Luis Vasquez v. Daniel Braemer , 586 F. App'x 224 ( 2014 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 22, 2014*
Decided September 23, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13-3379
LUIS VASQUEZ, et al., Appeal from the United States District
Plaintiffs-Appellants, Court for the Western District of Wisconsin.
v. No. 3:11-cv-00806
DANIEL BRAEMER, et al., Barbara B. Crabb,
Defendants-Appellees. Judge.
ORDER
Five Wisconsin prisoners appeal the grant of summary judgment in this suit
under 42 U.S.C. § 1983, asserting that defendant officials1 at the Waupun Correctional
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and record.
See FED. R. APP. P. 34(a)(2)(C).
1
The defendants are Daniel Braemer, a supervising officer at Waupun; Don
(continued...)
No. 13-3379 Page 2
Institution acted with deliberate indifference to their health and safety by subjecting
them to conditions of administrative confinement that deprived them of basic human
needs, exacerbated their mental illnesses, and caused them to experience various
physical health problems. We affirm.
Administrative confinement is a nonpunitive, involuntary segregated status that
is assigned to inmates who are believed incapable of living in the general prison
population. At Waupun the warden, taking into account the recommendation from the
Segregation Review Team (a panel that makes recommendations about inmate
confinement status and includes a security supervisor, a social worker, a member of the
Health Services Unit staff, a member of the Psychological Services Unit staff, and the
Corrections Program Supervisor) may assign an inmate to administrative confinement,
and subsequently place him in segregation to protect staff, other inmates, or the inmate
himself from safety risks. While in segregation, inmates stay in their 66-square-foot cell
for 23 or 24 hours a day. These cells are equipped with minimal furnishings like a sink
and observation window. Each week inmates shower on two occasions, receive two
clean changes of clothes, and spend up to four hours of outdoor recreation in open-air
cells.
Each of the five prisoners in this lawsuit has a diagnosed mental illness and was
confined in administrative confinement at Waupun based on past behavior showing
that he was a safety risk to himself, staff, or other inmates. Luis Vasquez and Julian
Lopez both suffer from major depression. Vasquez, who has a history of serious mental
illness and tried in 2009 to hang himself in his segregation cell using dental floss, was
housed in segregation from 2007 to 2011 after he attempted to incite a prison riot and
assaulted staff. Lopez, who has a history of violent crimes and assaulting other inmates,
was sent to segregation in 2010 after he placed a “hit” on another inmate. David
Greenwood and Javier Salazar both suffer from antisocial personality disorder and
adjustment disorder (Greenwood also has impulse control disorder and Salazar has
obsessive compulsive disorder and depression). Both men were housed in segregation,
Greenwood from 2009 to 2011 for assaulting other inmates, and Salazar from 2008 to
2011 for being a leader in the Latin Kings gang and attempting to start a pyramid
scheme. Anthony Riach suffers from a myriad of mental illnesses including major
1
(...continued)
Strahota, Waupun’s current deputy warden; William Pollard, Waupun’s current
warden; Pamela Zank, the former Corrections Program Supervisor; and Michael
Thurmer, Waupun’s former warden.
No. 13-3379 Page 3
depressive disorder, social phobia, polysubstance abuse, and antisocial personality
disorder. He was placed in segregation from 2010 to 2012 for accumulating more than
30 conduct reports, including ones for threatening to kill staff members, and mailing an
unknown powder to a county District Attorney’s office.
In 2011 the five prisoners jointly sued the defendants for violating their Eighth
Amendment rights by housing them for prolonged periods in harsh segregation
conditions that exacerbated their mental health issues, causing them to attempt suicide,
engage in other acts of self-harm, and develop medical problems such as hypertension
and vitamin deficiencies. The district court screened the complaint under 28 U.S.C.
§ 1915A and allowed them to proceed jointly under Federal Rule of Civil
Procedure 20(a) with their claims against the defendants.
The plaintiffs asked the court for assistance of counsel in light of their limited
legal knowledge and geographic isolation—they were housed in different prison wings
and in different prisons (in June 2012 Vasquez was transferred to the Wisconsin
Resource Center to receive mental health treatment). A magistrate judge denied the
request, characterizing the plaintiffs’ submissions as adequate, adding that the filings
were “clearly written” and unaffected by any of their asserted mental health problems.
The magistrate judge acknowledged the logistical difficulties involved in a
multi-plaintiff suit, with at least one plaintiff housed at a different institution from the
others, but pointed out that the plaintiffs’ decision to file a joint suit did not change the
legal test under Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc).
After the defendants moved for summary judgment, plaintiffs renewed their
request for counsel and this time also sought the assistance of a medical expert to testify
about the harmful effects of their conditions of confinement on their mental illness.
The district judge granted the defendants’ motion for summary judgment. First
addressing plaintiffs’ request for recruitment of counsel, the judge found that the
plaintiffs were “capable advocates” with a “clear grasp” of relevant factual and legal
issues, and nothing in their submissions reflected that plaintiffs suffered from mental
deficiencies that affected their ability to litigate the case. As for their request for a
medical expert, the judge was not persuaded that any such appointment would be
appropriate; plaintiffs had not shown that they tried and failed to obtain an expert and,
further, an expert would not substantially aid the court in adjudicating the
case—particularly with regard to the plaintiffs’ burden of establishing the defendants’
subjective intent necessary to prove deliberate indifference.
No. 13-3379 Page 4
Proceeding to the merits, the judge concluded that the plaintiffs submitted no
evidence from which a jury could conclude infer that the conditions of their
administrative confinement—a weekly regimen that allowed two showers, two clothing
changes, and out-of-cell recreation four times a week—deprived them of the basic needs
of sanitation, clothing, and exercise. Nor, the judge added, did three of the
plaintiffs—Salazar, Lopez, and Raich—submit sufficient evidence from which a jury
could conclude that the conditions of administrative confinement exacerbated their
mental health problems or posed any risk of serious harm that would not have existed
outside administrative confinement. As for the remaining plaintiffs—Vasquez and
Greenwood—the judge found it “closer” whether they submitted sufficient evidence
that their mental illnesses were exacerbated significantly by their conditions of
confinement; both men had suicidal thoughts and engaged in suicidal behavior while
housed in administrative confinement, and their mental-health providers had suggested
that both men’s depression and behavior related to their prolonged terms and
conditions of confinement. But the “broad statements” of these two men’s treating
physicians went “only so far”; in the judge’s view, the plaintiffs’ doctors did not specify
which particular conditions exacerbated the two men’s depression or whether feasible
changes could be made to their conditions that would have made a difference to the
men’s mental health. But even if the plaintiffs’ evidence were sufficient to show that the
conditions of confinement exacerbated their mental illness and caused them
unnecessary suffering, the judge concluded, the plaintiffs did not submit evidence from
which a jury could conclude that defendants knew all this and consciously disregarded
the risk.
On appeal appellants first argue that the district court abused its discretion in
declining to recruit counsel because their case was inherently complex and required
testimony from a medical expert. But the court applied the correct standard, see Pruitt,
503 F.3d at 654–55, and reasonably found that the plaintiffs—and particularly Vasquez,
who had substantial experience litigating cases before the court, including representing
himself in three jury trials—had shown themselves to be capable advocates, able to
follow court procedures, and respond coherently and logically to legal arguments.
See Olson v. Morgan, 750 F.3d 708, 712 (7th Cir. 2014); Romanelli v. Suliene, 615 F.3d 847,
852–53 (7th Cir. 2010).
Appellants next argue that the district court abused its discretion by denying
them a court-appointed expert, whom they needed to help them show how their
confinement in segregation exacerbated their mental illness. But courts are not required
to appoint expert witnesses and should appoint them only when necessary to
No. 13-3379 Page 5
understand complex case facts or complicated, conflicting evidence. See Gaviria v.
Reynolds, 476 F.3d 940, 945 (D.C. Cir. 2007); Walker v. Am. Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1070–71 (9th Cir. 1999). Regardless of what an expert
might have opined about the plaintiffs’ mental health issues, the court properly
concluded that an expert would not have helped establish the subjective
deliberate-indifference standard. See Ledford v. Sullivan, 105 F.3d 354, 359–60 (7th Cir.
1997); see also Gobert v. Caldwell, 463 F.3d 339, 348 n.29 (5th Cir. 2006).
Finally the appellants challenge the grant of summary judgment on grounds that
their affidavits create a fact question about whether their placement in segregation
denied them—inmates suffering from significant mental illness—a minimal civilized
measure of life’s necessities, and whether defendants acted in disregard of a substantial
risk of harm to them. But defendants can be liable only for conditions of which they are
subjectively aware, see Farmer v. Brennan, 511 U.S. 825, 837 (1994); Gillis v. Litscher, 468
F.3d 488, 491 (7th Cir. 2006); Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099–1100
(11th Cir. 2014), and as the district court explained, there was no evidence that the
defendants believed the conditions of confinement inappropriate for inmates suffering
serious mental illness or for these plaintiffs in particular. Four of the appellants (Salazar,
Raich, Lopez, and Greenwood) did not produce evidence showing that they told
defendants that their conditions were exacerbating their mental illness or causing them
severe mental distress. Scarver v. Litscher, 434 F.3d 972, 975 (7th Cir. 2006) (Scarver
“failed to cite evidence to overcome the defendants’ denials that they know these
conditions were making his mental illness worse.”). It is true that Vasquez wrote to the
defendants in 2010 requesting more outdoor exercise to “stabilize [his] mental health”
(he believed that lack of exercise affected his memory, mood, and overall health), but
these letters as the district court observed, do not reflect that the defendants believed
that he faced serious harm. Starting in 2008, the defendants gave Vasquez access to a
psychiatrist and he began going to group therapy. In 2011 Vasquez wrote supervising
officer (Braemer) seeking release from segregation because he was experiencing
depression, anxiety, suicidal thoughts, and thoughts of self-harm. Warden Pollard
responded by removing Vasquez from segregation in November 2011, after Vasquez’s
psychiatrist, Dr. Callister, confirmed Vasquez’s declining mental health and requested
that he be released from segregation.
Finally we agree with the district court that the conditions of confinement
identified by the plaintiffs are not unconstitutional. Allowing inmates only two showers
and four hours of outside recreation each week does not violate the Eighth
Amendment. See Hardaway v. Meyerhoff, 734 F.3d 740, 744–45 (7th Cir. 2013) (no
violation for access to showers that is only weekly); Henderson v. Lane, 979 F.2d 466,
No. 13-3379 Page 6
468–69 (7th Cir. 1992) (same); Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir. 1988) (no
violation when indoor exercise allowed); Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996)
(no violation for weekly outdoor recreation in prison yard totaling three hours); Bailey v.
Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (no violation for weekly outdoor recreation
lasting one hour).
AFFIRMED.