Johnson, Van Dyke v. Doughty, Stephen ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1139 & 04-1311
VAN DYKE JOHNSON,
Plaintiff-Appellant,
v.
STEPHEN DOUGHTY, DOCTOR, JOHN CEARLOCK,
DON HINDERLITER, et al.,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 00 C 3119—Harold A. Baker, Judge.
____________
ARGUED JANUARY 14, 2005—DECIDED JANUARY 17, 2006
____________
Before RIPPLE, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. Former Illinois prison inmate Van
Dyke Johnson sued, pro se, three prison doctors and seven
prison officials under 42 U.S.C. § 1983, alleging Eighth
Amendment violations. Specifically, Johnson claims that the
defendants were deliberately indifferent to a serious
medical need because they treated his hernia through non-
surgical means. During the district court proceedings,
Johnson made several motions for counsel under 28 U.S.C.
§ 1915(e)(1), which the district court denied. The district
2 Nos. 04-1139 & 04-1311
court granted summary judgment to some of the prison
officials. After a bench trial, the district court entered final
judgment in favor of the remaining defendants. Johnson
appeals the district court’s denial of counsel, grant of
summary judgment to some of the defendants, and entry of
final judgment in favor of the remaining defendants. We
affirm in all respects.
I.
In 1994, Van Dyke Johnson was convicted of first degree
murder in Illinois and was incarcerated by the Illinois
Department of Corrections (“IDOC”). In late April or early
May 2000, during his imprisonment at IDOC’s Graham
Correctional Center, Johnson discovered a protrusion in his
groin area. Johnson saw a nurse in early May. The nurse
told Johnson that he had a hernia. She gave him some
Tylenol for his pain and scheduled a doctor’s appoint-
ment for him.
Two days later, Dr. Don Hinderliter examined Johnson
and diagnosed him with an inguinal hernia (i.e., a hernia
in the groin area) that, in Dr. Hinderliter’s opinion, did not
require surgery. Instead, Dr. Hinderliter prescribed a hernia
belt/truss to stop the hernia from protruding. After discuss-
ing the matter further with Dr. Hinderliter, Johnson re-
quested surgery because of the significant pain he
was experiencing. In response, Dr. Hinderliter referred
him to Dr. Robert McEntyre, Graham’s medical director.
This was Johnson’s only visit with Dr. Hinderliter.
Johnson saw Dr. McEntyre on several occasions, the
first in early June 2000. Upon examination, Dr. McEntyre
found the hernia to be “reducible,” which means that the
hernia can be pushed back inside the body without diffi-
Nos. 04-1139 & 04-1311 3
culty. Dr. McEntyre also determined that Johnson’s vital
signs were all normal and that Johnson did not display
any objective signs of acute distress. Further, there was
no hint of vomiting or other indications of severe sick-
ness. For these reasons, Dr. McEntyre concluded that the
hernia was not “strangulated”—an emergency surgical
situation in which the hernia is non-reducible and possibly
gangrenous, i.e., causing abdominal tissue decay. Dr.
McEntyre further determined that surgery was not required
at that point in time. To alleviate Johnson’s pain,
Dr. McEntyre supplemented the Tylenol and hernia belt
by further prescribing Metamucil to relieve Johnson’s bowel
discomfort. Dr. McEntyre also instructed Johnson to avoid
heavy lifting and strenuous activity, and, to that end,
Johnson received a lower bunk permit.
Two days after his first visit with Dr. McEntyre, Johnson,
on an emergency basis, saw Dr. Stephen Doughty. Dr.
Doughty also concluded that the hernia was reducible, and,
as Dr. McEntyre had seen Johnson only two days earlier, Dr.
Doughty told Johnson to continue following Dr. McEntyre’s
instructions. This was Johnson’s only visit with Dr.
Doughty.
Thereafter, Dr. McEntyre monitored Johnson’s condi-
tion through four additional visits in June and August 2000.
Dr. McEntyre’s diagnosis of a reducible hernia remained
consistent throughout this period. Dr. McEntyre, moreover,
did not observe any worsening of the condition that would
necessitate surgery.
Other than Johnson’s annual physical in October 2000,
Johnson did not have or request another doctor’s visit
4 Nos. 04-1139 & 04-1311
during his time at Graham.1 In early December 2000, IDOC
transferred Johnson to IDOC’s Dixon Correctional Center.
In March 2005, Johnson was released on parole and is
scheduled to be on parole until March 2008.2
Displeased with the lack of surgical treatment at Graham,
in April 2001 Johnson filed this deliberate indifference
action under § 1983, alleging that the treatment of his hernia
through non-surgical means constituted cruel and unusual
punishment under the Eighth Amendment. This suit
pertains only to the seven months, May to December 2000,
when Johnson had his hernia at Graham. Besides the three
doctors who examined and treated him, Johnson also
named seven IDOC and Graham officials as defendants:
John Cearlock (health care administrator), Steve Curll
(counselor), Billie Greer (assistant warden), Alex Jones
(assistant warden), Robert Radmacher (IDOC official),
Gilberto Romero (warden), and Donald Snyder (IDOC
director). In addition to injunctive relief (i.e., an order
mandating that the defendants perform/facilitate hernia
1
Johnson later said Dr. McEntyre performed the physical, but
the record does not clearly indicate which doctor handled
this exam.
2
At the bench trial in this case, held in December 2003, Johnson
testified that when he got to Dixon he complained about the
hernia, but “none of those physicians [at Dixon] have recom-
mended surgery as of today’s date.” He further explained: “I still
have the hernia and I am still going through the same problems
that I started out [with]. The only thing different now about it is
that . . . I know when to lay down[.] [B]efore I knew what to do
I was dumbfounded . . . . If I lay down, the pain will subside
because the hernia will go back in.” Johnson’s appellate attorney
informed us that Johnson “did not receive the treatment re-
quested prior to his release.”
Nos. 04-1139 & 04-1311 5
surgery), Johnson’s complaint requested compensatory
and punitive damages.3
Other than Cearlock, these prison officials’ interaction
with Johnson was limited to dealing with his grievances and
other complaints about the hernia treatment. For his part,
Cearlock, as health care administrator, met with Johnson on
August 25, 2000, to discuss the situation. Cearlock also
happens to be a registered nurse. Deferring to the doctors,
Cearlock told Johnson to follow the doctors’ instructions
and also scheduled an appointment for Dr. McEntyre to
reevaluate Johnson’s condition (which Dr. McEntyre did
shortly thereafter).
Initially, the defendants moved to dismiss the suit.
Johnson, proceeding pro se, then moved for counsel under
§ 1915(e)(1). Johnson attempted to secure counsel on his
own, but two organizations and five practitioners declined
his requests for representation. The district court denied the
motion for counsel, reasoning that the matter was not so
complex or intricate that an attorney was neces-
sary. Subsequently, the district court denied defendants’
motions to dismiss, concluding that they were not en-
titled to qualified immunity. Johnson then made another
request for counsel, which the district court again denied.
Later, when the defendants moved for summary judg-
ment, the district court determined that Johnson’s hernia
presented a serious medical need. The district court then
granted summary judgment for all the prison officials,
3
Although Johnson has been released on parole, his case is not
moot because, in addition to injunctive relief, he continues to seek
damages. See DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir.
1992).
6 Nos. 04-1139 & 04-1311
except Cearlock, reasoning that those defendants were
not deliberately indifferent to that need because they took
Johnson’s medical complaints seriously and reasonably
relied upon the doctors’ recommendations in handling
Johnson’s condition.
The district court, however, denied summary judg-
ment with respect to the doctors and Cearlock. As to the
doctors, the district court concluded they had failed to
refute Johnson’s contention that, due to some policy or
practice, the doctors would not have recommended surgery
for Johnson’s hernia regardless of the amount of pain and
difficulty it caused. This determination led the district court
to further conclude that a factual dispute existed as to
whether the doctors’ denials of surgery were made in the
absence of professional judgment, which, if true, would give
rise to deliberate indifference liability (see discussion of
legal standard below).
As to Cearlock, the district court could not, at that point
in the proceedings, determine if, like the other prison
officials, Cearlock deferred to the doctors’ medical opinions
because, unlike the other key prison officials, Cearlock did
not attach a supporting affidavit to the summary judg-
ment motion. The district court, therefore, found that
there was a factual dispute as to whether Cearlock, as the
health care administrator, bore some responsibility for the
doctors’ decision not to operate.
The case against the remaining defendants proceeded to
a bench trial. Before trial, Johnson filed another motion
for counsel, and the district court denied the request. At
trial, Johnson testified first. Johnson then examined
Cearlock. At the conclusion of Cearlock’s testimony, the
district court was convinced that Cearlock was not deliber-
ately indifferent to Johnson’s condition since Cearlock,
Nos. 04-1139 & 04-1311 7
similar to the other prison officials, deferred to the doc-
tors’ medical opinions. The district court thus granted
judgment mid-trial in favor of Cearlock.
Johnson next examined Dr. McEntyre. After a lengthy
exchange between Johnson, Dr. McEntyre, and the dis-
trict court about when Dr. McEntyre would recommend
hernia surgery, Johnson began to repeat some of his ques-
tioning, and the district court eventually ended the exami-
nation. Then, to move matters along, the district court asked
Johnson if he could provide any evidence that Dr.
Hinderliter did anything other than see Johnson one time
and refer Johnson to Dr. McEntyre. When Johnson re-
sponded in the negative, the district court granted judgment
for Dr. Hinderliter before he could take the stand. The
district court then examined Dr. Doughty to make a record
of his interaction with Johnson (i.e., one visit) and con-
cluded the trial.
The district court’s final order disposing of the case
reiterated its rulings from the bench and ruled in favor of all
of the defendants, reasoning that the evidence failed to
support any findings of deliberate indifference. Johnson
filed motions for reconsideration and for a new trial, each of
which the district court denied.
II.
Johnson appeals and is now represented by counsel. The
focal point of Johnson’s appeal is the district court’s rejec-
tion of his motions for counsel. He also challenges
the summary judgment and final judgment determina-
tions that went against him.
8 Nos. 04-1139 & 04-1311
A.
Civil litigants do not have a constitutional or statutory
right to counsel in federal court. See Luttrell v. Nickel, 129
F.3d 933, 936 (7th Cir. 1997). They, however, may request
counsel pursuant to § 1915(e)(1), and then the matter is left
to the district court’s discretion. See 28 U.S.C. § 1915(e)(1)
(“The court may request an attorney to represent any person
unable to afford counsel.”); Luttrell, 129 F.3d at 936. Conse-
quently, our review under § 1915(e)(1) is limited to the
abuse-of-discretion standard. See Greeno v. Daley, 414 F.3d
645, 658 (7th Cir. 2005); Luttrell, 129 F.3d at 936. Further-
more, we evaluate a district court’s denial-of-counsel
decision “as of the time it was made”—i.e., without the
benefit of hindsight. Hudson v. McHugh, 148 F.3d 859, 862-63
n.1 (7th Cir. 1998).4
In reviewing denials of counsel, the test is not whether this
court would have appointed counsel if it were in the district
court’s position. See Zarnes v. Rhodes, 64 F.3d 285, 289 (7th
Cir. 1995). Even if the reviewing court may have preferred
to appoint counsel, that is not its role. Otherwise, such
disagreement would always compel appointment.5 Rather,
4
Because a district court’s denial-of-counsel decision is evalu-
ated as of the time it was made, see Hudson, 148 F.3d at 862-63 n.1,
the fact that the district court granted Johnson’s post-trial request
for counsel is immaterial to our review of the pre-trial denials of
counsel.
5
For instance, in Zarnes, the court held: “Were we to have had
the responsibility for the original decision on [the plaintiff’s]
motion, we may have chosen to appoint counsel to represent
her. . . . That is not our role, however, and we cannot hold that
the aspects of this case that may trouble us . . . always compel
(continued...)
Nos. 04-1139 & 04-1311 9
“overrid[ing]” a district court’s denial of counsel is reserved
for only “that extreme case in which it should have been
plain beyond doubt” that counsel was necessary. Farmer v.
Haas, 990 F.2d 319, 323 (7th Cir. 1993).
Also, the test is not whether “a good lawyer may have
done better than [the plaintiff].” Luttrell, 129 F.3d at 936.
Because if that were the test, “district judges would be
required to request counsel for every indigent litigant.” Id.(quoting Farmer, 990 F.2d at 323). Section 1915(e)(1) leaves
significant discretion with the district court.
To determine if a district court abused its discretion in
denying counsel, we have formulated a two-step inquiry.
We first ask: “[G]iven the difficulty of the case, did the
plaintiff appear to be competent to try it himself[?]” Greeno,
414 F.3d at 658 (quoting Farmer, 990 F.2d at 322). If so, our
inquiry ends right there. If not, we further ask: “[W]ould the
presence of counsel have made a difference in the out-
come?” Greeno, 414 F.3d at 658 (quoting Farmer, 990 F.2d at
322). Reversal is therefore warranted only when the district
court’s “denial amounts to a violation of due process.”
Zarnes, 64 F.3d at 288; see also Gil v. Reed, 381 F.3d 649, 657
(7th Cir. 2004). In other words, a district court will be held
to have abused its discretion under § 1915(e)(1) only if the
denial of counsel made “it impossible for [the plaintiff] to
obtain any sort of justice.” Farmer, 990 F.2d at 323 (emphasis
added).
Johnson has not met this “exacting standard.” Id. This case
was not overly difficult. Johnson had to show that he had a
5
(...continued)
appointment of counsel. We conclude that the court did not abuse
its discretion in determining that [the plaintiff] was capable of
litigating her claims.” 64 F.3d at 289.
10 Nos. 04-1139 & 04-1311
serious medical need and that the defendants consciously
disregarded that need so as to impose cruel and unusual
punishment. See Farmer v. Brennan, 511 U.S. 825, 837-38
(1994); Higgins v. Corr. Med. Servs. of Ill., Inc., 178 F.3d 508,
511 (7th Cir. 1999). At the time the district court denied each
of Johnson’s three requests for counsel, Johnson displayed
the necessary competence to present a basic, adequate case.
When the district court denied Johnson’s first request for
counsel, Johnson had not only filed an acceptable complaint
but also had defended his complaint with detailed and well-
organized memoranda of law opposing the defendants’
motions to dismiss. His memoranda cited and discussed the
relevant Supreme Court and Seventh Circuit case law. In
Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997), the plaintiff
was found to be an “exceptionally able litigant” due to her
court papers being “comprehensible and literate.” Likewise,
in this case, Johnson’s court filings were comprehensible
and literate. See id.; see also Weiss v. Cooley, 230 F.3d 1027,
1034 (7th Cir. 2000) (plaintiff showed sufficient competence
to try his own case simply because “initial complaint
specifically referred to both the Eighth and the Fourteenth
Amendments, and his motion in opposition to summary
judgment competently addressed the key points”); cf. Gil,
381 F.3d at 657 (plaintiff’s limited English skills and reliance
on another inmate to draft his court papers demonstrated an
inability to try the case by himself). Moreover, by the time
the district court denied Johnson’s second request for
counsel, Johnson had prevailed against the defendants’
motions to dismiss.
In addition, when the district court denied his third
request for counsel, Johnson had filed similarly satisfactory
memoranda of law concerning summary judgment, see
Weiss, 230 F.3d at 1034 (quotation above), and had also
prevailed against four of the ten defendants at the summary
Nos. 04-1139 & 04-1311 11
judgment stage. Further, by that juncture, Johnson had filed
a motion to ascertain Dr. Doughty’s full name and contact
information for service purposes and had won. Cf. Greeno,
414 F.3d at 658 (plaintiff’s repeated failure to serve defen-
dants with process indicated an inability to try the case by
himself). Astutely, Johnson also had filed a motion in limine
to restrict the defendants from mentioning his criminal
history and prison disciplinary record at trial. (The motion
later became moot when the matter was converted from a
jury trial to a bench trial.) While Johnson does not appear to
have prior litigation experience, see, e.g., Forbes, 112 F.3d at
264, that can hardly be a reason to justify reversing a denial
of counsel because, if it were, an overwhelming number of
pro se litigants would become entitled to counsel. Rather,
Johnson’s able handling of the aforementioned matters in
this case—especially his ability to successfully marshal facts
and case law to avoid dismissal and partially avoid sum-
mary judgment—sufficiently demonstrates that he knew
what he had to do to prosecute an adequate case and that he
had the ability to do so. See id.; Zarnes, 64 F.3d at 289 (denial
of counsel upheld when the plaintiff “understood the
elements of her claims and the legal authority supporting
them,” “recognized relevant facts,” and demonstrated the
“ability to investigate the underlying facts” and the “ability
to present her claims”).
It is important not to overstate the difficulty of this
case. In denying Johnson’s third request just before trial, the
district court reasoned: “The plaintiff can testify to his own
pain and restricted activities due to his hernia during his
time at Graham, and can cross-examine the defendants
regarding their conclusion that he did not need surgery.”
The district judge (a seasoned jurist with more than twenty-
five years of service on the federal bench) correctly recog-
nized that Johnson had the building blocks of a basic,
12 Nos. 04-1139 & 04-1311
adequate case at his disposal. Through the examination of
the defendants—particularly Dr. McEntyre, the pivotal
defendant in the case—under oath, Johnson had the oppor-
tunity to elicit evidence about the alleged policy against
hernia operations as well as expert testimony on accepted
professional standards for treating hernias and hernia pain.6
Given this opportunity,7 we cannot say that the lack of
counsel amounted to a denial of due process. See Zarnes, 64
F.3d at 288. This is certainly not one of those “extreme”
cases in which, without a doubt, it is was
plainly “impossible” for the plaintiff to obtain “any sort
of justice” without counsel. Farmer, 990 F.2d at 323.
Assuredly, Johnson’s case might have improved had he
been represented by counsel. For example, counsel would
have been in a better position to conduct a discovery
expedition to unearth possible evidence about the alleged
policy against hernia operations. Counsel also would
have been better able to gather, present, and educe evidence
6
In his appellate brief, Johnson even agrees that Dr. McEntyre
was an “available medical expert” for Johnson to use in the
presentation of his case. Furthermore, plaintiffs using defendant
doctors as experts to establish professional standards is not a
novel concept. For instance, under Illinois medical malpractice
law, when “expert testimony is required to establish the applica-
ble standard of care, it is well-settled that the testimony of the
defendant doctor may suffice to establish the standard.” Rohe v.
Shivde, 560 N.E.2d 1113, 1121 (Ill. App. Ct. 1990) (collecting cases);
see also Los Amigos Supermkt., Inc. v. Metro. Bank & Trust Co., 713
N.E.2d 686, 697 (Ill. App. Ct. 1999).
7
We separately observe that the trial transcript reveals that
Johnson seized this opportunity, eliciting sworn testimony
about the alleged policy (i.e., that there was none) and the
relevant professional standard for treating hernias.
Nos. 04-1139 & 04-1311 13
about hernia treatment, hernia pain, accepted professional
standards, and the defendants’ conduct in response to those
issues. In particular, counsel would have been in a better
position to secure Johnson’s own expert to offer relevant
opinion testimony to counter Dr. McEntyre.8 However, just
because counsel might have added opportunities to improve
the presentation of Johnson’s case does not mean that the
case itself was so overly complex that counsel was required.
Furthermore, speculating about how counsel might have
done a better job prosecuting the case is neither necessary
nor appropriate. See Luttrell, 129 F.3d at 936 (“Although a
good lawyer may have done better than [the plaintiff], that
is not the test . . . .”); Farmer, 990 F.2d at 323; but see Greeno,
414 F.3d at 658 (under the particular facts of the case,
medical issues, likely requiring expert testimony, were one
among several considerations for requiring counsel under
§ 1915(e)(1)).
Separately, Johnson, through his appellate counsel,
disjointedly attempts to raise two evidentiary arguments
within the confines of his argument for counsel. Each
argument impermissibly relies on hindsight, i.e., events
at trial to attack the district court’s pre-trial decisions to
deny counsel. See Hudson, 148 F.3d at 862-63 n.1. They are
therefore meritless in this context. Nonetheless, to be
thorough, we briefly address each argument. First, at trial,
Johnson asked Dr. McEntyre if hernia surgery was expen-
sive. The district court ruled the question to be irrelevant
8
We note that expert testimony or other evidence merely
showing “that some medical professionals would have chosen a
different course of treatment [would be] insufficient to make out
a constitutional claim.” Collignon, 163 F.3d at 989 (discussing
Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996)).
14 Nos. 04-1139 & 04-1311
and Dr. McEntyre did not answer. Any error in this re-
gard was harmless because the district court later permitted
Johnson to question Dr. McEntyre about whether he was
denied surgery because of some money-saving policy
against hernia operations. Earlier in the trial, moreover,
Cearlock testified about these cost-related matters.
Second, Johnson complains that the district court discour-
aged him from examining Drs. Hinderliter and Doughty.
Recall that at the close of Dr. McEntyre’s testimony, the
district court asked Johnson if he could provide any evi-
dence that Dr. Hinderliter did anything other than see
Johnson once and refer Johnson to Dr. McEntyre. When
Johnson stated that he could not, the district court granted
judgment for Dr. Hinderliter before he testified. The district
court handled Dr. Doughty in a similar fashion but did
examine him to establish a factual record. District courts are
afforded broad discretion in matters of trial management.
See, e.g., Southworth v. Bd. of Regents of the Univ. of Wis. Sys.,
307 F.3d 566, 571 (7th Cir. 2002). Here, the district court was
seeking to understand accurately what the facts were,
attempting to move the trial along, and dealing patiently
with a pro se litigant. “[D]istrict courts are allowed, if not
encouraged, to ‘make the interrogation and presentation
effective for the ascertainment of the truth and to avoid
needless consumption of time.’ ” United States v. Reynolds,
189 F.3d 521, 529 (7th Cir. 1999) (quoting Fed. R. Evid.
611(a)). By that point in the bench trial, it was clear that Dr.
McEntyre was the crucial witness and the other two doctors,
due to their limited interaction with Johnson, would have
added little or nothing to the case.
Accordingly, given the case’s level of difficulty, John-
son—at the time the district court’s rulings were
made—appeared to be competent to try it himself. See
Nos. 04-1139 & 04-1311 15
Farmer, 990 F.2d at 322-23. Our inquiry about the denial
of counsel is therefore at an end. See id. The district court did
not abuse its discretion in denying Johnson’s requests for
counsel.
B.
We next turn to the grant of summary judgment in
favor of six of the defendants. We review summary judg-
ment decisions de novo, construing all facts in favor of the
non-moving party. See Jackson v. Ill. Medi-Car, Inc., 300 F.3d
760, 764 (7th Cir. 2002). Summary judgment is appropri-
ate when “the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with the affida-
vits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The
mere existence of a scintilla of evidence in support of the
[non-moving party’s] position will be insufficient; there
must be evidence on which the [trier of fact] could reason-
ably find for the [non-moving party].” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). In short, summary
judgment is warranted “if, on the record as a whole, a
rational trier of fact could not find for the non-moving
party.” Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir.
2003) (internal quotation omitted).
The Supreme Court has interpreted the Eighth Amend-
ment’s proscription against cruel and unusual punishment
as imposing a duty upon the States, through the Fourteenth
Amendment, “to provide adequate medical care to incarcer-
ated individuals.” Boyce v. Moore, 314 F.3d 884, 888-89 (7th
Cir. 2002) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
Prison officials violate this proscription “when they display
16 Nos. 04-1139 & 04-1311
‘deliberate indifference to serious medical needs
of prisoners.’ ” Greeno, 414 F.3d at 652-53 (quoting Estelle,
429 U.S. at 104). Our focus here is not centered on the
objective seriousness of the need (the district court ruled in
Johnson’s favor in that point) but on whether the defendants
acted with deliberate indifference, which is a subjective
standard. See Boyce, 314 F.3d at 889. To be deliberately
indifferent, the defendants must have acted with “a suffi-
ciently culpable state of mind.” Greeno, 414 F.3d at 653(quoting Farmer, 511 U.S. at 834). They must know of the
serious risk to the prisoner’s health, i.e., the serious medical
need at issue, and they must also consciously disregard that
risk/need so as to inflict cruel and unusual punishment
upon the prisoner. Farmer, 511 U.S. at 837-38; Higgins, 178
F.3d at 511.
We begin our summary judgment review with Curll,
a grievance counselor at Graham. Curll received a grievance
from Johnson in May 2000 (i.e., before Johnson’s first visit
with Dr. McEntyre), complaining about his hernia pain and
treatment. Curll, who is not a medical professional, re-
searched Johnson’s complaint and learned that
Dr. Hinderliter had seen Johnson, diagnosed him as hav-
ing a reducible hernia, and determined that surgery was not
required. Curll, according to his affidavit, also learned that
Johnson was “told that should his condition change,
he should return to the medical unit.” Based upon this
information, Curll recommended to the warden that the
grievance be denied.
Curll’s conduct does not demonstrate a sufficiently
culpable state of mind. The necessity of surgery was not
obvious, see Higgins, 178 F.3d at 511, and Curll, not a
medical professional, did not know whether Johnson’s
condition required surgery. However, he was aware of
Nos. 04-1139 & 04-1311 17
Johnson’s complaints of pain. See Gutierrez v. Peters, 111 F.3d
1364, 1371 (7th Cir. 1997) (“delays in treating pain-
ful medical conditions that are not life-threatening can
support Eighth Amendment claims”). Nevertheless, Curll
did not disregard Johnson’s complaints. He investigated the
situation, made sure that the medical staff was monitoring
and addressing the problem, and reasonably deferred to the
medical professionals’ opinions. See Greeno, 414 F.3d at 656(“Perhaps it would be a different matter if [the non-medical
prison official] had ignored [the plaintiff’s] complaints
entirely, but we can see no deliberate indifference given that
he investigated the complaints and referred them to the
medical providers who could be expected to address [the
plaintiff’s] concerns.”) (citing Hernandez v. Keane, 341 F.3d
137, 148 (2d Cir. 2003); Durmer v. O’Carroll, 991 F.2d 64, 69
(3d Cir. 1993)); see also Spruill v. Gillis, 372 F.3d 218, 236 (3d
Cir. 2004);9 Bond v. Aguinaldo, 228 F. Supp. 2d 918, 920 (N.D.
9
The Third Circuit’s analysis on this point bears repeating here:
If a prisoner is under the care of medical experts . . . , a non-
medical prison official will generally be justified in believing
that the prisoner is in capable hands. This follows naturally
from the division of labor within a prison. Inmate health and
safety is promoted by dividing responsibility for various
aspects of inmate life among guards, administrators, physi-
cians, and so on. Holding a non-medical prison official liable
in a case where a prisoner was under a physician’s care
would strain this division of labor. . . . Accordingly, we
conclude that, absent a reason to believe (or actual knowl-
edge) that prison doctors or their assistants are mistreating
(or not treating) a prisoner, a non-medical prison official . .
. will not be chargeable with the Eighth Amendment scienter
requirement of deliberate indifference.
(continued...)
18 Nos. 04-1139 & 04-1311
Ill. 2002) (“Except in the unusual case where it would be
evident to a layperson that a prisoner is receiving inade-
quate or inappropriate treatment, prison officials may
reasonably rely on the judgment of medical professionals.”).
Curll is thus insulated from liability because he “responded
reasonably” to Johnson’s complaint. Jackson, 300 F.3d at 765(quoting Farmer, 511 U.S. at 843).
Romero, the warden, is likewise entitled to summary
judgment. Romero, who is also not a medical professional,
received Curll’s report along with Johnson’s grievance.
Romero concurred in Curll’s recommendation because
Johnson had been evaluated by a doctor and was receiv-
ing medical care for the grieved condition. Like Curll,
Romero did not know whether Johnson required surgery,
but he was aware of Johnson’s complaints of pain and made
sure that medical care was available to Johnson so that
qualified medical professionals could determine if Johnson
did indeed need surgery. This is not a case, as Johnson
claims, of woefully inadequate action evincing a sufficiently
culpable state of mind. See Hudson, 148 F.3d at 863. Under
the circumstances, Romero reasonably relied on the exper-
tise of the medical professionals and, like Curll, did not act
with deliberate indifference toward Johnson. See Greeno, 414
F.3d at 656; Spruill, 372 F.3d at 236; Jackson, 300 F.3d at 765;
Bond, 228 F. Supp. 2d at 920.
The grievance was next reviewed on administrative
appeal by two officials not at Graham, but IDOC’s main
office: Radmacher, a member of IDOC’s administrative
review board, and Snyder, the director of IDOC. Radmacher
(...continued)
Spruill, 372 F.3d at 236; see also Greeno, 414 F.3d at 656.
Nos. 04-1139 & 04-1311 19
and Snyder agreed that Curll and Romero had addressed
the situation appropriately and jointly denied the grievance.
Radmacher and Snyder knew that Johnson needed medical
attention and that medical care was and continued to be
available to Johnson. For the reasons already stated with
respect to Curll and Romero, Radmacher and Snyder are
also entitled to summary judgment. See Greeno, 414 F.3d at
656; Spruill, 372 F.3d at 236; Jackson, 300 F.3d at 765; Bond,
228 F. Supp. 2d at 920.
Separately, Johnson also lodged an informal complaint
with assistant warden Jones in May 2000. As part of his
duties, Jones frequently made rounds of housing units,
talking with inmates and fielding questions and concerns.
When a medical concern was raised, Jones’s practice
was to first make sure the prisoner had visited the
health care unit. If so, Jones, who is not a medical profes-
sional, would then direct the prisoner to address disagree-
ments about medical treatments to the administrators in
charge of the health care unit (e.g., Cearlock). During one of
Jones’s rounds, Johnson informed Jones that he was in pain,
that he was having bowel complications, and that Dr.
Hinderliter did not recommend hernia surgery. According
to Johnson, Jones took down Johnson’s information and told
Johnson that he would look into the situation and get back
to Johnson, but, according to Johnson, Jones never did. On
account of a housing transfer, Johnson never saw Jones
again.
A non-medical prison official, such as Jones, cannot be
held “deliberately indifferent simply because [he] failed
to respond directly to the medical complaints of a prisoner
who was already being treated by the prison doctor.”
Durmer, 991 F.2d at 69; see also Greeno, 414 F.3d at 656(following Durmer); Spruill, 372 F.3d at 236; Bond, 228
20 Nos. 04-1139 & 04-1311
F. Supp. 2d at 920. Furthermore, the facts, as presented by
Johnson, cannot support a finding that Jones had a suffi-
ciently culpable state of mind. See McDonald v. Vill. of
Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004) (“[W]e are not
required to draw every conceivable inference from the
record. Inferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion.”)
(internal quotation and citations omitted). At most, Jones’s
apparent failure to get back with Johnson about his informal
complaint evinces a negligent handling of the complaint and
not deliberate indifference. See Jackson, 300 F.3d at 765(“Evidence that the official acted negligently is insufficient
to prove deliberate indifference.”). For these reasons, Jones
is entitled to summary judgment.
Last, we address assistant warden Greer. After talking
with Jones, Johnson requested a meeting with Greer to
discuss the situation, and Greer met with him in her
office. During the meeting, Greer called Cearlock and
inquired about Johnson’s course of treatment. Greer learned
that the medical consensus was that Johnson did not require
surgery. At the conclusion of the meeting, Greer told
Johnson that she would get back with him presumably if she
learned something new. According to Johnson, he never
heard from or saw Greer again due to Greer’s departure
from Graham. Greer is entitled to summary judgment on
two fronts. First, like Curll and others, Greer took Johnson’s
complaint seriously, investigated the matter, and reasonably
relied on the judgment of the medical professionals. See
Greeno, 414 F.3d at 656; Spruill, 372 F.3d at 236; Jackson, 300
F.3d at 765; Bond, 228 F. Supp. 2d at 920. Second, as to not
getting back with Johnson after the meeting, she is entitled
to summary judgment for the same reasons discussed with
respect to Jones. See McDonald, 371 F.3d at 1001; Jackson, 300
F.3d at 765; Durmer, 991 F.2d at 69.
Nos. 04-1139 & 04-1311 21
C.
We now turn to the four remaining defendants and the
bench trial. Following a bench trial, we review the dis-
trict court’s legal conclusions de novo, but we may only
set aside a district court’s factual findings if they are “clearly
erroneous.” Fed. R. Civ. P. 52(a); see also Thornton v. Brown,
47 F.3d 194, 196 (7th Cir. 1995). When there are two permis-
sible views of the evidence, the district court’s choice
between them cannot be clearly erroneous. See Anderson v.
Bessemer City, 470 U.S. 564, 574 (1985); Thornton, 47 F.3d at
197. As a consequence, if a factual finding is “plausible in
light of the record viewed in its entirety,” we may not
reverse that finding even if we would have decided the
matter differently had we been the trier of fact. Anderson,
470 U.S. at 574. Moreover, “any reasonable doubts we may
harbor should be resolved in favor of the district court’s
ruling in light of its greater immersion in the case.” Carnes
Co. v. Stone Creek Mech., Inc., 412 F.3d 845, 848 (7th Cir. 2005)
(internal quotation omitted).
The deliberate indifference standard discussed above
applies with equal force here, but, in the context of medical
professionals, it is important to emphasize that medical
malpractice, negligence, or even gross negligence does
not equate to deliberate indifference. See Dunigan ex rel.
Nyman v. Winnebago County, 165 F.3d 587, 592 (7th Cir.
1999). Mere dissatisfaction or disagreement with a doctor’s
course of treatment is generally insufficient. See Snipes v.
DeTella, 95 F.3d 586, 592 (7th Cir. 1996). It is not enough to
show, for instance, that a doctor should have known that
surgery was necessary; rather, the doctor must know that
surgery was necessary and then consciously disregard that
need in order to be held deliberately indifferent. See Higgins,
178 F.3d at 511. Nonetheless, “a trier of fact can conclude
22 Nos. 04-1139 & 04-1311
that the professional knew of the need from evidence that
the serious medical need was obvious.” Collignon, 163 F.3d
at 989; see also Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996)
(“If the symptoms plainly called for a particular medical
treatment—the leg is broken, so it must be set; the person is
not breathing, so CPR must be administered—a doctor’s
deliberate decision not to furnish the treatment might be
actionable under § 1983.”). Moreover, a medical profes-
sional’s erroneous treatment decision can lead to deliberate
indifference liability if the decision was made in the absence
of professional judgment. See Collignon, 163 F.3d at 989 (“A
plaintiff can show that the professional disregarded the
need only if the professional’s subjective response was so
inadequate that it demonstrated an absence of professional
judgment, that is, that no minimally competent professional
would have so responded under those circumstances.”);
Cole, 94 F.3d at 261-62 (“[D]eliberate indifference may be
inferred based upon a medical professional’s erroneous
treatment decision only when the medical professional’s
decision is such a substantial departure from accepted
professional judgment, practice, or standards as to demon-
strate that the person responsible did not base the decision
on such a judgment.”).
It is also important to reiterate that the Eighth Amend-
ment does not require that prisoners receive “unqualified
access to health care.” Hudson v. McMillian, 503 U.S. 1, 9
(1992); Hernandez, 341 F.3d at 144. Rather, they are en-
titled to only “adequate medical care.” Boyce, 314 F.3d at
888-89; see also Forbes, 112 F.3d at 267 (“Under the Eighth
Amendment, [the plaintiff] is not entitled to demand
specific care. She is not entitled to the best care possible. She
is entitled to reasonable measures to meet a substantial risk
of serious harm to her.”). The cost of treatment alternatives
Nos. 04-1139 & 04-1311 23
is a factor in determining what constitutes adequate,
minimum-level medical care, see Ralston v. McGovern, 167
F.3d 1160, 1162 (7th Cir. 1999), but medical personnel cannot
simply resort to an easier course of treatment that they
know is ineffective, see Kelley v. McGinnis, 899 F.2d 612, 616
(7th Cir. 1990). We have summarized the necessary line
drawing in this context as follows:
[N]ot every refusal of medical treatment constitutes
cruel and unusual punishment. Medical “need” runs the
gamut from a need for an immediate intervention to
save the patient’s life to the desire for medical treatment
of trivial discomforts and cosmetic imperfections that
most people ignore. At the top of the range a deliberate
refusal to treat is an obvious violation of the Eighth
Amendment, and at the bottom of the range a deliberate
refusal to treat is obviously not a violation. Where to
draw the line between the end points is a question of
judgment that does not lend itself to mechanical resolu-
tion. It is a matter of determining the civilized minimum
of public concern for the health of prisoners, which
depends on the particular circumstances of the individ-
ual prisoner.
Ralston, 167 F.3d at 1161-62 (citations omitted); see also
Snipes, 95 F.3d at 592 (“[T]he Constitution is not a med-
ical code that mandates specific medical treatment.”).
With these principles in mind, we first turn to Dr.
McEntyre, the physician who evaluated Johnson on multiple
occasions, and the district court’s finding that his denials of
the requested hernia surgery did not constitute deliberate
indifference. The record reveals that there are three types of
hernia situations: (1) a hernia that is strangulated, which is
a medical emergency mandating surgery; (2) a hernia that
is reducible yet so painful or debilitating that surgery is
24 Nos. 04-1139 & 04-1311
required; and (3) a hernia that is reducible and, given the
dangers and risks inherent in any operation, can be treated
through non-surgical means. There is no evidence that
Johnson’s hernia was strangulated. Dr. McEntyre was thus
left to determine whether Johnson’s reducible hernia
required surgery. At the initial appointment, Dr. McEntyre
formed the professional opinion that surgery was not
required, and, in Johnson’s subsequent visits, Dr. McEntyre
did not observe any worsening of the condition that would
make surgery a medical necessity. As to Johnson’s theory
that IDOC had a cost-saving policy against operating on all
reducible hernias whatever the amount of pain or difficulty
they cause, Dr. McEntyre flatly denied, under oath, the
existence of any such policy. The record shows rather that
Dr. McEntyre factored Johnson’s pain into his treatment
decisions and, given his findings, he prescribed non-surgical
remedies designed to alleviate Johnson’s pain. See Gutierrez,
111 F.3d at 1371. The record therefore indicates that Dr.
McEntyre’s treatment of Johnson was grounded in profes-
sional judgment, see Collignon, 163 F.3d at 989; Cole, 94 F.3d
at 261-62, and that Johnson was afforded adequate, reason-
able medical treatment, see Boyce, 314 F.3d at 888-89; Forbes,
112 F.3d at 267. Consequently, as to Dr. McEntyre, the
district court’s finding of no deliberate indifference is more
than plausible and, thus, not clearly erroneous. See Anderson,
470 U.S. at 574.
We reach the same conclusion with respect to Drs.
Hinderliter and Doughty. Dr. Hinderliter saw Johnson
only once, concluded that surgery was not required, pre-
scribed non-surgical means aimed at alleviating John-
son’s pain, and referred further discussion of surgery to
Dr. McEntyre. Dr. Doughty evaluated Johnson on only
one occasion, just two days after Dr. McEntyre first
saw Johnson, and reached the same conclusions as Dr.
Nos. 04-1139 & 04-1311 25
McEntyre. It is therefore not surprising that Dr. Doughty
deferred to Dr. McEntyre and told Johnson to give
Dr. McEntyre’s instructions a chance to work. Therefore, for
all the reasons discussed with respect to Dr. McEntyre, the
district court’s findings in favor of Drs. Hinderliter and
Doughty are not clearly erroneous.
Finally, we reach Cearlock, Graham’s health care ad-
ministrator. Unlike the other prison officials, the district
court denied summary judgment for Cearlock because there
was a factual dispute as to whether Cearlock, as the health
care administrator, was responsible for the doctors’ decision
not to operate, i.e., whether Cearlock, as a cost-saving
measure or policy, directed the doctors not to operate on
any reducible hernias no matter how much pain or disrup-
tion they caused. At the bench trial, however, Cearlock
refuted, under oath, the existence of any such policy in the
following, explicit terms:
As a health care administrator, I can tell you that
we don’t have a blanket policy that we don’t repair
hernias. If the symptoms are increasing significantly,
if the hernia becomes an acute issue in the opinion of
the medical director or a doctor and needs to have
surgery on an immediate basis, the surgery can be done.
R.112 at 45-46. Cearlock’s testimony indicates that decisions
on hernia surgeries are left to the medical professionals who
factor the pain and difficulty caused by a hernia into their
decision about whether to operate. See Gutierrez, 111 F.3d at
1371. Cearlock did say that costs are generally a factor in
determining surgical necessity (e.g., IDOC would not pay
for an elective face-lift), but that fact is neither inappropriate
nor surprising. See Ralston, 167 F.3d at 1162 (“[T]he civilized
minimum is a function both of objective need and of cost.”).
26 Nos. 04-1139 & 04-1311
We therefore see no reason to disturb the district court’s
judgment, see id., that Johnson received adequate medical
care at Graham, see Boyce, 314 F.3d at 888-89; Forbes, 112 F.3d
at 267.
Further, when Cearlock met with Johnson to review the
situation, Johnson said that his symptoms had been worsen-
ing since he last saw Dr. McEntyre; therefore, Cearlock,
quite appropriately, scheduled an appointment for Johnson
with Dr. McEntyre so that Dr. McEntyre could reassess
Johnson’s condition. Similar to Curll and others, Cearlock
took Johnson’s condition seriously, investigated the situa-
tion, referred Johnson to a doctor, and reasonably relied on
the doctors’ professional opinions. See Greeno, 414 F.3d at
656; Spruill, 372 F.3d at 236; Jackson, 300 F.3d at 765; Bond,
228 F. Supp. 2d at 920. Consequently, the district court’s
finding that Cearlock was not deliberately indifferent
toward Johnson is not clearly erroneous.
III.
This is an unfortunate case because Johnson clearly
experienced pain from his reducible (not strangulated)
hernia. He received rather extensive medical attention, but
with each examination (at least five) Dr. McEntyre con-
cluded that an operation was not necessary nor recom-
mended. Appointed counsel would likely have been helpful,
especially in pre-trial. But the very experienced district
judge who conducted the bench trial was complimentary of
Johnson’s written submissions, and he was patient and even
helpful in guiding Johnson through his examinations of the
key witnesses, Dr. McEntyre and Cearlock. Unfortunately
for Johnson, the elicited testimony about his treatment and
the alleged policy against operating on all reducible hernias
did not support his deliberate indifference claims. More-
Nos. 04-1139 & 04-1311 27
over, Johnson’s own testimony indicated that after he was
transferred to Dixon, the doctors there also declined to
operate. An extensive effort by an appointed counsel may
have uncovered a document or obtained an expert that
would refute the testimony of the defendants. But that is
very speculative. Johnson had his day in court with a very
experienced and accommodating judge. The testimony not
only failed to prove any degree of cruel and unusual
punishment, but instead disclosed a rather thorough
monitoring of his medical condition in the relatively short
period of time during his last months at Graham. Further-
more, upon his release in March 2005, he still had not had
an operation, and he had learned to alleviate the pain.
Thus, the district court did not abuse its discretion in
denying Johnson’s request for counsel and did not err in
rejecting the deliberate indifference claims against these ten
defendants. On this record, treating Johnson’s hernia
through non-surgical means did not constitute cruel and
unusual punishment under the Eighth Amendment. We
therefore AFFIRM the district court.
RIPPLE, Circuit Judge, dissenting. In late April or early May
2000, Van Dyke Johnson discovered a lump in his groin,
which eventually was diagnosed as an inguinal hernia. This
condition is not an uncommon occurrence. For the male
28 Nos. 04-1139 & 04-1311
population worldwide the risk is 27%.1 Approximately
750,000 surgical repairs are undertaken each year in the
United States.2 While postponement of surgical intervention
is possible,3 in almost all cases, the professionally acceptable
procedure is surgical repair.4 Early surgical intervention
prevents the complications of incarceration and strangula-
tion.5
Mr. Johnson’s hernia caused him many problems. He
could not stand up straight for very long without causing
pain and throbbing in the area of the hernia. Laughing,
coughing and bowel movements also caused pain. He
sought treatment from the physicians on staff at Graham
Correctional Center where he was then incarcerated; his
release was not to occur until 2005, and, understandably, he
did not think that he could withstand the pain and discom-
fort until that time. On May 9, 2000, he was examined by Dr.
Don Hinderliter, one of the physician defendants in this
action. He diagnosed an inguinal hernia and referred Mr.
Johnson to Dr. Robert McEntyre, also a physician defendant
in this action. Dr. Hinderliter did not recommend surgery
but prescribed a hernia belt.
Dr. McEntyre held the position of Medical Director at
Graham at all times relevant to this action. Dr. McEntyre
examined Mr. Johnson at least five times between June 2000
1
Andrew Kingsnorth, Treating Invinal Hernias, 328 Brit. Med. J.
59 (2004).
2
Id.
3
Id.
4
Tim Bax, M.D., et al., Surgical Options in the Management of Groin
Hernias, 59 Am. Fam. Physician 1, 7, 14 (1999).
5
Id.
Nos. 04-1139 & 04-1311 29
and August 2000. Dr. McEntyre diagnosed Mr. Johnson with
a reducible inguinal hernia: “a protrusion in the left groin
area that . . . a doctor or patient is able to push back inside
without much difficulty” and that is “not stuck out,” as Dr.
McEntyre later described it in his trial testimony. R.112 at
58. In Dr. McEntyre’s opinion, a reducible hernia would
present a “surgical emergency” only if the hernia became
“strangulated”—that is, nonreducible and eventually
gangrenous. Id. Dr. McEntyre testified that “vomiting, high
fever, [and a] fast heart beat” would accompany a strangu-
lated hernia. Id. Because Mr. Johnson’s hernia was not
strangulated, Dr. McEntyre instructed him to use a truss,
directed him to take Tylenol for pain and Metamucil for
bowel discomfort and issued him a low bunk permit.
On June 10, 2000, Mr. Johnson was examined by Dr.
Stephen Doughty, another physician defendant in this
action, who instructed Mr. Johnson to use Tylenol,
Metamucil and a truss and to avoid heavy lifting and
strenuous activities. Mr. Johnson claims that he also made
personal appeals for more effective treatment to IDOC
defendants Alex Jones and Billie Greer, who were both
assistant wardens at Graham. Neither Mr. Jones nor Ms.
Greer testified to a memory of speaking with Mr. Johnson.
Mr. Johnson also pursued relief through the Graham
prison grievance procedures. He filed his first grievance
on May 16, 2000. On the grievance form, he included a
substantial description of his pain, and he attached a
photocopied excerpt from “The New Good Housekeep-
ing Family Health and Medical Guide,” which indicated
that “the best treatment for a hernia is a surgical operation
designed to replace the herniated contents into the abdomi-
nal cavity and repair the defect in the abdominal wall.” R.7,
Ex.A at 3, 8. The photocopied excerpt also noted that
30 Nos. 04-1139 & 04-1311
“[i]nguinal hernias should always be repaired by surgery.”
Id. at 8.
IDOC defendant Steve Currl, a correctional counselor
assigned to handle inmate grievances, forwarded Mr.
Johnson’s grievance to the medical unit, which reported that
Mr. Johnson had received adequate care. Mr. Currl then
forwarded to the warden his recommendation that the
grievance be denied. IDOC defendant Gilberto Romero,
Graham’s assistant warden in charge of operations, agreed
that Mr. Johnson’s grievance should be denied. IDOC
defendant Robert Radmacher, chair of IDOC’s Office of
Inmate Issues, denied Mr. Johnson’s grievance on June 21,
2000, with IDOC defendant Donald Snyder, the Director
of IDOC, concurring in this decision.
Mr. Johnson filed a second grievance related to the
hernia on July 11, 2000. He also contended that IDOC
defendant John Cearlock, a registered nurse who held the
title of Health Care Unit Administrator at Graham, had not
interviewed him regarding his first grievance. Mr. Johnson
eventually met with Mr. Cearlock, who reviewed Mr.
Johnson’s medical history, scheduled another doctor’s
appointment for him and recommended that he con-
tinue the recommended treatment.
A.
The Task Facing Mr. Johnson
In order to appreciate the task that lay before Mr. Johnson
as he tried to present his case to the district court, we ought
to pause for a moment and recall just how difficult it is to
establish an Eighth Amendment claim of this sort.
First of all, there can be no question that the Eighth
Amendment’s prohibition against cruel and unusual
Nos. 04-1139 & 04-1311 31
punishment imposes a duty on state prison officials to
provide adequate medical care to incarcerated persons. The
reason for this prohibition is straightforward: “[D]enial of
medical care may result in pain and suffering which no one
suggests would serve any penological purpose.” Estelle
v. Gamble, 429 U.S. 97, 103-04 (1976); Boyce v. Moore, 314 F.3d
884, 888-89 (7th Cir. 2002). Given this purpose, “delays in
treating painful medical conditions that are not life-threat-
ening can support Eighth Amendment claims.” Gutierrez v.
Peters, 111 F.3d 1364, 1371 (7th Cir. 1997).
Although the Eighth Amendment affords prisoners re-
lief for the unnecessary infliction of pain at the hands of
those who have an obligation to provide for their med-
ical needs, it is well-understood that our jurisprudence
sets a high bar for a prisoner accusing prison officials of
such a violation. The Eighth Amendment is not a med-
ical malpractice statute. Indeed, the Supreme Court has
written that a prison official will not be held liable for an
Eighth Amendment violation unless he “knows of and
disregards . . . a substantial risk of serious harm” to an
inmate. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In the
context of a claim that he was denied adequate medical care,
an inmate can prove an Eighth Amendment violation only
by “establish[ing] that: (1) his condition was objectively
serious, and (2) state officials acted ‘with deliberate indiffer-
ence to his medical needs, which is a subjective standard.’ ”
Boyce, 314 F.3d at 889 (quoting Walker v. Benjamin, 293 F.3d
1030, 1037 (7th Cir. 2002)); see also Cooper v. Casey, 97 F.3d
914, 916 (7th Cir. 1996). Indeed, one of our cases has said
that, at times, “the illness or injury must be sufficiently
serious or painful to make the refusal of assistance uncivi-
lized.” Cooper, 97 F.3d at 916.
Setting forth the applicable principles of law is a great
deal easier than proving them. “Whether a prison official
32 Nos. 04-1139 & 04-1311
acted with deliberate indifference presents a question of
fact.” Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000), and
the gathering and presentation of those facts is a most
difficult task. Here, Mr. Johnson’s task was compounded by
the fact that, in order to prove the requisite deliberate
indifference, Mr. Johnson had to demonstrate that the
positions taken by the prison physicians in their assessment
of how to deal with his injury were wrong, that the physi-
cians knew they were wrong and that they nevertheless
continued to maintain such a position knowing that their
failure to treat the injury properly was the cause of Mr.
Johnson’s severe pain.
It is important to note that the subjective prong of the test
looks at a defendant’s actual state of mind. Mr. Johnson
therefore had to prove that the defendant was “both aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw that inference.” Farmer, 511 U.S. at 837. He had to
show: “(1) that the professional knew of the serious medical
need, and (2) disregarded that need.” Collignon v. Milwaukee
County, 163 F.3d 982, 989 (7th Cir. 1998). Notably, “[i]t is not
enough that [the official] ‘should have known’ of the
risk”—the official must know of the risk, in this context, a
serious medical need. Higgins v. Corr. Med. Serv. of Illinois,
178 F.3d 508, 511 (7th Cir. 1999).
As a practical matter, to meet this heavy burden, Mr.
Johnson had to establish the requisite subjective intent
by demonstrating that the seriousness of his condition
would be obvious to the trained professional. See Collignon,
163 F.3d at 989 (“A trier of fact can conclude that the
professional knew of the need from evidence that the
serious medical need was obvious.”). He then had to
prove that, after becoming aware of a prisoner’s serious
Nos. 04-1139 & 04-1311 33
medical need, the physician had “consciously disregarded
it nonetheless.” Mathis v. Fairman, 120 F.3d 88, 91 (7th Cir.
1997). To shoulder this latter burden, Mr. Johnson had to
show that the physician had not responded reasonably to
his condition. See Farmer, 511 U.S. at 843. This task is not
fulfilled by simply showing that the physician was negli-
gent. See Sherrod, 223 F.3d at 611-12.6 Indeed, this court
has described the circumstances in which deliberate indif-
ference may be inferred from a medical professional’s faulty
treatment decision in the following way:
[D]eliberate indifference may be inferred based on a
medical professional’s erroneous treatment decision
only when the medical professional’s decision is such a
substantial departure from accepted professional
judgment, practice, or standards as to demonstrate that
the person responsible did not base the decision on such
a judgment.
Estate of Cole, 94 F.3d at 261-62; see also Collignon, 163 F.3d at
989 (“A plaintiff can show that the professional disregarded
the need only if the professional’s subjective response was
so inadequate that it demonstrated an absence of profes-
sional judgment, that is, that no minimally competent
professional would have so responded under those circum-
stances.”).
6
A medical professional may evidence deliberate indiffer-
ence through his treatment decisions. Estate of Cole by Pardue
v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). However, the deliberate
indifference standard is more exacting than the standard
for showing medical malpractice. See Snipes v. DeTella, 95 F.3d
586, 591 (7th Cir. 1996) (“Mere negligence or even gross negli-
gence does not constitute deliberate indifference.”).
34 Nos. 04-1139 & 04-1311
Mr. Johnson sought to meet this demand for proof by
establishing that the decision to deny him surgical relief was
the product, at least in large part, of a decision somewhere
in the Department of Corrections not to spend money on
such a procedure. The Eighth Amendment does limit, to
some extent, prison officials’ discretion to choose less
effective or less expensive treatments. We have held that
“the civilized minimum of public concern for the health of
prisoners” is, in part, “a function . . . of cost”: “The lower the
cost [of treatment], the less [objective] need has to be
shown” to evidence deliberate indifference from the failure
to treat a painful condition. Ralston v. McGovern, 167 F.3d
1160, 1161-62 (7th Cir. 1999). A plaintiff also may prevail on
a claim of deliberate indifference “if he can prove that
[officials] deliberately gave him a certain kind of treatment
knowing that it was ineffective, either as a means of toying
with him or as a way of choosing ‘the easier and less
efficacious treatment.’ ” Kelley v. McGinnis, 899 F.2d 612, 616
(7th Cir. 1990) (quoting Estelle, 429 U.S. at 104 n.10). How-
ever, the task of ascertaining whether such a decision had
been made, by whom, and whether it was an operative
factor in his case was, to put it mildly, a formidable one.
B.
The Conventional Wisdom
This court, and, indeed, all of the federal courts, are
swamped with Eighth Amendment cases alleging that the
absence of adequate medical treatment constituted cruel and
unusual punishment. Applying the standards set
forth above, we have the task of identifying the few cases
that are meritorious. This process is a burdensome one
for our colleagues in the district court and, to a lesser
Nos. 04-1139 & 04-1311 35
degree, for the members of this court. It is, however, a task
that Congress has given us and that we must perform
willingly if we are to be true to our oaths to do justice
without respect to persons, to the rich and the poor alike. See
28 U.S.C. § 453. Indeed, Congress, in the Prison Litigation
Reform Act, 42 U.S.C. § 1997e, has given the district courts
a variety of procedural devices to assist in the screening
task. Nevertheless, it is safe to say that the management of
these cases continues to be a burden on judicial resources
and the conventional wisdom is that the task is akin to
looking for the proverbial needle in a haystack.
There also appears to be conventional wisdom about
the appointment of counsel in civil cases. That conventional
wisdom holds that district courts ought to be parsimonious
in the appointment of counsel in such cases, especially in
prisoner cases. This mind-set is no doubt rooted in the
case law which, to a significant extent, makes clear that
prisoners enjoy no constitutional or statutory right to
counsel in civil cases. Lassiter v. Dep’t of Soc. Servs., 452 U.S.
18 (1981) (holding that the constitutional right to counsel
exists only when the loss of liberty is threatened); Jackson
v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992);
Caruth v. Pinkney, 683 F.2d 1044, 1048 (7th Cir. 1982). Rather,
appointment of counsel “rests in the sound discretion of the
district court unless denial would result in fundamental
unfairness impinging on due process rights.” Heidelberg v.
Hammer, 577 F.2d 429, 531 (7th Cir. 1978). Indeed, the power
to appoint counsel in a civil proceeding derives § 1915(e)(1),
from the statutory language which authorizes a district
court, upon motion, to “request an attorney to represent any
person [claiming in forma pauperis status] unable to employ
36 Nos. 04-1139 & 04-1311
counsel.” 28 U.S.C. § 1915(e)(1) (emphasis added).7 Notably,
however, the case law, when read carefully, also makes clear
that this discretion has significant limitations. We have
noted that “discretionary choices ‘are not left to a court’s
inclination, but to its judgment; and its judgment is to be
guided by sound legal principles.’ ” Ekanem v. Health &
Hosp. Corp., 589 F.2d 316, 319 (7th Cir. 1978) (quoting
Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975)).
Indeed, to guide the discretion of district courts in deciding
motions to appoint counsel to indigent civil litigants, we
have set forth five nonexclusive factors: (1) the merits of
the indigent litigant’s claim (whether the claim is colorable);
(2) the nature of the factual issues raised in the claim and
whether the plaintiff is in a position to investigate crucial
facts; (3) the presence of conflicting testimony and the need
for cross-examination; (4) the factual and legal complexity
of the issues; and (5) the capability of the indigent litigant to
present the case. Maclin v. Freake, 650 F.2d 885, 887-89 (7th
Cir. 1981).
Even here, however, our case law has contributed to the
conventional wisdom by emphasizing that the plaintiff
bears a “high burden” in establishing entitlement to counsel
under the Maclin factors. Barnhill v. Doiron, 958 F.2d 200, 202
(7th Cir. 1992).
When faced with a case such as the one before us, a
judge must confront this conventional wisdom and question
whether the “givens” that seem to dominate our thinking
justify our almost Pavlovian responses to such motions. No
7
For a general discussion of the appointment of counsel to
indigent plaintiffs in § 1983 actions, see 15 Am. Jur. 2d Civil Rights
§ 131 (2005); see also Howard B. Eisenberg, Rethinking Prisoner
Civil Rights Cases and the Provision of Counsel, 17 S. Ill. U. L.J. 417(1993).
Nos. 04-1139 & 04-1311 37
one can question seriously the established principle that
there is no right to counsel in civil cases. Nor can anyone
question seriously that counsel is not required in the vast
majority of prisoner cases. We must examine, however,
whether counsel is denied in too many cases and whether
that denial deprives litigants of justice in a significant
number of cases or at the very least complicates unnecessar-
ily the judicial task.
The statute makes it clear that the district court may only
request that counsel accept appointment. See 28 U.S.C.
§ 1915(e)(1). It is sometimes suggested that this is a re-
quest that should not be made often of counsel because it is
a burden on the practicing bar. No doubt a district court, in
determining whether to appoint counsel, ought to take into
consideration the burden placed on counsel. It must
be remembered as well, however, that attorneys, by
virtue of their licenses, have a government-controlled
monopoly on the practice of law and, in return for that
monopoly, ought to expect to be called to render public
service with some frequency. Similarly, although it is
often said that it is difficult to find attorneys to take these
cases, a district court is certainly not without the resources
to ascertain the availability of counsel. Oftentimes, the shop-
worn argument that, if the case has any merit, “market
forces” will induce counsel to take the case is cited as
justification for not making an appointment. Prisoners,
however, are rarely in a situation that permits them to make
a sufficient segment of the bar aware of their case. Indeed,
few prisoners are able to explain adequately the merits of
the case to an attorney considering undertaking such
representation. It is also suggested frequently that there
simply are not attorneys willing to take a prisoner case. The
presence of counsel in this case on appeal belies that
38 Nos. 04-1139 & 04-1311
suggestion—as does the long list of counsel who regularly
take such cases.
If counsel are available and willing to perform this
public service, why are they not called upon more fre-
quently? Is there a fear that counsel’s presence will unduly
complicate the case? Or is there an apprehension that
counsel will make the case more burdensome on the state
officials? Certainly such considerations, if they lurk beneath
the surface of a decision not to appoint counsel, are entirely
inappropriate and underestimate both the skill and dedica-
tion of the bar and the capacity of the district court to keep
a case on track.
C.
Now that we have assessed the burden shouldered by Mr.
Johnson and the conventional wisdom that surrounded his
request for counsel, we can turn to an analysis of the issue
before the court today.
Rulings on motions to appoint counsel are reviewed for
“abuse of discretion.” See, e.g., McNeil v. Lowney, 831 F.2d
1368, 1371 (7th Cir. 1987). The term “abuse of discretion”
is rhetorically potent and some of the formulations that are
employed to give it meaning are equally sharp. To say
that we should reverse under the abuse-of-discretion
standard only when no rational person could agree with the
district court’s ruling8 is poetic—and misleading. To say that
reversal is warranted when the district court selected a
8
Hastert v. Illinois State Bd. Election Comm’rs, 28 F.3d 1430, 1442
(7th Cir. 1993) (“We must bear clearly in mind that there can
be no abuse of discretion if any rational person could agree
with the conclusion of the district court.”).
Nos. 04-1139 & 04-1311 39
course of proceeding that, under the circumstances one
would not have expected a jurist to choose is perhaps better,
although still imperfect.9 Fortunately, we have refined the
test in the context to appointment of counsel cases and ask
whether “[G]iven the difficulty of the case, did the plaintiff
appear to be competent to try it himself and, if not, would
the presence of counsel have made a difference in the
outcome?” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993).10
9
United States v. Allison, 120 F.3d 71, 74 (7th Cir. 1997) (“Under
this deferential standard, we ask whether the district court
made a decision that was within the range of options from which
we might expect a reasonable trial jurist to choose under the
circumstances.”).
10
In Farmer v. Haas, this court noted that the inquiry into whether
counsel should have been appointed should not have been
framed in terms as complex as those contained in the test this
court previously had used. See Farmer v. Haas, 990 F.2d 319, 322
(7th Cir. 1993). The previously-used test, as set out in Maclin v.
Freake, 650 F.2d 885 (7th Cir. 1981), instructed courts to look at
five non-exclusive factors in order to determine whether to
exercise the discretion to request counsel: (1) “the merits of the
indigent litigant’s claim,” for “[e]ven where the claim is not
frivolous, counsel is often unwarranted where the indigent’s
chances of success are extremely slim”; (2) “the nature of the
factual issues raised in the claim,” along with the question of
whether “the indigent is in [a] position to investigate crucial
facts”; (3) whether the existence of conflicting testimony as a
significant source of evidence makes it “more likely that the truth
will be exposed where both sides are represented by those trained
in the presentation of evidence and in cross-examination”; (4)
“the capability of the indigent litigant to present the case”; and
(5) “the complexity of the legal issues raised by the complaint.”
Id. at 887-88. Under the Maclin test, “[t]he first factor, the merits
(continued...)
40 Nos. 04-1139 & 04-1311
In other words, we shall reverse a district court’s refusal to
appoint counsel “if, given the difficulty of the case and the
litigant’s ability, [he] could not obtain justice without an
attorney, [he] could not obtain a lawyer on [his] own, and
[he] would have had a reasonable chance of winning with
a lawyer at [his] side.” Forbes v. Edgar, 112 F.3d 262, 264 (7th
Cir. 1997).11 As this standard makes clear, “we evaluate the
10
(...continued)
of the plaintiff’s claim, [was] foremost.” Swofford v. Mandrell, 969
F.2d 547, 551 (7th Cir. 1992).
This court in Farmer recognized that “the Maclin test is not
canonical” and, as just described above, presented a stripped-
down formulation for the inquiry into whether counsel should
have been requested. Farmer, 990 F.2d at 321. The Farmer test
has been recognized as “an alternative, easier method for
deciding [appointment of counsel] motions.” Zarnes v. Rhodes, 64
F.3d 285, 288 (7th Cir. 1995). However, Farmer did not dis-
credit entirely the Maclin test; it merely noted that “the multiple
factors . . . collapse upon inspection” into a simpler inquiry.
Farmer, 990 F.2d at 321.
11
In past opinions, we also have directed courts to conduct
“a threshold examination into an indigent’s effort to retain
counsel,” on the ground that the enabling statute “dictates that an
indigent must have made an unsuccessful attempt to ob-
tain counsel before the request can be considered.” Jackson v.
County of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992). At the time
Jackson was decided, the statute permitting a court to re-
quest counsel to represent an indigent defendant read as follows:
“The court may request an attorney to represent any . . . person
unable to employ counsel . . . .” 28 U.S.C. § 1915(d) (emphasis
added). The statute at the time of Mr. Johnson’s motions used the
language, “unable to afford counsel.” 28 U.S.C. § 1915(e)(1)
(emphasis added). Regardless of the change to the statute, the
(continued...)
Nos. 04-1139 & 04-1311 41
reasonableness of the district court’s decision [whether to
request counsel] as of the time it was made . . . .” Hudson v.
McHugh, 148 F.3d 859, 862 n.1 (7th Cir. 1998).
In my view, the district court selected a course of proceed-
ing that was clearly inappropriate. It did not take into
consideration all the factors that it should have and it
gave inappropriate weight to the factors that it did consider.
In short, it accepted the conventional wisdom about pris-
oner medical suits and the conventional wisdom about the
appointment of counsel in a case in which it should have
“thought out of the box” and declined to accept that conven-
tional wisdom.
Mr. Johnson claims that the complexity of the Eighth
Amendment deliberate indifference standard and the
medical issues presented by his case should have demon-
strated to the district court that he needed the assistance of
counsel to prove the subjective intent element of deliberate
indifference. He submits that an attorney well-versed in the
law of evidence would have been able to have supplied the
district court with extensive evidence supporting his
claim for relief. It also is Mr. Johnson’s position that, in
addition to an attorney at trial, he needed a lawyer to
conduct the sort of discovery that was necessary both on the
significance of the medical evidence and on the possible
existence of a prison policy against ever permitting surgery
for a hernia.
The defendants, on the other hand, contend that the
district court acted within its discretion in refusing to
11
(...continued)
record reveals that Mr. Johnson made numerous efforts to secure
the assistance of counsel on his own.
42 Nos. 04-1139 & 04-1311
request counsel to represent Mr. Johnson. The defendants
point to the fact that Mr. Johnson survived a motion to
dismiss and partially survived summary judgment as
proof that he was competent to try the case. The defendants
also contend that, even if Mr. Johnson was not capable of
trying the case on his own, the appointment of counsel
would not have made a difference because his claims are
without merit.
With respect to the difficulty of the case, the issues
presented by Mr. Johnson’s deliberate indifference claim
were significantly complicated. The Eighth Amendment
standards in this context, while well-developed, also are
highly dependent on technical medical questions. It
was necessary for him to establish that the physicians
knowingly departed in a substantial way “from accepted
professional judgment, practice, or standards.” Cole, 94 F.3d
at 261-62. Given the fact that Mr. Johnson had the burden of
proof, the district court should have known that it would
not have been sufficient for Mr. Johnson to “testify to his
own pain and restricted activities due to his hernia” and to
“cross-examine the defendants regarding their conclusion
that he did not need surgery.” August 25, 2003 Order at 1.
The issues were far more complex than that. In order to
show that the defendants were deliberately indifferent to his
condition, Mr. Johnson in all likelihood would need to
introduce evidence of the usual amount of pain suffered by
a person with a hernia and of whether his own pain was
typical or atypical. See, e.g., Gutierrez, 111 F.3d at 1369-71(holding that failure to treat a chronic, painful condition can
rise to the level of an Eighth Amendment violation). He also
would have to address the accepted professional standards
for treatment of hernias: for instance, the usual treatment,
the risks associated with leaving an inguinal hernia un-
Nos. 04-1139 & 04-1311 43
treated, whether the treatment prescribed by the physician
defendants would have been effective as a long-term
solution to Mr. Johnson’s problem, and whether a reason-
able physician would have treated a patient with the
methods prescribed by the physician defendants. It is
simply unrealistic to say that Mr. Johnson was going to
achieve these litigation goals simply by relying on his cross-
examination of the defendant physicians.
Mr. Johnson’s difficulty in presenting an adequate case
about the degree of pain that he claims he experienced is
compounded by his further need to establish his claim
that the defendants let him suffer that pain despite the
availability of cost-effective treatment with an acceptable
degree of medical risk. It is his contention that the defen-
dants denied him such treatment, even though it was
indicated under accepted professional standards, simply in
order to avoid the cost. It is difficult to see how Mr. Johnson
was going to establish this claim without engaging in
significant discovery. It is even more difficult to imagine
that he could have conducted such discovery from his jail
cell.
The issues before the district court in this case were
not at all “straightforward.” On the other hand, the testi-
mony of an expert would have been highly relevant to
determining several disputed issues. In fact, in the absence
of expert testimony, Mr. Johnson could not have shown that
the physician defendants failed to meet the stan-
dard of minimal professional competence.
It is clear that Mr. Johnson’s skills were inadequate to
address the complexities of this Eighth Amendment case
without professional help. Mr. Johnson asked for counsel
early on in this litigation. As the case progressed, his need
for representation became even more obvious—for instance,
44 Nos. 04-1139 & 04-1311
at the summary judgment stage, he had not propounded
any discovery requests. Mr. Johnson had no “experience
litigating other cases.” Forbes, 112 F.3d at 264. Clearly, Mr.
Johnson could not obtain justice without an attorney.
Finally, we must consider whether Mr. Johnson “would
have had a reasonable chance of winning with a lawyer at
[his] side.” Id. As the district court recognized in its sum-
mary judgment order, the record gave rise to a “reasonable
inference . . . that a policy or practice existed [at Graham] .
. . that the medical director would not recommend surgery
for any reducible hernia, regardless of the pain and diffi-
culty experienced.” R.64 at 7. However, as we have dis-
cussed above, the quality and quantum of evidence pre-
sented at trial in Mr. Johnson’s case left much to be desired.
This is not a case in which a plaintiff put on a competent
case at trial but simply lost fair and square on the merits.
See, e.g., Forbes, 112 F.3d at 265 (“Most importantly, we are
not convinced that the result would have been, nor could
have been, different had Forbes had an attorney.”). Because
Mr. Johnson was not capable of presenting testimony
regarding the professional standards of care for a hernia, he
did not introduce any evidence of those standards; had the
district court been presented with evidence of those stan-
dards and evidence that the physician defendants fell far
short of those standards, it is clear that Mr. Johnson would
have stood a reasonable chance of winning at trial. With the
help of competent counsel, he also could have established
the liability of the IDOC defendants who were dismissed
from the suit at the summary judgment stage. Mr. Johnson
had not propounded any discovery at the summary judg-
ment stage; therefore, it is not clear what he would have
been able to learn through the discovery process. Certainly,
from his jail cell, it would have been impossible to in-
quire fully of the powers-who-be whether there was a policy
Nos. 04-1139 & 04-1311 45
of not performing these procedures despite the resulting
long-term pain to the prisoner and despite the significant
possibility of complications due to the indefinite deferral of
surgery simply to save money.
When it came time for appeal, the district court had an
opportunity to assess the case in its entirety. It then deter-
mined that the complexities of this particular case, which
involved presenting the often-elusive issue of pain and
the always-difficult issue of examining intent in the con-
text of a bureaucratic process, required the guiding hand of
appellate counsel. However, there were sufficient indicators
of this complexity, and therefore of this need for counsel, at
earlier stages of the proceedings. In light of Mr. Johnson’s
abilities and the complex legal questions presented by his
case, and in light of Mr. Johnson’s reasonable chances for
success if represented by competent counsel, the district
court should have realized, as it apparently did later on, that
following the conventional wisdom was inappropriate here.
I would reverse the judgment and order a new trial.
46 Nos. 04-1139 & 04-1311
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-17-06