James v. Gonzalez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 8, 2009

No. 08-41221

Summary Calendar Charles R. Fulbruge III

Clerk

OTHA JAMES

Plaintiff-Appellant

v.

DR WILLIAM GONZALEZ; DR MAXWELL; DR KEARNEY; DR HILTON

Defendant-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:06-CV-418

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Otha James brought this pro se and in forma pauperis 42 U.S.C. § 1983

claim against Dr. William Gonzalez, Dr. Maxwell, Dr. Kearney, and Dr. Hilton

(Appellees), all of whom are employed by the University of Texas Medical

Branch (“UTMB”) hospital in Galveston, alleging that Appellees were negligent

and committed malpractice in connection with surgical procedures on his hand.

He asks for compensatory and punitive damages from Appellees in an amount

*

Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.

totaling more than one million dollars. The district court dismissed Appellant’s

civil rights complaint with prejudice and dismissed Appellant’s state law claims

of negligence without prejudice.

There are four issues on appeal: (I) whether the district court abused its

discretion by denying Appellant’s motion for appointment of counsel; (II)

whether the district court abused its discretion by denying Appellant’s motion

for appointment of a medical expert; (III) whether the district court erred by

finding that Appellees were entitled to qualified immunity for Appellant’s § 1983

claims; and (IV) whether the district court abused its discretion by not retaining

jurisdiction over Appellant’s pendent state law claims.

I. Appointment of Counsel

Appellant first appeals the district court’s denial of his motion to appoint

counsel. The denial of a motion to appoint counsel for an indigent plaintiff

asserting a § 1983 claim is reviewed for abuse of discretion. Cupit v. Jones, 835

F.2d 82, 86 (5 th Cir. 1987). It is well-settled that a civil rights complainant has

no right to the automatic appointment of counsel unless the case represents

exceptional circumstances. Branch v. Cole, 686 F.2d 264, 265 (5 th Cir. 1982).

Although we have said that no comprehensive set of factors can be fully

identified, in making this determination we consider:

(1) the type and complexity of the case; (2) whether the indigent is

capable of adequately presenting his case; (3) whether the indigent

is in a position to investigate adequately the case; and (4) whether

the evidence will consist in large part of conflicting testimony so as

to require skill in the presentation of evidence and in cross

examination.

Ulmer v. Chancellor, 691 F.2d 209, 213 (5 th Cir. 1982) (internal citations

omitted). Appellant has not demonstrated that any of these exceptional

circumstances apply. He asserts that he is an indigent prisoner, that the case

involves conflicting testimony because Appellees deny his allegations, and that

the case is complex because it involves medical doctors and their supervisors.

These are common elements in civil rights cases and do not in this case rise to

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the level of exceptional circumstances; the district court did not err in declining

to appoint counsel.

II. Appointment of Medical Expert

Appellant next appeals the district court’s denial of his motion to appoint

an expert witness on his behalf. In Pedraza v. Jones, we confronted an almost

identical case in which a plaintiff proceeding in forma pauperis requested that

a medical expert be appointed to testify on his behalf; we held that the “district

court has no authority to appoint an expert witness under [28 U.S.C. § 1915, the

in forma pauperis statute].” 71 F.3d 194, 196 (5 th Cir 1995). The district court

thus did not err by refusing to do so here.

III. Immunity for 42 U.S.C. § 1983 claim

The standard of review for grant of summary judgment under Rule 56 is

de novo. FDIC v. Ernst & Young, 967 F.2d 166, 169 (5 th Cir. 1992). Appellant

brought a medical deliberate indifference claim under 42 U.S.C. § 1983, seeking

damages from Appellees in both their official and individual capacities. The

district court found that Appellees were immune from liability in all respects;

Appellant challenges that determination.

Appellees first argue that they are immune from liability in their official

capacities under the Eleventh Amendment, which bars an action in federal court

by a citizen of a state against his or her own state, including a state agency,

unless such immunity is expressly waived. Martinez v. Texas Dep’t of Criminal

Justice, 300 F.3d 567, 573 (5 th Cir. 2002). It is undisputed that Appellant sued

Appellees for actions taken during their course of employment at UTMB, a state

agency. Thus, the district court correctly determined that Appellees are entitled

to immunity under the Eleventh Amendment for the claim against them in their

official capacities.

Similarly, the district court did not err when it determined that Appellees

were entitled to qualified immunity for claims brought against them in their

individual capacities. “The doctrine of qualified immunity serves to shield a

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government official from civil liability for damages based upon the performance

of discretionary functions.” Cozzo v. Tangipahoa Parish Council - President

Gov’t, 279 F.3d 273, 284 (5 th Cir. 2002) (internal citations omitted). To overcome

the affirmative defense of qualified immunity, “a plaintiff must satisfy a

two-prong test. First, he must claim that the defendants committed a

constitutional violation under current law. Second, he must claim that the

defendants' actions were objectively unreasonable in light of the law that was

clearly established at the time of the actions complained of.” Club Retro L.L.C.

v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (internal quotation marks and

citations omitted). To show the constitutional injury alleged here, Appellant

must show, at a minimum, that Appellees exhibited deliberate indifference to his

serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). The medical

records indicate that Appellant received extensive care for his right hand,

including two surgeries, administration of pain medication, and several physical

therapy visits. The district court correctly found that Appellant has therefore

failed to establish a violation of his constitutional rights and has not overcome

Appellees’ qualified immunity defense.

IV. Pendent state law claims

A district court’s determination of whether to retain jurisdiction over state

law claims is reviewed for abuse of discretion. Priester v. Londes County, 354

F.3d 414, 425 (5 th Cir. 2004). Appellant argues that the district court erred by not

retaining jurisdiction over his pendent state law claims for malpractice and

negligence. Generally, when all federal claims have been dismissed, a district

court should dismiss any pendent state law claims without prejudice so that the

Plaintiff may re-file his claims in the appropriate state court. Wong v. Stripling,

881 F.2d 200, 204 (5 th Cir. 1989). Here, the complaint has failed to state a federal

claim, and the district court did not abuse its discretion in dismissing Appellant’s

state law claims without prejudice.

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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