                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-2524
                                     ___________

James Edward Phillips,                 *
                                       *
            Appellant,                 *
                                       *
       v.                              *    Appeal from the United States
                                       *    District Court for the
Jasper County Jail; Cabalero;           *   Western District of Missouri.
Eby; Garza; Kelly; Forsythe;           *
Riley; Moback; Sanchez; Sewell;        *
Lietz; Lyman; Carr; John Freitas;       *
Marney,                                *
                                       *
            Appellees.                 *
                                  ___________

                               Submitted: November 17, 2005
                                  Filed: February 14, 2006 (Corrected: 2/28/06)
                                   ___________

Before ARNOLD, BEAM, and RILEY, Circuit Judges.
                           ___________

ARNOLD, Circuit Judge.

      After James Phillips fell from the top bunk in his cell at the Jasper County,
Missouri, jail, he filed a lawsuit under 42 U.S.C. § 1983, accusing various jail
employees and the jail's doctor of violating his constitutional rights. The district court
denied Mr. Phillips's requests for appointed counsel. Later in the proceeding, the
court granted the defendants' motions for summary judgment, determining that
Mr. Phillips had failed to present sufficient evidence to create a genuine issue of
material fact as to whether the defendants were deliberately indifferent to a medical
condition that caused him to have seizures.

       Mr. Phillips contends that the district court erred by denying him appointed
counsel, by granting summary judgment to Dr. John Freitas, and by granting summary
judgment to the jail employees. Although we find no merit in the first two arguments,
we agree with Mr. Phillips that a genuine issue of material fact exists with respect to
his claims against the jail employees.

                                            I.
        Mr. Phillips has intermittently taken anti-seizure medication following a head
injury that he sustained some time ago. When he was first booked into the Jasper
County Jail four years ago, he was prescribed 1000 milligrams per day of the drug
Tegretol to control his seizures. That dosage remained the same when Mr. Phillips
was moved to the Missouri State Penitentiary. Before the state prison discharged him,
however, Mr. Phillips stopped taking the medication. Several days after his release
from the state penitentiary, Mr. Phillips was again booked into the Jasper County Jail.
Dr. Freitas, who was under contract to provide medical services to the inmates at the
jail, reviewed Mr. Phillips's case and prescribed twice-daily 250-milligram doses of
Depakote, another anti-seizure medication. Mr. Phillips also requested that he be
assigned to a bottom bunk because of his seizures.

       A few months after being re-admitted to the jail, Mr. Phillips was sleeping on
the top bunk in his cell. During the night, he fell from the bunk and suffered injuries
to his head, neck, and spine. Mr. Phillips then filed this lawsuit, alleging that the
doctor and the named jail employees were deliberately indifferent to his medical
condition, in violation of the eighth and fourteenth amendments.

      As the case progressed, Mr. Phillips filed a motion requesting that the district
court appoint an attorney to represent him. The district court denied the motion

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without prejudice, because the record had not been developed sufficiently to
determine whether appointment of counsel was justified. Five days later, Mr. Phillips
filed a second motion for counsel, which the district court denied for the same reason.
Mr. Phillips's court filings continued to contain statements in which he questioned his
ability to litigate the matter himself, although he did not make any other specific
motions for counsel to be appointed. Dr. Freitas and the employees then moved for
summary judgment asserting that Mr. Phillips's claims failed as a matter of law.

       The district court granted the summary judgment motions. With respect to
Dr. Freitas, the court determined that Mr. Phillips's allegations, at most, made out a
claim for malpractice, not a constitutional claim, which requires a showing of
deliberate indifference. As for the jail employees, the district court determined that
the record established that they did not ignore Mr. Phillips's medical condition and
that they had, in fact, assigned him to a bottom bunk at the time that he fell and
injured himself.

                                           II.
      We first address Mr. Phillips's contention that the district court erred when it
denied his motions for appointed counsel. There is no constitutional or statutory right
to appointed counsel in civil cases. Edgington v. Missouri Dep't of Corr., 52 F.3d
777, 780 (8th Cir. 1995), abrogated on other grounds, Doe v. Cassel, 403 F.3d 986,
989 (8th Cir. 2005). Rather, when an indigent prisoner has pleaded a nonfrivolous
cause of action, a court "may" appoint counsel. See 28 U.S.C. § 1915(e) (emphasis
added); Edgington, 52 F.3d at 780. We will reverse a court's denial of appointed
counsel only if it constitutes an abuse of discretion. Williams v. Carter, 10 F.3d 563,
566 (8th Cir. 1993).

       The relevant criteria for determining whether counsel should be appointed
include the factual complexity of the issues, the ability of the indigent person to
investigate the facts, the existence of conflicting testimony, the ability of the indigent

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person to present the claims, and the complexity of the legal arguments. Edgington,
52 F.3d at 780. The district court denied Mr. Phillips's motions because it believed
that the record was insufficient to determine, one way or the other, whether it would
be appropriate to appoint counsel.

      Upon review of the record, we find no error in the court's denial of
Mr. Phillips's motions. Discovery had just begun at the time that he requested
counsel, so there was no conflicting testimony. Nor was there any indication in the
record that Mr. Phillips was unable to investigate or present his case. To the contrary,
he correctly identified the applicable legal standard governing his claims and
successfully amended his complaint to include essential information. Finally,
Mr. Phillips's claims involved information that was readily available to him. The
success of his claims depended upon the information that Mr. Phillips gave Dr. Freitas
and the prison staff about his condition, the consistency with which the prison made
Mr. Phillips's anti-seizure medication available to him, Mr. Phillips's bunk
assignment, and the events that transpired the night that Mr. Phillips fell from his
bunk.

        Mr. Phillips contends that even if the court properly denied his motions when
they were filed, the court should have appointed counsel later in the case, when
Mr. Phillips's difficulties in obtaining discovery from the defendants became clear.
Mr. Phillips draws our attention to our statement in Williams, 10 F.3d at 567, that
"[w]hen a court has denied a motion for appointment of counsel, it should continue
to be alert to the possibility that, because of procedural complexities or other reasons,
later developments in the case may show either that counsel should be appointed, or
that strict procedural requirements should, in fairness, be relaxed to some degree." In
Williams, the district court prevented an indigent plaintiff from calling witnesses with
relevant information at trial because the plaintiff's witness list was not filed in
compliance with the court's pre-trial procedures. Id. at 566-67. Under those
circumstances, we determined that the case should be remanded for further

                                          -4-
consideration by the district court as to whether counsel should have been appointed.
Id. at 567.

       This case, however, does not involve the application of strict procedural
requirements that prejudiced Mr. Phillips's case. The record reveals that the court was
patient with Mr. Phillips and gave him considerable leeway in accepting and
interpreting his pleadings. We note that Mr. Phillips was able to avoid procedural
default and that his complaint was sufficient to survive the first motion for summary
judgment filed by the prison employees. And although Mr. Phillips routinely
complained about his access to legal materials and paper, he was able to file more than
thirty documents with the court, which strongly suggests that he was able to overcome
any obstacles that he may have encountered. Because Mr. Phillips had a fair
opportunity to present his claims and did so, we find no abuse of discretion in the
court's failure to appoint counsel.

                                          III.
       Mr. Phillips also contends that the district court erred when it granted
Dr. Freitas's motion for summary judgment. He contends that Dr. Freitas violated his
constitutional rights by failing to prescribe the proper medication and failing to
monitor his prescription prior to his seizure. The failure to provide proper medical
treatment to a prisoner violates the eighth amendment when the medical provider is
deliberately indifferent to the prisoner's serious medical needs. Jolly v. Knudsen,
205 F.3d 1094, 1096 (8th Cir. 2000). Deliberate indifference requires a showing that
the medical provider knew of and disregarded a serious medical need. Id. A medical
need is serious when it has been diagnosed by a physician as requiring treatment, or
is so obvious that even a layperson would easily recognize the necessity for a doctor's
attention. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997).

     Applying these legal principles to Mr. Phillips's complaint against Dr. Freitas,
we have little trouble affirming the district court's judgment. At most, and as he

                                         -5-
conceded at his deposition, Mr. Phillip's complaint makes out a case for malpractice.
Even viewing the record most favorably for Mr. Phillips, we cannot find any evidence
that Dr. Freitas knew that prescribing Depakote instead of Tegretol would present a
danger to Mr. Phillips. Nor does the record suggest that Dr. Freitas knew that he was
prescribing less Depakote than was required. The fact that Mr. Phillips disagreed with
Dr. Freitas as to the proper anti-seizure drug and the need for a blood test does not
establish deliberate indifference. "The prisoner must show more than negligence,
more even than gross negligence, and mere disagreement with treatment decisions
does not rise to the level of a constitutional violation." Estate of Rosenberg v.
Crandell, 56 F.3d 35, 37 (8th Cir.1995).

        Mr. Phillips also contends that Dr. Freitas was deliberately indifferent for
failing to administer his prescribed medication. Mr. Phillips, however, has not
produced any evidence that Dr. Freitas was responsible for administering
Mr. Phillips's daily dose of medication. Cf. Johnson v. Hay, 931 F.2d 456, 458-61
(8th Cir. 1991); Gil v. Reed, 381 F.3d 649, 661-64 (7th Cir. 2004). Indeed,
Mr. Phillips's allegations in his pleadings and statements at his deposition establish
that it was the jail employees, not Dr. Freitas, who were responsible for administering
his medication. We therefore affirm the district court's entry of summary judgment
in favor of Dr. Freitas.

                                           IV.
       Finally, Mr. Phillips contends that a genuine issue of material fact exists
regarding his claims against the jail employees. Mr. Phillips alleged that the jail
employees violated the eighth amendment by failing to administer his anti-seizure
medication properly and by assigning him to a top bunk despite his known seizure
disorder. We review the record to determine whether Mr. Phillips raised a genuine
issue of fact regarding the jail employees' deliberate indifference to his condition. See
Dulany v. Carnahan, 132 F.3d 1234, 1237-38 (8th Cir. 1997).



                                          -6-
       The district court's discussion of Mr. Phillips's claims against the jail employees
does not address his allegations regarding the inconsistent administration of
medication; the court merely notes that jail employees ensured that Mr. Phillips saw
Dr. Freitas and was prescribed anti-seizure medication. Though this is true, the
knowing failure to administer prescribed medicine can itself constitute deliberate
indifference. See Johnson, 931 F.2d at 461. Mr. Phillips testified at his deposition
that both before and after his seizure he was not given the prescribed amount of anti-
seizure medication. He also testified that he filed grievances regarding this failure,
but to no effect. We find Mr. Phillips's statements are sufficient to create a genuine
issue of material fact on the question of whether the jail employees were deliberately
indifferent. See Cummings v. Dunn, 630 F.2d 649, 651 (8th Cir. 1980) (per curiam).

        The jail employees contend that Mr. Phillips nonetheless cannot prevail because
he failed to produce any evidence that he actually had a seizure. But the record, when
viewed in a light most favorable to Mr. Phillips, supports a reasonable inference that
he did. He testified at his deposition that he suffered a number of seizures after his
injury in the late 1990s. He testified that although he had no recollection of falling
from his bunk, a lack of memory was consistent with his past seizures. He also
testified that his tongue was bleeding after his fall, which resulted from biting his
tongue during a seizure. Following the incident, Dr. Freitas increased the dosage of
the anti-seizure medication that he had given to Mr. Phillips. This evidence is
sufficient to create a genuine issue of fact on the question of whether Mr. Phillips
suffered a seizure.

       The district court also concluded that Mr. Phillips had not presented sufficient
evidence to raise a genuine issue of material fact regarding his bunk assignment. We
disagree again. Mr. Phillips testified that he was assigned a top bunk despite his
repeated requests to several different jail employees that he be placed in a lower bunk.
There is no question that Mr. Phillips was, in fact, in the top bunk on the night that he
fell. The jail employees supported their motion with an affidavit from a corrections

                                           -7-
officer stating that the jail's record indicated that Mr. Phillips was assigned to a bottom
bunk when he was booked into the jail. This evidence appears, on its face, to be
inadmissible pursuant to Fed. R. Evid. 1002, which requires the production of an
original writing to prove that writing's contents. Affidavits that contain evidence not
admissible at trial should not be relied upon in a summary judgment motion. Brooks
v. Tri-Systems, Inc., 425 F.3d 1109, 1111 (8th Cir. 2005); see also
Fed. R. Civ. P. 56(e). But even if we assume that the statement in the affidavit would
be admissible at trial, it is contradicted by Mr. Phillips's repeated statements in his
deposition that he was, in fact, assigned to a top bunk against his wishes. This is
enough to create a genuine issue of material fact. See Cummings, 630 F.2d at 651.

                                         V.
       We affirm the entry of summary judgment entered in favor of Dr. Freitas.
Because a genuine issue of material fact exists as to whether the jail employees were
deliberately indifferent by failing properly to administer Mr. Phillips's prescriptions
and by assigning him to a top bunk, we reverse the district court's entry of summary
judgment in favor of the jail employees, and we remand the case to the district court
for further proceedings consistent with this opinion.
                        ______________________________




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