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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO SE: ERIC D. SMITH Carlisle, Indiana ATTORNEY FOR APPELLEES D. PATTON, SCOTT FITCH, & LARRY BYNUM: BRUCE B. PAUL Stites & Harbison, PLLC Jeffersonville, Indiana ATTORNEY FOR APPELLEE CORRECTIONAL MEDICAL SERVICES, INC.: CAROL A. DILLON Bleeke Dillon Crandall Indianapolis, Indiana

FILED
Aug 26 2011, 9:32 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
ERIC D. SMITH, Appellant-Plaintiff, vs. D. PATTON, SCOTT FITCH, LARRY BYNUM, CORRECTIONAL MEDICAL SERVICES, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 33A01-1012-PL-681

APPEAL FROM THE HENRY SUPERIOR COURT The Honorable Terry Snow, Special Judge Cause No. 33D01-0810-PL-28

August 26, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION BRADFORD, Judge

On appeal, Appellant-Plaintiff Eric D. Smith contends that the trial court erred in granting summary judgment in favor of Appellees-Defendants D. Patton, Scott Fitch, Larry Bynum (collectively, "Patton Appellees"), and Correctional Medical Services, Inc. Smith also contends that the trial court abused its discretion in denying him the appointment of counsel. We affirm. FACTS AND PROCEDURAL HISTORY Smith is an inmate who was, at all times relevant to the instant appeal, incarcerated in the Indiana Department of Correction ("DOC"). The Patton Appellees are officials at the New Castle Correctional Facility where Smith was previously incarcerated. Correctional Medical Services is a private company that contracts with DOC to provide medical services to inmates with Indiana prisons. In early August 2008, Smith fractured his ankle while incarcerated in an Indiana prison facility. Since that time, Smith has submitted numerous requests for healthcare relating to his fractured ankle. The medical staff serving the facility responded to these requests. Smith also made numerous requests for healthcare beginning on October 23, 2008, for an infected, ingrown toenail. Again, the medical staff serving the facility responded to these requests. At one point, Smith was scheduled for what was determined to be a necessary surgical procedure on his ankle. This procedure was later canceled after the orthopedist discovered that the originally scheduled procedure was not necessary and that Smith should have instead 2

been scheduled for an elective procedure to help alleviate ongoing pain. The elective procedure was not immediately scheduled because Smith did not complain of any pain in his ankle between February 2009 and June 2009. At some point after June of 2009, Smith again began complaining of ankle pain. Smith's ankle was reevaluated and it was determined that the ankle required surgery. On January 29, 2010, Smith had surgery on his ankle. On October 27, 2008, the trial court received a complaint and pro se appearance from Smith alleging that the Patton Appellees violated the Eighth Amendment and 42 U.S.C.

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