Jackson, Michael F. v. Kotter, Officer

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-1922

M ICHAEL F. JACKSON,

Plaintiff-Appellant,

v.

O FFICER K OTTER, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 97 C 157—John Daniel Tinder, Judge.

____________

A RGUED A PRIL 4, 2008—D ECIDED S EPTEMBER 2, 2008

____________

Before P OSNER, K ANNE, and R OVNER, Circuit Judges.

K ANNE, Circuit Judge. After suffering back injuries on

two occasions while incarcerated at the United States

Penitentiary in Terre Haute, Indiana, Michael Jackson

brought a lawsuit against employees of the prison. He

raised a negligence claim under the Federal Tort Claims

Act (FTCA), see 28 U.S.C. § 2679, and constitutional claims

pursuant to Bivens v. Six Unknown Named Agents, 403 U.S.

388 (1971). Jackson amended his original complaint to

2 No. 06-1922

name the United States as the proper defendant of his

FTCA action, but the district court dismissed the claim

against the United States because the amendment was

filed after the applicable six-month statute of limitations

specified in 28 U.S.C. § 2401(b)(1). Jackson appeals the

district court’s dismissal of the United States, as well as

the district court’s dismissal of three individual defen-

dants; its grant of summary judgment in favor of Physi-

cian’s Assistant (“P.A.”) Williams, whom Jackson

alleged was deliberately indifferent to his medical needs;

its refusal to allow an amendment naming a new

defendant after the applicable statute of limitations had

expired; and its refusal to assist Jackson in securing

counsel. We affirm all of the district court’s decisions

except for its dismissal of the United States of America

in the FTCA action, because Jackson’s amendment

naming the United States related back to his original

pleading, which was timely filed. See Fed. R. Civ. P. 15(c).

I. H ISTORY

Jackson suffered injuries on two occasions while incar-

cerated at the Terre Haute penitentiary. On May 16, 1996,

the day Jackson was transferred to the facility, he fell

while walking across a freshly mopped floor. At the time,

Jackson was being escorted to his housing unit by four

officers—Bushy, Gregg, Robinson, and an unknown

individual—with his hands cuffed behind his back. The

officers walked behind Jackson and two other prisoners

as they cautiously crossed the wet floor, but according to

Jackson, the officers did not place their hands on the

No. 06-1922 3

inmates to help them maintain balance. Because his

hands were cuffed behind his back, Jackson was unable to

break his fall when he slipped, and he landed “full force”

on the concrete floor. As Jackson laid on the floor, one

officer ordered him to get up. Another officer grabbed

Jackson’s cuffs and arms to help him to his feet. As he

was being helped up, Jackson began experiencing back

pain, which worsened after the officers left the area.

Jackson had difficultly sitting and bending over, and

the stretches he attempted provided him no relief. Jackson

was seen by a physician’s assistant and given pain medica-

tion. When the pain did not subside, Jackson was taken

for an x-ray and referred to orthopedics. He did regular

exercises and took medication for the pain for a pro-

longed period (at least until December 16, 1997).

A second incident occurred on October 8, 1996, when

Jackson was escorted out of his cell for a strip search. The

details of this incident are not at issue in this appeal, so a

condensed version of the facts will suffice. Jackson

alleged that Officers Kotter and Grenier, and Counselor

Rodriguez, used excessive force in violation of the

Eighth Amendment by pressing him against a window,

dragging him down the hall, ramming him against walls,

and dragging him down a stairway. Jackson also alleged

that a lieutenant watched the guards as they did these

things, and failed to intervene.

Later that day or early the next morning (Jackson’s

affidavit suggests it was the same day, but prison medical

records indicate it was the following morning at 7:30 a.m.),

Jackson talked with P.A. Williams during Williams’s

4 No. 06-1922

medical rounds. Jackson says he told Williams about his

back and the incident with the guards, and explained to

Williams that he needed an x-ray. Jackson alleges that

Williams told him that nothing was wrong with his back,

and refused to give Jackson the pain medication he

took on a daily basis for his back pain.

Having not received the medical treatment he desired,

Jackson purposefully clogged his toilet and flooded his

cell. Jackson told an officer that he was causing trouble

in an attempt to get medical attention. P.A. Williams then

returned to Jackson, provided him with pain medication,

and according to Jackson, was “trying to act concerned.”

Shortly thereafter, Jackson was taken to get an x-ray

of his spine. The accounts vary regarding the date of the

x-ray—Jackson says it was the next day, but prison

medical records indicate that it occurred on October 18.

The x-ray showed “no evidence of any recent fracture

or any destructive bone disease.”

On June 3, 1997, Jackson brought a lawsuit against

numerous defendants, raising three distinct grounds for

relief. First, in an FTCA claim, Jackson alleged that, on

May 16, 1996, Officers Bushy, Gregg, Robinson, and “John

Doe” negligently led him across a wet floor while his

hands were cuffed behind his back, allowing him to

fall. Second, Jackson alleged that Lieutenant John Doe #2,

Officers Kotter and Grenier, and Counselor Rodriguez

violated the Eighth Amendment on October 8, 1996,

by beating him and dragging him with deliberate indif-

ference, causing harm to his back and right leg. Jackson’s

final count was against P.A. Williams for knowingly and

No. 06-1922 5

intentionally, with deliberate indifference, denying Jack-

son’s medical needs after the October 8 incident, in viola-

tion of the Eighth Amendment.

On June 24, 1997, the district court dismissed the

claims against Officers Bushy, Gregg, and Robinson for

the May 16 incident, because the officers were not proper

defendants under the FTCA. See 28 U.S.C. § 2679(b)(1).

The district court instructed Jackson that he would have

30 days to amend his complaint to name the United

States as the proper FTCA defendant. Jackson complied

with the court’s instruction by filing a First Amended

Complaint on July 23, 1997. The district court first rein-

stated Jackson’s FTCA claim against the United States, but

then later decided that Jackson’s amended complaint

against the United States was time-barred because it

was filed more than six months after the date Jackson

had exhausted his administrative remedies under the

FTCA. See 28 U.S.C. § 2401(b). Jackson missed the FTCA

deadline by nine days.

The district court also denied Jackson’s request to

amend his complaint to specify and name Lieutenant

Canada in the place of John Doe #2. For some time, Jackson

believed that Lieutenant “Brickbuild” was the lieutenant

who witnessed the October 8 incident. That per-

son—actually Lieutenant Brechbill—later proved that he

was not present at the scene. By the time Jackson learned

the proper identity of the lieutenant—Canada—the

statute of limitations period had expired for bringing a

Bivens claim against him. The district court did not

grant Jackson’s motion to add Lieutenant Canada as a

6 No. 06-1922

defendant because the amendment would have been

futile in light of the court’s duty to dismiss the untimely

claim. See 28 U.S.C. 1915A(b).

Throughout his litigation in the district court, Jackson

asked the court to appoint an attorney to represent him.

His first request was denied because he had not demon-

strated to the court that he had made an effort to retain

an attorney from the private bar. Thereafter, Jackson

attempted to secure an attorney, to no avail. He renewed

his request for counsel, but the district court again

denied his request. The court stated that Jackson’s claims

were not of sufficient complexity such that they surpassed

Jackson’s ability to properly develop and litigate them.

Several times after that ruling, Jackson requested ap-

pointed counsel but the district court also denied those

requests. The court reiterated that Jackson appeared to

be “fully capable of presenting his claim.”

Ultimately, Jackson represented himself throughout the

entire case. He served requests for production of docu-

ments and interrogatories; obtained copies of medical

records; filed affidavits in response to notices that the

defendants’ factual assertions would be accepted as true

unless contradicted by Jackson; filed his own motion

for summary judgment; and succeeded in withstanding

Officer Kotter and Counselor Rodriguez’s motion for

summary judgment.

After waiving a jury trial, Jackson represented himself

during a bench trial on his excessive force claims against

Kotter and Rodriguez, the remaining defendants. He

made an opening statement and called as witnesses

No. 06-1922 7

Kotter, Rodriguez, and his own parents. He cross-exam-

ined the government’s witnesses, which included Kotter

and Rodriguez. Jackson successfully had deposition

testimony of two of his prisonmates admitted into evi-

dence. Ultimately, the district court made factual findings

that Kotter and Rodriguez did not apply excessive force

on October 8, 1996, and concluded that Jackson had

failed to demonstrate by a preponderance of the evi-

dence that his federally secured rights were violated.

Jackson appealed, and we appointed an attorney to

represent him.

II. A NALYSIS

On appeal, Jackson claims that the district court improp-

erly dismissed Officers Bushy, Gregg, and Robinson,

who, Jackson argues, were defendants in his Bivens

action—not just defendants in his FTCA claim. He also

argues that the district court abused its discretion by

dismissing the FTCA claim against the United States, and

by refusing to allow Jackson to add Lieutenant Canada as

a defendant after the statute of limitations period had

ended. Additionally, Jackson challenges the district

court’s grant of summary judgment in favor of P.A.

Williams, and the district court’s denial of his repeated

requests for appointed counsel.

A. The district court’s dismissal of defendants Bushy, Gregg,

and Robinson

The district court dismissed Officers Bushy, Gregg, and

Robinson on the grounds that they were improper FTCA

8 No. 06-1922

defendants. See 28 U.S.C. § 2679(b)(1). Jackson argues

that his complaint stated a constitutional Bivens claim

against these individuals, see 403 U.S. at 389, in addition to

an FTCA claim.

We review the district court’s dismissal of claims

against these defendants de novo, see Evans ex rel. Evans v.

Lederle Labs., 167 F.3d 1106, 1108 (7th Cir. 1999), accepting

well-pled factual allegations as true and construing all

reasonable inferences in favor of Jackson, see Savory v.

Lyons, 469 F.3d 667, 670 (7th Cir. 2006).

The only proper defendant in an FTCA action is the

United States. See Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir.

2006) (“[T]he United States . . . would be the proper

defendant for tort claims involving acts of the named

officials within the scope of their employment.”); Stewart v.

United States, 655 F.2d 741, 742 (7th Cir. 1981) (“Plaintiff has

no cause of action . . . [under the FTCA] against an em-

ployee, her exclusive remedy being an action against the

United States.”); see also 28 U.S.C. § 2679(b)(1).

Jackson argues on appeal that he also sued Bushy, Gregg,

and Robinson pursuant to a Bivens action—but the orig-

inal complaint belies this argument.1 Even though Jackson

wrote the words “ ‘Bivens’ action” at the top of the com-

1

We refer to the original complaint for this argument because

the district court dismissed the claims against these three

defendants before Jackson’s second amended complaint and

specifically instructed Jackson to “omit from that document

the claims which have been determined through this Entry to

be legally insufficient.” In his first amended complaint, Jackson

did not bring FTCA claims against the individual defendants.

No. 06-1922 9

plaint, the facts he pled relating to these three defendants

and the legal grounds for relief sounded entirely in negli-

gence. He stated the “act of negligence” of these defen-

dants “violated a nondiscretionary for which the FTCA

provides redress.” He later stated that he was “knowingly

and intentionally escorted across a wet floor, in a

negligent manner, by defendants officers Bushy, Gregg[,]

Robinson, and John Doe.” (emphasis added). Admittedly,

Jackson did list these three defendants in a section of his

complaint titled “Name and Address of Individual(s)

You Allege Violated Your Constitutional Rights,” but

nowhere in the complaint does he identify a constitutional

right that the three defendants violated. The complaint

demonstrates that Jackson understood the difference

between negligence claims and constitutional Bivens

claims, but chose to raise only negligence claims against

Bushy, Gregg, and Robinson. With respect to the other

individual defendants, Jackson stated that they had acted

with “deliberate indifference” “in violation of the Eighth

Amendment.”

Perhaps most tellingly, however, is Jackson’s own

classification of his legal claim for the May 16 incident in

his later filings. In a document titled “Further Opposition

to Entry Discussing Selected Matters,” Jackson stated

that the May 16 incident “was a negligence act but a very

serious one.” Then, in a “Statement of Genuine Issues,”

Jackson refers to “the negligence act that happened on

May 16, 1996 when plaintiff fell.”

Jackson did not raise a Bivens claim against these three

defendants in his original complaint—nor did he try to

10 No. 06-1922

reassert one in his amended complaint. The district court

correctly dismissed the claims against Officers Bushy,

Gregg, and Robinson because they were improper defen-

dants under the FTCA.

B. The district court’s dismissal of the United States

Jackson next argues that the district court erred by

dismissing his FTCA claim against the United States as

untimely. Jackson acknowledges that he added the United

States as a party to his suit more than six months after

the denial of his claim for administrative relief. See 28

U.S.C. § 2401(b). But Jackson argues that his substitution

of the United States as a party related back to his original

complaint, see Fed. R. Civ. P. 15(c), which was filed before

the six-month statute of limitations had expired.

Federal Rule of Civil Procedure 15(c)(1)(A) provides that

an amendment will relate back to the original pleading

if, first, “the law that provides the applicable statute of

limitations allows relation back.” The FTCA does not

specifically address relation back of amendments, but it

clearly prohibits actions “begun” after the statute of

limitations period: “A tort claim against the United States

shall be forever barred . . . unless action is begun within

six months after . . . notice of final denial of the claim by

the agency to which it was presented.” 28 U.S.C. § 2401(b).

Because the FTCA effects a waiver of the United States’s

sovereign immunity, see United States v. Olson, 546 U.S. 43,

44-45 (2005), we must be sure that relation back of FTCA

claims filed outside the statutorily prescribed period does

not infringe on the government’s baseline immunity

No. 06-1922 11

from lawsuits brought against it by private parties, see

United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is

axiomatic that the United States may not be sued

without its consent and that the existence of consent is

a prerequisite for jurisdiction.”).

The district court decided that the six-month window

in the FTCA constituted a jurisdictional bar that could

not be altered, and accordingly dismissed Jackson’s

FTCA claim against the United States. At first glance, the

district court’s inclination seems sound in light of “the

traditional principle that the Government’s consent to

be sued must be construed strictly in favor of the sover-

eign, and not enlarged . . . beyond what the language

requires.” United States v. Nordic Vill. Inc., 503 U.S. 30, 34

(1992) (internal citations and quotation marks omitted).

Bearing that principle in mind, the district court

apparently attempted to strictly construe the govern-

ment’s waiver to include only suits properly naming the

United States within the six-month limitations window.

But recent Supreme Court caselaw concerning the relation-

back doctrine (handed down after the district court’s

decision) suggests that Jackson’s amendment, having

met the requirements of Rule 15(c), should have been

allowed.

In Scarborough v. Principi, the Supreme Court confronted

a litigant’s pleading mistake that the government argued

implicated the government’s waiver of sovereign immu-

nity. 541 U.S. 401, 405-06 (2004). After prevailing on the

merits in an action against the Department of Veterans

Affairs, Scarborough filed a timely application to receive

fees from the government for his litigation costs. Id.

12 No. 06-1922

However, in his application for fees, Scarborough mis-

takenly failed to allege that “the position of the United

States was not substantially justified”—a requirement

under the statutory fee award provision. Id.; see also 28

U.S.C. § 2412(d)(1)(A). By the time Scarborough rectified

his mistake, the 30-day fee-application period had lapsed,

so the Supreme Court had to decide whether the late

amendment could cure the original, defective pleading.

Scarborough, 541 U.S. at 412-13.

Citing two earlier relation-back cases, Becker v. Montgom-

ery, 532 U.S. 757, 767-78 (2001), and Edelman v. Lynchburg

College, 535 U.S. 106, 109 (2002), the Supreme Court de-

cided in Scarborough that the amendment related back

to the original, timely filed fee application. Scarborough,

541 U.S. at 411-12, 415-19. In Becker, the Court had

decided that a late signature on a pro se litigant’s notice

of appeal related back to the original filing, allowing the

appeal to proceed on the merits. 532 U.S. at 767-68. And

in Edelman, the Court had upheld an EEOC regulation

that allowed a late amendment to a discrimination

charge—after the filing period—to cure the defect of an

omitted verification. 535 U.S. at 109. The Scarborough

Court explained that the relation-back doctrine allowed

the amendment because the amendment “‘arose out of

the conduct, transaction, or occurrence set forth or at-

tempted to be set forth’ in the initial application”—that is,

it met the requirements under the then-current version

of Federal Rule of Civil Procedure 15(c). 541 U.S. at 418-19

(quoting Fed. R. Civ. P. 15(c)(2)).

The government argued in Scarborough that allowing

deviation from the statutorily prescribed deadline by

No. 06-1922 13

way of the relation-back provision of the Federal Rules

would infringe on the government’s sovereign immunity.

541 U.S. at 420. In response to this argument, the Court

reminded the government that it had already decided

that equitable-tolling principles “applicable to suits

against private defendants should also apply to suits

against the United States.” See id. at 420-21 (discussing

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990),

and Franconia Assocs. v. United States, 536 U.S. 129, 144-45

(2002)). In the same vein, the Court decided that relation-

back principles that apply to litigation between private

parties also apply to litigation between a private party

and the United States. Id. at 421 (“Once Congress waives

sovereign immunity, . . . judicial application of a time

prescription to suits against the Government, in the

same way the prescription is applicable to private suits,

‘amounts to little, if any, broadening of the congressional

waiver.’ ” (quoting Irwin, 498 U.S. at 95)).

We believe that this Supreme Court precedent applies

with equal force to the judicial application of Federal

Rule 15(c) to an FTCA action against the United States.

Therefore, assuming Jackson’s amendment meets the

other relation-back requirements of Rule 15(c), his claim

is not jurisdictionally barred even though his amendment

occurred outside the six-month statute of limitations

period.

The second requirement under Rule 15(c)(1) for

relation back is that the amendment “asserts a claim or

defense that arose out of the conduct, transaction, or

occurrence set out—or attempted to be set out—in the

14 No. 06-1922

original pleading.” Fed. R. Civ. P. 15(c)(1)(B). This re-

q u i re m e n t is ob v io u s ly m e t— t h e a m e nd m e nt

substituting the United States arose out of the same

facts alleging negligence for which Jackson brought suit

against the individual officers.

The third requirement is that “the party to be brought

in . . . (i) received such notice of the action that it will not

be prejudiced in defending on the merits; and (ii) knew or

should have known that the action would have been

brought against it, but for a mistake concerning the

proper party’s identity.” Fed R. Civ. P. 15(c)(1)(C). The

notice portion of this requirement is met as well. Both the

Attorney General and the United States Attorney’s Office

received copies of the summonses that erroneously

named the individual officers as defendants to Jackson’s

FTCA action on July 7, 1997, well within the service

period prescribed by Federal Rule of Civil Procedure 4(m),

and within the six-month statute of limitations period of

28 U.S.C. § 2401(b).

As for the mistake requirement of Rule 15, we questioned

at oral argument whether Jackson’s legal mistake—naming

the wrong type of defendant—precluded application of

the relation-back doctrine. Jackson’s mistake could be

likened to a “lack of knowledge” about the defendant,

which we held in Worthington v. Wilson, would not provide

grounds for relation back. 8 F.3d 1253, 1257 (7th Cir. 1993).

But our holding in Worthington, which we have since

applied on numerous occasions, see King v. One Unknown

Fed. Corr. Officer, 201 F.3d 910, 914 (7th Cir. 2000); Baskin

v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998); Eison

No. 06-1922 15

v. McCoy, 146 F.3d 468, 471-72 (7th Cir. 1998), was that

plaintiffs cannot, after the statute of limitations period,

name as defendants individuals that were unidentified

at the time of the original pleading. Not knowing a defen-

dant’s name is not a mistake under Rule 15.

On the other hand, it seems that the legal mistake

Jackson made (which appears to be somewhat of a com-

mon mistake, see e.g., Kaba v. Stepp, 458 F.3d 678, 687-88

(7th Cir. 2006); Ezekiel v. Michel, 66 F.3d 894, 895 (7th Cir.

1995); Moore v. U.S. Postal Service, No. 95-1021, 1995 WL

632365, at *1 (7th Cir. Oct. 16, 1995) (unpublished table

decision)) is the very type of mistake Rule 15 contem-

plates. We have explained that “a legal mistake con-

cerning whether to sue an institutional or individual

defendant brings the amendment within the purview of

Rule 15 . . . .” Donald v. Cook County Sheriff’s Dep’t, 95 F.3d

548, 557 (7th Cir. 1996). Likewise, our decisions in Hughes

v. United States, 701 F.2d 56, 58-59 (7th Cir. 1982), and

Stewart v. United States, 655 F.2d 741, 742 (7th Cir. 1981),

imply that so long as the United States receives actual

notice within the six-month limitations period for com-

mencement of an FTCA lawsuit, the identification of the

United States as the proper FTCA defendant after the six-

month period would relate back to the timely filed

action—assuming the other Rule 15(c) requirements are

met.

We abide by our own precedent and follow the direction

of the Supreme Court in concluding that the relation-back

doctrine of Rule 15(c) applies to FTCA suits against the

United States. The United States was not prejudiced by

16 No. 06-1922

Jackson’s amendment because it received actual notice

within the statutory six-month time period that, but for

Jackson’s mistake, it was the intended defendant in his

FTCA claim. Jackson’s amendment related back under

Rule 15(c), so the district court erred by dismissing

his claim against the United States.

C. The district court’s grant of summary judgment in favor of

Williams

The district court granted P.A. Williams’s motion for

summary judgment because Jackson proffered no evi-

dence demonstrating that Williams’s actions may have

amounted to deliberate indifference to Jackson’s medical

needs. We review the grant of summary judgment de novo,

and “draw all reasonable and justifiable inferences in

favor of the non-moving party,” Jackson. Zentmyer v.

Kendall County, 220 F.3d 805, 810 (7th Cir. 2000). Summary

judgment is proper if “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c). Jackson’s description of his interactions

with Williams after October 8 contained in his com-

plaints and his evidentiary affidavits differs from

the prison’s medical records. But even with the incon-

sistencies, Jackson’s version of the events does not

support a claim for deliberate indifference to his medical

needs.

For a medical professional to be liable for deliberate

indifference to an inmate’s medical needs, he must make

No. 06-1922 17

a decision that represents “ ‘such a substantial departure

from accepted professional judgment, practice, or stan-

dards, as to demonstrate that the person responsible

actually did not base the decision on such a judg-

ment.’ ” Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)

(quoting Collingnon v. Milwaukee County, 163 F.3d 982,

988 (7th Cir. 1998)); see also Johnson v. Doughty, 433 F.3d

1001, 1013 (7th Cir. 2006).

Jackson claims that P.A. Williams violated his Eighth

Amendment rights by refusing to treat him following his

injury on October 8, 1996. In his second amended com-

plaint, Jackson stated that he requested medical attention

in the afternoon, and “after a long while,” Williams

came to his cell while making medical rounds. Jackson

allegedly explained to Williams that he “needed medical

attention,” but he claims that “Williams refused to give

Plaintiff medical attention.” Jackson later stated in the

complaint that Williams had a duty under United States

law “to administer proper medical treatment to Plaintiff”

and that Williams “denied Plaintiff medical attention.”

Jackson was incorrect in his recitation of Williams’s

duty—medical professionals are not required to provide

“proper” medical treatment to prisoners, but rather they

must provide medical treatment that reflects “professional

judgment, practice, or standards.” See Sain, 512 F.3d at 895.

There is not one “proper” way to practice medicine in a

prison, but rather a range of acceptable courses based on

prevailing standards in the field. See Snipes v. DeTella, 95

F.3d 586, 592 (7th Cir. 1996) (“[T]he Constitution is not a

medical code that mandates specific medical treatment.”);

18 No. 06-1922

see also Estelle v. Gamble, 429 U.S. 97, 107 (1976) (“But the

question whether an X-ray or additional diagnostic tech-

niques or forms of treatment is indicated is a classic

example of a matter for medical judgment. A medical

decision not to order an X-ray, or like measures, does not

represent cruel and unusual punishment. At most it is

medical malpractice, and as such the proper forum is

the state court . . . .”). A medical professional’s treat-

ment decisions will be accorded deference “unless ‘no

minimally competent professional would have so re-

sponded under those circumstances.’ ” Sain, 512 F.3d at

895 (quoting Collignon, 163 F.3d at 988).

Jackson submitted an affidavit in which he further

detailed his interactions with Williams. He stated that

he complained to Williams when Williams was con-

ducting his medical rounds after the October 8 incident.

Jackson does not specify the actual date of his first

meeting with Williams following the October 8 incident,

but states that it was “later.” The prison medical records

show that the interaction happened on October 9 at

7:30 a.m. Jackson claims that Williams told him nothing

was wrong with his back, and that Williams refused him

his medication. In order to get somebody’s attention,

Jackson flooded his toilet. Williams returned later that

day with Jackson’s medication and was “trying to act

concerned.” In another filing, Jackson explained that when

Williams came back to give him medication, Williams

“rudely threw [it] around, but at the same time act[ed]

concerned and left quickly.” Jackson stated that the next

morning he was taken to get an x-ray by Physician’s

Assistant Smith.

No. 06-1922 19

Accepting Jackson’s version of the events as true, there

is not a genuine issue of material fact surrounding this

claim. See Jones v. Union Pacific R. Co., 302 F.3d 735, 744

(7th Cir. 2002) (“[W]e do accept [the plaintiff’s] version of

the facts as true . . . .”). Assuming without deciding

that Jackson’s back pain presented a sufficiently serious

medical condition warranting attention from prison

officials, see Pinkston v. Madry, 440 F.3d 879, 891 (7th Cir.

2006) (discussing Davis v. Jones, 936 F.2d 971, 972 (7th Cir.

1991)), Jackson’s own averments about Williams’s actions

following the October 8 incident quell his deliberate

indifference claim. As in Gutierrez v. Peters, 111 F.3d 1364,

1374 (7th Cir. 1997), “at most [Jackson] experienced an

isolated occasion or two where he did not receive

prompt treatment.”

Williams saw Jackson shortly after his alleged injuries

and ordered an x-ray for Jackson, which took place on

either October 9 or 10 (as Jackson alleged), or on October

18, 1996 (as the prison medical records show). Jackson

does not contest that Williams personally observed his

condition, and took into consideration prior x-rays of

Jackson’s spine and the report of an orthopedic surgeon

who had previously assessed Jackson. Williams afforded

Jackson some of the treatment that he demanded—pain

medication the same day it was requested and an x-ray

shortly thereafter. Williams decided that, based on Jack-

son’s account of his pain and Jackson’s medical history,

an MRI and a referral to an orthopedic surgeon were not

appropriate. “What we have here is not deliberate indif-

ference to a serious medical need, but a deliberate decision

by a doctor to treat a medical need in a particular man-

20 No. 06-1922

ner.” Snipes, 95 F.3d at 591; see also Duckworth v. Ahmad,

532 F.3d 675, 680 (7th Cir. 2008). The district court did not

err in granting Williams’s motion for summary judgment.

D. The district court’s denial of Jackson’s motion to add

Lieutenant Canada as a defendant

At the time of his original complaint, Jackson had not

determined the name of “Lt. John Doe #2.” Jackson claimed

that this person provided permission for, and failed to

intervene in, the incident in which Officers Kotter and

Grenier, and Counselor Rodriguez, allegedly beat Jackson

and dragged him down stairs. In his second complaint,

Jackson had identified John Doe #2 as Lieutenant

“Brickbuild.” He averred that Brickbuild was part of the

cohort of individuals that harmed him “in a concerted

act” by beating and dragging him down the stairs while

he was handcuffed, and slamming him into walls and

doorways.

Several months after Jackson filed his amended com-

plaint, it became clear that “Brickbuild” was actually

Lieutenant Brechbill. And shortly therafter it was learned

that Brechbill was not personally involved in the incident.

Eventually, Jackson learned the real name of the

intended defendant—Lieutenant Canada. But by that

time, the two-year statute of limitations for the Bivens

claim had expired. See Bailey v. Faulkner, 765 F.2d 102, 103

(7th Cir. 1985) (“The state statute of limitations that the

federal courts must borrow in a section 1983 suit is the

statute of limitations for personal-injury suits, which is

two years in Indiana.” (internal citations omitted)); Lewellen

No. 06-1922 21

v. Morley, 875 F.2d 118, 119 (7th Cir. 1989) (“Suits under

Bivens must meet the same schedule.”).

Jackson argues that his amendment adding Canada’s

name should have related back to the original complaint.

He cites Donald v. Cook County Sheriff’s Dep’t, 95 F.3d

548, 557 (7th Cir. 1996), for the proposition that his failure

to name this particular individual defendant was a

“mistake” about the individual’s identity. We addressed

an argument like this in King v. One Unknown Federal

Correctional Officer, and explained that reliance on Donald

is misplaced in this type of situation. 201 F.3d 910, 914 (7th

Cir. 2000). In Donald, the district court abused its discretion

by not helping the plaintiff differentiate between the

proper type of defendant in a § 1983 action—that is,

individuals as opposed to government entities. 95 F.3d at

557. Donald did not change our stance on actions

against unknown defendants: “We have consistently

held that Rule 15(c)(3) does not provide for relation back

under circumstances, such as here, in which the plaintiff

fails to identity the proper party.” King, 201 F.3d at 914.

Jackson argues that the United States employed “dila-

tory” tactics throughout discovery to prevent Jackson

from learning Canada’s identity within the statute of

limitations period, but the record does not support his

claim. The government was not asked about the identity of

John Doe #2 until October 13, 1998, which was already

beyond the two-year statute of limitations period for

Jackson’s Bivens claim—Jackson’s cause of action against

Lieutenant Canada accrued on October 8, 1996. His claim

against Canada does not relate back because Jackson

22 No. 06-1922

simply failed to identify the proper defendant, as opposed

to mistaking the type of defendant (i.e., institutional or

individual) or mistaking, misspelling, or otherwise con-

fusing, the defendant’s name.

E. The district court’s denial of Jackson’s requests for counsel

Jackson repeatedly requested the court’s assistance in

attaining counsel, and the district court repeatedly denied

his requests because, in the court’s view, Jackson’s

legal claims against the defendants were not sufficiently

complex and Jackson was capable of developing and

litigating the claims himself. The court explained that “the

presence of counsel would not make a difference in the

outcome.”

We review a district court’s decision not to assist a

litigant in obtaining counsel for an abuse of discretion. See

Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007) (en banc).

Jackson had no constitutional or statutory right to counsel

in his civil case against the government and its employees.

See Johnson v. Doughty, 433 F.3d 1001, 1019 (7th Cir. 2006).

The decision of whether to recruit pro bono counsel for

Jackson—or, as it is often called, to “appoint coun-

sel”—rested within the sound discretion of the district

court. See Pruitt, 503 F.3d at 653-54; Johnson, 433 F.3d at

1019. As part of its exercise in discretion, the district court

was required to consider both “the difficulty of the plain-

tiff’s claims and the plaintiff’s competence to litigate

those claims himself.” Pruitt, 503 F.3d at 655.

In determining whether the district court abused its

discretion, we do not engage in an independent analysis

No. 06-1922 23

of the plaintiff’s claims and competency in order to decide

for ourselves whether we think the plaintiff needed

counsel. Id. at 658-59. Instead, we determine whether the

district court applied the correct legal standard, and

whether the court’s ultimate conclusion was reasonable

given the information available to the court at the time

the decision was made. Id. “ ‘We ask not whether [the

judge] was right, but whether he was reasonable.’ ” Id.

at 659 (quoting Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.

1993)).

The district court applied the proper legal standard

when assessing Jackson’s requests. In response to Jackson’s

first request, the court correctly explained that a request

for appointment of counsel will be considered by the

court only after the plaintiff has made reasonable efforts to

obtain counsel from the private bar. See id. at 654; Gil v.

Reed, 381 F.3d 649, 658 (7th Cir. 2004) (“[T]he threshold

consideration in determining whether to appoint counsel

is whether the inmate has attempted and failed to procure

counsel on his own . . . .”). Jackson again requested the

court’s assistance because, after reasonable efforts, he

was unable to secure counsel himself.

The court then addressed the substance of Jackson’s

request by assessing the complexity of Jackson’s claims,

and his ability to litigate his claims. See Pruitt, 503 F.3d

at 655. The court denied Jackson’s request because his

claims were not “of sufficient complexity or merit as [to]

surpass the plaintiff’s ability to properly develop and

present them in this action.” It is evident that the district

court undertook an inquiry into both the types of claims

24 No. 06-1922

raised, and Jackson’s ability to litigate such claims. Because

it applied the correct legal standard, our only task now is

to decide whether the district court’s decision was rea-

sonable. Id. at 658-59.

Given the evidence before the district court at the time

of Jackson’s requests, see id. at 659, the decision not to

recruit counsel was reasonable and thus, not an abuse of

discretion. “This case was not overly difficult.” Johnson, 433

F.3d at 1007. Jackson had filed two acceptable complaints,

save for the misidentification of the proper FTCA defen-

dant (a mistake that others have made and for which

Jackson is getting relief on appeal). His claim against

Williams did not survive summary judgment, but not for

lack of his own abilities or the complexity of the claim.

Jackson simply did not have a claim against Williams

because none of the facts he alleged demonstrated deliber-

ate indifference on Williams’s part—an attorney could not

have refashioned his meritless claim into a meritorious

one. See Snipes, 95 F.3d at 592-93 (“The presence of counsel

would not have made a difference in the outcome of this

case. . . . From the beginning this was at best a suit

for medical malpractice and negligence, not a plausible

action for violation of constitutional rights.”).

Jackson’s claims against the prison officials for excessive

force survived summary judgment because Jackson

sufficiently alleged facts establishing a genuine issue of

material fact about the officials’ behavior on October 8.

Jackson demonstrated competence both in his preparation

for trial and in his presentation of his case to the district

court at trial. Jackson’s submissions to the district court

were coherent and organized, as were his requests for

No. 06-1922 25

documents and interrogatories. And although this case

involved “an issue of medical treatment, it [did] not

involve technical facts.” Forbes v. Edgar, 112 F.3d 262, 264

(7th Cir. 1997). Jackson was able to testify about his own

injuries, and he successfully secured medical records that

were not overly complex. Jackson submitted exhibits for

trial, including a prison disciplinary record, a medical

history report, and a medical classification report.

At the bench trial, even though Jackson conflated his

testimony with his opening statement, the district court

treated his statement as testimony. Jackson took direct

testimony from several witnesses, and conducted cross-

examination of the government’s witnesses. Further,

Jackson successfully entered the deposition transcripts of

two other inmates into evidence. Unlike the situation in

Pruitt, where the plaintiff’s “incompetent preparation

and presentation” of his case may have affected the

outcome and led the jury to believe the defendants’

testimony over the ill-prepared plaintiff’s, Pruitt, 503

F.3d at 661, Jackson was prepared for his trial and per-

formed satisfactorily throughout. The district court ex-

plained that Jackson “demonstrated familiarity with the

facts and circumstances he intended to establish to prove

his claim, and with the legal principles involved in doing

so.” The district court as the fact-finder ultimately

credited the testimony of the prison officials over Jack-

son’s.

Jackson argues that had he been appointed counsel, the

attorney would have ensured timely filing of the

amended FTCA claim, requested initial disclosures and

26 No. 06-1922

a scheduling order, deposed the defendants’ witnesses,

hired an expert, conducted FOIA requests, and ensured a

more speedy trial. And Jackson is probably correct in

believing that his “case might have improved had he been

represented by counsel.” Johnson, 433 F.3d at 1008. “How-

ever, just because counsel might have added opportunities

to improve the presentation of [Jackson’s] case does not

mean that the case itself was so overly complex that

counsel was required. Furthermore, speculating about how

counsel might have done a better job prosecuting the case

is neither necessary nor appropriate.” Id. at 1008-09.

The only time we will reverse a district court’s refusal

to appoint counsel for abuse of discretion is when that

refusal resulted in a “fundamental unfairness infringing

on due process rights.” Gil, 381 F.3d at 657 (internal

quotations omitted). The district court’s decision to not

request counsel for Jackson did not result in a funda-

mental unfairness, because Jackson was able to compe-

tently litigate the straightforward claims he brought

against the defendants.

III. C ONCLUSION

The district court’s dismissal of the FTCA claim against

the United States is REVERSED, and that claim is REMANDED

to the district court for further proceedings. The district

court’s remaining judgments are AFFIRMED.

9-2-08