Miguel Perez v. James Fenoglio , 792 F.3d 768 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-3084
MIGUEL PEREZ,
Plaintiff-Appellant,
v.
JAMES FENOGLIO, ET AL.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:11-cv-00819—G. Patrick Murphy, Judge.
____________________
ARGUED OCTOBER 30, 2014 — DECIDED JULY 7, 2015
____________________
Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Miguel Perez, an inmate at Law-
rence Correctional Center, brought an action under 42 U.S.C.
§ 1983 against various prison officials alleging cruel and un-
usual punishment in violation of the Eighth Amendment.
According to his pro se complaint, prison officials were de-
liberately indifferent to his severe hand injury, delaying his
receipt of medically necessary surgery for ten months. This
delay caused Perez needless pain and suffering and left him
2 No. 12-3084
with permanent loss of hand functioning. The district court,
after denying Perez’s request for pro bono counsel, screened
his complaint under 28 U.S.C. § 1915A, and dismissed it sua
sponte, with prejudice, for failure to state a claim. This ap-
peal followed.
We find that the district court’s dismissal of Perez’s
claims was premature. Liberally construed, Perez’s pro se
complaint states valid Eighth Amendment claims against
members of the prison’s medical staff and various grievance
officials. It also states, by way of an attached grievance, a
valid First Amendment retaliation claim. Therefore, we re-
verse the district court’s dismissal and remand for proceed-
ings consistent with this opinion.
I. BACKGROUND
We accept the facts alleged in Perez’s complaint as true
and review them in the light most favorable to him. Thulin v.
Shopko Stores Operating Co., LLC, 771 F.3d 994, 997 (7th Cir.
2014). On May 16, 2010, while an inmate at Lawrence Cor-
rectional Center in Sumner, Illinois, Miguel Perez was in-
jured during a prison basketball game. He suffered a torn
ligament in his right hand, dislocation of his thumb, tissue
damage, and a “gaping wound” between his thumb and
right index finger. No physician was on duty at the prison,
so Perez was seen by a nurse, C. Brooks, 1 who wrapped his
hand with gauze. She stated that she could not provide pain
medicine to Perez or stitch his wound because only physi-
cians were authorized to do so.
1The first names of several of the named defendants, including
Nurse Brooks, are not yet part of the record.
No. 12-3084 3
The following day, Perez returned to the prison infirma-
ry and was seen by a physician, Dr. James Fenoglio, who
prescribed Perez antibiotics, but did not stitch his wound.
Recognizing the severity of the injury, Dr. Fenoglio stated
that Perez “would need to go to the outside hospital to see a
hand surgeon” and recommended a specialist at the Carle
Clinic in Champaign, Illinois. Before Perez could see the spe-
cialist, a referral request had to be approved by Phil Martin,
the prison’s Health Care Administrator. Martin waited sev-
eral days before issuing his approval, during which time Pe-
rez languished in pain and attempted to manage an open,
bleeding wound.
Four days after sustaining his hand injury, on May 20,
2010, Perez filed a grievance with the prison. In it, he ex-
plained that he had an open, bleeding wound and was expe-
riencing extreme levels of pain and discomfort. He also
claimed he was being “punished in retribution for a prior
grievance” he filed on January 2, 2010, which complained of
a delay in receiving his prescription depression medication.
Perez’s May 20th grievance was rejected by Counselor C.
Vaughn, whose decision was affirmed by Grievance Officer
Pamela Moran.
On May 21, 2010, Perez was taken to the Carle Clinic,
where he was seen by a physician’s assistant, Julie Young.
Young diagnosed Perez with “a large soft tissue tear” and
“[p]robable right thumb MCP [metacarpophalageal] joint
subluxation/dislocation with [a] possible radial collateral
ligament tear.” Young determined that Perez had “2 [centi-
meters] soft tissue laceration … extend[ing] from the web-
space proximally across the base of the thumb,” and a
“wound [that] itself is quite deep ... gaping open several
4 No. 12-3084
[millimeters] and … more when he abducts his thumb.”
Young could not suture the wound, however, because it was
already five days old. She determined that the hand would
have to be treated through “surgical revision” or “secondary
intention,” the process by which a wound heals outward
from its base because the skin edges cannot be brought to-
gether. Young ordered that Perez receive twice-daily dress-
ing changes and cleanings with hydrogen peroxide. She also
suggested “possible splinting or casting for the thumb inju-
ry” and scheduled Perez for a “wound check” for early the
following week.
Prison officials did not follow Young’s care instructions,
nor did they take Perez to his follow-up appointment. As a
result, Perez claims to have filed another grievance on June
17, 2010 requesting that he be returned to the Carle Clinic.
Around this time, he also appealed the denial of his May
20th grievance. Brian Fairchild, an officer with the Adminis-
trative Review Board, and Gladyse Taylor, the Acting Direc-
tor of the Illinois Department of Corrections, rejected this
appeal, stating the issue was appropriately addressed by the
institutional administration.
On December 6, 2010, seven months after his initial visit,
Perez was brought back to the Carle Clinic, where he was
seen by Dr. Cliff Johnson. Dr. Johnson determined that Perez
had an “obvious subluxation of the right thumb MCP joint,”
“hyperextension of the MCP joint,” and “laxity of the radial
collateral ligament.” He also took “X-rays … of [his] right
thumb [that] show[ed] some early wear and tear changes as
well as ulnar deviation of the thumb MCP joint.” Dr. John-
son presented Perez with two treatment options. He could
undergo surgery (a right thumb MCP fusion procedure) or
No. 12-3084 5
he could “live with it” and have a Thermoplast spica splint
custom made for his hand. However, he was not sure if Pe-
rez would be able to wear such a splint in prison. Dr. John-
son further stated that if Perez wished to try the splint, the
prison should “schedule him back in therapy [at the clinic]
for that appointment.” He explained these options to Perez
and sent his recommendations to Dr. Fenoglio.
Following this visit, Perez was seen at the prison by Dr.
Fenoglio, who elected to wrap Perez’s hand in an Ace band-
age. While wrapping his hand in the bandage, he told Perez,
“[t]hat’s [your] thumb-splica splinter.” 2
On January 10, 2011, Perez filed another grievance. This
time, he detailed the seven-month delay between his visits to
the Carle Clinic, described continued pain and suffering,
complained about the indifference of the prison’s medical
staff, and requested that he be provided with either a cus-
tom-made spica splint or surgery.
On February 15, 2011, Perez was brought back to the
Carle Clinic, where Dr. Johnson informed him and prison
officials that “MCP joint fusion” was “the only surgical solu-
tion” remaining for Perez. The following month, Perez re-
ceived the surgery. However, as a consequence of the ten-
month delay, Perez claims to have sustained irreparable
damage to his hand, resulting in “decreased usage.”
2 A “spica splint” is a splint that is custom-fitted to the thumb area of
the hand to immobilize it while permitting continued use of the other
fingers of the hand. Throughout the complaint, Perez refers to this as a
“splica” splint, including when he recounts statements allegedly made
by medical personnel.
6 No. 12-3084
Following the surgery, on April 27, 2011, Perez submitted
a “resident request” to Warden Lee Ryker, asking for “as-
sist[ance] in obtaining a resolution to [his] grievance”; he re-
ceived no response. He also sent a letter to the Administra-
tive Review Board requesting his grievance be processed.
His appeal was not answered.
On September 8, 2011, Perez filed a pro se complaint un-
der 42 U.S.C. § 1983 for damages and injunctive relief. He
also requested that the district court recruit counsel to repre-
sent him pro bono under 28 U.S.C. § 1915(e)(1). The district
court twice denied Perez’s request for counsel. It then
screened his complaint under the Prison Litigation Reform
Act (“PLRA”), 28 U.S.C. § 1915A, and dismissed it sua spon-
te, with prejudice, for failure to state a claim. So, Perez filed
this appeal. 3
II. ANALYSIS
On appeal, Perez makes four claims: (1) the district court
erred in dismissing his case for failure to state an Eighth
Amendment claim; (2) the district court failed to address the
First Amendment claim of retaliation stated in his complaint;
(3) the district court abused its discretion by dismissing his
complaint with prejudice; and (4) the district court abused
its discretion by refusing to grant his request for pro bono
counsel. We address each in turn.
3 This court, after reviewing Perez’s pro se appeal, appointed appel-
late counsel.
No. 12-3084 7
A. Perez’s Complaint States a Valid Eighth Amend-
ment Claim
Our review of the district court’s dismissal of Perez’s
complaint under § 1915A for failure to state an Eighth
Amendment claim is de novo, taking the allegations in the
complaint as true and drawing all reasonable inferences in
Perez’s favor. Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1039
(7th Cir. 2012) (per curiam). Because Perez’s complaint is pro
se, we construe it “liberally,” holding it to a “less stringent
standard than formal pleadings drafted by lawyers.” Arnett
v. Webster, 658 F.3d 742, 751 (7th Cir. 2011).
“The Eighth Amendment safeguards the prisoner against
a lack of medical care that ‘may result in pain and suffering
which no one suggests would serve any penological pur-
pose.’” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
828 (7th Cir. 2009) (quoting Estelle v. Gamble, 429 U.S. 97, 103
(1976)). To state an Eighth Amendment claim based on defi-
cient medical care, a plaintiff must allege an objectively seri-
ous medical condition and an official’s deliberate indiffer-
ence to that condition. Arnett, 658 F.3d at 750. Because there
is no dispute that Perez’s alleged injury was sufficiently se-
rious, the only issue in this appeal is whether the complaint
alleges deliberate indifference. Deliberate indifference occurs
when a defendant realizes that a substantial risk of serious
harm to a prisoner exists, but then disregards that risk. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (plaintiff must
show that officials are “aware of facts from which the infer-
ence could be drawn that a substantial risk of serious harm
exists, and they must also draw the inference.”). The deliber-
ate indifference standard reflects a mental state somewhere
between the culpability poles of negligence and purpose,
8 No. 12-3084
and is thus properly equated with reckless disregard. Id. at
836.
The district court dismissed Perez’s complaint on the
ground that Perez had undermined any contention of delib-
erate indifference by “conceding” to having received “im-
mediate” and “continuing” medical attention from prison
staff for his injury. We disagree with this reasoning. If all the
Eighth Amendment required was that prison officials pro-
vide some “immediate and ongoing attention,” they could
shield themselves from liability (and save considerable re-
sources) by shuttling sick or injured inmates to perfunctory
medical appointments wherein no meaningful treatment is
dispensed. Needless to say, the responsibilities imposed by
the Constitution are not so easily avoided.
Prison officials must provide inmates with medical care
that is adequate in light of the severity of the condition and
professional norms. See, e.g., Farmer, 511 U.S. at 832; Arnett,
658 F.3d at 751. The “receipt of some medical care does not
automatically defeat a claim of deliberate indifference.” Ed-
wards, 478 F.3d at 831; see also Arnett, 658 F.3d at 751 (prison-
er need not show that his or her medical needs were “literal-
ly ignored”). Deliberate indifference may occur where a
prison official, having knowledge of a significant risk to in-
mate health or safety, administers “blatantly inappropriate”
medical treatment, Edwards, 478 F.3d at 831, acts in a manner
contrary to the recommendation of specialists, Arnett, 658
F.3d at 753, or delays a prisoner’s treatment for non-medical
reasons, thereby exacerbating his pain and suffering.
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).
Based on a review of the complaint and attached docu-
ments, we have no trouble finding that Perez states a valid
No. 12-3084 9
Eighth Amendment claim. Perez sets forth a plausible ac-
count of the facts showing the severity of his injury, how
much delay he experienced in obtaining meaningful treat-
ment, how often he asked various officials to intervene on
his behalf, and the consequences of their inaction. Our deci-
sion in Edwards is squarely on point. There, the plaintiff al-
leged that “he severely injured his finger while in prison and
failed to receive adequate, timely care for a nonmedical rea-
son … result[ing] in permanent disfigurement, loss of range
of motion, and the infliction of unnecessary pain.” 478 F.3d
at 830. We held that these allegations were sufficient to “sat-
isfy federal pleading requirements and state a claim for de-
liberate indifference.” Id. Perez’s allegations, which are vir-
tually identical, are also sufficient. Because Perez’s allega-
tions against the individual defendants are different, we ad-
dress them individually below.
1. The Prison Physician—Dr. Fenoglio
Perez’s complaint alleges that his prison physician, Dr.
James Fenoglio, failed to provide him with adequate, timely
care and ignored the treatment recommendations of special-
ists at the Carle Clinic.
“Prison physicians will be liable under the Eighth
Amendment if they intentionally disregard a known, objec-
tively serious medical condition that poses an excessive risk
to an inmate’s health.” Gonzales v. Feinerman, 663 F.3d 311,
313 (7th Cir. 2011). A delay in treatment may show deliber-
ate indifference if it exacerbated the inmate’s injury or un-
necessarily prolonged his pain. McGowan, 612 F.3d at 640;
Edwards, 478 F.3d at 831. Whether the length of delay is tol-
erable depends upon the seriousness of the condition and
the ease of providing treatment. McGowan, 612 F.3d at 640.
10 No. 12-3084
In some cases, even brief, unexplained delays in treatment
may constitute deliberate indifference. See Edwards, 478 F.3d
at 831-32 (two-day delay in treatment for open dislocated
finger for no medical reason stated a claim against prison
doctor for deliberate indifference); Cooper v. Casey, 97 F.3d
914, 917 (7th Cir. 1996) (“whether the plaintiffs were in suffi-
cient pain to entitle them to pain medication within the first
48 hours after the beating” presented question for jury).
Perez’s complaint alleges with specificity a number of
troubling delays in his treatment. After sustaining a gaping
wound and open dislocation, he was forced to wait 24 hours
before seeing a physician with authority to prescribe medica-
tion or suture wounds. After being seen by Dr. Fenoglio,
who determined that the wound was so serious it required
the care of a specialist, Perez had to wait four days (and had
to file a grievance) before being sent to the Carle Clinic. By
the time he arrived, it was too late for the specialist to suture
the wound. After visiting the Carle Clinic, Perez waited sev-
en months (and had to file another grievance) before he was
returned to the clinic for follow-up care. All told, while un-
der Dr. Fenoglio’s care, Perez experienced a ten-month delay
from the time of his injury until the time he received mean-
ingful treatment in the form of surgery.
Such unexplained delays could support a deliberate in-
difference claim if Dr. Fenoglio was aware of the severity of
Perez’s condition. See McGowan, 612 F.3d at 640. Here, Perez
has alleged that Dr. Fenoglio knew as early as May 17, 2010,
that Perez had a severe hand injury, which, in Dr. Fenoglio’s
own estimation, required expert attention to treat. Dr. Feno-
glio saw Perez on multiple occasions thereafter, during
which Perez complained of ongoing symptoms (pain and
No. 12-3084 11
discomfort, bleeding, swelling, and loss of functioning),
which could support a finding that the delays in Perez’s
treatment were unacceptable.
Perez also alleges that Dr. Fenoglio’s failure to follow the
recommendations of specialists at the Carle Clinic constitut-
ed deliberate indifference. According to Perez, doctors at the
clinic recommended two courses of treatment: undergo sur-
gery or get custom fitted for a Thermoplast spica splint and
attempt to live with the injury for a time. Dr. Fenoglio alleg-
edly ignored the recommendations, electing instead to wrap
Perez’s wound in an Ace bandage.
Allegations that a prison official refused to follow the
advice of a medical specialist for a non-medical reason may
at times constitute deliberate indifference. See Arnett, 658
F.3d at 753 (allegation that medical official refused to pro-
vide inmate with prescribed anti-inflammatory medication
or substitute, despite his repeated complaints and worsening
pain, stated claim for deliberate indifference); Gil v. Reed, 381
F.3d 649, 664 (7th Cir. 2004) (allegation that prison doctor
prescribed medication to inmate that specialist warned
against gave rise to genuine issue of material fact precluding
summary judgment); Jones v. Simek, 193 F.3d 485, 490–91 (7th
Cir. 1999) (evidence prison doctor refused to follow special-
ist’s orders precluded summary judgment); see also Holloway
v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1074 (7th Cir. 2012)
(prison doctor “is free to make his own, independent medi-
cal determination as to the necessity of certain treatments or
medications, so long as the determination is based on the
physician’s professional judgment and does not go against
accepted professional standards”).
12 No. 12-3084
Perez alleges that Dr. Fenoglio was aware of the special-
ists’ recommendations, but refused to follow them despite
Perez’s severe injury and his repeated complaints of pain. By
quoting Dr. Fenoglio’s sarcastic statement that the Ace
bandage would be his “thumb-splica splinter,” Perez also
suggests that Dr. Fenoglio’s decision to ignore the recom-
mendations was not based on any reasoned judgment. See
Rodriguez, 577 F.3d at 832 (allowing claim to advance that
“alleged implicitly that [inmate’s] treatment … was not
based on a legitimate medical judgment”); see also Dixon v.
Godinez, 114 F.3d 640, 645 (7th Cir. 1997) (prison official’s
“sarcastic responses” to prisoner’s complaint “help raise a
dispute about … defendants’ knowledge of the condition,
and [his] refusal to take steps to prevent it”). These allega-
tions could sustain a claim of deliberate indifference against
Dr. Fenoglio.
We recognize that a more complete examination of the
facts may show that Perez’s condition did not necessitate
surgery or a splint, that Dr. Fenoglio was not aware of the
need for more urgent care, or that someone else was respon-
sible for the alleged delays. It might also reveal that Dr. Fen-
oglio’s treatment plan fell within the specialists’ recommen-
dations or was based on his own legitimate medical judg-
ment. But those are details to be explored during discovery.
At this stage, Perez has stated a claim for such serious delays
in the provision of adequate treatment that the Eighth
Amendment may have been violated. See McGowan, 612 F.3d
at 640.
2. The Prison Nurse—Brooks
Perez alleges that Nurse Brooks’s failure to suture Perez’s
wound or provide pain medication on the day of his injury,
No. 12-3084 13
and thereafter to ensure he received constitutionally ade-
quate care, constituted deliberate indifference. The State4
contends that Perez’s claim against Nurse Brooks must be
dismissed because Brooks lacked the authority to provide
additional care to Perez and because she acted appropriately
by making an appointment for Perez to see Dr. Fenoglio the
day after his injury.
While nurses may generally defer to instructions given
by physicians, they have an independent duty to ensure that
inmates receive constitutionally adequate care. See Berry v.
Peterman, 604 F.3d 435, 443 (7th Cir. 2010). Nurses, like phy-
sicians, may thus be held liable for deliberate indifference
where they knowingly disregard a risk to an inmate’s heath.
See id. “[A] nurse confronted with an ‘inappropriate or ques-
tionable practice’ should not simply defer to that practice,
but rather has a professional obligation to the patient to ‘take
appropriate action,’ whether by discussing the nurse’s con-
cerns with the treating physician or by contacting a respon-
sible administrator or higher authority.” Id.; see also Rice ex
rel. Rice v. Correctional Med. Servs., 675 F.3d 650, 683 (7th Cir.
2012) (“[A] nurse may not unthinkingly defer to physicians
and ignore obvious risks to an inmate's health….”).
4 Although some of the named defendants were officials or employ-
ees of the State of Illinois, the district court dismissed Perez’s complaint
for failure to state a claim under 28 U.S.C. § 1915A at the screening stage
before summonses were served. Thus, these defendants never appeared
in the case and were not required to file response briefs in this appeal.
We invited Attorney General of the State of Illinois, Lisa Madigan (“the
State”), to file a response brief as an interested party, and she accepted.
The Attorney General, however, is not acting as counsel for defendants.
14 No. 12-3084
Berry illustrates these principles. There, an inmate com-
plained of a toothache, but was not taken to a dentist for two
months and ultimately required a root canal. 604 F.3d at 439.
The inmate brought an action under § 1983 alleging deliber-
ate indifference on the part of the prison dentist and the
nurse. The district court granted summary judgment in fa-
vor of the defendants, but we reversed, finding that there
were genuine issues of material fact as to whether the nurse
had acted with deliberate indifference by deferring to the
prison doctor’s determination that the inmate could wait
two months to see a dentist despite his persistent com-
plaints. Id. at 443. We also explicitly rejected the notion—put
forward by the State in this case—that nurses cannot, as a
matter of law, be held liable for Eighth Amendment viola-
tions where they allegedly lacked authority to provide par-
ticular forms of medical care to inmates. Id.
We find that Perez’s complaint states a claim for deliber-
ate indifference against Nurse Brooks by alleging she had
knowledge of his severe injury, yet failed to provide ade-
quate medical treatment to Perez herself (e.g., by suturing
his wound) or to ensure that others did (e.g., by contacting
supervisory personnel to voice any concerns about the
treatment being provided to him).
Again, we note that discovery may yield more infor-
mation regarding whether Nurse Brooks had authority to
stitch wounds or dispense pain medication, and whether
such actions were medically necessary. Discovery may also
show that Brooks did in fact take steps to ensure Perez was
receiving constitutionally adequate care. However, these are
questions of fact that cannot be resolved at this stage in the
litigation.
No. 12-3084 15
3. Wexford Health Sources, Inc.
The complaint also names as a defendant Wexford
Health Sources, Inc., the private corporation that serves as
the prison’s healthcare provider. In this circuit, a private
corporation cannot be held liable under § 1983 unless it
maintained an unconstitutional policy or custom. See Wood-
ward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir.
2004). 5 Perez’s complaint alleges that Nurse Brooks “told
[him] that there was no doctor there therefore she couldn’t
stitch [his] wound and just wrapped [his] hand.” The ques-
tion before us is thus whether this statement is sufficient to
identify an unconstitutional policy or practice maintained by
Wexford.
In light of our duty to construe Perez’s pro se complaint
liberally, Arnett, 658 F.3d at 751, and to draw all reasonable
inferences in his favor, Thulin, 771 F.3d at 997, we find that
Perez sufficiently alleges that Wexford maintained a policy
or practice that prevented nurses from stitching wounds or
prescribing medication without a “doctor there.” We further
infer from his complaint the allegation that Wexford main-
tained a policy or practice of not having a full-time doctor
stationed at the prison at all times (or on call to suture open
wounds as necessary). Because these alleged policies are ca-
5 We recently examined the legal soundness of this rule in Shields v.
Ill. Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014) (questioning whether
the Monell principle, which shields municipalities from respondeat supe-
rior liability in actions brought under § 1983, is properly extended to pri-
vate corporations), cert. denied, 135 S. Ct. 1024 (2015). However, the par-
ties do not here challenge it.
16 No. 12-3084
pable of causing delays in treatment—which could result in
a constitutional deprivation, McGowan, 612 F.3d at 640—the
claim against Wexford should have been allowed to proceed.
4. Administrator Martin
Perez accuses Administrator Martin, the individual re-
sponsible for approving requests for inmates to be seen by
outside doctors, of deliberate indifference for refusing to
grant Perez’s referral request without explanation for four
days.
We find that Perez’s complaint states a claim for deliber-
ate indifference against Administrator Martin. See McGowan,
612 F.3d at 641 (plaintiff stated plausible deliberate indiffer-
ence claim against health administrator who “stalled in au-
thorizing a referral to an outside surgeon”). As noted above,
a delay in treatment may constitute deliberate difference if it
exacerbates the inmate’s injury or unnecessarily prolonged
his pain. McGowan, 612 F.3d at 640. “Even a few days’ delay
in addressing a severely painful but readily treatable condi-
tion suffices to state a claim of deliberate indifference.”
Smith, 666 F.3d at 1040. Here, Perez alleges that because Mar-
tin took four days to approve the request, the specialist was
unable to suture the wound, causing him needless pain and
suffering and worsening the injury. This suffices to state a
claim against Martin.
5. The Grievance Defendants
Perez’s complaint alleges deliberate indifference on the
part of various non-medical prison officials (“the grievance
defendants”) who were made aware of Perez’s predicament
by way of his grievances and other correspondences. Perez
asserts that Counselor Vaughn and Officer Moran reviewed
No. 12-3084 17
and denied each of Perez’s grievances; that Warden Ryker
received a “resident request” asking for “assist[ance] in ob-
taining a resolution to [Perez’s] grievance” but failed to re-
spond; and that Director Taylor (of the Illinois Department
of Corrections) and Officer Fairchild (of the Administrative
Review Board) denied his appeals and never responded to
his inquiry letter, which requested that his grievance be duly
processed. The State contends that as a matter of law the
grievance defendants cannot be held personally liable for
any inadequate medical care Perez may have received be-
cause other prison officials, i.e., the medical defendants,
would have been directly responsible for his medical care.
It is well established that “[f]or constitutional violations
under § 1983 … a government official is only liable for his or
her own misconduct.” E.g., Locke v. Haessig, 13-1857, 2015
WL 3528782, at *5 (7th Cir. June 5, 2015). This means that to
recover damages against a prison official acting in a supervi-
sory role, a § 1983 plaintiff may not rely on a theory of re-
spondeat superior and must instead allege that the defend-
ant, through his or her own conduct, has violated the Consti-
tution. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The fac-
tors necessary to establish a § 1983 violation against a prison
official depend upon the constitutional provision at issue,
including the state of mind required to establish a violation
of that provision. See id.
As pertains to this case, in order to establish a constitu-
tional violation based upon conditions of confinement, a plain-
tiff must allege that each prison official named as a defend-
ant has been deliberately indifferent to that plaintiff’s objec-
tively serious medical condition, Arnett, 658 F.3d at 750, with
deliberate indifference occurring where an official realizes
18 No. 12-3084
that a substantial risk of serious harm to a prisoner exists,
but disregards it, Farmer, 511 U.S. at 837. Applying Farmer,
we have stated that deliberate indifference may be found
where an official knows about unconstitutional conduct and
facilitates, approves, condones, or “turn[s] a blind eye” to it.
See Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996) (quot-
ing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). An
inmate’s correspondence to a prison administrator may thus
establish a basis for personal liability under § 1983 where
that correspondence provides sufficient knowledge of a con-
stitutional deprivation. Vance, 97 F.3d at 993 (“[A] prison of-
ficial’s knowledge of prison conditions learned from an in-
mate’s communications can, under some circumstances, con-
stitute sufficient knowledge of the conditions to require the
officer to exercise his or her authority and to take the needed
action to investigate and, if necessary, to rectify the offend-
ing condition.”). Indeed, once an official is alerted to an ex-
cessive risk to inmate safety or health through a prisoner’s
correspondence, “refusal or declination to exercise the au-
thority of his or her office may reflect deliberate disregard.”
Id.; accord Arnett, 658 F.3d at 756. In other words, prisoner
requests for relief that fall on “deaf ears” may evidence de-
liberate indifference. Dixon, 114 F.3d at 645.
In this regard, Gentry v. Duckworth is instructive. There,
an inmate claimed that his right of access to the courts was
violated because he was denied scribe materials (e.g., paper,
some means of writing, and access to notary services) by
prison guards. 65 F.3d at 557. He sent many letters to the su-
perintendent concerning his claims, which went unan-
swered. Id. at 561. Although the superintendent may not
have been directly responsible for the constitutional depriva-
tion, we concluded that the superintendent knew of the de-
No. 12-3084 19
nial of scribe materials because of the prisoner’s “many let-
ters” to him, and that the superintendent had systematically
ignored these requests for redress. We thus allowed the in-
mate’s § 1983 action to survive summary judgment. Id.
We find that Perez’s complaint alleges facts sufficient to
form a basis for personal liability against the grievance offi-
cials for violations of the Eighth Amendment. The complaint
alleges that the named defendants each obtained actual
knowledge of Perez’s objectively serious medical condition
and inadequate medical care through Perez’s coherent and
highly detailed grievances and other correspondences. It al-
so alleges that each of these officials failed to exercise his or
her authority to intervene on Perez’s behalf to rectify the sit-
uation, suggesting they either approved of or turned a blind
eye to his allegedly unconstitutional treatment. Gentry, 65
F.3d at 561. Perez’s claims against the grievance officials thus
should have been allowed to proceed.
Again, we emphasize that the district court screened Pe-
rez’s complaint before discovery, before submission of any
evidence, and before the defendants were even served pro-
cess. At this early stage of the litigation, we ask only whether
Perez’s complaint, liberally construed, Arnett, 658 F.3d at
751, and drawing all reasonable inferences in his favor, Thu-
lin, 771 F.3d at 997, contains facts sufficient to state a plausi-
ble Eighth Amendment claim against the grievance defend-
ants. We believe that it has. Of course, discovery will shed
light on whether, as the State contends, the grievance de-
fendants took “the needed action to investigate” Perez’s
grievances, Vance, 97 F.3d at 993, and “reasonably rel[ied] on
the judgment of medical professionals.” Johnson v. Doughty,
433 F.3d 1001, 1011 (7th Cir. 2006). However, these are ques-
20 No. 12-3084
tions of fact that simply cannot be resolved in the absence of
a record.
Therefore, we reverse the dismissal of Perez’s complaint
with respect to all of the defendants.
B. Perez’s Complaint States a Valid First Amend-
ment Retaliation Claim
Perez further argues that his complaint states a valid
First Amendment claim of retaliation by way of an attached
grievance. See, e.g., Arnett, 658 F.3d at 746 (documents “at-
tached to the complaint” are “part of the complaint”). That
grievance, dated May 20, 2010, alleged the following:
[T]he Health Care Professionals at this facility
have been deliberately indifferent in providing
needed care. It seems as though I am being
punished in retribution for a prior grievance I
had filed on January 2, 2010 in regards to their
not providing me with my medication (Remer-
on 45mg) for 20 days in total disregard[] to
doctor’s order and prescription.
To state a First Amendment claim for retaliation, a plain-
tiff must allege that “(1) he engaged in activity protected by
the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment activity in the future;
and (3) the First Amendment activity was at least a motivat-
ing factor in the defendants’ decision to take the retaliatory
action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
With respect to the first of these elements, filing a non-
frivolous grievance is a constitutionally protected activity
sufficient to support a retaliation claim. Thomson v. Washing-
ton, 362 F.3d 969, 971 (7th Cir. 2004). With respect to the sec-
No. 12-3084 21
ond, we have held that denial of medical treatment is a dep-
rivation likely to dissuade a reasonable person from engag-
ing in future First Amendment activity. See Murphy v. Lane,
833 F.2d 106, 108 (7th Cir. 1987). Here, Perez alleges that be-
cause he brought a grievance against prison officials for
withholding of his prescribed depression medication, mem-
bers of the prison’s medical staff (including Dr. Fenoglio and
Administrator Martin) denied him adequate care when he
injured his hand. These allegations suffice to state a claim of
retaliation, which the district court should have recognized
and allowed Perez to pursue. See 28 U.S.C. § 1915A(b) (as
part of the screening process “the court shall identify cog-
nizable claims”).
C. Dismissal With Prejudice Was Problematic
Because we reverse the district court’s dismissal of the
complaint, we need not address whether dismissal with
prejudice was an abuse of discretion. We note, however, that
the PLRA’s screening requirement does not—either explicit-
ly or implicitly—justify deviation from the usual procedural
practice, Jones v. Bock, 549 U.S. 199, 214 (2007), which in this
circuit is for courts to grant leave to amend or to dismiss
without prejudice. See Luevano v. Wal-Mart Stores, Inc., 722
F.3d 1014, 1024 (7th Cir. 2013) (collecting cases); Powers v.
Snyder, 484 F.3d 929, 933 (7th Cir. 2007) (noting that in pro se
prisoner cases, deficient pleadings should be dismissed
“with leave to replead, rather than … with prejudice,” which
would “count as a ‘strike,’ limiting the plaintiff’s right to
bring subsequent suits”). Upon remand, Perez should be
able to amend his pleading, should he so choose, “once as a
matter of course” and thereafter as justice requires. See Fed.
R. Civ. P. 15(a); Crestview Vill. Apartments v. U.S. Dep’t of
22 No. 12-3084
Hous. and Urban Dev., 383 F.3d 552, 557 (7th Cir. 2004) (“A
motion to dismiss does not constitute a responsive pleading
for purposes of Rule 15(a); thus, an order dismissing the
original complaint normally does not eliminate the plaintiff’s
right to amend once as a matter of right.”); Luevano, 722 F.3d
at 1023 (“District courts must allow [in forma pauperis] plain-
tiffs leave to amend at least once in all circumstances in
which such leave would be granted to fee-paying plaintiffs
under Rule 15(a).”).
D. Perez’s Request for Pro Bono Counsel
Perez also argues the district court should have appoint-
ed counsel under 28 U.S.C. § 1915(e)(1). We review denials
of requests for pro bono counsel for abuse of discretion, ask-
ing not whether the district court’s decision was right, but
whether it was “reasonable.” Henderson v. Ghosh, 755 F.3d
559, 564 (7th Cir. 2014) (internal citations omitted).
In a civil case, the district court has discretion to recruit
counsel to represent a litigant who is unable to afford one. 28
U.S.C. § 1915(e)(1). If a plaintiff makes a reasonable attempt
to secure counsel, the court must examine “whether the dif-
ficulty of the case—factually and legally—exceeds the par-
ticular plaintiff’s capacity as a layperson to coherently pre-
sent it.” Pruitt v. Mott, 503 F.3d 647, 655 (7th Cir. 2007) (en
banc). “There are no fixed requirements for determining a
plaintiff’s competence to litigate his own case.” Id. Normally,
the district court will “take into consideration the plaintiff’s
literacy, communication skills, educational level, and litiga-
tion experience” in relationship to the difficulties of the par-
ticular case. Id. But “in the end, the estimation as to whether
a plaintiff can handle his own case must be a practical one,
made in light of whatever relevant evidence is available on
No. 12-3084 23
the question.” Santiago v. Walls, 599 F.3d 749, 762 (7th Cir.
2010) (internal citations and quotation marks omitted).
According to Perez, the district court did not adequately
consider the difficulties posed by Perez’s case and whether
he was capable of litigating it. We disagree. The district
court considered Perez’s ability to litigate the case, noting
that Perez (who had attended some college) lucidly set forth
his allegations in his complaint. Cf. Pruitt, 503 F.3d at 649,
660-61 (finding abuse of discretion not to recruit counsel for
an inmate with the “educational level of an early sixth grad-
er”). The court also considered the complexity of his case,
observing that it presented a relatively straightforward claim
of deliberate indifference. See Olson v. Morgan, 750 F.3d 708,
712 (7th Cir. 2014) (rejecting inmate’s argument “state-of-
mind questions are categorically too difficult for pro se liti-
gants”). Based on these considerations, we believe that the
district court’s denial of counsel was not unreasonable.
However, when deciding whether to recruit counsel, we
encourage district courts in future cases to also consider the
severity of the medical condition that the inmate has alleged.
Where an inmate suffers a serious medical condition, it
could be a red flag that prison officials may have failed to
“take reasonable measures to guarantee the safety” of that
inmate. Farmer, 511 U.S. at 832. Courts should be hesitant to
dismiss a pro se complaint that states a serious medical con-
dition (as Perez’s did), yet fails perhaps to adequately allege
deliberate indifference. As we have stated, whether there has
been deliberate indifference on the part of a defendant is an
issue that requires the “subtle appreciation of legal causation
and of the duties imposed upon state prison officials by the
Eighth Amendment.” Santiago, 599 F.3d at 761. Even a pro se
24 No. 12-3084
litigant with a meritorious claim may fail to grasp these sub-
tleties. Where an inmate alleges an objectively serious medi-
cal condition, it may be better to appoint counsel—so that he
or she can investigate and flesh out any claim that may ex-
ist—than to dismiss a potentially meritorious claim and
leave the prisoner in harm’s way. In this regard, we are re-
minded that prisoners have been “[s]tripped … of virtually
every means of self-protection and foreclosed … [from] ac-
cess to outside aid.” Farmer, 511 U.S. at 833. District courts
should remain cognizant of the common law adage that the
“public … [is] required to care for the prisoner, who cannot
by reason of the deprivation of his liberty, care for himself.”
Estelle, 429 U.S. at 103-04.
Thus far, our analysis has focused on the considerations
district courts should take into account when determining
whether to recruit counsel at the initial pleadings stage.
Those considerations change as a case progresses to discov-
ery or trial. Taking depositions, conducting witness exami-
nations, applying the rules of evidence, and making opening
statements are beyond the ability of most pro se litigants to
successfully carry out. See Santiago, 599 F.3d at 763-64; Hen-
derson, 755 F.3d at 567. These tasks are even more challeng-
ing in cases, like Perez’s, where complex medical evidence
(including expert testimony) is needed to assess the adequa-
cy of the treatment received. See e.g., Greeno, 414 F.3d at 658;
Santiago, 599 F.3d at 761. District courts abuse their discre-
tion where they fail to consider the complexities of ad-
vanced-stage litigation activities and whether a litigant is
capable of handling them. Id. Our cases would thus suggest
that Perez should likely be granted pro bono counsel upon
remand, once his case moves beyond the pleadings stage.
No. 12-3084 25
We emphasize, however, that counsel is critical at all
stages of litigation. For this reason, courts should strive to
implement programs to help locate pro bono assistance for
indigent litigants. See Henderson, 755 F.3d at 563 (describing
the Trial Bar Pro Bono Program instituted by the United
States District Court for the Northern District of Illinois).
III. CONCLUSION
The judgment of the district court is REVERSED, and this
case is REMANDED for further proceedings consistent with
this opinion.