Jeffrey Olson v. Donald Morgan

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2786

JEFFREY E. OLSON ,

Plaintiff-Appellant,

v.

DONALD MORGAN , et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 11-cv-282-slc — Stephen L. Crocker, Magistrate Judge.

ARGUED NOVEMBER 1, 2013 — DECIDED APRIL 30, 2014

Before POSNER, FLAUM , and SYKES, Circuit Judges.

SYKES, Circuit Judge. Jeffrey Olson, an inmate in a Wisconsin

prison, was attacked by his cellmate, Thomas Russell, and

suffered a broken tooth in the scuffle. Olson had warned

Sergeant Randy Schneider, a correctional officer, that Russell

was not taking his medications and might become violent, but

Sergeant Schneider did not move Olson to a new cell. After the

2 No. 12-2786

attack Olson brought this § 1983 lawsuit alleging that Sergeant

Schneider violated the Eighth Amendment by not doing more

to protect him from Russell. Because his broken tooth was not

treated for several weeks, he brought another claim against the

manager of the prison’s health-services unit, Lillian Tenebruso,

arguing that she too violated the Eighth Amendment by

delaying his treatment. The district court denied Olson’s many

requests for counsel, finding that Olson was a competent pro

se litigant and that his claims were not especially complex, and

ultimately granted summary judgment against Olson on all

counts.

We affirm. We find no abuse of discretion in the court’s

decision not to recruit counsel for Olson; the district court

applied the correct legal standard and properly considered

both Olson’s ability to represent himself and the complexity of

Olson’s case. Summary judgment was proper because there is

no evidence that Sergeant Schneider was subjectively aware

that Russell was dangerous or that Tenebruso failed to act

promptly once she learned of Olson’s serious medical needs.

Because Olson has no evidence to prove deliberate indiffer-

ence, his claims must fail.

I. Background

Olson shared a cell with Russell at the Columbia Correc-

tional Institution for about a week in late March 2007. Olson

claims that on March 27 he approached Sergeant Schneider and

told him: “[M]y celly, Russell, has twice tried to swing off on

me and I want him moved … I fear he’s gonna try to do it

again … he isn’t taking his meds and hears voices that tell him

No. 12-2786 3

to attack people … he needs his own cell.” Sergeant Schneider

asked other officers on duty about Russell, but nobody had

heard of any problems between Olson and Russell or of any

issues with Russell’s medication. Nonetheless, Sergeant

Schneider asked the officer supervising distribution to be sure

Russell took his medication.

The next evening Russell attacked Olson, damaging one of

Olson’s teeth. The nurse on duty recommended that the tooth

be pulled, but apparently nobody scheduled a dental appoint-

ment for Olson. Olson alleges that he requested an appoint-

ment in several letters that he sent to Tenebruso, the health-

services manager, but most of those letters aren’t in the record.

The earliest letter in the record is an April 8 request for aspirin,

which was denied on April 13. Next is an April 14 note from

Tenebruso to Olson indicating that she had received several

requests from him that day expressing concern about his tooth

and directing him to fill out the proper form if he wanted to be

seen by a doctor. Olson didn’t fill out this form—instead he

sent an abrasive response insisting that no other form was

needed—but Tenebruso referred him to the dentist anyway on

April 16. On April 19 the tooth was removed.

Olson brought this § 1983 lawsuit against Sergeant

Schneider and Tenebruso (and a few other prison officials who

are not part of this appeal), alleging that they violated the

Eighth Amendment by acting with deliberate indifference to

the risk of an attack by Russell and to his dental needs. He

repeatedly asked the district court to appoint counsel for him,

but the magistrate judge assigned to the case refused each

request. The first few were denied because Olson failed to

4 No. 12-2786

show that he had tried to secure a lawyer on his own; the last

request was denied because the judge determined that Olson

was sufficiently competent to handle a case of this complexity.

In two separate orders, the judge granted summary

judgment against Olson on all counts. The first order found no

evidence that Tenebruso was aware that Olson had a serious

medical condition or that Tenebruso knew about Olson’s

dental needs more than a few days before the tooth was pulled.

The order also directed the government to provide additional

information about Russell’s prison records, reasoning that a

pro se litigant like Olson might not have known how to get

around the government’s objections to producing these

documents. After reviewing the submissions, the judge

concluded that Russell had a clean record in prison and that

Sergeant Schneider could not have anticipated the attack, and

accordingly entered final judgment against Olson.

II. Discussion

Olson’s primary argument on appeal is that the district

court should have recruited counsel to represent him. He also

argues that summary judgment was improper because there

was sufficient evidence in the record to create a genuine issue

about whether Sergeant Schneider and Tenebruso were

deliberately indifferent to his needs. Neither contention has

merit.

No. 12-2786 5

A. Request For Counsel

There is no right to court-appointed counsel in federal civil

litigation. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en

banc). District courts may nonetheless ask lawyers to represent

indigent litigants on a volunteer basis. See 28 U.S.C.

§ 1915(e)(1). Whether to recruit an attorney is a difficult

decision: Almost everyone would benefit from having a

lawyer, but there are too many indigent litigants and too few

lawyers willing and able to volunteer for these cases. District

courts are thus placed in the unenviable position of identifying,

among a sea of people lacking counsel, those who need counsel

the most. This task is necessarily entrusted to the district

court’s discretion; our job is to ensure that the district court

applied the proper legal standards without abusing that

discretion. See Pruitt, 503 F.3d at 658.

In deciding whether to request counsel, district courts must

ask two questions: “(1) [H]as the indigent plaintiff made a

reasonable attempt to obtain counsel or been effectively

precluded from doing so; and if so, (2) given the difficulty of

the case, does the plaintiff appear competent to litigate it

himself?” Id. at 654. The magistrate judge found the first

element satisfied once Olson submitted letters from several

attorneys declining to assist him. The parties spend some time

quibbling about whether Olson had demonstrated reasonable

efforts before that point; we don’t need to address that dispute

because even after presenting the letters, Olson couldn’t satisfy

the second part of the test.

To decide the second question—whether Olson appeared

competent to litigate the case himself—the judge properly

6 No. 12-2786

considered both the complexity of the case and Olson’s

capabilities. See id. at 655. The judge found that the law

governing Olson’s claims was “straightforward” and that the

relevant substantive and procedural rules could be explained

to Olson in pretrial conferences and orders. We agree that

Olson’s claims were not especially complex. The key disputes

here were whether Sergeant Schneider knew that Russell was

dangerous and whether Tenebruso knew that Olson had a

serious medical condition. While some state-of-mind issues

may involve subtle questions too complex for pro se litigants,

see Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010), there was

nothing subtle about the problem here: Olson had no evidence

that the defendants knew about the risk to his safety or the

pain in his tooth. Moreover, Olson understood this problem,

which is why he made diligent efforts to obtain prison records

that might prove the defendants’ deliberate indifference. We

reject Olson’s argument that state-of-mind questions are

categorically too difficult for pro se litigants. See, e.g.,

Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010) (finding

that proving deliberate indifference was not too complex for a

pro se litigant).

The judge then concluded that Olson was competent to

handle a case of this complexity. Olson didn’t have to be as

proficient as a seasoned civil-rights attorney; the test is

“whether the difficulty of the case—factually and legally—

exceeds the particular plaintiff's capacity as a layperson to

coherently present it to the judge or jury himself.” Pruitt,

503 F.3d at 655. The judge properly evaluated Olson’s abilities

by looking at his pleadings and competence in early phases of

the litigation, concluding that “[h]is submissions are well

No. 12-2786 7

written and he appears capable of following instructions and

making intelligible arguments.” We agree. Indeed, Olson’s

submissions to the district court were much better than the

average pro se litigant’s and compare well to some pleadings

filed by licensed attorneys. Olson points out that he suffers

from severe depression and adult hyperactivity disorder

(among other issues), but he never explains why those condi-

tions would prevent him from coherently presenting his case,

and his capable pleadings suggested that he was competent

despite his mental-health problems. With the court’s instruc-

tion, he was able to conduct discovery and even make sophisti-

cated, successful arguments on obscure subjects like exhaustion

of remedies. It was not an abuse of discretion to conclude that

Olson had the ability to coherently present his claims.

Nonetheless, Olson argues that he couldn’t handle this

litigation himself because shortly after the attack, he was

transferred to a different prison. He told the district court that

the transfer “hamper[ed] his ability to obtain declarations,

affidavits, and other statements from other Inmates.” Many of

our cases suggest that a transfer is an important factor to

consider in deciding whether to recruit counsel for indigent

litigants. See Junior v. Anderson, 724 F.3d 812, 815 (7th Cir. 2013)

(collecting cases). But Olson hasn’t explained why the transfer

affected his ability to litigate this case. We doubt that talking to

other inmates would have helped him investigate the facts in

dispute—issues about the defendants’ state of mind—and

anyway he made no request for information from inmates at

his former institution. What Olson needed was proof that

officials believed his warnings and ignored his requests, and

fellow inmates weren’t likely to give him insight into the minds

8 No. 12-2786

of prison officials. Instead, Olson pursued the more promising

route: requesting documents in the defendants’ possession that

would show what the defendants knew and when. Olson

didn’t have to be at his old institution to file document requests

and interrogatories. Moreover, the judge gave him an opportu-

nity to argue that the defendants were withholding documents

or other discoverable materials. Olson never responded to this

invitation, and he’s given us no other reason to believe that the

transfer prevented him from effectively presenting his case.

We recognize that imprisonment only exacerbates the

already substantial difficulties that all pro se litigants face. But

Congress hasn’t provided lawyers for indigent prisoners;

instead it gave district courts discretion to ask lawyers to

volunteer their services in some cases. The district court

applied the correct legal standard in deciding whether to

recruit a lawyer for Olson, and we find no abuse of discretion.

B. Summary Judgment

The judge entered summary judgment in favor of Sergeant

Schneider and Tenebruso. Summary judgment is proper “if the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.” FED . R. CIV . P. 56(a). Moreover, “a factual

dispute is ‘genuine’ only if a reasonable jury could find for

either party.” SMS Demag Aktiengesellschaft v. Material Scis.

Corp., 565 F.3d 365, 368 (7th Cir. 2009). We review the grant of

summary judgment de novo, drawing all inferences in the

manner most favorable to Olson. Rosario v. Brawn, 670 F.3d 816,

820 (7th Cir. 2012).

No. 12-2786 9

To succeed on his Eighth Amendment claim against

Sergeant Schneider, Olson had to show that he was “incarcer-

ated under conditions posing a substantial risk of serious

harm” and that Sergeant Schneider was deliberately indifferent

to that risk. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The

“deliberate indifference” requirement means that “the official

must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Id. at 837. This standard comes

from the Eighth Amendment itself: Because the Amendment

“does not outlaw cruel and unusual ‘conditions,’” but only

“cruel and unusual ‘punishments,’” it can only be violated

through deliberate action or inaction—mere negligence is not

“punishment.” Id.

Olson hasn’t presented evidence from which a reasonable

fact finder could conclude that Sergeant Schneider knew that

he faced a substantial risk of serious harm from Russell. He

relies primarily on his statement to Sergeant Schneider

expressing his fear of Russell and requesting a different cell.

But prison guards are neither required nor expected to believe

everything inmates tell them. Riccardo v. Rausch, 375 F.3d 521,

527 (7th Cir. 2004). “[P]risoners may object to potential cell-

mates in an effort to manipulate assignments, or out of

ignorance.” Id. If Sergeant Schneider didn’t believe Olson’s

warning, then he wasn’t deliberately indifferent to any known

risk; at most he might have been negligent if he failed to

investigate a potential threat.

But in fact Sergeant Schneider did investigate the potential

threat: He spoke to other guards on duty, who cast doubt on

10 No. 12-2786

Olson’s warning. Nobody working that shift had heard of any

problems between Olson and Russell, and they reported that

Russell was taking his medications. Moreover, Russell had no

history of violence or conflicts with other inmates. It was

logical for Sergeant Schneider to infer that Olson’s warning

was false, or at least exaggerated; without more evidence we

can’t see how a reasonable fact finder could conclude that

Sergeant Schneider actually drew the opposite inference. See

Lindell v. Houser, 442 F.3d 1033, 1035 (7th Cir. 2006); Riccardo,

375 F.3d at 527.

Olson’s claims against Tenebruso founder for similar

reasons. Olson had to show that he was experiencing an

objectively serious medical need and that Tenebruso was

deliberately indifferent to it. Grieveson v. Anderson, 538 F.3d

763, 779 (7th Cir. 2008). There’s no evidence that Tenebruso

ever learned that Olson had a serious medical need. Although

Olson claims his broken tooth caused him severe pain and left

him unable to sleep or eat until it was removed, his letters to

Tenebruso make much milder claims. His earliest letter (on

April 8) was a request for aspirin in which Olson suggested

that the pain was diminishing. We can’t say that a reasonable

official would necessarily interpret a request for aspirin as an

indicator of serious medical needs. Olson didn’t mention his

pain at all in the second letter (on April 14); he simply vented

his frustration with the prison’s procedure for requesting

dental appointments. This is hardly evidence from which

Tenebruso could have inferred that Olson had a serious

medical need, let alone evidence that she actually drew that

inference.

No. 12-2786 11

In his response to the motion for summary judgment,

however, Olson claimed that he repeatedly informed

Tenebruso about his serious pain. The judge did not consider

this argument because Olson failed to submit an affidavit or

other evidence to support it, although the court acknowledged

that it’s an open question in this circuit whether anything more

than an unsworn statement is needed to oppose summary

judgment. See Jajeh v. County of Cook, 678 F.3d 560, 568 & n.4

(7th Cir. 2012). We note that the Federal Rules of Civil Proce-

dure allow parties to oppose summary judgment with materi-

als that would be inadmissible at trial so long as facts therein

could later be presented in an admissible form. See FED . R. CIV .

P. 56(c)(2)–(4).

We do not need to decide whether the judge properly

disregarded the unsworn statements in Olson’s response

because even with them, summary judgment was appropriate.

Timing is everything in this case, and yet Olson never told the

court when he sent the letters to Tenebruso. The record sug-

gests that Tenebruso received several requests from Olson, but

all on the same day—April 14, two days before Olson was

referred to the dentist. No reasonable fact finder could con-

clude that this two-day delay reflected deliberate indifference

on Tenebruso’s part, considering that Olson never filled out the

proper request to see a dentist and never indicated that his

situation was an emergency. Cf. McGowan v. Hulick, 612 F.3d

636, 640 (7th Cir. 2010) (“[T]he length of delay that is tolerable

depends on the seriousness of the condition and the ease of

providing treatment.”). Olson needed evidence that Tenebruso

was aware of his urgent needs well before she took action, but

12 No. 12-2786

even in his unsworn statements, he doesn’t claim that he made

a specific request for dental services before April 14.

Summary judgment in favor of Sergeant Schneider and

Tenebruso was therefore appropriate.

AFFIRMED .