*1 Before E ASTERBROOK S YKES S T . E VE Circuit Judges . P ER C URIAM . Tom Tuduj, Illinois prisoner, received privilege recruited deliberate indiffer ence suit U.S.C. § about care. After *2 ‐ amended his comply Rules, staved off summary for failure exhaust, and opposed another judgment, Tuduj asked litigate pro se, unless case going survive judgment. Because permissibly equivocal request, affirm.
Tuduj a long history dental issues, and at times declined treatment recommended. Before incarcera tion 2006, Tuduj had metal fillings replaced root ‐ canal treatments. shortly after transfer Menard Cor rectional Facility, a dentist Menard saw more problems teeth pulled two them. A year later, a den tist examined another tooth Tuduj had earlier injured. It an abscess dead tissue, so dentist urged removing it—but Tuduj refused treatment. That dentist scheduled an extraction a different tooth, but Tuduj skipped ap pointment. following year, another dentist offered Tuduj severe tooth decay, once again never fol lowed up. After an examination year later, same dentist recommended an x ‐ ray evaluate need surgery. Tuduj refused x ‐ ray. At an examination two years later, dentist noted severe tooth decay problems. rec ommended extractions an x ray; Tuduj again refused x ray.
Starting after experiencing some jaw problems, agreed x ray treatment. dentist found some unrestorable; ex tracted one tooth, put waiting list restore other, recommended another extraction. When another dentist told month recent x ray showed start abscess one tooth, consented *3 to extraction after learning that a root canal was avail ‐ able. Later, Tuduj wanted more on account se ‐ vere tooth pain. Based a new x ray, a dentist concluded that two teeth were unrestorable extracted them. few months later, after Tuduj filed a grievance about a lost filling, a dentist confirmed lost filling received approval to surgeon extract three severely decayed teeth. Af ter extractions, dentist planned attempt to restore two other teeth. Because another tooth had broken during extraction, dentist later attempted restore that tooth well. Over few years, Tuduj’s de cay, several more were removed. In late a dentist requested partial dentures for Tuduj; request initially denied, dentist successfully appealed, Tuduj re ceived partial dentures mid 2017. initially sued defendants, including three
dentists, prison officials. The recruited coun sel assist filing amended complaint that com plied Rules Rules Civil Procedure. amended alleged three dentists had been deliberately indifferent serious dental problems by declining consider alternatives ex traction, prison officials had policy denying ap propriate care. Defendants moved summary judgment twice. First, they argued, unsuccessfully, exhausted administrative remedies. then moved judgment merits (filing two separate motions). filed three page op posing both motions.
While motions pending, moved “for represent himself.” motion, *4 he explained that he was “concerned that counsel filed structurally, technically legally insufficient response doomed to be denied.” He asked to file own brief, except “in the event Honorable Court deems counsel’s response … legally sufficient Grants same[,] Plaintiff would be open effective representation of counsel … .” magistrate judge denied The judge explained that “varie[d] between saying he would like to, is competent to, represent himself indicating that he is happy counsel s representation long as prevails.” His “desire have counsel if prevails represent him self if does fails the Court the firm con viction that it is proper relieve of representation Mr. at time.”
With the self representation denied, the day judge granted pending motions sum mary judgment. judge observed “long history treatment” explained that only “conjecture[d]” dentists should used treatments than based professional judgment. As prison offi cials, concluded there “no competent evidence” policy Menard unlawfully influenced decisions.
On appeal, focuses solely denial re quest represent himself. argues wrongly right proceed pro se under U.S.C. § due process clause, equal protection clause, Seventh Amendment, right is “unqualified” if voked unequivocally before trial. civil cases, right representation is statutory. U.S.C. § (“In all courts *5 5
parties may plead conduct their own cases personally or by counsel … .”). does challenge the constitutional ity of statute, so our analysis begins ends it. New York City Transit Auth. v. Beazer , U.S. (1979). He asks us apply the statute the court did in O Reilly v. New York Times Co. F.2d (2d Cir. 1982). That court ruled “a party seeking assert his statutory right self representation must clearly unequivocally discharge lawyer previously retained.” Id. 868.
By the standard O’Reilly regardless whether review district court’s decision deny his request deference or de novo, must lose he did un equivocally seek discharge his lawyer. To contrary, he conditioned request on whether district court per suaded by lawyer’s brief. replies that, if equivo cated, did so out respect district court’s decision recruit attorney him. That may be, deciding motions, district court reasonably takes mo vants “at word” motions, rather than trying divine some alternative meaning. Chube II F.3d (7th Cir. 2008). words condi tional: “in event” deemed lawyer’s brief sufficient, remained “open” lawyer’s rep resentation. Furthermore, lawyer shown reasonable diligence case, amending twice op posing judgment (once successfully). Without unequivocal request representation, rightly considered whether, on appeal, has
challenged entry merits. not. Despite filing oversized opening appeal, *6 in it focuses solely belief magistrate judge erred in denying motion representation. raises no challenge district court’s order. point out this failure in response, we agree them arguments not raised in opening are waived. Lisle v. Welborn F.3d 705, n.4 (7th Cir. 2019). any event, we have recounted start this order record this case. It reveals no deliberate in difference.
As final matter, address court correct or modify record Rule Appel late Procedure 10(e). seeks add thirteen affida vits from inmates stating they extracted could have been saved different treatment. But affidavits never part district record Rule 10(e) “does give authority admit appeal document which made part record court.” Midwest Fence Corp. v. U.S. Dep t Transp. F.3d 946–47 (7th Cir. 2016) (quoting Borden, Inc. Fed. Trade Comm’n F.2d (7th Cir. 1974)). We therefore deny considered remaining arguments,
none merit.
AFFIRMED
Notes
[*] agreed decide case without oral argument briefs record adequately present facts legal arguments, argument would signi fi cantly aid court. F ED . R. PP . P. 34(a)(2)(C).