                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                            May 28, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 LOUIS DARRYL TARANTOLA,

        Plaintiff - Appellant,

 v.                                                           No. 12-3321
                                                    (D.C. No. 5:10-CV-03131-RDR)
 CUSHING MEMORIAL HOSPITAL;                                    (D. Kan.)
 GEORGE SPEER, DO, Cushing
 Memorial Hospital, Leavenworth, Kansas,

        Defendants-Appellees.


                                 ORDER AND JUDGMENT*


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       Louis Darryl Tarantola, while a prisoner at the United States Penitentiary in

Leavenworth, Kansas, sustained injuries to his head and face during a prison altercation

on January 8, 2010. Dr. George Speer treated Mr. Tarantola for those injuries at Cushing


        *After examining Appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
Memorial Hospital (“Cushing”). Mr. Tarantola, appearing pro se,1 brought a lawsuit

alleging deliberate indifference to his medical needs under 42 U.S.C. § 1983 and medical

malpractice under state law. The district court dismissed the § 1983 claim for failure to

state a claim, denied Mr. Tarantola’s motion to appoint counsel, and granted summary

judgment in Cushing’s and Dr. Speer’s favor on the medical malpractice claim. Mr.

Tarantola appeals the district court’s orders granting summary judgment on the medical

malpractice claim and denying his motion to appoint counsel. We affirm.

                          I. PROCEDURAL BACKGROUND

       On June 15, 2010, Mr. Tarantola filed a complaint in federal district court against

Dr. Speer and Cushing, alleging that Dr. Speer “knowingly and deliberately provided . . .

substandard medical care, which resulted in permanent scars and disfigurement to [his]

head and face.” Tarantola v. Cushing Mem’l Hosp., 2012 WL 5877532 at *1 (D. Kan.

Nov. 20, 2012). The district court ordered Mr. Tarantola to disclose any expert witnesses

by March 7, 2012. Mr. Tarantola failed to provide the court with the names of any expert

witnesses by that date.

       On November 30, 2011, the district court dismissed the § 1983 claim, construing it


       1
         The district court therefore construed his complaint liberally. Because Mr.
Tarantola also proceeds pro se on appeal, his “pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We cannot,
however, “take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Id.


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as alleged against Cushing only. Mr. Tarantola has not challenged this ruling on appeal.

       On January 6, 2012, the district court denied Mr. Tarantola’s request for

appointment of counsel under 28 U.S.C. § 1915(e).

       On August 1, 2012, the Defendants filed motions for summary judgment, which

were granted on November 20, 2012. The district court explained that plaintiffs must

prove three elements for a medical malpractice claim under Kansas law: (1) the

physician owes a duty of care to the patient; (2) the physician breached the duty of care;

and (3) the patient’s injury proximately resulted from the breach. See Esquivel v.

Watters, 183 P.3d 847, 850 (Kan. 2008). The court also noted that expert testimony is

generally required to establish the standard of care and prove causation and that summary

judgment may be granted for failure to present such expert testimony. See id. (expert

testimony required); Perkins v. Susan B. Allen Mem’l Hosp., 146 P.3d 1102, 1107 (Kan.

Ct. App. 2006) (same); St. Francis Reg’l Med. Ctr., Inc. v. Hale, 752 P.2d 129, 134 (Kan.

Ct. App. 1988) (affirming summary judgment).

       The district court rejected Mr. Tarantola’s claim that the Kansas common

knowledge exception obviated the need for expert testimony in his case. It noted that the

common knowledge exception is narrow and rarely applied and “has three essential

elements:”

              (1) the plaintiff has asserted a claim of medical malpractice;
              (2) the care or result of the care is patently bad; and (3) a
              person without the pertinent medical knowledge can assess
              the wrongfulness of the diagnosis, treatment, or care and
              attribute the plaintiff’s injury to the wrongful conduct without
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              the assistance of expert testimony.

Perkins, 146 P.3d at 1106. The district court stated that expert testimony was necessary

here: the stapling procedure used on Mr. Tarantola’s wounds—the number of staples and

the way to insert them—and whether Mr. Tarantola’s scarring was greater than should be

anticipated are not within common experience. As the common knowledge exception did

not apply, the district court granted summary judgment.2

                                   II. JURISDICTION

       Despite language referencing diversity jurisdiction in the district court’s summary

judgment order, the court had federal question jurisdiction over the § 1983 claim under

28 U.S.C. § 1331 and therefore had supplemental jurisdiction over the medical

malpractice claim under 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291.

                                   III.   DISCUSSION

       On appeal, Mr. Tarantola argues that the district court erred because the hospital

had a duty to oversee Dr. Speer’s performance and because it would be obvious to a jury

seeing his injuries that the Defendants’ actions fell below the standard of reasonable care.

He also argues that the district court abused its discretion in denying his request for

appointment of counsel because of the complexity of his case and because of his mental

instability and lack of education in the law.


       2
        Mr. Tarantola challenges alternative bases that the district court relied upon for
entering summary judgment against him. Because we affirm for the reasons stated
above, we need not reach those arguments.

                                                -4-
       We review de novo the district court’s decision to grant summary judgment,

applying the same legal standards that should be used by the district court. See Carpenter

v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 2006). In particular, “[s]tate law claims

before a federal court on supplemental jurisdiction are governed by state law.” Time

Warner Entm’t Co., L.P. v. Everest Midwest Licensee, L.L.C., 381 F.3d 1039, 1044 (10th

Cir. 2004). After examining the record on appeal, we affirm summary judgment for

substantially the same reasons set forth by the district court in its November 20, 2012

order, Tarantola, 2012 WL 5877532 at *2-4.3

       “We review a district court’s refusal to appoint counsel for an indigent prisoner in

a civil case for an abuse of discretion.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012)

(quotations omitted). We will overturn the district court’s decision only in “extreme

cases where the lack of counsel results in fundamental unfairness.” Id. (quotations

omitted). “The burden is on the applicant to convince the court that there is sufficient

merit to his claim to warrant the appointment of counsel.” Hill v. SmithKline Beecham

Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (quotations omitted). “The factors to be

considered include ‘the merits of a prisoner’s claims, the nature and complexity of the

factual and legal issues, and the prisoner’s ability to investigate the facts and present his

       3
         Mr. Tarantola also raises for the first time on appeal the argument that he did not
need to designate an expert witness under the doctrine of res ipsa loquitor. “Absent
extraordinary circumstances,” not present here, “we will not consider arguments raised
for the first time on appeal.” Turner v. Pub. Serv. Co. of Colorado, 563 F.3d 1136, 1143
(10th Cir. 2009).


                                              -5-
claims.’” Toevs, 685 F.3d at 916 (quoting Hill, 393 F.3d at 1115).

       The issues here are “not particularly complex.” Rucks v. Boergermann, 57 F.3d

978, 979 (10th Cir. 1995). Mr. Tarantola’s filings “indicate a much higher degree of

legal sophistication than is generally found in pro se parties.” Hill, 393 F.3d at 1115.

This is not an extreme case presenting special circumstances such as those in McCarthy

v. Weinberg, 753 F.2d 836, 839 (10th Cir.1985) (holding that counsel should have been

appointed for a wheelchair-bound prisoner with multiple sclerosis and diminished

eyesight, hearing, and ability to communicate, and who needed to present complex

medical issues requiring expert opinion). While having appointed counsel may have

helped Mr. Tarantola present a stronger case, “the same could be said in any [pro se]

case.” Rucks, 57 F.3d at 979. We therefore conclude that the denial of counsel was not

an abuse of discretion.

                                   IV.CONCLUSION

       For the foregoing reasons, we affirm the district court’s orders granting summary

judgment and denying appointment of counsel.4 We note that the district court granted

Mr. Tarantola in forma pauperis status for this appeal. We remind him that he remains




       4
         Mr. Tarantola raised other issues in his notice of appeal, but he did not raise or
adequately present them in his opening brief. He has forfeited appellate consideration of
those issues. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).


                                             -6-
responsible to make partial payments until his obligations are satisfied. See Kinnell v.

Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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