NONPRECEDENTIAL DISPOSITION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 September 2, 2022*
Decided September 2, 2022
Before
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 22‐1422
SHOMAS T. WINSTON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of
Wisconsin.
v.
No. 20‐cv‐367‐jdp
SHERRI A. PULDA, et al.,
Defendants‐Appellees. James D. Peterson,
Chief Judge.
ORDER
Shomas Winston, a Wisconsin inmate, sued a doctor and two nurses under
Wisconsin law and the Eighth Amendment for their treatment of a sprained ankle that
healed quickly. Winston lost to the doctor at summary judgment and to the nurses at
trial. He now argues that the doctor should have ordered an MRI and the court should
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 22‐1422 Page 2
have recruited him a lawyer for trial. But the lack of an MRI yielded no foreseeable
harm, and the absence of counsel did not prejudice the trial; thus, we affirm.
Winston hurt his ankle playing basketball in late December 2019 and received
medical attention. Over the next three days, he saw two nurses and told them he did
not need crutches. A week later, after reporting that his left ankle was “bothering [him]
still off and on,” Winston met with nurse Sheri Pulda. Because Winston’s ankle had
minimal swelling and full range of motion, Pulda determined that he had sprained it
and prescribed the prison’s standard treatment regimen for that injury: take over‐the‐
counter pain relievers, protect the injured area, then ice, compress, and elevate it. She
also told Winston that he could walk on it to the extent the pain was tolerable (she later
testified that walking increases blood circulation and promotes healing). Finally, she
said that she would refer him to a doctor if his ankle did not improve.
Ten days later and dissatisfied with the pace of healing, Winston saw a doctor
and received further treatment. He met with Dr. Frederick Kron, who ordered an x‐ray
but not an MRI (even though, according to Winston, Kron planned to do so). Pending
the x‐ray results, Kron told Winston to use crutches and a cast boot. The x‐ray showed
no abnormalities, and after a week, Winston reported that the swelling was nearly gone
and that he felt much better. Kron diagnosed him with a sprained ankle and, in a note
in Winston’s medical file, wrote “PT ordered.” When Winston later complained about
not receiving that therapy, another nurse, Kris DeYoung, checked his medical records
and told him that she did not see an order for physical therapy in his file.
Months later, Winston moved to another prison. While there, he received an
MRI. It revealed a previously unknown, congenital flat‐foot condition that was
unrelated to his sprained ankle. Winston began to receive treatment for his flat foot.
Winston sued Kron, Pulda, and DeYoung, asserting violations of Wisconsin
negligence law and his rights under the Eighth Amendment. As relevant on appeal, he
alleged that Kron negligently failed to order an MRI; Pulda culpably let him walk on his
ankle and failed to refer him to a doctor immediately after his injury; and DeYoung
culpably failed to comply with Kron’s instruction to arrange for physical therapy.
Winston unsuccessfully moved to recruit counsel. The court denied Winston’s
first motion because he had made no reasonable efforts to obtain counsel. It denied the
second because it could not tell then if the case was too complex for Winston to litigate
himself. The court allowed Winston to renew his motion once the issues became clearer.
No. 22‐1422 Page 3
The case ended adversely to Winston in stages. First, the district court granted
Kron’s motion for summary judgment. The court observed that no evidence suggested
that the standard of care for treating an ankle with some swelling required an MRI or
that Winston was harmed by Kron’s decision not to order one. Then, before Winston’s
claims against Pulda and DeYoung went to trial, Winston moved again for recruitment
of counsel, giving two reasons: he needed an expert to establish their standard of care
and the case was too complex for him to try to a jury. The court denied the motion.
Addressing only the first reason, it concluded that Winston did not need an expert
because the jury could tell from its own experience whether either defendant was
negligent or deliberately indifferent. Later, after a one‐day trial, the jury returned a
verdict in favor of Pulda and DeYoung.
On appeal, Winston contests only two rulings: the summary‐judgment decision
with respect to whether Kron should have ordered an MRI and the denial of his final
motion for recruitment of counsel. We review the court’s former decision de novo, Pyles
v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014), and the latter for abuse of discretion, Pruitt v.
Mote, 503 F.3d 647, 658 (7th Cir. 2007) (en banc).
First, Winston argues that Kron was negligent under Wisconsin law because his
failure to order an MRI violated the applicable standard of care, and an MRI would
have revealed Winston’s flat foot. But even if the standard of care for his ankle injury
includes an MRI, Winston’s claim fails. A negligence claim in Wisconsin requires
evidence of a reasonably foreseeable harm. See Tesar v. Anderson, 789 N.W.2d 351, 354
n.7, 363 (Wis. 2010). But the harm that he attributes to the MRI’s absence—a failure to
detect his unrelated flat foot—was not reasonably foreseeable because no evidence
suggests that, at the time of Winston’s injury, Kron had reason to suspect that Winston
had an unrelated flat‐foot condition. Therefore, no rational jury could conclude that
Kron should have foreseen that an MRI might reveal Winston’s flat foot.
Second, Winston challenges the denial of his final motion for recruitment of
counsel. Pulda and DeYoung concede that the court abused its discretion in denying
this motion. The court had to weigh Winston’s ability to litigate against the difficulty of
the case, see Pruitt, 503 F.3d at 654–55, but it considered only Winston’s need for an
expert. Even so, they correctly observe, Winston must show that he was prejudiced by
the denial. See id. at 659. That requires more than just a likelihood that counsel would
have performed better than Winston at trial. Mejia v. Pfister, 988 F.3d 415, 420 (7th Cir.
No. 22‐1422 Page 4
2021). Rather, Winston must show a “reasonable likelihood” that the outcome would
have been different with counsel. Pruitt, 503 F.3d at 659.
To demonstrate prejudice, Winston offers several arguments, but none shows a
reasonable likelihood that, with counsel, the trial would have ended differently. He first
argues that a lawyer might have successfully contested the defendants’ pretrial motion
to exclude evidence about his flat‐foot condition, enabling Winston to argue at trial that
the nurses exacerbated that condition when treating his ankle. But, as we just explained,
that condition was not foreseeable; thus the jury could not have used such evidence to
find Pulda or DeYoung negligent or deliberately indifferent. See Petties v. Carter,
836 F.3d 722, 728 (7th Cir. 2016) (deliberate indifference requires that defendant
consciously disregard substantial risk of harm); Tesar, 789 N.W.2d at 363 (negligence
requires foreseeable harm).
Next, Winston argues that counsel might have secured an expert. He contends
that an expert could have shown that the nurses violated the applicable standard of care
by letting him walk on his ankle (to increase blood circulation), not getting him a doctor
immediately after his injury, and not scheduling physical therapy. But even if an expert
established that these omissions violated the applicable standard of care, Winston
produced no evidence that this conduct caused any short‐term or long‐term harm to
him, as he must. See Petties, 836 F.3d at 728; Tesar, 789 N.W.2d at 363. To the contrary, he
received the prison’s standard (and unchallenged) treatment regimen for a sprained
ankle: pain relievers and instructions to protect the injured area, ice it, compress it, and
elevate it. Further, his swelling and pain were well‐managed, he was offered crutches
immediately (which he initially refused) and a boot to use as needed, and his ankle had
mostly healed within three weeks without complications.
Winston also unpersuasively contends that counsel might have successfully
sought a mistrial. During the trial, the defense suggested that even if DeYoung had
overlooked Kron’s order for physical therapy, Winston could not have received that
therapy because of pandemic restrictions. But this contention did not necessitate a
mistrial because Winston successfully objected to it, and the court instructed the jury
not to consider it. We presume that jurors follow such instructions, Wilson v. City of
Chicago, 758 F.3d 875, 885 (7th Cir. 2014), and Winston gives us no reason to believe that
a lawyer could have upset that presumption.
Last, Winston cites other trial‐presentation hardships that he faced—difficulties
with PowerPoint, questioning witnesses, and organizing his case—but these do not
No. 22‐1422 Page 5
show prejudice from the absence of counsel. Although “inept trial performance” may
establish prejudice, Pruitt, 503 F.3d at 661, Winston was not inept. He summarized the
facts of the case, gave clear opening and closing statements, informed the jury of how
the facts map on to each element of his claims, and adequately questioned witnesses
about key facets of the case. See id.
AFFIRMED