An Illinois inmate who tried to hedge his bets in pursuing a lawsuit lost his gamble.
The 7th U.S. Circuit Court last week declined to revive a suit accusing three dentists of being deliberately indifferent to Tom Tuduj’s serious dental needs and prison officials of following a policy of denying inmates adequate dental care.
In March 2019, Chief U.S. District Judge Nancy J. Rosenstengel of the Southern District of Illinois granted summary judgment in favor of the defendants.
She issued her ruling the day after U.S. Magistrate Judge Gilbert C. Sison denied Tuduj’s request to proceed pro se.
In its opinion Friday, a 7th Circuit panel rejected the argument that Sison’s decision violated Tuduj’s right to represent himself.
Citing 28 U.S.C. Section 1654, the panel conceded parties have the statutory right to represent themselves in civil cases in federal court.
However, the panel wrote, quoting O’Reilly v. New York Times Co., 692 F.2d 863 (2d Cir. 1982), “a party seeking to assert his statutory right of self-representation must clearly and unequivocally discharge any lawyer previously retained.”
And Tuduj did not make a clear and unequivocal request to discharge the lawyer recruited to represent him, the panel wrote.
Instead, it wrote, Tuduj questioned the adequacy of his lawyer’s response to the defendants’ motions for summary judgment and asked to represent himself — but only if the response was found to be insufficient.
“By the standard of O’Reilly, and regardless of whether we review the district court’s decision to deny his request with deference or de novo, Tuduj must lose because he did not unequivocally seek to discharge his lawyer,” the panel wrote in a per curiam opinion.
“To the contrary, he conditioned his request on whether the district court was persuaded by his lawyer’s brief.”
After Tuduj was transferred to Menard Correctional Facility in 2009, a dentist discovered problems with his teeth and pulled two of them.
Over the next five years, dentists at various times recommended that Tuduj have teeth extracted and that he be treated for severe tooth decay.
Tuduj refused treatment over those five years, but agreed to an X-ray in 2014 after experiencing problems with his jaw. Dentists then pulled several teeth, attempted to restore others and obtained partial dentures for Tuduj.
In November 2015, Tuduj filed his suit. His recruited counsel filed an amended complaint alleging that the three dentists displayed deliberate indifference by declining to consider alternatives to pulling his teeth and that prison officials routinely denied inmates appropriate dental care.
Tuduj’s attorney successfully opposed a motion for summary judgment for failure to exhaust administrative remedies.
The defendants next filed two motions seeking summary judgment on the merits. The attorney filed a brief opposing the motions.
Tuduj then filed his pro se motion to represent himself. He appealed after Sison denied the motion and Rosenstengel granted summary judgment in favor of the defendants.
In its opinion, the 7th Circuit panel noted Tuduj argued that if his response to the recruitment of counsel was equivocal, it was a reflection of his respect for the lawyer and the judge.
“That may be, but in deciding motions, a district court reasonably takes movants ‘at their word’ in those motions, rather than trying to divine some alternative meaning,” the panel wrote, quoting United States v. Chube II, 538 F.3d 693 (7th Cir. 2008).
Panel members were Judges Frank H. Easterbrook, Diane S. Sykes and Amy J. St. Eve.
The case is Tom Tuduj v. Steven Newbold, et al., No. 19-1699.
Tuduj, who now is incarcerated at Hill Correctional Center in Galesburg, represents himself.
Two of the dentists are represented by Julie A. Teuscher of Cassiday Schade LLP’s Chicago office and Timothy P. Dugan of the firm’s St. Louis office.
Illinois Assistant Attorney General Carson Griffis represents the remaining defendants.
The attorneys could not be reached for comment.