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4th Cir.: Imprisonment not sufficient to appoint counsel

The district court did not err in dismissing an inmate’s Eighth Amendment claims or in declining to appoint counsel, but remand is necessary because the lower court failed to address the plaintiff’s state-law medical malpractice claims.


Plaintiff Steven Banks is incarcerated at the Greensville Correctional Center and suffers from numerous health conditions. In April 2012, he slipped and fell on a wet floor, injuring his head. After complaining of blurry vision, dizziness, and chronic head pain, Banks was taken to the hospital and told he had a severe concussion. His medical care was predominantly handled by his primary care providers, but Vincent Gore, the prison’s medical director, was responsible for approving requests for specialist consultations and medical procedures.

In June 2013, Banks was receiving dialysis treatment in the Center’s medical housing unit when the water system on his dialysis machine broke down. He was removed from his treatment about 36 minutes early. Banks claims he became very ill as a result of the premature termination. At the time, Defendant Angela Smith was employed as the infirmary nurse manager. She did not end Banks’s dialysis treatment early or have the authority to do so.

A year and a half after Banks’s fall, a primary care provider requested a neurology consult for Banks. Gore deferred the primary care provider’s request, believing that more information was needed. He also thought there was no urgent need for a neurology consult because this was the first request for one in the year and a half since Banks’s initial head injury.

Banks sued Gore and Smith, asserting Eighth Amendment claims and requesting the appointment of counsel. Gore and Smith moved for summary judgment. Banks did not respond, and the district court granted summary judgment. The court’s opinion did not address Banks’s state law malpractice claims. Banks has appealed.

Eighth Amendment

Gore was not deliberately indifferent to Banks’s medical needs. The uncontested evidence belies Banks’s allegation that Gore denied three different primary care providers’ requests for a neurology consult. Gore did not deny the single request he received; he deferred it and suggested that Banks first be monitored in the clinic for six months. Gore did so because Banks was on medication that caused headaches and dizziness; his neurological evaluation was within normal limits; his spinal x-rays showed normal alignment with anterior wedging; and Gore saw no urgent need for a neurology consult given that Banks had injured his head over a year and a half earlier.

Even if Gore had deviated from the accepted standard of care, on these facts it would not be sufficient to clear the “high bar” of a constitutional claim.

The district court also correctly dismissed Banks’s Eighth Amendment claim against Smith because it was undisputed that she had nothing to do with the early termination of Banks’s dialysis treatment.

Appointment of counsel

The district court did not err in denying his motions to appoint him counsel. Banks never asserted that he was unable to represent himself due to his medical conditions. Rather, he contended that (1) his imprisonment limited his ability to litigate what is a complex case involving significant research and investigation, (2) a trial in the case would likely involve conflicting testimony and appointed counsel would be better at presenting evidence and cross-examining witnesses, and (3) he had made repeated efforts to obtain a lawyer. But Banks’s inexperience with the law and his prisoner status do not constitute an “exceptional circumstance,” especially during the very early stages of litigation.

If Banks truly had reason to believe that three different providers recommended that he receive a neurological consult or that Nurse Smith was directly responsible for prematurely ending his dialysis treatment, then he might well have survived the Defendants’ motion for summary judgment by submitting affidavits contesting their version of events.

Moreover, the record does not suggest that Banks’s claims are colorable. He presented no evidence of an Eighth Amendment violation, was in the early stages of litigation, and was capable of opposing a motion for summary judgment. The court therefore finds no grave injustice in the district court’s refusal to appoint counsel.

Medical malpractice disposition

The Defendants’ motion for summary judgment sought dismissal of Banks’s Second Amended Complaint, and the district court granted the motion. However, its memorandum opinion does not address Banks’s state-law claims, and neither the opinion nor the order specifies whether the district court dismissed the state law claims with or without prejudice.

This court finds it likely that the district court intended to dismiss the medical malpractice claims without prejudice to refiling in state court. But rather than guess, this court remands for the limited purpose of having the district court clarify its intentions regarding the claims.

Affirmed and remanded.

Banks v. Gore, case No. 16-7512, June 13, 2018. 4th Cir. (Diaz), from EDVA at Alexandria (Hilton). Jaden Rhea for Appellant; Edward J. McNelis III for Appellees. VLW No. 018-2-124, 15 pp.

VLW 018-2-124

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