Jeffrey Olson v. Donald Morgan , 750 F.3d 708 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2786
JEFFREY E. OLSON ,
Plaintiff-Appellant,
v.
DONALD MORGAN , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 11-cv-282-slc — Stephen L. Crocker, Magistrate Judge.
ARGUED NOVEMBER 1, 2013 — DECIDED APRIL 30, 2014
Before POSNER, FLAUM , and SYKES, Circuit Judges.
SYKES, Circuit Judge. Jeffrey Olson, an inmate in a Wisconsin
prison, was attacked by his cellmate, Thomas Russell, and
suffered a broken tooth in the scuffle. Olson had warned
Sergeant Randy Schneider, a correctional officer, that Russell
was not taking his medications and might become violent, but
Sergeant Schneider did not move Olson to a new cell. After the
2 No. 12-2786
attack Olson brought this § 1983 lawsuit alleging that Sergeant
Schneider violated the Eighth Amendment by not doing more
to protect him from Russell. Because his broken tooth was not
treated for several weeks, he brought another claim against the
manager of the prison’s health-services unit, Lillian Tenebruso,
arguing that she too violated the Eighth Amendment by
delaying his treatment. The district court denied Olson’s many
requests for counsel, finding that Olson was a competent pro
se litigant and that his claims were not especially complex, and
ultimately granted summary judgment against Olson on all
counts.
We affirm. We find no abuse of discretion in the court’s
decision not to recruit counsel for Olson; the district court
applied the correct legal standard and properly considered
both Olson’s ability to represent himself and the complexity of
Olson’s case. Summary judgment was proper because there is
no evidence that Sergeant Schneider was subjectively aware
that Russell was dangerous or that Tenebruso failed to act
promptly once she learned of Olson’s serious medical needs.
Because Olson has no evidence to prove deliberate indiffer-
ence, his claims must fail.
I. Background
Olson shared a cell with Russell at the Columbia Correc-
tional Institution for about a week in late March 2007. Olson
claims that on March 27 he approached Sergeant Schneider and
told him: “[M]y celly, Russell, has twice tried to swing off on
me and I want him moved … I fear he’s gonna try to do it
again … he isn’t taking his meds and hears voices that tell him
No. 12-2786 3
to attack people … he needs his own cell.” Sergeant Schneider
asked other officers on duty about Russell, but nobody had
heard of any problems between Olson and Russell or of any
issues with Russell’s medication. Nonetheless, Sergeant
Schneider asked the officer supervising distribution to be sure
Russell took his medication.
The next evening Russell attacked Olson, damaging one of
Olson’s teeth. The nurse on duty recommended that the tooth
be pulled, but apparently nobody scheduled a dental appoint-
ment for Olson. Olson alleges that he requested an appoint-
ment in several letters that he sent to Tenebruso, the health-
services manager, but most of those letters aren’t in the record.
The earliest letter in the record is an April 8 request for aspirin,
which was denied on April 13. Next is an April 14 note from
Tenebruso to Olson indicating that she had received several
requests from him that day expressing concern about his tooth
and directing him to fill out the proper form if he wanted to be
seen by a doctor. Olson didn’t fill out this form—instead he
sent an abrasive response insisting that no other form was
needed—but Tenebruso referred him to the dentist anyway on
April 16. On April 19 the tooth was removed.
Olson brought this § 1983 lawsuit against Sergeant
Schneider and Tenebruso (and a few other prison officials who
are not part of this appeal), alleging that they violated the
Eighth Amendment by acting with deliberate indifference to
the risk of an attack by Russell and to his dental needs. He
repeatedly asked the district court to appoint counsel for him,
but the magistrate judge assigned to the case refused each
request. The first few were denied because Olson failed to
4 No. 12-2786
show that he had tried to secure a lawyer on his own; the last
request was denied because the judge determined that Olson
was sufficiently competent to handle a case of this complexity.
In two separate orders, the judge granted summary
judgment against Olson on all counts. The first order found no
evidence that Tenebruso was aware that Olson had a serious
medical condition or that Tenebruso knew about Olson’s
dental needs more than a few days before the tooth was pulled.
The order also directed the government to provide additional
information about Russell’s prison records, reasoning that a
pro se litigant like Olson might not have known how to get
around the government’s objections to producing these
documents. After reviewing the submissions, the judge
concluded that Russell had a clean record in prison and that
Sergeant Schneider could not have anticipated the attack, and
accordingly entered final judgment against Olson.
II. Discussion
Olson’s primary argument on appeal is that the district
court should have recruited counsel to represent him. He also
argues that summary judgment was improper because there
was sufficient evidence in the record to create a genuine issue
about whether Sergeant Schneider and Tenebruso were
deliberately indifferent to his needs. Neither contention has
merit.
No. 12-2786 5
A. Request For Counsel
There is no right to court-appointed counsel in federal civil
litigation. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en
banc). District courts may nonetheless ask lawyers to represent
indigent litigants on a volunteer basis. See 28 U.S.C.
§ 1915(e)(1). Whether to recruit an attorney is a difficult
decision: Almost everyone would benefit from having a
lawyer, but there are too many indigent litigants and too few
lawyers willing and able to volunteer for these cases. District
courts are thus placed in the unenviable position of identifying,
among a sea of people lacking counsel, those who need counsel
the most. This task is necessarily entrusted to the district
court’s discretion; our job is to ensure that the district court
applied the proper legal standards without abusing that
discretion. See Pruitt, 503 F.3d at 658.
In deciding whether to request counsel, district courts must
ask two questions: “(1) [H]as 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?” Id. at 654. The magistrate judge found the first
element satisfied once Olson submitted letters from several
attorneys declining to assist him. The parties spend some time
quibbling about whether Olson had demonstrated reasonable
efforts before that point; we don’t need to address that dispute
because even after presenting the letters, Olson couldn’t satisfy
the second part of the test.
To decide the second question—whether Olson appeared
competent to litigate the case himself—the judge properly
6 No. 12-2786
considered both the complexity of the case and Olson’s
capabilities. See id. at 655. The judge found that the law
governing Olson’s claims was “straightforward” and that the
relevant substantive and procedural rules could be explained
to Olson in pretrial conferences and orders. We agree that
Olson’s claims were not especially complex. The key disputes
here were whether Sergeant Schneider knew that Russell was
dangerous and whether Tenebruso knew that Olson had a
serious medical condition. While some state-of-mind issues
may involve subtle questions too complex for pro se litigants,
see Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010), there was
nothing subtle about the problem here: Olson had no evidence
that the defendants knew about the risk to his safety or the
pain in his tooth. Moreover, Olson understood this problem,
which is why he made diligent efforts to obtain prison records
that might prove the defendants’ deliberate indifference. We
reject Olson’s argument that state-of-mind questions are
categorically too difficult for pro se litigants. See, e.g.,
Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010) (finding
that proving deliberate indifference was not too complex for a
pro se litigant).
The judge then concluded that Olson was competent to
handle a case of this complexity. Olson didn’t have to be as
proficient as a seasoned civil-rights attorney; the test is
“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.” Pruitt,
503 F.3d at 655. The judge properly evaluated Olson’s abilities
by looking at his pleadings and competence in early phases of
the litigation, concluding that “[h]is submissions are well
No. 12-2786 7
written and he appears capable of following instructions and
making intelligible arguments.” We agree. Indeed, Olson’s
submissions to the district court were much better than the
average pro se litigant’s and compare well to some pleadings
filed by licensed attorneys. Olson points out that he suffers
from severe depression and adult hyperactivity disorder
(among other issues), but he never explains why those condi-
tions would prevent him from coherently presenting his case,
and his capable pleadings suggested that he was competent
despite his mental-health problems. With the court’s instruc-
tion, he was able to conduct discovery and even make sophisti-
cated, successful arguments on obscure subjects like exhaustion
of remedies. It was not an abuse of discretion to conclude that
Olson had the ability to coherently present his claims.
Nonetheless, Olson argues that he couldn’t handle this
litigation himself because shortly after the attack, he was
transferred to a different prison. He told the district court that
the transfer “hamper[ed] his ability to obtain declarations,
affidavits, and other statements from other Inmates.” Many of
our cases suggest that a transfer is an important factor to
consider in deciding whether to recruit counsel for indigent
litigants. See Junior v. Anderson, 724 F.3d 812, 815 (7th Cir. 2013)
(collecting cases). But Olson hasn’t explained why the transfer
affected his ability to litigate this case. We doubt that talking to
other inmates would have helped him investigate the facts in
dispute—issues about the defendants’ state of mind—and
anyway he made no request for information from inmates at
his former institution. What Olson needed was proof that
officials believed his warnings and ignored his requests, and
fellow inmates weren’t likely to give him insight into the minds
8 No. 12-2786
of prison officials. Instead, Olson pursued the more promising
route: requesting documents in the defendants’ possession that
would show what the defendants knew and when. Olson
didn’t have to be at his old institution to file document requests
and interrogatories. Moreover, the judge gave him an opportu-
nity to argue that the defendants were withholding documents
or other discoverable materials. Olson never responded to this
invitation, and he’s given us no other reason to believe that the
transfer prevented him from effectively presenting his case.
We recognize that imprisonment only exacerbates the
already substantial difficulties that all pro se litigants face. But
Congress hasn’t provided lawyers for indigent prisoners;
instead it gave district courts discretion to ask lawyers to
volunteer their services in some cases. The district court
applied the correct legal standard in deciding whether to
recruit a lawyer for Olson, and we find no abuse of discretion.
B. Summary Judgment
The judge entered summary judgment in favor of Sergeant
Schneider and Tenebruso. Summary judgment is proper “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” FED . R. CIV . P. 56(a). Moreover, “a factual
dispute is ‘genuine’ only if a reasonable jury could find for
either party.” SMS Demag Aktiengesellschaft v. Material Scis.
Corp., 565 F.3d 365, 368 (7th Cir. 2009). We review the grant of
summary judgment de novo, drawing all inferences in the
manner most favorable to Olson. Rosario v. Brawn, 670 F.3d 816,
820 (7th Cir. 2012).
No. 12-2786 9
To succeed on his Eighth Amendment claim against
Sergeant Schneider, Olson had to show that he was “incarcer-
ated under conditions posing a substantial risk of serious
harm” and that Sergeant Schneider was deliberately indifferent
to that risk. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The
“deliberate indifference” requirement means that “the 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.” Id. at 837. This standard comes
from the Eighth Amendment itself: Because the Amendment
“does not outlaw cruel and unusual ‘conditions,’” but only
“cruel and unusual ‘punishments,’” it can only be violated
through deliberate action or inaction—mere negligence is not
“punishment.” Id.Olson hasn’t presented evidence from which a reasonable
fact finder could conclude that Sergeant Schneider knew that
he faced a substantial risk of serious harm from Russell. He
relies primarily on his statement to Sergeant Schneider
expressing his fear of Russell and requesting a different cell.
But prison guards are neither required nor expected to believe
everything inmates tell them. Riccardo v. Rausch, 375 F.3d 521,
527 (7th Cir. 2004). “[P]risoners may object to potential cell-
mates in an effort to manipulate assignments, or out of
ignorance.” Id. If Sergeant Schneider didn’t believe Olson’s
warning, then he wasn’t deliberately indifferent to any known
risk; at most he might have been negligent if he failed to
investigate a potential threat.
But in fact Sergeant Schneider did investigate the potential
threat: He spoke to other guards on duty, who cast doubt on
10 No. 12-2786
Olson’s warning. Nobody working that shift had heard of any
problems between Olson and Russell, and they reported that
Russell was taking his medications. Moreover, Russell had no
history of violence or conflicts with other inmates. It was
logical for Sergeant Schneider to infer that Olson’s warning
was false, or at least exaggerated; without more evidence we
can’t see how a reasonable fact finder could conclude that
Sergeant Schneider actually drew the opposite inference. See
Lindell v. Houser, 442 F.3d 1033, 1035 (7th Cir. 2006); Riccardo,
375 F.3d at 527.
Olson’s claims against Tenebruso founder for similar
reasons. Olson had to show that he was experiencing an
objectively serious medical need and that Tenebruso was
deliberately indifferent to it. Grieveson v. Anderson, 538 F.3d
763, 779 (7th Cir. 2008). There’s no evidence that Tenebruso
ever learned that Olson had a serious medical need. Although
Olson claims his broken tooth caused him severe pain and left
him unable to sleep or eat until it was removed, his letters to
Tenebruso make much milder claims. His earliest letter (on
April 8) was a request for aspirin in which Olson suggested
that the pain was diminishing. We can’t say that a reasonable
official would necessarily interpret a request for aspirin as an
indicator of serious medical needs. Olson didn’t mention his
pain at all in the second letter (on April 14); he simply vented
his frustration with the prison’s procedure for requesting
dental appointments. This is hardly evidence from which
Tenebruso could have inferred that Olson had a serious
medical need, let alone evidence that she actually drew that
inference.
No. 12-2786 11
In his response to the motion for summary judgment,
however, Olson claimed that he repeatedly informed
Tenebruso about his serious pain. The judge did not consider
this argument because Olson failed to submit an affidavit or
other evidence to support it, although the court acknowledged
that it’s an open question in this circuit whether anything more
than an unsworn statement is needed to oppose summary
judgment. See Jajeh v. County of Cook, 678 F.3d 560, 568 & n.4
(7th Cir. 2012). We note that the Federal Rules of Civil Proce-
dure allow parties to oppose summary judgment with materi-
als that would be inadmissible at trial so long as facts therein
could later be presented in an admissible form. See FED . R. CIV .
P. 56(c)(2)–(4).
We do not need to decide whether the judge properly
disregarded the unsworn statements in Olson’s response
because even with them, summary judgment was appropriate.
Timing is everything in this case, and yet Olson never told the
court when he sent the letters to Tenebruso. The record sug-
gests that Tenebruso received several requests from Olson, but
all on the same day—April 14, two days before Olson was
referred to the dentist. No reasonable fact finder could con-
clude that this two-day delay reflected deliberate indifference
on Tenebruso’s part, considering that Olson never filled out the
proper request to see a dentist and never indicated that his
situation was an emergency. Cf. McGowan v. Hulick, 612 F.3d
636, 640 (7th Cir. 2010) (“[T]he length of delay that is tolerable
depends on the seriousness of the condition and the ease of
providing treatment.”). Olson needed evidence that Tenebruso
was aware of his urgent needs well before she took action, but
12 No. 12-2786
even in his unsworn statements, he doesn’t claim that he made
a specific request for dental services before April 14.
Summary judgment in favor of Sergeant Schneider and
Tenebruso was therefore appropriate.
AFFIRMED .