Garner v. United States

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this opinion should not be published and is not precedent except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.

24