SHAWN EAGAN v. MICHAEL DEMPSEY, et al.
No. 17-3184
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 4, 2020 – DECIDED FEBRUARY 9, 2021
Before EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.
Appeal from the United States District Court for the Central District of Illinois. No. 1:15-cv-01149 — Colin S. Bruce, Judge.
After careful study of the record as well as the written and oral arguments of counsel, we hold that, in its consideration of the motion to recruit counsel, the district court departed significantly from our decision in Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc). We also hold that Mr. Eagan has established that, but for this departure, there is a reasonable likelihood that the assistance of counsel would have altered the outcome of the defendants’ summary judgment motion with respect to Mr. Eagan‘s claims based on Dr. Dempsey‘s decisions on December 1 and 2, 2014. Mr. Eagan has not established, however, that there is a reasonable likelihood of a different outcome with respect to the officer defendants. Indeed, the record clearly supports the district court‘s grant of summary judgment in their favor.
Accordingly, the judgment of the district court is affirmed in part and vacated in part. The case is remanded for further proceedings consistent with this opinion.
BACKGROUND
A.
Mr. Eagan suffers from a variety of mental illnesses including depression, schizophrenia, and bipolar disorder. On November 30, 2014, Mr. Eagan engaged in self-harming behaviors while under suicide watch. Pontiac maintains crisis-watch cells that are constructed of concrete and have steel doors with a plexiglass window in the door. These cells also have a “chuckhole” through which inmates can put their hands to allow the officers to cuff their hands behind their backs. Officers check and monitor inmates in crisis-watch cells on a thirty-minute, fifteen-minute, ten-minute, or continuous basis, depending on the orders left by medical and correctional personnel with responsibility for making those decisions. Under standing orders relating to Mr. Eagan, the officers monitored him every ten minutes.
Because of his illnesses, Mr. Eagan often hears the voice of a woman named “Lucina.” When Lucina screams, Mr. Eagan attempts to dull the pain or quiet the screams by self-inflicting wounds and banging his head. Specifically, when Mr. Eagan has a crisis period, he attempts to assuage the noise and pain of the screams by banging his forehead against the cell door in an effort to induce a headache or to otherwise inflict pain, which he finds more acceptable than Lucina‘s screams. When the screams take over, Mr. Eagan is sometimes unable to stop himself.2 When the subsequent
1.
On November 30, 2014, Mr. Eagan was in his crisis-watch cell when he heard Lucina scream. He had been banging his head for about two minutes when Officer Berry arrived, cuffed his hands, and took him to an area called the “holding tank.” There, officers shackled Mr. Eagan to a bench, but Mr. Eagan started to bang his head backwards against the wall. Officers Sullivan and Law then had to restrain him inside of the holding tank. CMT Moorhouse entered the holding tank to tend to the bleeding cut on Mr. Eagan‘s forehead. Mr. Eagan continued to hear Lucina‘s screams.
After tending to Mr. Eagan‘s forehead wound, CMT Moorhouse stepped out of the holding tank and made a phone call to seеk further direction. Upon her return, she instructed the officers that Dr. Dempsey had ordered that they place Mr. Eagan back in his cell on a ten-minute watch. Officers Sullivan, Law, and Berry therefore escorted Mr. Eagan back to his crisis-watch cell. Dr. Dempsey states that Mr. Eagan was warned that if he was unable to remain safe, he would receive forced injections to prevent him from continuously harming himself.
Within minutes, the screams restarted, and Mr. Eagan
After caring for Mr. Eagan‘s wound, CMT Moorhouse left and again called Dr. Dempsey. Dr. Dempsey ordered emergency enforced injections of 10 mg of Haldol and 50 mg of Benadryl. Dr. Dempsey explained in his affidavit that he prescribed Haldol because Haldol was similar to Risperdal, a drug Mr. Eagan had taken in the past with minimal side effects. Dr. Dempsey prescribed a low dosage of Haldol because temporary side effects of involuntary movement and tremors are known to occur. Dr. Dempsey‘s prescription of Benadryl, an anticholinergic drug, was to treat or prevent any Haldol side effects; Benadryl also has the added benefit of containing potent antihistaminic, anxiolytic, and sedative properties. After a nurse administered these medications by injection, officers escorted Mr. Eagan back to his original crisis-watch cell.
2.
In his deposition, Mr. Eagan stated that after the leg shackles and handcuffs were removed, he “[didn‘t] know what happened,” but that he fell asleep on the flоor until breakfast was distributed the next morning, December 1.3 He recalled waking up on the floor. Mr. Eagan stated that his
The crisis-watch observation logs, in which officers noted their observations of Mr. Eagan every ten minutes, recite that Mr. Eagan was on his bed when he was returned to his crisis-watch cell at 10:30 p.m. on November 30, 2014, and remained on his bed until December 1, 2014, at 6:50 a.m. The logs indicate that Mr. Eagan moved between his bed and the door from 7:00 a.m. until 1:10 p.m. and ate on his bed at 10:40 a.m. The crisis-watch logs indicate that Mr. Eagan was on the floor until 1:20 p.m. Mr. Eagan was observed back on his bed at 2:40 p.m.
Dr. Dempsey stated in his affidavit that he had evaluated Mr. Eagan at his cell around 9:35 a.m. on December 1, 2014. Dr. Dempsey stated that Mr. Eagan stood at his cell door and told him that, the night before, “the voices kept telling [him] to beat [his] head.”5 Mr. Eagan also reported that he had received the Haldol and Benadryl the night before, and that he had woken up hungry. Dr. Dempsey stated that Mr. Eagan did not complain of stiffness or an inability to move his body or jaw or of any headache. In addition, Dr. Dempsey ob-
According to Mr. Eagan, when the 3:00 p.m. shift began, his neighbor told the watch officer that something was wrong with Mr. Eagan. When the watch officer looked into Mr. Eagan‘s cell, the officer said that nothing was wrong with Mr. Eagan and that Mr. Eagan‘s situаtion was “funny.”6 Mr. Eagan recalled that Officer Sullivan was one of the officers on the 3:00 p.m. shift but did not remember the other officers. Mr. Eagan states that Officer Sullivan, among others, checked on him throughout the day, and that Officer Sullivan mocked Mr. Eagan and laughed at his condition. In his complaint, Mr. Eagan stated that when he asked for help, Officer Sullivan told Mr. Eagan, “You‘re faking.”7
The crisis-watch logs indicate that Officer Leipold conducted the observations from 3:00 p.m. until 6:00 p.m. Officer Sullivan made observations from 6:10 p.m. until 6:50 p.m. Officers Leipold, Pyle, and Law performed the checks from 7:00 p.m. until the end of the shift at 11:00 p.m. From 11:00 p.m. until 5:50 a.m. the following morning, the officers on duty observed Mr. Eagan on the floor.
3.
Mr. Eagan recalled waking up on the floor on December 2, 2014, around breakfast time with his jaw locked wide-open. Mr. Eagan said the pain in his jaw was excruciating and that it hurt so much that he cried. Mr. Eagan also
The crisis-watch logs for December 2, 2014, indicate that Mr. Eagan ate breakfast at 6:30 a.m. and was talking at 6:40 and 6:50 a.m. Mr. Eagan was observed on the floor, at the door, and on his bed for the rest of the morning, аnd was observed eating at 10:20 a.m. At 12:00 p.m., licensed clinical social worker Andrea Moss came to evaluate Mr. Eagan. Her report recites that, upon her arrival, Mr. Eagan was standing naked at the back of his cell, and that she therefore told him that she would not speak with him unless he put on his smock. Mr. Eagan responded, “I‘m done messin[g] [with] you, I don‘t want to talk to you.”9 When Ms. Moss began to walk away, Mr. Eagan started yelling, “mental health is
At 2:00 p.m., Dr. Dempsey evaluated Mr. Eagan for side-effects from the forced injections given on November 30, 2014. Mr. Eagan complained of “neck stiffness,” but exhibited a full range of motion, no tremors, and the ability to move his neck, mouth, and jaw normally.11 Dr. Dempsey noted that Mr. Eagan had “no dystonia or other extrapyramidal side effects”12 and made no complaints of headache. Mr. Eagan states that Dr. Dempsey told him that he would not give Mr. Eagan anything because Mr. Eagan was engaging in self-inflicted harm of banging his head. McKissick, Mr. Eagan‘s neighbor, stated that he overheard Dr. Dempsey tell Mr. Eagan that this is what he wanted him to feel like, that “he (Dr. Dempsey) wanted Eagan to feel the psych meds so he will think about the shot before he hit his head again.”13 McKissick, who had also received two shots of psychotropic drugs, claimed he suffered from the same side ef-
The crisis-watch observation logs indicate that Mr. Eagan responded for the count at 3:00 p.m. Officer Leipold was the watch officer during the 3:00 to 11:00 p.m. shift. When Officer Leipold came around, Mr. Eagan attempted to point out his jaw problem. Mr. Eagan‘s neighbor also told Officer Leipold that Mr. Eagan‘s jaw was locked up, but Officer Leipold stated that he could not do anything about it. Mr. Eagan acknowledged, however, that Officer Leipold did attempt to keep him calm. Each time Officer Leipold came to check on him, Officer Leipold tried to talk to him and attempted to make sure he would not start banging his head. As Mr. Eagan put it, Officer Leipold “was actually trying to help me” even without giving him medication.15 Officer Leipold nevertheless observed Mr. Eagan banging on the door and on his bed over the next four watches, and at 3:50 p.m., observed Mr. Eagan banging his head on the door. Officer Leipold then took Mr. Eagan to the holding tank at 4:00 p.m.
A medical technician came to evaluate Mr. Eagan and attempted to calm him down. When the CMT went to make a phone call, Officer Sullivan came into the holding tank to restrain Mr. Eagan. When the CMT returned, she continued to tell Mr. Eagan to relax and stated that Dr. Dempsey was not going to do anything for him, and that they had to put
Mr. Eagan recalled that, later during the evening, he saw and heard Officer Sullivan laughing and mocking him. Mr. Eagan stated that when dinner trays were passed out, Officer Sullivan had said, “Well, you ain‘t going to be eating no pizza today.”16
Around 11:30 p.m. that evening, Mr. Eagan‘s jaw snapped shut and his mouth closed. Mr. Eagan asked the watch officer on the overnight shift for some Tylenol but was unable to acquire any. Mr. Eagan experienced jaw soreness but was able to eat breakfast the following morning on December 3, 2014. Mr. Eagan stated at his deposition that he continued to experience residual jaw soreness and popping.
B.
On April 15, 2015, Mr. Eagan filed his pro se complaint in the district court; he named as defendants Dr. Dempsey, CMT Moorhouse, Officers Berry, Law, and Sullivan, and Warden Pfeister. On June 18, 2015, a merit review hearing was held before the district court. The court dismissed Mr. Eagan‘s claim against Warden Pfeister, but determined that Mr. Eagan sufficiently alleged that (1) Officers Berry, Sullivan, Law, and Moorhouse failed to protect Mr. Eagan from a substantial risk of harm; (2) Officer Sullivan was deliberately indifferent to Mr. Eagan‘s serious medical condition, excruciating head pain; and (3) Dr. Dempsey was deliberately indifferent to Mr. Eagan‘s serious medical condi-
In July 2015, Mr. Eagan filed two motions for appointment of counsel. In his first motion, Mr. Eagan stated that the issues in his case were complex and that the case likely would involve conflicting testimony. He also noted that he had an eighth-grade education and a mental illness handicap. Mr. Eagan informed the court that he had made repeated efforts to obtain counsel, but that only one law firm had responded, denying his request. Mr. Eagan also attached the letter declining assistance that he had received from the Chicago Lawyers’ Committee and further listed five other firms that he had contacted. Finally, Mr. Eagan attached his Mental Health Treatment Plan, which described his treatment plan as avoiding future crisis watches resulting from “self-harming behaviors” and “commanding voices.”17
On September 15, 2015, Mr. Eagan filed a motion requesting a status update on his two motions requesting recruitment and appointment of counsel. On September 29, 2015, the district court entered a text order denying Mr. Eagan‘s motions for appointment of counsel, stating that Mr. Eagan had not provided “any evidence that he has attempted to find counsel on his own such as a list of attorneys contacted or copies of letters sent or received.”18 In addition, the district court issued a Prisoner Scheduling Order on September 29, 2015, that detailed discovery deadlines and court procedures. On October 1, 2015, Mr. Eagan filed a motion request-
On October 13, 2015, Mr. Eagan requested the court to order Pontiac to preserve video footage from November 30 to December 2, 2014, and to release his injury incident reports and medical and mental health records. Shortly after, Officers Berry, Law, Moorhouse, and Sullivan filed a motion for summary judgment for failure to exhaust administrative remedies, as well as a motion to stay discovery on the merits pending the court‘s consideration of the dispositive motion. The court issued a Rule 56 notice to Mr. Eagan and attached the text of
On April 15, 2016, Mr. Eagan requested a status update on the summary judgment motion; the court denied the request by text order on April 18, 2016. On May 25, 2016, Mr. Eagan submitted another request for recruitment of counsel, again emphasizing the likelihood of conflicting testimony that would require attorney assistance, and reiterating that he was mentally ill and was prescribed mind-altering psychotropic medications. He further noted that he had no legal training or education and therefore had
In July 2016, Mr. Eagan was transferred from Pontiac Correctional Center to Dixon Correctional Center. On August 25, 2016, Mr. Eagan informed the court of his change of address and filed another motion for a status update of the summary judgment motion and to request appointment of counsel. In his motion, Mr. Eagan explained that Dixon Correctional Center did not have access to the court‘s electronic filing system or legal envelopes and that he was not consistently allowed to go to the law library. The court issued a text order on September 9, 2016, stating that it did not have the “authority to interfere in matters of prison administration” but that Mr. Eagan would “have the same opportunity to litigate his claims without electronic filing and ... may request extensions of time if necessary.”19
On September 16, 2016, the district court denied Mr. Eagan‘s requests for counsel and denied the defendant officers’ motion for summary judgment. Addressing Mr. Eagan‘s requests for counsel, the court recognized that Mr. Eagan had now provided evidence of his efforts to obtain counsel and focused on assessing Mr. Eagan‘s ability to litigate his claims. The court acknowledged Mr. Eagan‘s mental health issues but found Mr. Eagan‘s pleadings to date to be clear and on point and that Mr. Eagan had been responsive and able to identify the relevant issues. The court determined
In October 2016, Mr. Eagan filed two more motions for appointment of counsel. Mr. Eagan asked the court to cancel his scheduled deposition until he had retained counsel, expressing concern that he might say something that could be used against him in a criminal prosecution. On October 11, 2016, the district court entered a text order rejecting both motions for appointment of counsel. The court noted that Mr. Eagan did not identify any pending criminal cases and that “his claims are not obviously related to any potential criminal case.”20 The court encouraged Mr. Eagan to consult with his attorney if he did have a pending criminal case. The court also found that Mr. Eagan failed to provide any factual support for his claims that he suffered from mental illness and that he was unable to represent himself.
On October 21, 2016, Mr. Eagan then filed motions to compel CMT Moorhouse and Dr. Dempsey to respond to interrogatories and produce documents. On October 24, 2016, Mr. Eagan also filed a motion to compel discovery and preserve evidence. On November 4, 2016, Mr. Eagan filed another motion to request counsel.
In its November 7, 2016 text order, the court denied all three of Mr. Eagan‘s discovery motions. The court also granted the defendants’ requests for additional time to conduct discovery and denied Mr. Eagan‘s motion to compel video footage because the defendants “denied that any video
In the instant case, Plaintiff has filed cogent pleadings with thе Court; his case has survived a merit review; and his case has survived a motion for summary judgment. Furthermore, Plaintiff[‘s] claim is not so novel or complex that he cannot litigate it himself. Plaintiff has personal knowledge of the facts supporting his claim and appears capable of cross-examining Defendants regarding their version of the events. Plaintiff has offered no reason why he cannot litigate this case or why his case differs from any other of the plethora of prisoner pro se plaintiffs who ask for the appointment of counsel in almost every case filed. Plaintiff appears competent to litigate this case himself, and therefore, the Court denies his motions to appoint counsel.22
On November 28, 2016, Mr. Eagan requested that the court reconsider its November 7, 2016 text order and included forty-three pages of medical records as part of his motion.
Discovery continued in December 2016. Attorneys for Dr. Dempsey and the defendant officers took Mr. Eagan‘s deposition. The defendant officers responded to Mr. Eagan‘s request for production and to his requests for admissions. Dr. Dempsey submitted responses to Mr. Eagan‘s requests for production, for interrogatories, and for admissions.24
Mr. Eagan filed multiple motions to compel CMT Moorhouse to respond to his multiple requests for interrogatories and production of documents. In response to Mr. Eagan‘s first motion to compel discovery from defendant Moorhouse, defense counsel stated that due to “inаdvertent error” and “the length of time that passed while discovery was stayed, the undersigned forgot that Plaintiff previously sent discovery for Defendant Moorhouse.”25 The court granted Dr. Dempsey and CMT Moorhouse‘s requests for extensions of time, moving their deadlines to December 19, 2016. In response to Mr. Eagan‘s second motion to compel, defense counsel stated he was informed on November 17, 2016, that CMT Moorhouse no longer worked for the Illinois Depart-
On February 13, 2017, Mr. Eagan filed a second motion for reconsideration of the court‘s November 7, 2016 text order. Specifically, Mr. Eagan reiterated his dependence on jailhouse lawyers to litigate his case and his inability to litigate his claims, given his eighth-grade education and lack of legal experience. Additionally, Mr. Eagan raised the challenges of being “locked-up in a prison in which the incident did not take place.”26 Mr. Eagan stated he was unable to investigate the facts or to interview inmates and correctional officials with knowledge of the incident because they were housed and employed in a separate facility.
The court denied Mr. Eagan‘s request the following day “for the reasons previously given by the Court.”27 The court briefly responded to Mr. Eagan‘s jailhouse lawyer argument, stating that the mere fact of jailhouse lawyer assistance does not prove a plaintiff is incapable of presenting his own case. Because the court did not find Mr. Eagan‘s claims to be novel or overly complex, the court concluded that he was capable of litigating his claims.
Officers Berry, Law, Sullivan, and Moorhouse filed a motion for summary judgment on March 3, 2017. Dr. Dempsey then filed his motion for summary judgment on March 10,
The district court granted the defendants’ motions for summary judgment. The court held that Mr. Eagan had failed to identify any admissible evidence showing that any defendant displayed deliberate indifference toward his serious mental health or medical needs or that any defendant failed to protect him. The court held that Officers Berry, Law, Moorhouse, and Sullivan were entitled to summary judgment because (1) they were not aware of any specific threat to Mr. Eagan‘s safety when they returned him to his crisis-watch cell the first time on November 30, 2014, and (2) they were entitled to rely on Dr. Dempsey‘s medical instructions to return Mr. Eagan to his crisis-watch cell. The court held that Officer Sullivan was entitled tо summary judgment because Mr. Eagan offered no evidence that Officer Sullivan
Mr. Eagan timely filed his notice of appeal.
II
DISCUSSION
A.
Mr. Eagan asks that we review the district court‘s denial of his motions for the recruitment and appointment of counsel. We review a district court‘s denial of a request for appointed counsel for abuse of discretion. Pruitt, 503 F.3d at 658. Our inquiry “is not whether we would have recruited a volunteer lawyer in the circumstances, but whether the district court applied the correct legal standard and reached a reasonable decision based on facts supported by the record.” Id. Moreover, our “review is necessarily limited to the evidence available when the § 1915(e)(1) motion was denied.” Id. at 659 (emphasis in original). A court abuses its discretion when “(1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.” Id. at 658 (citing Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir. 2004) (quotations omitted)).
1.
We begin by stating the governing principles established by statute and case law. In Pruitt, we addressed comprehensively the principles that ought to guide a district court in evaluating a motion to recruit counsel. In federal civil litigation, a litigant has “no right to recruitment of counsel.” Dewitt v. Corizon, Inc., 760 F.3d 654, 657 (7th Cir. 2014). However, under the federal in forma pauperis statute, “[t]he court may request an attorney to represent any person unable to afford counsel.”
When confronted with a request under
§ 1915(e)(1) for pro bono counsel, the district court is to make the following inquiries: (1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?
Pruitt, 503 F.3d at 654-55 (citing Farmer v. Haas, 990 F.2d 319, 321-22 (7th Cir. 1993)).
The first inquiry “requires the indigent litigant to reasonably attempt to get a lawyer.” Thomas v. Wardell, 951 F.3d 854, 859 (7th Cir. 2020). This is a mandatory, threshold inquiry that must be determined before moving to the second inquiry. See Davis v. Moroney, 857 F.3d 748, 753 (7th Cir. 2017) (Kanne, J., concurring) (noting the district court erred “by not crediting [the plaintiff] for following existing precedent in attempting to obtain a lawyer to represent him“);
The second inquiry requires consideration of both the factual and legal complexity of the plaintiff‘s claims and the competence of the plaintiff to litigate those claims himself. Pruitt, 503 F.3d at 655. These two considerations “are necessarily intertwined; the difficulty of the case is considered against the plaintiff‘s litigation capabilities, and those capabilities are examined in light of the challenges specific to the case at hand.” Id. Specifically, courts should consider “whether the difficulty of the case—factually and legally—exceeds the particular plaintiff‘s capacity as a layperson to coherently present it to the judge or jury himself.” Id. This assessment of the plaintiff‘s apparent competence extends beyond the trial stage of proceedings; it must include “the tasks that normally attend litigation: evidence gathering, preparing and responding to motions and other court filings, and trial.” Id.
Although there are no fixed criteria for determining whether a plaintiff is competent to litigate his own case, a district court certainly should consider the plaintiff‘s literacy, communication skills, educational level, litigation experience, intellectual capacity, and psychological history. Id. The court must examine specifically the plaintiff‘s ability to litigate the case, as opposed to the ability of any “jailhouse lawyer” assisting the plaintiff. See Dewitt, 760 F.3d at 658; McCaa v. Hamilton, 893 F.3d 1027, 1033 (7th Cir. 2018). These are practical inquiries, and the court should consider any available relevant evidence. Pruitt, 503 F.3d at 655.
Similarly, there are no fixed criteria for evaluating the factual and legal difficulty of the plaintiff‘s claims. Id. Indeed, we have resisted laying down categorial rules or presumptions for or against recruitment of counsel; rather, “[t]he inquiry into plaintiff competence and case difficulty is particularized to the person and case before the court.” Id. at 656.
In an effort to assist our district court colleagues in this difficult task, our earlier cases have earmarked particular circumstances that warrant the court‘s careful consideration in the course of its evaluation. We have stressed, for instance, that “complexity increases and competence decreases as a case proceeds to the advanced phases of litigation.” James v. Eli, 889 F.3d 320, 327 (7th Cir. 2018). “[A]s the case moves beyond the pleading stage, into discovery, and closer to trial, the plaintiff will face an increasingly complex set of demands.” Pruitt, 503 F.3d at 663 (Rovner, J., concurring); Walker v. Price, 900 F.3d 933, 938 (7th Cir. 2018) (“We have emphasized that the assistance of counsel becomes increasingly important as litigation enters its later stages.“). “Taking depositions, conducting witness examinations, applying the rules of evidence, and making opening statements are beyond the ability of most pro se litigants to successfully carry out.” Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015) (quoting Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015)). As suсh, “fail[ing] to consider the complexities of advanced-stage litigation activities and whether a litigant is capable of handling them” is an abuse of discretion. Perez, 792 F.3d at 785.
We also have noted the increased complexity in constitutional claims involving the state of mind of the defendant,
Finally, we have emphasized “that a prisoner who is transferred to a facility where the events underlying his claims did not take place faces additional hurdles.” Pennewell v. Parish, 923 F.3d 486, 491 (7th Cir. 2019). “When that happens it must be addressed by the district court because the plaintiff may not have access to witnesses, documents, or defendants necessary to make his case.” Id. (citing James, 889 F.3d at 327).28
With the Pruitt framework in mind, we now evaluate each denial of Mr. Eagan‘s requests for appointed counsel.
Mr. Eagan made his first two requests for counsel in July 2015. Despite Mr. Eagan‘s informing the court of his repeated efforts to obtain counsel and his attaching the list of the firms he had contacted, the district court denied Mr. Eagan‘s first two requests for counsel on the ground that he had failed to provide any evidence of his efforts to find counsel on his own. This factual premise of the court‘s ruling was contrary to the record and therefore clearly erroneous. Because the district court ignored the substance of Mr. Eagan‘s submissions, its September 2015 denial constituted an abuse of discretion. See Davis, 857 F.3d at 753 (Kanne, J., concurring) (noting the district court‘s error in failing tо credit plaintiff‘s attempt to obtain a lawyer).
In October 2015, Mr. Eagan requested the court reconsider its previous denial and filed another motion to request counsel. In May 2016, Mr. Eagan submitted another request for counsel, emphasizing his mental health problems and his prescribed mind-altering psychotropic medications. Mr. Eagan reiterated that because he lacked legal training, he had relied on the assistance of a jailhouse lawyer, but that his jailhouse lawyer had relocated and was no longer able to assist him.
On September 16, 2016, the court, in denying the officer defendants’ first motion for summary judgment on exhaustion of remedies, also denied Mr. Eagan‘s October 2015 and May 2016 requests for counsel. The court briefly acknowledged Mr. Eagan‘s lack of a high school education and his mental health issues, but noted that his pleadings to date had been clear and on point, that Mr. Eagan had been able to identify the relevant issues and case law, and had submitted a brief better than most pro se litigants. Moreover, the district court noted that, in order to litigate his case, simple discovery requests and Mr. Eagan‘s own testimony would be sufficient. Consequently, appointment of counsel was not warranted.
In its ruling, however, the district court failed to evaluate the impact of two key factors bearing on Mr. Eagan‘s ability to represent himself as the litigation progressed to more
In later denying Mr. Eagan‘s four requests for counsel in October and November 2016, the district court again departed from Pruitt‘s cornerstones. First, the district court emphasized that Mr. Eagan already had survived merit review and a motion for summary judgment and that his claim was not novel or complex.30 Specifically, the court stated that Mr. Eagan had offered no reason why he could not litigate his own case or why his case was particularly deserving of counsel. Here, the court failed to evaluate appropriately the complexity of Mr. Eagan‘s claims as they proceeded through a case‘s life cycle. See Perez, 792 F.3d at 785 (“District courts abuse their discretion where they fail to consider the complexities of advanced-stage litigation activities and whether a litigant is capable of handling them.“). True, Mr. Eagan had survived a motion for summary judgment, but the motion had been limited to the exhaustion of administrative remedies, an issue substantially different from, and far less
Second, the court again failed to address Mr. Eagan‘s personal ability to litigate his case. Contrary to the court‘s view that Mr. Eagan “ha[d] offered no reason why he cannot litigate this case or why his case differ[ed],”31 the court failed to evaluate Mr. Eagan‘s ability to litigate without his jailhouse lawyer and from a different facility, a facility with few resources and more restricted movement. Rather, the court continued to emphasize that Mr. Eagan‘s pleadings had been “cogent” and “responsive,” but never recognized that those pleadings had been with the assistance of a jailhouse lawyer and had been crafted at the same facility in which the events occurred. Mr. Eagan had been transferred to a different facil-
The district court‘s lack of consideration of Mr. Eagan‘s mental health also is concerning. In weighing the impact of Mr. Eagan‘s mental illnesses, the court stated in its October 11, 2016 text order that Mr. Eagan had failed to provide any factual support for his mental illness. When Mr. Eagan attached forty-five pages of mental health documentation,33 the court dismissed Mr. Eagan‘s request for help by stating that “the documents attached to his motion to reconsider reveal that Plaintiff is able to read and write.”34
Mr. Eagan made his final request for counsel in February 2017. He reiterated that jailhouse lawyers previously had assisted him, that he lacked litigation experience, and that his
Not only did the district court treat Mr. Eagan and his capabilities in a stereotypical and non-particularized way, it also assessed the litigation challenges ahead of him in the same fashion. The district court‘s summary rejection of Mr. Eagan‘s concerns on the ground that they were “common barriers in prison litigation” cannot be reconciled with Pruitt‘s mandate for an individualized assessment of the litigant and the case.38 The district court‘s repeated conclusion
We cannot allow our multifactor analytical approach in Pruitt to deteriorate into a collection of conclusory buzzwords devoid of any reference to the actual experience of the particular defendant in a particular case. Here, by failing to analyze adequately the particular task ahead of Mr. Eagan, the district court reduced the Pruitt analysis to an ineffectual collection of words. Whether evaluated separately or as a whole, the district court‘s rulings on the recruitment and appointment of counsel deviated substantially from our holding in Pruitt and constituted an abuse of discretion.
3.
a.
“Even if a district court‘s denial of counsel amounts to an abuse of discretion, we will reverse only upon a showing of prejudice.” Pruitt, 503 F.3d at 659 (citing Farmer, 990 F.2d at 322). We emphasized in Pruitt that, although a plaintiff need not demonstrate that he would have won his case to establish prejudice, he must establish that there is “a reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” Id. The prejudice “question is not whether the case was a sure winner but for the absence of counsel; this is impossible to know. Rather, the question is whether assistance of counsel could have strengthened the preparation and prеsentation of the case in
We have rejected claims of prejudice when it is clear that counsel could have done nothing to salvage the plaintiff‘s case. For example, in Owens v. Evans, 878 F.3d 559 (7th Cir. 2017), the court found no prejudice because the plaintiff‘s strongest claim “was time-barred—something no attorney could overcome.” Id. at 566.
When there are missteps on the plaintiff‘s part, we have considered how the adverse party and the court responded and assessed the plaintiff‘s purported factual disputes. In Navejar, the district court made two substantive errors in its decision to grant summary judgment that the pro se plaintiff was unable to contest. 718 F.3d at 697-98. First, the district court accepted two legal arguments presented by the defendants that were erroneous and prejudicial. Id. Second, the plaintiff was prejudiced when he was transferred to a different prison, as “he faced ‘significant problems’ in litigating pro se because, once at another institution, he was not readily able to ‘identify key witnesses, depose the defendants and gather pertinent evidence,’ or proceed against John Doe defendants because he couldn‘t ascertain their identities.” Id. at 698 (quoting Santiago, 599 F.3d at 766). And there, “the named defendants avoided producing virtually everything he requested in discovery.” Id. Because “[c]ounsel would likely not have faced the same obstacles,” we held the plaintiff suffered prejudice and “that there [was] a reasonable
While we have been careful to “resist[] laying down categorial rules” in state-of-mind or deliberate indifference cases, see Pruitt, 503 F.3d at 656, a plaintiff‘s failure to put forth medical evidence, depose witnesses to testify to their subjective knowledge, or conduct discovery has been particularly relevant to our consideration of prejudice. In James, 889 F.3d at 320, we found that the plaintiff‘s deficient pretrial performance amounted to prejudice in part because the plaintiff “failed to depose any witnesses, including the named defendants, who could have been forced to testify ‘about their subjective knowledge of [his] health and accepted standards of care.‘” Id. at 331 (alteration in original) (quoting Henderson, 755 F.3d at 567). The plaintiff also failed to obtain any evidence establishing the accepted standard of care. Thus, we held that “a lawyer appointed in time to help plaintiff with discovery could have potentially helped him ‘present sufficient facts to create a genuine issue about why [defendants] ... advised a continuation of ineffective treatments that prolonged his pain.‘” Id. (alteration in original) (quoting Dewitt, 760 F.3d at 659).
Similarly, in Dewitt, 760 F.3d 654, we recognized the complexities in deliberate indifference claims and determined that the plaintiff was prejudiced because counsel could have helped the plaintiff “present sufficient facts to create a genuine issue about why the doctor declined to follow a specialist‘s recommendations or advised a continuation of ineffective treatments that prolonged his pain[.]” Id. at 659. The plaintiff in Dewitt also raised discovery violations, which the court considered moot. Without “mak[ing]
The prejudice standard is also particularized to the phase of litigation. In Pruitt, the trial boiled down to a “swearing contest,”39 and the plaintiff “fending for himself before and at trial severely compromised Pruitt‘s chances of persuading the jury.” Pruitt, 503 F.3d at 660. There, the question of prejudice was “whether there [was] a reasonable likelihood that Pruitt lost the swearing contest not because of the inherent weakness of his claim, but because of his incompetent preparation and presentation of it to the jury.” Id. at 661.
Here, the district court granted summary judgment in favor of the defendants because Mr. Eagan failed to offer any admissible evidence with which to create a genuine issue of material fact. Accordingly, the question of prejudice applicable here is whether there is a reasonable likelihood that Mr. Eagan failed to present any evidence not because of the inherent weakness of his claim, but because of his incompetent preparation and summary judgment briefing. See id. We now must examine the record and determine whether, with respect to each of the defendants, there is such a likelihood.
b.
We begin with Mr. Eagan‘s case against Dr. Dempsey. In undertaking our review, we first remind ourselves that not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). “[A]n inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.‘” Id. at 105-06. A physician‘s “negligen[ce] in diagnosing or treating a medical condition does not state a valid claim ... under the Eighth Amendment.” Id. at 106. Mr. Eagan therefore “must allege acts or omissions sufficiently harmful to evidencе deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. Thus, “without more, a mistake in professional judgment cannot be deliberate indifference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016).
i.
Mr. Eagan first submits that, on the night of November 30, Dr. Dempsey was deliberately indifferent when he returned Mr. Eagan to his cell without administering treatment. Mr. Eagan directs us to Dr. Dempsey‘s affidavit in which the physician “admits that Mr. Eagan ‘poses a substantial risk of harm to himself if left untreated during his attempts to engage in self-harm.‘”40 Thus, Mr. Eagan argues, Dr. Dempsey “knew of, and disregarded, an excessive risk to
The district court rejected this claim in its summary judgment order. It stated that Mr. “Eagan‘s [c]omplaint did not state a deliberate indifference claim based upon the forced administration of Haldol” and that Mr. Eagan‘s “attempt[] to resurrect such a claim on summary judgment [was] improper.”43 Urging affirmance of the district court‘s determination, Dr. Dempsey references Mr. Eagan‘s interrogatory answers in which he states that Dr. Dempsey was only deliberately indifferent on December 1 and 2.44 In addition, Mr. Eagan stated in his deposition that he sued Dr. Dempsey because of Dr. Dempsey‘s lack of treatment to Mr. Eagan‘s locked jaw on December 1 and 2.
Dr. Dempsey correctly points out that, as a general principle, arguments presented for the first time on appeal are waived. See Allen v. City of Chicago, 865 F.3d 936, 943 (7th Cir. 2017). “However, a trial court is obligated to give a liberal construction to a pro se plaintiff‘s filings.” Nichols v. Mich. City Plant Planning Dep‘t, 755 F.3d 594, 600 (7th Cir. 2014) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Both of these considerations must be weighed by the district court in its final determination as to whether an argument has been
Even if the district court had overlooked Mr. Eagan‘s forfeiture, he would have failed to produce sufficient admissible evidence that Dr. Dempsey‘s decision to return Mr. Eagan to his cell. We agree with Dr. Dempsey that “[n]o reasonable jury could find Dr. Dempsey was deliberately indifferent by offering Eagan an opportunity to control his behavior before ordering the enforced administration of an antipsychotic medication.”45 Mr. Eagan certainly has not demonstrated that, with the assistance of counsel, there is a reasonable likelihood that he would have been able to make such a case. At bottom, this situation presents a straightforward judgment call by a physician as to when a patient‘s condition requires the administration of a drug. Conservative use of a powerful medication such as Haldol does not constitute deliberate indifference to a patient‘s needs. It is a matter of medical judgment, scrutinized, if at all, by the medical malpractice law of the state. See Estelle, 429 U.S. at 108 (holding that the proper forum for challenging a medical judgment
ii.
The district court also determined that Mr. Eagan had not shown that he could prove that Dr. Dempsey‘s treatment of Mr. Eagan on both December 1 and 2 was violative of the Eighth Amendment. When Dr. Dempsey evaluated Mr. Eagan on the morning of December 1, Mr. Eagan told him that he “woke up hungry,” but “did not complain of any stiffness, inability to move his body or jaw or headache.”46 Mr. Eagan admits his jaw was not locked open until the morning of December 2. When Dr. Dempsey examined Mr. Eagan on December 2, however, he did not observe a locked jaw. Dr. Dempsey also stated that Mr. Eagan did not complain of such a condition. Mr. Eagan complained of “neck stiffness,” but “exhibited a full range of motion, no tremors, and was able to move his neck, open his mouth and move his jaw normally.”47 Mr. Eagan counters that Dr. Dempsey must have been aware of his locked jaw on December 2 because multiple prison officials had contacted medical personnel.
Dr. Dempsey counters that Mr. “Eagan‘s alleged side-effects are inconsistent with the side effects associated
Mr. Eagan nevertheless contends that Dr. Dempsey was deliberately indifferent. Accоrding to Mr. Eagan, Dr. Dempsey withheld further treatment to teach Mr. Eagan a lesson and as a deserved consequence, not because withholding treatment was medically indicated. Mr. Eagan testified in his deposition that when Dr. Dempsey checked on him on December 2, he was unable to talk and was only able to point. In response, Mr. Eagan recalled that Dr. Dempsey stated: “You shouldn‘t be banging your head. I‘m not going to get you nothing for that.”51 He also relies on the affidavit and declaration of McKissick, the inmate housed in the neighbor-
Dr. Dempsey points to the crisis-watch logs as contemporaneous records that establish Mr. Eagan‘s “ab[ility] to speak, eat, move, and dress himself during the period of time he claims to have had a locked jaw and an inability to move.”54 He maintains that Mr. Eagan‘s statements, which “are so clearly contradicted by the contemporaneous records[,] ... should be disregarded by this Court.”55 In support, Dr. Dempsey invites our attention to Scott v. Harris, 550 U.S. 372 (2007), for the proposition that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. at 380. There, the Court confronted a record containing a videotape that captured the events in question. The videotape, the authenticity of which went unchallenged, “clearly contradict[ed] the version of the story told by respоndent.” Id. at 378. The factual issue manufactured by the “[r]espondent‘s
Scott is simply not apposite.56 There is a significant qualitative difference between a videotape and crisis-watch logs
Nevertheless, we still are left with a very incomplete picture of Mr. Eagan‘s overall medical condition in terms of the severity of his pain, its duration, the prognosis for its abatement, and the availability and appropriateness of any remedy. Mr. Eagan, however, was not able to take any depositions of neighboring inmates who may have been able to speak to the pain he displayed, of the prison officials who examined him over the two days, or of Dr. Dempsey.
A cause of action based on a physician‘s choice among courses of treatment cannot be sustained under the
Here, however, Mr. Eagan raises an additional dimension. He claims that Dr. Dempsey‘s decision to leave him in significant and prolonged pain in order to teach him a lesson about the consequences of self-destructive behavior does not involve a mere choice of medical remedies and is violative of the
The key element missing from the summary judgment record is a deposition from Dr. Dempsey. The entire case against Dr. Dempsey turns on his intent in declining further medical intervention in the face of Mr. Eagan‘s claims that he was experiencing excruciating pain and the substantial risk of self-harm if left untreated. The practice of psychiatry is nuanced; it is both an art and a science.58 There may well be a very straightforward professional explanation for Dr. Dempsey‘s decision to decline medical intervention when he did. Perhaps Dr. Dempsey is correct in concluding that Mr. Eagan was malingering. But Mr. Eagan should be allowed to explore adequately the professional reasonableness of that decision during the discovery process. Mr. Eagan claims that he continues to hear the voices and to experience the accompanying pain. With the assistance of an at
On the record as it stands today, it is possible to conclude from the evidence that allowing Mr. Eagan to experience the consequences of his self-destructive behavior, at least for a while, was an acceptable course of proceeding. But to reach that conclusion, the record must be construed in a light most favorable to Dr. Dempsey, not Mr. Eagan. With an adequate opportunity to develop the record on the issue of Dr. Dempsey‘s intent, Mr. Eagan‘s case against him either will collaрse or be ready for trial.
c.
i.
We now turn to Mr. Eagan‘s claims that Officers Berry, Law, Sullivan, and Moorhouse failed to protect him from self-harm on November 30, and that Officer Sullivan was deliberately indifferent to his serious medical needs on December 1 and 2. We examine whether there would be a reasonable likelihood of obtaining a different outcome in Mr. Eagan‘s case against the state officers if the motion to recruit counsel had been granted.
The principles governing our evaluation of this allegation are well-established. A prison official who acts with deliberate indifference to a substantial risk of serious harm to an inmate violates the
A failure to provide protection constitutes an
Mr. Eagan must demonstrate that the prison officials knew of and disregarded a serious risk to his health or safety. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Furthermore, “an official‘s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Id. at 838.
A prison official, however, generally does not act with deliberate indifference “if she reasonably relied on the judgment of medical personnel.” Miranda v. Cnty. of Lake, 900 F.3d 335, 343 (7th Cir. 2018). Non-medical officials are presumptively “entitled to defer to the professional judgment of
A plaintiff may rebut this presumption by showing that the “jail officials had reason to know that their medical staff were failing to treat or inadequately treating an inmate.” Miranda, 900 F.3d at 343 (citing King, 680 F.3d at 1018). In Greeno v. Daley, 414 F.3d 645 (7th Cir. 2005), we declined to extend liability to a non-medical official who handled the plaintiff prisoner‘s complaints, but we noted that “[p]erhaps it would be a different matter if [the official] had ignored Greeno‘s complaints entirely.” Id. at 655–56; see also Berry, 604 F.3d at 440 (noting that the non-medical administrator was entitled to defer to the judgment of medical professionals so long as he did not ignore the prisoner). An official‘s “mere negligence in failing to detect and prevent subordinates’ misconduct is not sufficient.” Arnett, 658 F.3d at 755. A plaintiff must demonstrate that, through the manner and content of his communication, he gave the prison official sufficient notice to alert him or her to “an excessive risk to inmate health or safety.“‘” Id. (quoting Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996)). Once alerted to such risk, an official‘s refusal to do more may amount to deliberate indifference. See Vance, 97 F.3d at 993 (“Once the official knows of that risk, the refusal or declination to exercise the authority of his or her office may reflect deliberate disregard.“); Hayes,
To state a cognizable claim because of inadequate medical care, “a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106. “A prisoner‘s claim for deliberate indifference must establish ‘(1) an objectively serious medical condition; and (2) an official‘s deliberate indifference to that condition.‘” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (quoting Arnett, 658 F.3d at 750).
“A ‘serious’ medical need is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor‘s attention.‘” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977)). A medical condition also may be serious if “‘failure to treat a prisoner‘s condition could result in further significant injury or the “unnecessary and wanton infliction of pain.“‘” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992)). A delay in treatment may rise to a constitutional violation “depend[ing] on the seriousness of the condition and the ease of providing treatment.” Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012) (quoting McGowan, 612 F.3d at 640).
An official is deliberately indifferent when the official is “‘aware of facts from which the inference could be drawn that a substantial risk of harm exists,” actually does draw the inference, and responds with “reckless disregard for the
ii.
Mr. Eagan contends that Officers Berry, Law, Sullivan, and Moorhouse failed to protect him from self-harm. He first focuses on November 30, 2014, when they returned him to the crisis-watch cell without any medication to assuage his hallucinations and to prevent his self-destructive acts. For their part, the officers contend that “[n]othing in the record suggests that [they] were aware of but disregarded a substantial risk that Eagan would harm himself on November 30, 2014.”59 The officers emphasize that both times that he engaged in self-harm, Mr. Eagan promptly received medical care. The officers assert, moreover, that they were entitled to rely on Dr. Dempsey‘s medical expertise and that “they had no reason to doubt [Dr.] Dempsey‘s medical judgment that Eagan could be returned to his cell after first cutting his head, particularly because [Dr.] Dempsey ordered that prison staff continue to monitor Eagan every 10 minutes.”60
In King, 680 F.3d 1013, we considered whether non-medical officers shоuld have known that a nurse‘s care of a pretrial detainee was inadequate. Non-medical officers conducted a cell check and saw the detainee in his bed close his eyes and twitch his arm. Id. at 1016. Later that morning, upon finding the plaintiff “convulsing on the floor, screaming and foaming at the mouth[,] [t]hey called for a nurse.” Id. When the nurse first examined the detainee, she was “convinced that [the detainee] was faking” and left him on the floor, despite his failure to respond to smelling salts and his face turning blue. Id. at 1017. No one called the on-call physician, and, an hour later, the detainee was found convulsing again. Id. The nurse was aware that the detainee may have been experiencing alprazolam withdrawal, which could
Accordingly, “[t]he question is whether the [officers] had any duty to do more than they did, in light of their knowledge of the situation.” Hayes, 546 F.3d at 527. The record does not support an affirmative answer to that inquiry. As in King, Mr. Eagan has failed to establish that the officers necessarily knew that he would continue to engage in self-harm or that Dr. Dempsey was inadequately treating him. Therе is nothing in the record that shows the officers were trained to make a sound judgment as to whether Mr. Eagan would be able to control himself upon returning to his cell. They were entitled to rely on Dr. Dempsey‘s directions, as they did. Moreover, when Mr. Eagan returned to his previous pattern of self-destructive behavior, they once again sought Dr. Dempsey‘s further instructions. There simply is no evidence to permit a trier of fact to determine that they were deliberately indifferent to his well-being. Consequently, the district court‘s grant of summary judgment in favor of the officers for their November 30 conduct was proper.
Mr. Eagan contends that Officer Sullivan was deliberately indifferent to his serious medical condition on December 1 and 2. Mr. Eagan first submits that the district court erred in concluding that he had failed to demonstrate an objectively serious medical condition; he believes that the court ignored evidence of his excruciating pain. In evaluating this contention, we start with a review of what the record reveals about what Mr. Eagan experienced each day after the administration of Haldol. Given the procedural posture of this case, we must review the record in the light most favorable to Mr. Eagan.
Mr. Eagan woke up on December 1 after the Haldol administration with upper body stiffness and his body feeling “locked.”63 He claims the Haldol “took over [his] body” and his ability to move, leaving him on the floor for most of the day.64 It was not until December 2 that Mr. Eagan woke up with a locked jaw, causing him “excruciating pain” that he had never felt before, and resulting in his panicking.65 Mr. Eagan continued to experience pain and discomfort in his arms and neck. Thus, our analysis must consider whether Mr. Eagan has demonstrated an objectively serious condition of muscle stiffness on December 1 or of lockjaw and upper body pain on December 2.
Even if we were to assume Mr. Eagan had serious medical conditions on both December 1 and 2, that is, of course,
The district court concluded that Mr. Eagan failed to provide any evidence that Officer Sullivan was involved personally in depriving him of any needed medical attention. The extent of Mr. Eagan‘s allegations of Officer Sullivan‘s subjective awareness on December 1 is based in Officer Sullivan‘s supposed taunting and mockery of Mr. Eagan‘s condition. Mr. Eagan testified in his deposition that multiple officers, including Officer Sullivan, “mocked” him and “laughed at” him because “of [his] condition,” which, on December 1, was only muscle stiffness.69 When his neighbor told one of the watch officers that “[s]omething‘s wrong with Eagan,” a watch officer stated that Mr. Eagan‘s condition “was funny.”70 Mr. Eagan, however, could not identify which officer his neighbor notified.
Mr. Eagan recounts two interactions with Officer Sullivan on December 2, the day he experienced the locked jaw. On the afternoon of December 2, Mr. Eagan “again tried to get the attention of an officer to secure treatment for his locked open jaw.”71 When the officer stated he could not help Mr. Eagan‘s condition, Mr. Eagan began to bang his
The crisis-watch logs and Mr. Eagan‘s deposition testimony indicate that Officer Leipold was the watch officer who performed the majority of the observation checks. Mr. Eagan praises Officer Leipold for checking in on him and for trying to calm him down when he was panicking over the lockjaw pain, even though he was unable to procure medication for Mr. Eagan. Mr. Eagan, however, does not allege Officer Leipold was deliberately indifferent. The only difference between Officer Leipold‘s conduct and Officer Sullivan‘s conduct was that Officer Leipold tried to talk to him and keep him calm, whilе Officer Sullivan made fun of Mr. Eagan. By the time Officer Sullivan interacted with Mr. Eagan on December 2, Mr. Eagan already had been examined by Major Prentiss and CMT Tinsley, who both determined there was nothing they could do, and by Dr. Dempsey, who decided not to prescribe anything further. Thus, it appears the response Mr. Eagan sought from Officer Sullivan was calming conversation. Mr. Eagan has not established that he sought any other help from Officer Sullivan, specifically, or that his condition was so severe that
In the end, when the record is read in its totality, it is clear that the prison officers did not violate the
Conclusion
The district court abused its discretion in denying Mr. Eagan‘s motions for the recruitment of counsel. Because the denial of this motion may have affected the outcome of Mr. Eagan‘s claim against Dr. Dempsey, the judgment in fa
The district court did not abuse its discretion in denying the motions for counsel insofar as they pertain to Mr. Eagan‘s case against the officer defendants. Moreover, the motion for summary judgment in favor of the officer defendants was properly granted. Therefore, the judgment of the district court in favor of the officer defendants is affirmed.
No costs in this court.
AFFIRMED in part; VACATED and REMANDED in part
Dempsey‘s state of mind may be hard to fathom, as slip op. 44–45 says. But consider what is certain. Dempsey treated Eagan for his psychiatric problems and administered drugs that were medically appropriate. He then monitored his patient‘s reaction and deemed the outcome satisfactory. Eagan asserts that his jaw was painfully locked open as a result of the drugs, but Dempsey‘s files contain notes showing that no such effect occurred. Guards and members of the medical team observed Eagan every ten minutes throughout December 1 and December 2, 2014, and their contemporаneous notes report that he was speaking and eating, contradicting his current assertion that his jaw was locked open. It is possible, to be sure, that everyone other than Eagan himself is lying, but is that “reasonably likely“? The people who monitored Eagan‘s condition wrote their comments long before this suit was filed, at a time when they did not have a reason to make things up. So why would they falsify their observations? And, if they are all liars, how would an attorney show that they are?
My colleagues suggest (slip op. 45) that counsel might do this by taking Dempsey‘s deposition. Suppose that happens. Is Dempsey likely to do anything other than review his notes from 2014 and repeat them orally? How often do medical defendants admit during depositions that their treatment
If legal assistance were available in unlimited quantities, I could go along with a remand. But, like every other valuable thing, legal time is scarce. When a judge persuades a lawyer to spend time on a weak case such as Eagan‘s, that time comes from somewhere. The “somewhere” might be golfing or watching Netflix, but more likely the time must be diverted from other clients. “Why should a judge ask lawyers to devote less of their time to people with strong cases and more to people with weak ones? That would injure other litigants.” Pickett v. CTA, 930 F.3d 869, 871 (7th Cir. 2019). This is among the reasons why “courts must be careful stewards of th[e] limited resource [of volunteer lawyers].” Cartwright v. Silver Cross Hospital, 962 F.3d 933, 934 (7th Cir. 2020). People who receive less legal attention as a result of a judge‘s decision to recruit counsel are invisible to the court, but they are no less deserving of consideration. When we compel a judge to divert the resources of the bar to weak claims such as Eagan‘s, we reduce the likelihood that other persons will receive adequate legal assistance.
There is another potential effect when a judge recruits a lawyer to assist a plaintiff with a weak case: the wages of crying wolf. A lawyer might believe a judge the first time such a request is made but will learn from the experience
Recently a district court in East St. Louis tried valiantly to recruit counsel for a prisoner but failed. More than 100 lawyers turned the court down. See Roberts v. Neal, 713 Fed. App‘x 509 (7th Cir. 2018). Perhaps the available supply of lawyers had been prevailed on too often to assist plaintiffs with little chance of success, and they had learned that it is safest to say no. An appellate command to recruit a lawyer for Eagan may send more of the same message, with the unfortunаte result that prisoners who could win if only they had legal assistance will be left out in the cold.
Notes
The Supreme Court, in Scott, kept open the possibility that evidence beyond videotapes could rise to the level of blatant contradiction. See Coble v. City of White House, Tenn., 634 F.3d 865, 868–69 (6th Cir. 2011) (“There is nothing in the Scott analysis that suggests that it should be restricted to cases involving videotapes. The Scott opinion does not focus on the characteristics of a videotape, but on ‘the record.‘“). Courts, however, have been very reluctant to expand Scott to other non-video forms of evidence. Audio recordings, photographs, or forensic evidence often lack the real-time qualities and comprehensiveness that a video offers, presenting more contestable ambiguities. Thus, it is often far more difficult for non-video evidence to “blatantly contradict” a party‘s version of events in a way that a videotape could. See Morton v. Kirkwood, 707 F.3d 1276, 1284–85 (11th Cir. 2013) (finding forensic evidence—placement of shattered glass, cartridge casings, tire tracks, and expert testimony—did not render the plaintiff‘s version of events “utterly incredible“); Coble, 634 F.3d at 868–70 (rejecting conclusion that silence in audio recording blatantly contradicted plaintiff‘s assertion that he was screaming); United States v. Hughes, 606 F.3d 311, 319–20 (6th Cir. 2010) (distinguishing photograph from videotape in Scott); Blaylock v. City of Philadelphia, 504 F.3d 405, 414 (3d Cir. 2007) (finding that photographs did not clearly support one version of facts and blatantly contradict the other in such a way that no reasonable jury could believe it).