Lonzie McCall v. Captain Sandra Cook

Case: 11-12477 Date Filed: 10/31/2012 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 11-12477
Non-Argument Calendar
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D. C. Docket No. 1:10-cv-01235-ODE

LONZIE MCCALL,
Plaintiff-Appellant,

versus

CAPTAIN SANDRA COOK,
MAJOR NELSON,
Henry County Jail, et al.

Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Georgia
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(October 31, 2012)

Before HULL, EDMONDSON and BLACK, Circuit Judges.
Case: 11-12477 Date Filed: 10/31/2012 Page: 2 of 4

PER CURIAM:

Plaintiff, a Georgia state prisoner proceeding pro se, appeals the District

Court’s grant of summary judgment in favor of Defendants on Plaintiff’s section

1983 civil rights complaint. No reversible error his been presented; we affirm the

judgment.

On appeal, Plaintiff contends that prison doctor James Barlow and prison

guard Bobby Sloan were deliberately indifferent to Plaintiff’s serious back, hip,

and thigh-pain-related medical needs.* Plaintiff also appeals the District Court’s

denial of Plaintiff’s motion for appointment of counsel.

We review de novo the District Court’s grant of summary judgment,

viewing all evidenced facts and reasonably drawn inferences in the light most

favorable to the non-moving party. Burton v. City of Belle Glade, 178 F.3d 1175,

1186-87 (11th Cir. 1999).

To show constitutionally inadequate treatment in violation of the Eighth

Amendment, “a prisoner must allege acts or omissions sufficiently harmful to

evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 97

*
Plaintiff presents no arguments on appeal about the other named defendants; so, contentions
about the other defendants are abandoned. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8
(11th Cir. 2003).

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Case: 11-12477 Date Filed: 10/31/2012 Page: 3 of 4

S. Ct. 285, 292 (1976). Mere allegations of negligence or medical malpractice

establish no constitutional violation. Id. And to prevail on an inadequate medical

treatment claim requires that a plaintiff satisfy both an objective and subjective

requirement. E.g., Burnette v. Taylor, 533 F.3d 1325 (11th Cir. 2008).

Here, Plaintiff fails to show a genuine issue of material fact. Plaintiff’s

medical records indicate that he was examined by Dr. Barlow on six occasions for

back-pain-related reasons. Dr. Barlow also prescribed Plaintiff medicine for the

pain. While Plaintiff may have had a serious medical need that was later

discovered at a different facility, Dr. Barlow’s decision to order no x-ray or other

diagnostic imaging was a medical judgment that does not amount to deliberate

indifference. See Estelle, 97 S. Ct. at 292-93. And no record evidence shows that

Sloan was deliberately indifferent in denying, delaying, or interfering with

Plaintiff’s medical care. See id. at 291. So, no genuine issue of material fact

about deliberate indifference to a serious medical need exists on this record.

Plaintiff also contends that the District Court erred in denying Plaintiff’s

motion for the appointment of counsel. Plaintiff contends that he was prejudiced

by having no appointed counsel. Briefly stated, Plaintiff says he needed legal

assistance with discovery and trial preparation because of Plaintiff’s lack of legal

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Case: 11-12477 Date Filed: 10/31/2012 Page: 4 of 4

training, the complexity of the legal and medical issues, and the likelihood of the

need for expert testimony.

We review the District Court’s decision about whether to appoint counsel

for abuse of discretion. Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992). “A

civil litigant, including a prisoner pursuing a section 1983 action, has no absolute

constitutional right to the appointment of counsel. The appointment of counsel is

instead a privilege that is justified only by exceptional circumstances[.]” Poole v.

Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (citations omitted).

This case involves no “exceptional circumstances”: the issues were

relatively straightforward and based on incidents personally experienced by

Plaintiff. See Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1985). And the

record indicates that Plaintiff was able to ascertain the legal and factual basis of

his claim and to present adequately the “essential merits” of his case. See Kilgo v.

Ricks, 983 F.2d 189, 193 (11th Cir. 1993).

We AFFIRM the District Court’s grant of summary judgment in favor of

Defendants.

AFFIRMED.