygen tube and removed him from
Lakeside before he had been properly discharged. But Sergeant Parrish and
Officer Jones removed Barcelona from the hospital after Lakeside doctors
performed a surgical procedure to treat Barcelona’s stomach ulcers. And
Barcelona never disputed the defendants’ record evidence that showed that he was
in stable condition at Lakeside and South Bay upon his return. Although
Barcelona claims that a South Bay doctor stated that he should have remained at
Lakeside for nine days to recover from his surgery, Barcelona nevertheless fails to
show that he suffered from a serious medical need after his removal from
Lakeside. See Farrow, 320 F.3d at 1243 (“[T]he medical need must be one that, if
left unattended, poses a substantial risk of serious harm.” (quotation omitted)
(alteration adopted)). To succeed on his deliberate indifference claim against
Sergeant Parrish and Officer Jones, Barcelona had to show that he had a serious
medical need. See Goebert, 510 F.3d at 1326. Because he has not done so, the
district court did not err in granting summary judgment to Sergeant Parrish and
Officer Jones.
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B. Leave to Amend
Next, Barcelona argues that the district court erred in failing to give him an
opportunity to amend his complaint. Barcelona asserts that he should have been
given leave to amend his complaint to develop allegations against an additional
defendant, Officer Wilson, and to add allegations against South Bay defendants in
their official capacities for an alleged pattern or practice of refusing to declare that
an inmate was experiencing a medical emergency unless the inmate was in extreme
pain. We disagree.
Generally, “a district court must grant a plaintiff at least one opportunity to
amend their claims before dismissing them if it appears a more carefully drafted
complaint might state a claim upon which relief can be granted even if the plaintiff
never seeks leave to amend.” Silva v. Bieluch, 351 F.3d 1045, 1048–49 (11th Cir.
2003). But that principle “does not apply if the claim is patently frivolous or if
amendment would be futile.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th
Cir. 2011). A party may amend a complaint “once as a matter of course” within 15
days of serving its pleading or within 21 days of a responsive pleading. Fed. R.
Civ. P. 15(a). Otherwise, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” Id.
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The district court screened Barcelona’s complaint under 28 U.S.C. § 1915. 6
In so doing, it noted the requirement that it could not dismiss a pro se plaintiff’s
complaint at the screening stage without granting him leave to amend, unless leave
to amend would be futile. It then dismissed Barcelona’s claim against Officer
Wilson in his individual capacity. Barcelona had alleged that Officer Wilson was
present on April 27, 2016, when Nurse Kelly was allegedly deliberately indifferent
to Barcelona’s serious medical needs. By acknowledging the requirement that the
district court was required to afford Barcelona an opportunity to amend unless such
amendment would be futile and then dismissing the claim against Officer Wilson
for failure to state a claim upon which relief could be granted, the district court
implicitly determined that amendment would be futile. We conclude that the
district court did not err in failing to grant Barcelona leave to amend because it
does not “appear[] a more carefully drafted complaint might state a claim upon
which relief can be granted.” Silva, 351 F.3d at 1048–49.
Barcelona fails to identify any theory under which he could show that
Officer Wilson was deliberately indifferent. That omission should not come as a
surprise. Barcelona would have to show a causal connection between Officer
Wilson’s mere presence in the same room as Nurse Chunnu and his injury. But as
6 District courts are required to screen complaints filed by plaintiffs proceeding in forma pauperis and “dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2).
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we have explained, there is no causal connection between Nurse Chunnu’s conduct
and his injury, and we have found no authority to support a claim against a nearby
prison official when it is doubtful that he had reason to second-guess a medical
professional’s assessment or authority to override her medical judgment.
Accordingly, it does not “appear[] [that] a more carefully drafted complaint might
state a claim upon which relief can be granted.” Silva, 351 F.3d at 1048–49.
Relatedly, Barcelona argues that the district court erred in dismissing his
claims against the defendants in their official capacity because he sufficiently
pleaded a pattern or practice of deliberate indifference because he asserted in his
complaint that FDOC: (1) had a “protocol” of declaring a medical emergency only
when an inmate was “non[-]responsive[,] not breathing[,] or dead,” and
(2) transferred him to another facility to “avoid medical responsibility.”
Alternatively, he argues that even if his allegations were insufficient, he should
have been afforded an opportunity to amend the complaint to state a pattern or
practice claim. As an initial matter, Barcelona forfeited this argument by failing to
raise it in his objections to the magistrate judge’s report & recommendation. See
Harrigan v. Metro Dade Police Dep’t Station #4, 977 F.3d 1185, 1191 (11th Cir.
2020) (“[A] party who fails to object to a magistrate judge’s report and
recommendation waives the right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions.” (quotation omitted)). Even
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if this argument had not been forfeited, it still fails. As Barcelona’s own case
illustrates, he was able to invoke his own medical emergency status despite not
being incapacitated or deceased. Moreover, “‘[p]roof of a single incident of
unconstitutional activity is not sufficient to impose liability’ against a
municipality.” Craig v. Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011)
(quoting City of Okla. City v. Tuttle, 471 U.S. 808, 823–24 (1985) (plurality)).
Here, Barcelona alleges only facts particular to his case.
C. Appointment of Counsel
Finally, Barcelona argues that the district court abused its discretion when it
denied his request for appointment of counsel. We disagree.
“Appointment of counsel in a civil case is not a constitutional right.”
Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990). “The appointment of
counsel is instead a privilege that is justified only by exceptional circumstances,
such as where the facts and legal issues are so novel or complex as to require the
assistance of a trained practitioner.” Poole v. Lambert, 819 F.2d 1025, 1028 (11th
Cir. 1987). “[W]hether such circumstances exist is . . . committed to district court
discretion.” Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996) (quotation
omitted). Barcelona’s case does not present exceptional circumstances. His
complaint did not raise novel or complex issues of law, and his claims are based on
incidents that he witnessed. See Fowler, 899 F.2d at 1096 (finding no abuse of
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discretion in declining to appoint counsel when the “plaintiff’s claims are relatively
straightforward and involve incidents which took place in the prison, most of
which plaintiff witnessed himself”). Accordingly, the district court did not abuse
its discretion by denying Barcelona appointment of counsel.
III. Conclusion
For these reasons, we AFFIRM the district court.
AFFIRMED.