NONPRECEDENTIAL DISPOSITION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 November 8, 2021 *
Decided November 10, 2021
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 19-2925
JAMES R. WASHINGTON, Appeal from the United States
Plaintiff-Appellant, District Court for the Western District
of Wisconsin.
v. No. 18-cv-208-bbc
RENEE SCHUELER, et al., Barbara B. Crabb,
Defendants-Appellees. Judge.
ORDER
James Washington, a Wisconsin inmate who was prescribed orthotic insoles for
his feet, sued a nurse and two administrators at the prison over a delay in receiving the
insoles. Washington did not seek timely discovery and supplied no evidence suggesting
*
We have agreed to decide this 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. 19-2925 Page 2
that the nurse or administrators were behind the delay, so the district court rightly
entered summary judgment for the defendants. We thus affirm.
We present the facts in the light most favorable to Washington. See Lockett v.
Bonson, 937 F.3d 1016, 1022 (7th Cir. 2019). Washington sought treatment in 2017 for his
bunions, hammer toes, and flat feet. In early January, the prison sent him to an outside
podiatrist, who provided custom orthotic insoles and recommended that he wear them
inside extra-wide, athletic shoes such as New Balances instead of the standard, state-
issued shoes. A nurse at the prison did not immediately record this recommendation in
Washington’s medical chart, and someone (Washington does not say who) in the health
unit lost the provided insoles before Washington received them. About 23 days later,
Washington returned to the podiatrist who provided another pair of insoles and again
recommended athletic shoes, now mentioning Nikes. This time, the nurse recorded the
recommendations for orthotics and “athletic-style shoes.” The prison’s physician then
authorized Washington to receive the insoles; the authorization said nothing about
athletic shoes, but Washington already owned two pairs of athletic Nike shoes.
Washington eventually received the insoles, but he asserts that he encountered
two problems. First, he says, after the prison’s doctor approved the custom insoles,
someone again misplaced them for months. Second, he asserts that when he received
the insoles, they did not fit the medical shoes that the prison gave him. Before this
occurred, the prison had received another recommendation from the podiatrist that it
provide him with him extra-wide, athletic shoes such as New Balances. It referred this
request to a committee (composed of medical and non-medical personnel) that decides
when prisoners can receive special products from an outside vendor. The committee
decided that Washington did not need the extra-wide New Balances to accommodate
his insoles, because the insoles should fit in state-issued medical shoes. Washington
received those shoes and insoles a few weeks later (eight months after the original
recommendation). But, Washington says, the insoles did not fit well in those state-
issued medical shoes.
At the outset of the suit, the district court issued a scheduling order. As relevant
to this appeal, Washington had sued the nurse (who initially omitted from his medical
chart the recommendation for insoles) and two administrators (whom he accuses of
barring the purchase of brand-name athletic shoes). Recognizing Washington’s pro se
status, in the scheduling order the court explained his duties under Rule 56 of the
Federal Rules of Civil Procedure and the deadlines. It emphasized that “Rule 56 is
important, so you should read it carefully, even before a summary judgment is filed
No. 19-2925 Page 3
….” It warned Washington that he would have thirty days to respond to a motion for
summary judgment, although the scheduling order allowed for discovery up to six
months after the deadline for moving for summary judgment. The court explained that
a litigant could not extend the time to respond to the motion for summary judgment in
order to seek discovery unless his failure to obtain the information sooner was
“somebody else’s fault.”
Despite these warnings, when the defendants moved for summary judgment
seven months later (on the last day allowed), Washington moved to extend his time to
respond so that he could start discovery. See FED. R. CIV. P. 56(d). He asserted that his
legal papers were stolen three months earlier and, with extra time, he could now begin
to seek medical records, information about the committee and how often it granted shoe
requests, details about shoes in the approved catalog, and personnel files. The court
denied the motion, explaining that it had carefully warned Washington that, without
good cause, it would not extend the deadline to respond to a motion for summary
judgment, and Washington had no good excuse for not starting discovery sooner.
The court later entered summary judgment for the nurse and two administrators.
It began with the nurse and the claim that she culpably failed to record the podiatrist’s
first recommendation in January. This failure, the court acknowledged, delayed action
on insoles and athletic shoes for 23 days. But Washington had not alleged, let alone
shown, that this delay harmed him. The court then turned to the nurse’s failure to
record the podiatrist’s suggestion (at the second visit) that he receive Nike shoes. It
concluded that no reasonable jury could find the nurse liable for specifying instead that
he should receive “athletic-style shoes,” because no evidence showed that non-Nike
athletic shoes would harm him. The court then addressed the two administrators. It
explained that no evidence suggested they maintained a policy of barring prisoners
from ordering medically necessary shoes from outside vendors or that Washington’s
request had been denied under such a policy.
On appeal, Washington first challenges the denial of his motion for more time to
respond to the motion for summary judgment. He repeats that his legal documents had
been stolen three months before the defendants moved for summary judgment and that
discovery would “expose possible fraudulent assertions of fact.” But for three reasons,
the district court reasonably denied the motion for more time.
First, Washington did not comply with Rule 56. Under Rule 56(d) of the Federal
Rules of Civil Procedure, after a party moves for summary judgment, the court may
No. 19-2925 Page 4
defer considering the motion only “if the nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential to justify its opposition.”
Before the defendants filed their motion, the court told Washington to read the Rule,
but he submitted no affidavit or declaration with his motion. That failure alone can
justify the court’s decision. Kallal v. CIBA Vision Corp, Inc., 779 F.3d 443, 446 (7th Cir.
2015).
Second, Washington had ample time for discovery. During the seven months
after the court set its scheduling order, Washington did not pursue any discovery on his
claims, despite warnings to do so. He did not seek support for his allegations that the
nurse’s omissions from his medical chart harmed him or that the administrators barred
brand-name therapeutic shoes from the prison. Nor did he seek information that might
have added new parties, such as who in the health unit had mistakenly lost his insoles,
or who sat on the committee that, he asserts, wrongly thought that the insoles would fit
the state-issued medical shoes. A litigant who “forestalls prosecution of their own case
is not entitled to seek additional discovery when the opposing side moves for summary
judgment.” Citizens for Appropriate Rural Rds. v. Foxx, 815 F.3d 1068, 1082 (7th Cir. 2016).
We recognize that the schedule allowed for six more months of discovery after an
opponent moved for summary judgment. But the district court reasonably warned
Washington that this added time was available only for matters outside his control.
Washington responds that the theft of his legal documents was a matter out of
his control. But the asserted theft happened three months before he sought more time,
and Washington does not explain why he waited three months—a delay fully within his
control—before he began to pursue discovery. In any event, the theft is irrelevant:
Washington does not specify on appeal how these documents cured the evidentiary
gaps in his claims, or that they would have allowed him to name new parties.
The third reason that the district court reasonably denied Washington’s request
for more time is that courts do not abuse their discretion in denying Rule 56(d) motions
where “the request ‘was based on nothing more than mere speculation.’” Helping Hand
Caregivers, Ltd. v. Darden Restaurants, Inc., 900 F.3d 884, 890 (7th Cir. 2018) (internal
citation omitted). Washington describes needing “truth testing discovery” to uncover
potential lies by the defendants. But he does not identify which statements in support of
summary judgment are lies or how any belated discovery might disprove them.
Because Washington did not give the district court reason to believe that extending the
response deadline would bear fruit, the district court did not have to allow a “fishing
expedition” that would delay summary judgment. See id.
No. 19-2925 Page 5
On the merits, Washington challenges summary judgment for the nurse who
initially omitted the podiatrist’s recommendation. To get past summary judgment,
Washington needed to supply evidence that the nurse deliberately disregarded a
serious risk of severe harm by omitting from his medical chart the approval for insoles
and brand-name shoes. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Petties v. Carter,
836 F.3d 722, 728 (7th Cir. 2016) (en banc). But nothing suggests that the three-week
lapse in recording the recommendation for insoles put Washington at serious risk of
severe harm. See Petties 836 F.3d at 728. Likewise, the record contains no evidence that
the omission of a brand name like Nike or New Balance, as opposed to “athletic-style
shoes,” which the nurse did record in his chart, harmed him. To the contrary, because
he already owned two pairs of Nike shoes, the omission did not harm him. Finally, we
recognize that the eight-month delay (caused by the misplaced insoles) may have
harmed Washington. But no evidence connects the nurse to that misplacement.
Washington also contests the disposition of his case against the administrators.
But as the district court observed, he did not furnish evidence that they maintained a
policy prohibiting prisoners from buying brand-name therapeutics. Nor did he show
that, given his ownership of athletic-style Nike shoes, any such policy harmed him. He
responds that the court should nonetheless not have allowed the committee, which
included non-medical personnel, to override his podiatrist’s suggestion for brand-name
shoes. But the members of the committee (or the authorities who created the committee)
that made this decision are not defendants, and Washington never asked the court to
add them. Finally, to the extent Washington thinks that the adverse ruling on summary
judgment shows bias, he is mistaken. See Liteky v. United States, 510 U.S. 540, 555 (1994).
AFFIRMED