Where inmate did not unequivocally seek to dismiss appointed counsel in civil case, district court properly rejected motion to proceed pro se.

The 7th U.S. Circuit Court of Appeals affirmed a decision by Chief Judge Nancy J. Rosenstengel, Southern District of Illinois.

Tom Tuduj, an Illinois inmate, has a long history of dental issues and at times he declined recommended treatment. Before his incarceration in 2006, Tuduj had metal fillings replaced and root-canal treatments. In 2009, after being transferred to Menard Correctional Facility, a dentist at Menard saw more problems with Tuduj’s teeth and pulled two of them. In 2010, another dentist examined Tuduj and recommended the removal of an additional tooth, but Tuduj refused treatment. In 2011, a third dentist offered Tuduj treatment for severe tooth decay, but one again Tuduj failed to follow up. Tuduj also refused follow-up treatment in 2012 and 2013.

In 2014, Tuduj began to experience jaw problems. At that point he agreed to an X-ray and dental treatment. Tuduj consented to several extractions over the next several years, and received a set of partial dentures in 2017. Tuduj later filed suit under 42 U.S.C. Sec. 1983 contending that prison dental staff showed deliberate indifference to his dental needs. The district court recruited counsel. The defendants filed motions for summary judgment. While those motions were pending, Tuduj moved for leave to represent himself. A magistrate judge denied Tuduj’s motion. The district judge then granted the pending motions for summary judgment and Tuduj appealed.

On appeal, Tuduj focused solely on the denial of his request to represent himself. The appellate panel began by noting that in civil cases, the right of self representation is statutory and falls under 28 U.S.C. Sec. 1654. Citing O’Reilly v. New York Times Co., the panel stated that Tuduj’s claim must fail because he did not unequivocally seek to discharge his appointed counsel. The panel noted that Tuduj conditioned his request to proceed pro se on whether the district court was persuaded by counsel’s response to the pending summary judgment motions. The panel stated that because Tuduj’s request to dismiss his counsel was conditional, and because Tuduj’s counsel had shown reasonable diligence in the case, the district court did not err in denying Tuduj’s motion.

The panel then found that Tuduj had not challenged the entry of summary judgment on the merits on appeal. The panel then stated that the record in the instant case revealed no deliberate indifference. Finally, the panel rejected Tuduj’s request to modify the record to add affidavits from several other inmates who contended that they had teeth extracted that could have been saved with different treatment. The panel stated that the affidavits were not a part of the district court record, and Rule 10(e) did not give the panel the authority to admit on appeal any document that was not made part of the record in the district court. The panel therefore affirmed the decision of the district court.

Tom Tuduj v. Steven Newbold, et AL.
No. 19-1699
Writing for the court: Per curiam
Before: Judges Frank H. Easterbrook, Diane S. Sykes and Amy J. St. Eve
Released: May 1, 2020