Skip navigation

Seventh Circuit Reverses District Court’s Denial of Blind Prisoner’s Request for Counsel

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit reversed a district court’s order denying a blind prisoner’s motion to appoint counsel.

James V. Pennewell was blind in his left eye due to retinal detachment when he began serving a prison sentence on February 3, 2015 at the Dodge Correctional Institution in Wisconsin. Eight days later, he informed the optometrist at the facility that he was experiencing symptoms in his right eye similar to those he had when he lost vision in his left eye. 

Dr. James Richter referred Pennewell to the University of Wisconsin Eye Clinic, but failed to follow up. On March 17, 2015, Pennewell was transferred to the John Burke Correctional Center, where he informed a nurse about his vision problems. After repeated complaints of symptoms of retinal detachment, he was taken to Waupun Memorial Hospital’s emergency room on April 7, 2015. He was then immediately transferred to another hospital where he underwent emergency surgery; several months later, a second surgery was performed that resulted in several weeks of blindness. Pennewell never recovered sight in his right eye and is now legally blind.

In 2017 he filed a § 1983 complaint, in forma pauperis, alleging deliberate indifference to his serious medical needs. After Pennewell was unsuccessful in his attempts to find an attorney, he requested appointment of counsel. He argued he could not litigate the case “because he was indigent, legally blind, feared retaliation from the department of corrections, and because the department of corrections had refused to provide records or names of defendants.” The district court denied his request. Attempting to conduct discovery on his own, he was unable to obtain a medical expert, depose a single witness or obtain answers to his interrogatories. 

The defendants filed a motion for summary judgment, arguing Pennewell had failed to produce any evidence to support his claims. The district court granted the motion and dismissed his complaint. Pennewell appealed, arguing the court erred in denying his request for counsel and entering summary judgment against him.

The Seventh Circuit observed that while there is no right to counsel in federal civil litigation, there is a two-part test when determining whether a court should exercise its discretion to appoint counsel: 1) has the indigent plaintiff attempted to obtain representation, and 2) given the complexity of the case, does the plaintiff appear competent to litigate it himself? If the answer to the first question is yes and the second question is no, then counsel must be appointed. See: Walker v. Price, 900 F.3d 933 (7th Cir. 2018). 

The appellate court noted that Pennewell’s case concerned complex issues related to treatment for his vision, but he was unable to obtain a medical expert. He was also unable to obtain answers to interrogatories or depose any witnesses. Thus, he wasn’t competent to litigate the case himself, counsel should have been appointed and the district court’s failure to do so constituted an abuse of discretion. 

“The district court failed to address the difficulty presented by Pennewell’s claims, which involved proving a culpable state of mind of several medical professionals, security personnel, and prison policymakers,” the Court of Appeals wrote.

Accordingly, on May 3, 2019, the Court vacated the judgment and remanded for further proceedings consistent with its ruling. See: Pennewell v. Parish, 923 F.3d 486 (7th Cir. 2019). 

Related legal case

Pennewell v. Parish