Bacon, Phillip E. v. Harder, Sharron , 248 F. App'x 759 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 26, 2007*
Decided September 27, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 07-1064
PHILLIP E. BACON, Appeal from the United States
Plaintiff-Appellant, District Court for the Western
District of Wisconsin
v.
No. 06-C-455-S
SHARRON HARDER, et al.,
Defendants-Appellees. John C. Shabaz,
Judge.
ORDER
Wisconsin inmate Phillip Bacon filed suit under 42 U.S.C. § 1983, claiming
that the defendants, three physicians and one health services manager at the
Jackson Correctional Institute, were deliberately indifferent to his injured ankle.
During the district court proceedings, Bacon moved unsuccessfully for the
recruitment of counsel and to amend his complaint. The district court then granted
summary judgment to defendants. Bacon now appeals, and we affirm.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 07-1064 Page 2
Bacon injured his ankle during recreation on December 30, 2005. After x-
rays on his leg and ankle by the local hospital revealed no fracture, he was
diagnosed with a sprained ankle and prescribed painkillers. Over the next three
months, Bacon was given a lower bunk, extra pillows, additional x-rays, crutches, a
wheelchair, and prescribed more painkillers. Until an April 18 x-ray found a small
calcific density that might have been a very minimal fracture, all other x-rays had
been negative. The prison physician, however, ultimately concluded that Bacon had
in fact suffered only an ankle sprain because the possible fracture was in an area
where Bacon was not having pain. Within a few months, Bacon’s ankle strength
increased so much that he asked that his recreation restriction be lifted. By
October the prison physician noted no swelling, minimal tenderness, and full range
of motion in the ankle, and an additional x-ray showed no evidence of any fracture.
Between December 30, 2005, and November 8, 2006, Bacon was seen by the prison’s
medical staff twenty-one times.
Bacon first argues that the district court erred in granting summary
judgment to defendants because they were deliberately indifferent to the severity of
his ankle injury in violation of the Eighth Amendment. He alleges that his ankle
still causes him pain because of defendants’ failure to properly diagnose and treat
his injury as a fracture. We review the district court’s grant of summary judgment
on the Eighth Amendment claim de novo, drawing all reasonable inferences in the
light most favorable to the non-moving party. Collins v. Seeman, 462 F.3d 757, 760
(7th Cir. 2006).
Prison officials violate the Eighth Amendment when they display a deliberate
indifference to a prisoner’s serious medical condition. Estelle v. Gamble, 429 U.S.
97, 104-05 (1976); Edwards v. Snyder, 478 F.3d 827, 830-31 (7th Cir. 2007). To
succeed on a deliberate indifference claim, a prisoner must show both an objectively
serious risk of harm and a subjectively culpable state of mind. Farmer v. Brennan,
511 U.S. 825, 834 (1994); Edwards, 478 F.3d at 830-31.
Ample evidence in the record supports the district court’s conclusion that
Bacon’s ankle sprain did not constitute a serious medical need. But even assuming
the sprain rose to that level, Bacon has presented no evidence that defendants acted
with deliberate indifference. He was seen by the prison’s medical staff twenty-one
times, prescribed several types of pain medication, and given mobility aids. Bacon
was also granted work and recreation restrictions, and received numerous x-rays
reviewed by medical staff. Further, all of his attending physicians concurred in the
diagnosis of a sprained ankle. See Johnson v. Doughty, 433 F.3d 1001, 1013 (7th
Cir. 2006) (“Mere dissatisfaction or disagreement with a doctor’s course of
treatment is generally insufficient.”). Thus, we affirm the district court’s grant of
summary judgment to defendants.
No. 07-1064 Page 3
Bacon next argues that the district court erred in denying his motion for
counsel. See 28 U.S.C. § 1915(e)(1). We review that denial for abuse of discretion.
Johnson, 433 F.3d at 1006. To determine if a district court has abused its
discretion, we ask whether the plaintiff appeared competent to try the case himself
and, if not, whether the presence of counsel would have altered the outcome of the
case. Greeno v. Daley, 414 F.3d 645, 658 (7th Cir. 2005). This “exacting standard”
is only met if the denial of counsel made “it impossible for [the plaintiff] to obtain
any sort of justice.” Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993).
Bacon has not met this standard. At all times throughout this case Bacon
has displayed a level of competence sufficient to present an adequate case. He
requested the production of documents, filed multiple motions, proposed voir dire
questions, and supplemented his complaint with a detailed memorandum of law.
Bacon also demonstrated a competence in understanding the nature of his injury
and its application to his Eighth Amendment claim. The district court therefore did
not abuse its discretion in denying Bacon’s motion for appointment of counsel. See
Johnson, 433 F.3d at 1007-09.
Bacon finally contends that the district court erred in rejecting his motion to
amend his complaint. See Fed. R. Civ. P. 15(a). The decision to grant or deny a
motion to amend a complaint is left to the “sound discretion” of the trial court.
Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir.
2005). Although he argued that an amendment was needed to add new defendants,
Bacon offered no reason why he failed to include them when he filed his complaint.
Moreover, the amendment would have been futile in light of the lack of evidence
supporting his deliberate indifference claim. See Sound of Music Co. v. Minnesota
Mining & Mfg. Co., 477 F.3d 910, 922-23 (7th Cir. 2007). Thus, the district court
did not abuse its discretion in denying his motion to amend his complaint.
AFFIRMED.