Before: BORK, SILBERMAN and D. H. GINSBURG, Circuit Judges
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.
Phillip E. Duckett, a prisoner at the D.C. Jail, filed this action against the D.C. Department of Corrections and various persons on its medical staff ("the District") under 42 U.S.C. § 1983. Duckett claimed that delays in providing medical care for a cyst under his eye amount to cruel and unusual punishment in violation of the eighth amendment. The court appointed counsel to assist Duckett and appointed an expert to conduct an initial evaluation of the medical aspects of the claim. The expert gave a report, the parties responded to it. Thereafter, the district court granted the District's motion for summary judgment. The court found that Duckett failed to show that any genuine issue of material fact remained. Viewing the facts in the light most favorable to Duckett, the court held that the delays in treatment did not amount to an eighth amendment violation:
The court can find no "deliberate indifference to a prisoner's serious illness or injury" sufficient to state a cause of action under 42 U.S.C. § 1983. See Estelle v. Gamble, 429 U.S. 97, 105 (1976). The delays shown here amount to no more than negligence if that. In addition, the condition from which plaintiff suffered, while perhaps painful at times, was not so serious as to require more urgent treatment or to show that the delays in surgery evinced deliberate indifference.
Duckett raises three arguments on appeal. First, he argues that the district court erred in granting summary judgment because questions of material facts remained. Second, he asserts that he was denied his right, under Rule 706(a) of the Federal Rules of Evidence, to cross-examine the court-appointed expert. Third, he claims that he received ineffective assistance of counsel. Because these contentions are without merit, we affirm the district court order.
Duckett argues that the district court erred in granting summary judgment because questions of material fact remained. Duckett only recites the facts regarding his medical condition and asserts that the circumstances constitute deliberate indifference to his medical needs; he does not specifically state in what respect he disagrees with the district court's statement of facts. In fact, there is no inconsistency between the district court's statement of undisputed facts and Duckett's statement of facts.
Duckett seems to be arguing not that material facts remain in dispute, rather that the district court erred in holding that the undisputed facts did not constitute an eighth amendment violation. If that is Duckett's argument, we disagree. For the reasons stated in its memorandum, we agree with the district court that facts, viewed in the light most favorable to Duckett, do not constitute deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97 (1976).
Duckett contends that the court had an obligation, under Rule 706(a) of the Federal Rules of Evidence, to allow him to call and cross-examine the court-appointed expert, Dr. Nik. This argument is without merit. Duckett did present his objections with regard to Dr. Nik's letter to the court in his letter to Judge Gesell. The court specifically noted Duckett's objections to Dr. Nik's report and stated that it accepted as true Duckett's factual statements in that letter:
Plaintiff's letter to the Court complained of inaccuracies in the expert's report and disputed the expert's conclusions. For purposes of this motion, the Court accepts as true plaintiff's factual statements but believes for reasons set out below that he was nonetheless failed to make out a claim under the Eighth Amendment.
District Court Memorandum, at 2 n.2. In order to avoid summary judgment, Duckett needed to establish that a genuine issue as to a material fact exited. See Fed. R. Civ. P. 56. The court accepted Duckett's version of the facts as true and still there was no material fact in dispute. The court was not required to accept as true Duckett's claim that the undisputed facts constituted deliberate indifference to his serious medical needs. That is a question of law for the court to decide. Duckett's right to call as a witness or cross-examine Dr. Nik arises only at trial. Cf. 10 C. Wright & A. Miller, Federal Practice and Procedure § 2714, at 624-25 (1983) ("But once the court determines that there are no disputed material facts, it is free to enter a judgment on the basis of a determination of the governing legal issues and doing so does not deprive the opposing party of his right to jury trial.").
Duckett argues that the court appointed counsel did not "perform his obligations." This claim seems to be based on Duckett's opinion that he had a right to cross-examine Dr. Nik and the fact that his counsel did not pursue that claim. This claim is also without merit. Duckett had no sixth amendment right to counsel in this civil case. See United States v. Gouveia, 467 U.S. 180, 187-190 (1984). In civil cases, there is a presumption that an indigent litigant has no right to appointed. counsel unless, if he loses the litigation, he may be deprived of his physical liberty. See Lassiter v. Department of Social Services, 452 U.S. 18, 26-27 (1981). In limited circumstances, due process concerns may rebut the presumption and give rise to a due process right to counsel, see id. at 27-32, but this is not such a case. The appointment of counsel to assist Duckett was an exercise of the court's discretion. See 28 U.S.C. § 1915(d) (1982). Therefore, when, as here, counsel is not constitutionally required, there is no right to effective assistance even though the litigant's counsel is court-appointed. See Nicholson v. Rushen, 767 F.2d 1426, 1427 ...