NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 7, 2014*
Decided May 7, 2014
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13‐2484
SYLVESTER JACKSON, Appeal from the United States District
Plaintiff–Appellant, Court for the Western District of Wisconsin.
v. No. 11‐cv‐774‐bbc
RANDALL HEPP, et al., Barbara B. Crabb,
Defendants–Appellees. Judge.
O R D E R
Randall Jackson, a Wisconsin inmate, brought this action under 42 U.S.C. § 1983
claiming that a doctor, nurses, and other staff at Jackson Correctional Institution (“JCI”)
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 13‐2484 Page 2
violated the Eighth Amendment by failing to adequately treat his chronic back pain and
disregarding an outside podiatrist’s instructions for postoperative care after foot
surgery. On three occasions Jackson asked the district court to recruit counsel. The court
denied each request and eventually granted summary judgment for the defendants,
despite characterizing the many gaps in the evidence as troubling. On appeal Jackson
challenges the grant of summary judgment as well as the refusal to enlist a lawyer to
assist him. Because we conclude that the district court abused its discretion in refusing
Jackson’s requests for a lawyer, and that Jackson was prejudiced by those refusals, we
vacate the judgment and remand for further proceedings.
We recount the evidence at summary judgment in the light most favorable to
Jackson. See Arnett v. Webster, 658 F.3d 742, 749 (7th Cir. 2011); Gil v. Reed, 381 F.3d 649,
651 (7th Cir. 2004). Jackson, who is in his late forties and diabetic, first complained
about hip and back pain shortly after his transfer to JCI in November 2009.
Kenneth Adler, a prison physician, prescribed ibuprofen and authorized Jackson to
have an extra mattress. Dr. Adler later ordered hip X‐rays, which showed degenerative
disease in the right hip, and prescribed naproxen, a pain reliever. But afterward Jackson
complained repeatedly of worsening back pain. In one request for health services, he
said that at night the pain was so severe that often he could not walk to the toilet in
time. His back pain, says Jackson, kept him awake at night, made sitting for long
periods difficult, and sometimes made standing to walk unpleasant.
Over the course of the following year, Jackson saw Dr. Adler several times for his
back pain, but the plaintiff insists that the doctor misrepresented in his medical records
what transpired during those visits. (At summary judgment Dr. Adler submitted an
affidavit, but his account of Jackson’s visits appears to rest entirely on the plaintiff’s
medical records and not the doctor’s independent recollection. Dr. Adler does not
vouch for the accuracy of the information in Jackson’s medical records. Nor does the
doctor confront the plaintiff’s accusations that statements attributed to him in those
records—including records signed by Dr. Adler—are false.) For example, after Jackson’s
first visit in March 2010, Dr. Adler wrote in the medical records that Jackson was “not
taking pain medicines,” which Jackson says is untrue. Dr. Adler then prescribed more
ibuprofen and an evaluation by a physical therapist. That evaluation did not result in
actual therapy (apparently the therapist recommended that Jackson perform exercises on
his own), yet Dr. Adler wrote after Jackson’s next visit in April that his symptoms had
improved with physical therapy. And then after a visit in October, Dr. Adler wrote that
ibuprofen was helping Jackson’s back pain, yet the plaintiff insists that he never said
this and, in fact, told the doctor that his pain was worsening and the ibuprofen was not
No. 13‐2484 Page 3
helping. The doctor even noted in Jackson’s medical records that he lifts weights and
plays basketball daily, which Jackson denies having said and explains would have been
impossible since JCI inmates are not granted daily recreation privileges.
Meanwhile, in December 2010, Debra Tidquist, a nurse practitioner, ordered a
back X‐ray that showed, according to Jackson’s medical records, degenerative changes.
Tidquist declared, however, that “additional treatment” was unnecessary. Jackson
disagreed and continued complaining that his back pain was “severe” and sometimes
“unbearable.” Around the same time Tidquist also ordered a second evaluation by a
physical therapist and prescribed gabapentin, a drug used to relieve pain from nerve
damage. Not until April 2011 did Jackson see the physical therapist, and, as before, he
did not receive therapy after the evaluation. And when Jackson told Tidquist that the
gabapentin was not working, her response was to substitute prescription‐strength
acetaminophen.
As far as this record shows, Dr. Adler and Nurse Practitioner Tidquist did not
investigate other treatment options or consider sending Jackson to a specialist. And
though the plaintiff requested care for his back pain at least 14 times during 2011, there
is scant indication in the record that anything was done before October, not even after
Jackson had reported that his back condition caused him to fall against the sink in his
cell. Indeed, on eight occasions from May to October he was told that a medical
appointment had been scheduled but then was not called to the infirmary. Eventually,
in November 2011, Tidquist ordered another back X‐ray; this time she diagnosed mild
osteoarthritis but again declared that treatment was not indicated.
Jackson’s back pain was not his only ailment during this time. Since late 2009 the
medical staff also had been treating recurring infections in his big toes, which led to
surgical removal of both nails at a hospital in April 2011. The podiatrist instructed that
Jackson’s feet be soaked in soapy water daily for four to six weeks. After the surgery
Jackson was taken back to JCI, where a defendant nurse—he does not say
which—refused to bring a wheelchair or provide open‐toe shoes and instead forced him
to don heavy boots and hustle a significant distance to his cell on foot.
For the next two days, Jackson was called to the infirmary, where nurses
Georgia Kostohryz and Cheryl Marsolek soaked his feet as directed. But then two days
passed without a call from the infirmary, so on the fifth day after his return from the
hospital Jackson complained to Nurse Practitioner Tidquist. That complaint prompted
Kostohryz and Marsolek to give Jackson a foot tub, soaking solution, ointment, and
No. 13‐2484 Page 4
dressing and tell him to tend to his feet himself in his cell. He did for 13 days until the
tub and supplies were taken away when he was moved to a segregation cell. Jackson
notified Tidquist that he needed infirmary staff to resume performing the daily soaks,
and after hearing nothing for three days, he complained to Tammy Maassen, the
manager of the Health Services Unit at JCI. That same day, May 5, Kostohryz told him
that additional soaks were unnecessary. On May 6, after Jackson had replied that
Kostohryz and Marsolek were not authorized to disregard the podiatrist’s instructions,
the plaintiff was taken to the infirmary. Dr. Adler entered the room and declared—after
a quick glance at his feet, says Jackson—that further soaks were unnecessary because
his toes were healed.
This was 22 days after Jackson’s surgery. During those three weeks his feet had
been soaked as prescribed on only 15 days, and all but five of those days by Jackson
himself. Moreover, by the time Dr. Adler countermanded the podiatrist’s instructions
on May 6, five days had passed since staff last followed those instructions. Then on
May 8, two days after the doctor’s appearance, Jackson requested medical attention
because both toes were seeping blood and pus and the right toe was causing him
throbbing pain. Nurse Betty Peterson refused to schedule an exam, explaining that
Jackson, who still was in segregation, had just seen Dr. Adler two days before. That
evening Nurse Kostohryz refused to look at Jackson’s feet when she made her rounds,
and the next day a guard informed him that Marsolek and another nurse, Greg Meier,
had said he should wash off the blood and pus and wait for a call from the infirmary.
He was taken there the next day and seen first by Carla Griggs, a nurse, and then by
Dr. Adler. This time, says Jackson, the doctor did not even glance at his feet before
pronouncing them “well healed” and leaving the room.
During the next six days Jackson’s toes worsened but his requests for attention
went unheeded. A guard, Kevin Clark, said he “did not give a shit” when Jackson
showed him the blood and pus and asked him to contact the infirmary. The plaintiff
also asked Nurse Marsolek to schedule an infirmary visit; at summary judgment
Marsolek averred that Jackson had refused to see anyone except Nurse Practitioner
Tidquist, who was on leave, but in fact, says Jackson, he accepted an appointment with
Dr. Adler on May 16. During that appointment, Nurse Griggs consulted Dr. Adler
before taking a culture and sending Jackson on his way. A day later the lab confirmed
that his toes were infected. Dr. Adler finally prescribed an antibiotic, but it was not until
May 20 that Tidquist reinstated the daily foot soaks, after Jackson had complained that
his back condition made washing his feet in his cell sink painful.
No. 13‐2484 Page 5
When he filed suit Jackson raised many claims that were not joined properly
with those concerning his back pain and postoperative care for his toes. After the
district court alerted him about the misjoinder, Jackson elected to proceed against
Dr. Adler; Nurse Practitioner Tidquist; Nurses Kostohryz, Marsolek, Peterson, Meier,
and Griggs; guard Clark; and HSU manager Maassan. Jackson also named as
defendants the then‐Secretary of the Department of Corrections, then‐warden Randall
Hepp, and a grievance officer, all of whom he had complained to directly. At screening,
see 28 U.S.C. § 1915A, the court allowed him to proceed with his Eighth Amendment
claims against all of these defendants.
Soon after his complaint was screened, Jackson filed his first of three motions
requesting recruitment of counsel, asserting that his case was complex because of the
nature of his claims and number of defendants involved. The district court denied his
request, explaining that it was too early in the proceedings to tell whether Jackson
lacked the ability to litigate his case. Jackson renewed his motion eight months later,
adding that he had been placed on an antidepressant and psychiatric medication, which
made it difficult for him to focus. He also argued that his claims of deliberate
indifference likely would require expert testimony, and that a lawyer’s help would be
needed to highlight misrepresentations by the defendants. The district court again
denied his motion, this time reasoning that Jackson’s submissions so far had been
coherent and showed that he could understand court instructions. In Jackson’s third
motion, filed after the defendants had moved for summary judgment, he renewed his
earlier arguments, and stated that he had been moved to segregation and could not
contact and interview witnesses at JCI. Again the district court denied his request,
explaining that Jackson’s “situation” had not changed enough from when the court
denied his prior motion.
On appeal Jackson contests the denials of his requests for counsel, as well as the
entry of summary judgment. We agree with him that the district court should have
recruited a lawyer, though we also have doubts that granting summary judgment was
appropriate on the existing record. Jackson argues that he needed a lawyer because the
case turned on whether his or the defendants’ versions of his treatment were correct, he
was on “psych” medication during the proceedings, and he could not effectively litigate
whether the level of treatment he did receive was adequate. We review the district
court’s decision not to recruit counsel for an abuse of discretion. Navejar v. Iyiola, 718
F.3d 692, 696 (7th Cir. 2013); Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc).
No. 13‐2484 Page 6
When a plaintiff makes a reasonable attempt to obtain counsel, the district court
must evaluate whether the factual and legal difficulty of the case exceeds that plaintiff’s
ability to litigate it. Navejar, 718 F.3d at 696; Bracey v. Grondin, 712 F.3d 1012, 1016
(7th Cir. 2013). The defendants do not dispute that Jackson suffered from objectively
serious medical conditions. Thus, to survive summary judgment on his Eighth
Amendment claims, Jackson needed evidence establishing that the care he received for
his chronic back pain and for his feet after surgery was so inappropriate that a jury
reasonably could find that the defendants intentionally disregarded risks to his health,
see Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008), or unnecessarily prolonged his
pain, McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). Constitutional claims that
depend on the state of mind of a defendant or that turn on witness credibility may be
too complex for a pro se plaintiff to litigate. Santiago v. Walls, 599 F.3d 749, 761 (7th Cir.
2010); Swofford v. Mandrell, 969 F.2d 547, 552 (7th Cir. 1992). Complexity must be
assessed with an eye toward the plaintiff’s education, literacy level, psychological
history, and litigation experience. See Santiago, 599 F.3d 749 at 762.
Although it may be that Jackson could follow instructions from the court, that
does not mean he also was able to engage in discovery effectively, especially in a case
where medical evidence from outside experts is likely to be critical. Moreover, when
Jackson submitted his second request, he was taking psychiatric medications that made
it difficult for him to focus. And by the time he made his third request, he was
hampered in responding to the defendants’ motion for summary judgment because he
was housed in segregation. The district court’s observation about the gaps in the
evidence, and Jackson’s inability to exploit those gaps in fending off the defendants’
motion for summary judgment, show why help from counsel was essential.
Jackson has shown a reasonable likelihood that a lawyer would have made a
difference in the outcome of his case. Even where a district court has abused its
discretion in declining to recruit counsel, we will reverse only if the plaintiff has shown
he was prejudiced by that denial. Navejar, 718 F.3d at 696; Bracey, 712 F.3d at 1017. The
defendants assert that Jackson has waived any argument that the denial of counsel
prejudiced him. We disagree; in his brief to this court, Jackson argues that the absence
of a lawyer inhibited his ability to challenge the adequacy of the treatment he did
receive, and to identify and contact witnesses who were not present at JCI.
Jackson needed the assistance of counsel, and it is clear that he was prejudiced by
the absence of a lawyer. Accordingly, we VACATE the grant of summary judgment for
the defendants and REMAND for further proceedings.