Miguel Perez v. James Fenoglio

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 12-3084

MIGUEL PEREZ,

Plaintiff-Appellant,

v.

JAMES FENOGLIO, ET AL.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:11-cv-00819—G. Patrick Murphy, Judge.

____________________

ARGUED OCTOBER 30, 2014 — DECIDED JULY 7, 2015

____________________

Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.

WILLIAMS, Circuit Judge. Miguel Perez, an inmate at Law-

rence Correctional Center, brought an action under 42 U.S.C.

§ 1983 against various prison officials alleging cruel and un-

usual punishment in violation of the Eighth Amendment.

According to his pro se complaint, prison officials were de-

liberately indifferent to his severe hand injury, delaying his

receipt of medically necessary surgery for ten months. This

delay caused Perez needless pain and suffering and left him

2 No. 12-3084

with permanent loss of hand functioning. The district court,

after denying Perez’s request for pro bono counsel, screened

his complaint under 28 U.S.C. § 1915A, and dismissed it sua

sponte, with prejudice, for failure to state a claim. This ap-

peal followed.

We find that the district court’s dismissal of Perez’s

claims was premature. Liberally construed, Perez’s pro se

complaint states valid Eighth Amendment claims against

members of the prison’s medical staff and various grievance

officials. It also states, by way of an attached grievance, a

valid First Amendment retaliation claim. Therefore, we re-

verse the district court’s dismissal and remand for proceed-

ings consistent with this opinion.

I. BACKGROUND

We accept the facts alleged in Perez’s complaint as true

and review them in the light most favorable to him. Thulin v.

Shopko Stores Operating Co., LLC, 771 F.3d 994, 997 (7th Cir.

2014). On May 16, 2010, while an inmate at Lawrence Cor-

rectional Center in Sumner, Illinois, Miguel Perez was in-

jured during a prison basketball game. He suffered a torn

ligament in his right hand, dislocation of his thumb, tissue

damage, and a “gaping wound” between his thumb and

right index finger. No physician was on duty at the prison,

so Perez was seen by a nurse, C. Brooks, 1 who wrapped his

hand with gauze. She stated that she could not provide pain

medicine to Perez or stitch his wound because only physi-

cians were authorized to do so.

1The first names of several of the named defendants, including

Nurse Brooks, are not yet part of the record.

No. 12-3084 3

The following day, Perez returned to the prison infirma-

ry and was seen by a physician, Dr. James Fenoglio, who

prescribed Perez antibiotics, but did not stitch his wound.

Recognizing the severity of the injury, Dr. Fenoglio stated

that Perez “would need to go to the outside hospital to see a

hand surgeon” and recommended a specialist at the Carle

Clinic in Champaign, Illinois. Before Perez could see the spe-

cialist, a referral request had to be approved by Phil Martin,

the prison’s Health Care Administrator. Martin waited sev-

eral days before issuing his approval, during which time Pe-

rez languished in pain and attempted to manage an open,

bleeding wound.

Four days after sustaining his hand injury, on May 20,

2010, Perez filed a grievance with the prison. In it, he ex-

plained that he had an open, bleeding wound and was expe-

riencing extreme levels of pain and discomfort. He also

claimed he was being “punished in retribution for a prior

grievance” he filed on January 2, 2010, which complained of

a delay in receiving his prescription depression medication.

Perez’s May 20th grievance was rejected by Counselor C.

Vaughn, whose decision was affirmed by Grievance Officer

Pamela Moran.

On May 21, 2010, Perez was taken to the Carle Clinic,

where he was seen by a physician’s assistant, Julie Young.

Young diagnosed Perez with “a large soft tissue tear” and

“[p]robable right thumb MCP [metacarpophalageal] joint

subluxation/dislocation with [a] possible radial collateral

ligament tear.” Young determined that Perez had “2 [centi-

meters] soft tissue laceration … extend[ing] from the web-

space proximally across the base of the thumb,” and a

“wound [that] itself is quite deep ... gaping open several

4 No. 12-3084

[millimeters] and … more when he abducts his thumb.”

Young could not suture the wound, however, because it was

already five days old. She determined that the hand would

have to be treated through “surgical revision” or “secondary

intention,” the process by which a wound heals outward

from its base because the skin edges cannot be brought to-

gether. Young ordered that Perez receive twice-daily dress-

ing changes and cleanings with hydrogen peroxide. She also

suggested “possible splinting or casting for the thumb inju-

ry” and scheduled Perez for a “wound check” for early the

following week.

Prison officials did not follow Young’s care instructions,

nor did they take Perez to his follow-up appointment. As a

result, Perez claims to have filed another grievance on June

17, 2010 requesting that he be returned to the Carle Clinic.

Around this time, he also appealed the denial of his May

20th grievance. Brian Fairchild, an officer with the Adminis-

trative Review Board, and Gladyse Taylor, the Acting Direc-

tor of the Illinois Department of Corrections, rejected this

appeal, stating the issue was appropriately addressed by the

institutional administration.

On December 6, 2010, seven months after his initial visit,

Perez was brought back to the Carle Clinic, where he was

seen by Dr. Cliff Johnson. Dr. Johnson determined that Perez

had an “obvious subluxation of the right thumb MCP joint,”

“hyperextension of the MCP joint,” and “laxity of the radial

collateral ligament.” He also took “X-rays … of [his] right

thumb [that] show[ed] some early wear and tear changes as

well as ulnar deviation of the thumb MCP joint.” Dr. John-

son presented Perez with two treatment options. He could

undergo surgery (a right thumb MCP fusion procedure) or

No. 12-3084 5

he could “live with it” and have a Thermoplast spica splint

custom made for his hand. However, he was not sure if Pe-

rez would be able to wear such a splint in prison. Dr. John-

son further stated that if Perez wished to try the splint, the

prison should “schedule him back in therapy [at the clinic]

for that appointment.” He explained these options to Perez

and sent his recommendations to Dr. Fenoglio.

Following this visit, Perez was seen at the prison by Dr.

Fenoglio, who elected to wrap Perez’s hand in an Ace band-

age. While wrapping his hand in the bandage, he told Perez,

“[t]hat’s [your] thumb-splica splinter.” 2

On January 10, 2011, Perez filed another grievance. This

time, he detailed the seven-month delay between his visits to

the Carle Clinic, described continued pain and suffering,

complained about the indifference of the prison’s medical

staff, and requested that he be provided with either a cus-

tom-made spica splint or surgery.

On February 15, 2011, Perez was brought back to the

Carle Clinic, where Dr. Johnson informed him and prison

officials that “MCP joint fusion” was “the only surgical solu-

tion” remaining for Perez. The following month, Perez re-

ceived the surgery. However, as a consequence of the ten-

month delay, Perez claims to have sustained irreparable

damage to his hand, resulting in “decreased usage.”

2 A “spica splint” is a splint that is custom-fitted to the thumb area of

the hand to immobilize it while permitting continued use of the other

fingers of the hand. Throughout the complaint, Perez refers to this as a

“splica” splint, including when he recounts statements allegedly made

by medical personnel.

6 No. 12-3084

Following the surgery, on April 27, 2011, Perez submitted

a “resident request” to Warden Lee Ryker, asking for “as-

sist[ance] in obtaining a resolution to [his] grievance”; he re-

ceived no response. He also sent a letter to the Administra-

tive Review Board requesting his grievance be processed.

His appeal was not answered.

On September 8, 2011, Perez filed a pro se complaint un-

der 42 U.S.C. § 1983 for damages and injunctive relief. He

also requested that the district court recruit counsel to repre-

sent him pro bono under 28 U.S.C. § 1915(e)(1). The district

court twice denied Perez’s request for counsel. It then

screened his complaint under the Prison Litigation Reform

Act (“PLRA”), 28 U.S.C. § 1915A, and dismissed it sua spon-

te, with prejudice, for failure to state a claim. So, Perez filed

this appeal. 3

II. ANALYSIS

On appeal, Perez makes four claims: (1) the district court

erred in dismissing his case for failure to state an Eighth

Amendment claim; (2) the district court failed to address the

First Amendment claim of retaliation stated in his complaint;

(3) the district court abused its discretion by dismissing his

complaint with prejudice; and (4) the district court abused

its discretion by refusing to grant his request for pro bono

counsel. We address each in turn.

3 This court, after reviewing Perez’s pro se appeal, appointed appel-

late counsel.

No. 12-3084 7

A. Perez’s Complaint States a Valid Eighth Amend-

ment Claim

Our review of the district court’s dismissal of Perez’s

complaint under § 1915A for failure to state an Eighth

Amendment claim is de novo, taking the allegations in the

complaint as true and drawing all reasonable inferences in

Perez’s favor. Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1039

(7th Cir. 2012) (per curiam). Because Perez’s complaint is pro

se, we construe it “liberally,” holding it to a “less stringent

standard than formal pleadings drafted by lawyers.” Arnett

v. Webster, 658 F.3d 742, 751 (7th Cir. 2011).

“The Eighth Amendment safeguards the prisoner against

a lack of medical care that ‘may result in pain and suffering

which no one suggests would serve any penological pur-

pose.’” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,

828 (7th Cir. 2009) (quoting Estelle v. Gamble, 429 U.S. 97, 103

(1976)). To state an Eighth Amendment claim based on defi-

cient medical care, a plaintiff must allege an objectively seri-

ous medical condition and an official’s deliberate indiffer-

ence to that condition. Arnett, 658 F.3d at 750. Because there

is no dispute that Perez’s alleged injury was sufficiently se-

rious, the only issue in this appeal is whether the complaint

alleges deliberate indifference. Deliberate indifference occurs

when a defendant realizes that a substantial risk of serious

harm to a prisoner exists, but then disregards that risk. See

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (plaintiff must

show that officials are “aware of facts from which the infer-

ence could be drawn that a substantial risk of serious harm

exists, and they must also draw the inference.”). The deliber-

ate indifference standard reflects a mental state somewhere

between the culpability poles of negligence and purpose,

8 No. 12-3084

and is thus properly equated with reckless disregard. Id. at

836.

The district court dismissed Perez’s complaint on the

ground that Perez had undermined any contention of delib-

erate indifference by “conceding” to having received “im-

mediate” and “continuing” medical attention from prison

staff for his injury. We disagree with this reasoning. If all the

Eighth Amendment required was that prison officials pro-

vide some “immediate and ongoing attention,” they could

shield themselves from liability (and save considerable re-

sources) by shuttling sick or injured inmates to perfunctory

medical appointments wherein no meaningful treatment is

dispensed. Needless to say, the responsibilities imposed by

the Constitution are not so easily avoided.

Prison officials must provide inmates with medical care

that is adequate in light of the severity of the condition and

professional norms. See, e.g., Farmer, 511 U.S. at 832; Arnett,

658 F.3d at 751. The “receipt of some medical care does not

automatically defeat a claim of deliberate indifference.” Ed-

wards, 478 F.3d at 831; see also Arnett, 658 F.3d at 751 (prison-

er need not show that his or her medical needs were “literal-

ly ignored”). Deliberate indifference may occur where a

prison official, having knowledge of a significant risk to in-

mate health or safety, administers “blatantly inappropriate”

medical treatment, Edwards, 478 F.3d at 831, acts in a manner

contrary to the recommendation of specialists, Arnett, 658

F.3d at 753, or delays a prisoner’s treatment for non-medical

reasons, thereby exacerbating his pain and suffering.

McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).

Based on a review of the complaint and attached docu-

ments, we have no trouble finding that Perez states a valid

No. 12-3084 9

Eighth Amendment claim. Perez sets forth a plausible ac-

count of the facts showing the severity of his injury, how

much delay he experienced in obtaining meaningful treat-

ment, how often he asked various officials to intervene on

his behalf, and the consequences of their inaction. Our deci-

sion in Edwards is squarely on point. There, the plaintiff al-

leged that “he severely injured his finger while in prison and

failed to receive adequate, timely care for a nonmedical rea-

son … result[ing] in permanent disfigurement, loss of range

of motion, and the infliction of unnecessary pain.” 478 F.3d

at 830. We held that these allegations were sufficient to “sat-

isfy federal pleading requirements and state a claim for de-

liberate indifference.” Id. Perez’s allegations, which are vir-

tually identical, are also sufficient. Because Perez’s allega-

tions against the individual defendants are different, we ad-

dress them individually below.

1. The Prison Physician—Dr. Fenoglio

Perez’s complaint alleges that his prison physician, Dr.

James Fenoglio, failed to provide him with adequate, timely

care and ignored the treatment recommendations of special-

ists at the Carle Clinic.

“Prison physicians will be liable under the Eighth

Amendment if they intentionally disregard a known, objec-

tively serious medical condition that poses an excessive risk

to an inmate’s health.” Gonzales v. Feinerman, 663 F.3d 311,

313 (7th Cir. 2011). A delay in treatment may show deliber-

ate indifference if it exacerbated the inmate’s injury or un-

necessarily prolonged his pain. McGowan, 612 F.3d at 640;

Edwards, 478 F.3d at 831. Whether the length of delay is tol-

erable depends upon the seriousness of the condition and

the ease of providing treatment. McGowan, 612 F.3d at 640.

10 No. 12-3084

In some cases, even brief, unexplained delays in treatment

may constitute deliberate indifference. See Edwards, 478 F.3d

at 831-32 (two-day delay in treatment for open dislocated

finger for no medical reason stated a claim against prison

doctor for deliberate indifference); Cooper v. Casey, 97 F.3d

914, 917 (7th Cir. 1996) (“whether the plaintiffs were in suffi-

cient pain to entitle them to pain medication within the first

48 hours after the beating” presented question for jury).

Perez’s complaint alleges with specificity a number of

troubling delays in his treatment. After sustaining a gaping

wound and open dislocation, he was forced to wait 24 hours

before seeing a physician with authority to prescribe medica-

tion or suture wounds. After being seen by Dr. Fenoglio,

who determined that the wound was so serious it required

the care of a specialist, Perez had to wait four days (and had

to file a grievance) before being sent to the Carle Clinic. By

the time he arrived, it was too late for the specialist to suture

the wound. After visiting the Carle Clinic, Perez waited sev-

en months (and had to file another grievance) before he was

returned to the clinic for follow-up care. All told, while un-

der Dr. Fenoglio’s care, Perez experienced a ten-month delay

from the time of his injury until the time he received mean-

ingful treatment in the form of surgery.

Such unexplained delays could support a deliberate in-

difference claim if Dr. Fenoglio was aware of the severity of

Perez’s condition. See McGowan, 612 F.3d at 640. Here, Perez

has alleged that Dr. Fenoglio knew as early as May 17, 2010,

that Perez had a severe hand injury, which, in Dr. Fenoglio’s

own estimation, required expert attention to treat. Dr. Feno-

glio saw Perez on multiple occasions thereafter, during

which Perez complained of ongoing symptoms (pain and

No. 12-3084 11

discomfort, bleeding, swelling, and loss of functioning),

which could support a finding that the delays in Perez’s

treatment were unacceptable.

Perez also alleges that Dr. Fenoglio’s failure to follow the

recommendations of specialists at the Carle Clinic constitut-

ed deliberate indifference. According to Perez, doctors at the

clinic recommended two courses of treatment: undergo sur-

gery or get custom fitted for a Thermoplast spica splint and

attempt to live with the injury for a time. Dr. Fenoglio alleg-

edly ignored the recommendations, electing instead to wrap

Perez’s wound in an Ace bandage.

Allegations that a prison official refused to follow the

advice of a medical specialist for a non-medical reason may

at times constitute deliberate indifference. See Arnett, 658

F.3d at 753 (allegation that medical official refused to pro-

vide inmate with prescribed anti-inflammatory medication

or substitute, despite his repeated complaints and worsening

pain, stated claim for deliberate indifference); Gil v. Reed, 381

F.3d 649, 664 (7th Cir. 2004) (allegation that prison doctor

prescribed medication to inmate that specialist warned

against gave rise to genuine issue of material fact precluding

summary judgment); Jones v. Simek, 193 F.3d 485, 490–91 (7th

Cir. 1999) (evidence prison doctor refused to follow special-

ist’s orders precluded summary judgment); see also Holloway

v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1074 (7th Cir. 2012)

(prison doctor “is free to make his own, independent medi-

cal determination as to the necessity of certain treatments or

medications, so long as the determination is based on the

physician’s professional judgment and does not go against

accepted professional standards”).

12 No. 12-3084

Perez alleges that Dr. Fenoglio was aware of the special-

ists’ recommendations, but refused to follow them despite

Perez’s severe injury and his repeated complaints of pain. By

quoting Dr. Fenoglio’s sarcastic statement that the Ace

bandage would be his “thumb-splica splinter,” Perez also

suggests that Dr. Fenoglio’s decision to ignore the recom-

mendations was not based on any reasoned judgment. See

Rodriguez, 577 F.3d at 832 (allowing claim to advance that

“alleged implicitly that [inmate’s] treatment … was not

based on a legitimate medical judgment”); see also Dixon v.

Godinez, 114 F.3d 640, 645 (7th Cir. 1997) (prison official’s

“sarcastic responses” to prisoner’s complaint “help raise a

dispute about … defendants’ knowledge of the condition,

and [his] refusal to take steps to prevent it”). These allega-

tions could sustain a claim of deliberate indifference against

Dr. Fenoglio.

We recognize that a more complete examination of the

facts may show that Perez’s condition did not necessitate

surgery or a splint, that Dr. Fenoglio was not aware of the

need for more urgent care, or that someone else was respon-

sible for the alleged delays. It might also reveal that Dr. Fen-

oglio’s treatment plan fell within the specialists’ recommen-

dations or was based on his own legitimate medical judg-

ment. But those are details to be explored during discovery.

At this stage, Perez has stated a claim for such serious delays

in the provision of adequate treatment that the Eighth

Amendment may have been violated. See McGowan, 612 F.3d

at 640.

2. The Prison Nurse—Brooks

Perez alleges that Nurse Brooks’s failure to suture Perez’s

wound or provide pain medication on the day of his injury,

No. 12-3084 13

and thereafter to ensure he received constitutionally ade-

quate care, constituted deliberate indifference. The State4

contends that Perez’s claim against Nurse Brooks must be

dismissed because Brooks lacked the authority to provide

additional care to Perez and because she acted appropriately

by making an appointment for Perez to see Dr. Fenoglio the

day after his injury.

While nurses may generally defer to instructions given

by physicians, they have an independent duty to ensure that

inmates receive constitutionally adequate care. See Berry v.

Peterman, 604 F.3d 435, 443 (7th Cir. 2010). Nurses, like phy-

sicians, may thus be held liable for deliberate indifference

where they knowingly disregard a risk to an inmate’s heath.

See id. “[A] nurse confronted with an ‘inappropriate or ques-

tionable practice’ should not simply defer to that practice,

but rather has a professional obligation to the patient to ‘take

appropriate action,’ whether by discussing the nurse’s con-

cerns with the treating physician or by contacting a respon-

sible administrator or higher authority.” Id.; see also Rice ex

rel. Rice v. Correctional Med. Servs., 675 F.3d 650, 683 (7th Cir.

2012) (“[A] nurse may not unthinkingly defer to physicians

and ignore obvious risks to an inmate's health….”).

4 Although some of the named defendants were officials or employ-

ees of the State of Illinois, the district court dismissed Perez’s complaint

for failure to state a claim under 28 U.S.C. § 1915A at the screening stage

before summonses were served. Thus, these defendants never appeared

in the case and were not required to file response briefs in this appeal.

We invited Attorney General of the State of Illinois, Lisa Madigan (“the

State”), to file a response brief as an interested party, and she accepted.

The Attorney General, however, is not acting as counsel for defendants.

14 No. 12-3084

Berry illustrates these principles. There, an inmate com-

plained of a toothache, but was not taken to a dentist for two

months and ultimately required a root canal. 604 F.3d at 439.

The inmate brought an action under § 1983 alleging deliber-

ate indifference on the part of the prison dentist and the

nurse. The district court granted summary judgment in fa-

vor of the defendants, but we reversed, finding that there

were genuine issues of material fact as to whether the nurse

had acted with deliberate indifference by deferring to the

prison doctor’s determination that the inmate could wait

two months to see a dentist despite his persistent com-

plaints. Id. at 443. We also explicitly rejected the notion—put

forward by the State in this case—that nurses cannot, as a

matter of law, be held liable for Eighth Amendment viola-

tions where they allegedly lacked authority to provide par-

ticular forms of medical care to inmates. Id.

We find that Perez’s complaint states a claim for deliber-

ate indifference against Nurse Brooks by alleging she had

knowledge of his severe injury, yet failed to provide ade-

quate medical treatment to Perez herself (e.g., by suturing

his wound) or to ensure that others did (e.g., by contacting

supervisory personnel to voice any concerns about the

treatment being provided to him).

Again, we note that discovery may yield more infor-

mation regarding whether Nurse Brooks had authority to

stitch wounds or dispense pain medication, and whether

such actions were medically necessary. Discovery may also

show that Brooks did in fact take steps to ensure Perez was

receiving constitutionally adequate care. However, these are

questions of fact that cannot be resolved at this stage in the

litigation.

No. 12-3084 15

3. Wexford Health Sources, Inc.

The complaint also names as a defendant Wexford

Health Sources, Inc., the private corporation that serves as

the prison’s healthcare provider. In this circuit, a private

corporation cannot be held liable under § 1983 unless it

maintained an unconstitutional policy or custom. See Wood-

ward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir.

2004). 5 Perez’s complaint alleges that Nurse Brooks “told

[him] that there was no doctor there therefore she couldn’t

stitch [his] wound and just wrapped [his] hand.” The ques-

tion before us is thus whether this statement is sufficient to

identify an unconstitutional policy or practice maintained by

Wexford.

In light of our duty to construe Perez’s pro se complaint

liberally, Arnett, 658 F.3d at 751, and to draw all reasonable

inferences in his favor, Thulin, 771 F.3d at 997, we find that

Perez sufficiently alleges that Wexford maintained a policy

or practice that prevented nurses from stitching wounds or

prescribing medication without a “doctor there.” We further

infer from his complaint the allegation that Wexford main-

tained a policy or practice of not having a full-time doctor

stationed at the prison at all times (or on call to suture open

wounds as necessary). Because these alleged policies are ca-

5 We recently examined the legal soundness of this rule in Shields v.

Ill. Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014) (questioning whether

the Monell principle, which shields municipalities from respondeat supe-

rior liability in actions brought under § 1983, is properly extended to pri-

vate corporations), cert. denied, 135 S. Ct. 1024 (2015). However, the par-

ties do not here challenge it.

16 No. 12-3084

pable of causing delays in treatment—which could result in

a constitutional deprivation, McGowan, 612 F.3d at 640—the

claim against Wexford should have been allowed to proceed.

4. Administrator Martin

Perez accuses Administrator Martin, the individual re-

sponsible for approving requests for inmates to be seen by

outside doctors, of deliberate indifference for refusing to

grant Perez’s referral request without explanation for four

days.

We find that Perez’s complaint states a claim for deliber-

ate indifference against Administrator Martin. See McGowan,

612 F.3d at 641 (plaintiff stated plausible deliberate indiffer-

ence claim against health administrator who “stalled in au-

thorizing a referral to an outside surgeon”). As noted above,

a delay in treatment may constitute deliberate difference if it

exacerbates the inmate’s injury or unnecessarily prolonged

his pain. McGowan, 612 F.3d at 640. “Even a few days’ delay

in addressing a severely painful but readily treatable condi-

tion suffices to state a claim of deliberate indifference.”

Smith, 666 F.3d at 1040. Here, Perez alleges that because Mar-

tin took four days to approve the request, the specialist was

unable to suture the wound, causing him needless pain and

suffering and worsening the injury. This suffices to state a

claim against Martin.

5. The Grievance Defendants

Perez’s complaint alleges deliberate indifference on the

part of various non-medical prison officials (“the grievance

defendants”) who were made aware of Perez’s predicament

by way of his grievances and other correspondences. Perez

asserts that Counselor Vaughn and Officer Moran reviewed

No. 12-3084 17

and denied each of Perez’s grievances; that Warden Ryker

received a “resident request” asking for “assist[ance] in ob-

taining a resolution to [Perez’s] grievance” but failed to re-

spond; and that Director Taylor (of the Illinois Department

of Corrections) and Officer Fairchild (of the Administrative

Review Board) denied his appeals and never responded to

his inquiry letter, which requested that his grievance be duly

processed. The State contends that as a matter of law the

grievance defendants cannot be held personally liable for

any inadequate medical care Perez may have received be-

cause other prison officials, i.e., the medical defendants,

would have been directly responsible for his medical care.

It is well established that “[f]or constitutional violations

under § 1983 … a government official is only liable for his or

her own misconduct.” E.g., Locke v. Haessig, 13-1857, 2015

WL 3528782, at *5 (7th Cir. June 5, 2015). This means that to

recover damages against a prison official acting in a supervi-

sory role, a § 1983 plaintiff may not rely on a theory of re-

spondeat superior and must instead allege that the defend-

ant, through his or her own conduct, has violated the Consti-

tution. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The fac-

tors necessary to establish a § 1983 violation against a prison

official depend upon the constitutional provision at issue,

including the state of mind required to establish a violation

of that provision. See id.

As pertains to this case, in order to establish a constitu-

tional violation based upon conditions of confinement, a plain-

tiff must allege that each prison official named as a defend-

ant has been deliberately indifferent to that plaintiff’s objec-

tively serious medical condition, Arnett, 658 F.3d at 750, with

deliberate indifference occurring where an official realizes

18 No. 12-3084

that a substantial risk of serious harm to a prisoner exists,

but disregards it, Farmer, 511 U.S. at 837. Applying Farmer,

we have stated that deliberate indifference may be found

where an official knows about unconstitutional conduct and

facilitates, approves, condones, or “turn[s] a blind eye” to it.

See Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996) (quot-

ing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). An

inmate’s correspondence to a prison administrator may thus

establish a basis for personal liability under § 1983 where

that correspondence provides sufficient knowledge of a con-

stitutional deprivation. Vance, 97 F.3d at 993 (“[A] prison of-

ficial’s knowledge of prison conditions learned from an in-

mate’s communications can, under some circumstances, con-

stitute sufficient knowledge of the conditions to require the

officer to exercise his or her authority and to take the needed

action to investigate and, if necessary, to rectify the offend-

ing condition.”). Indeed, once an official is alerted to an ex-

cessive risk to inmate safety or health through a prisoner’s

correspondence, “refusal or declination to exercise the au-

thority of his or her office may reflect deliberate disregard.”

Id.; accord Arnett, 658 F.3d at 756. In other words, prisoner

requests for relief that fall on “deaf ears” may evidence de-

liberate indifference. Dixon, 114 F.3d at 645.

In this regard, Gentry v. Duckworth is instructive. There,

an inmate claimed that his right of access to the courts was

violated because he was denied scribe materials (e.g., paper,

some means of writing, and access to notary services) by

prison guards. 65 F.3d at 557. He sent many letters to the su-

perintendent concerning his claims, which went unan-

swered. Id. at 561. Although the superintendent may not

have been directly responsible for the constitutional depriva-

tion, we concluded that the superintendent knew of the de-

No. 12-3084 19

nial of scribe materials because of the prisoner’s “many let-

ters” to him, and that the superintendent had systematically

ignored these requests for redress. We thus allowed the in-

mate’s § 1983 action to survive summary judgment. Id.

We find that Perez’s complaint alleges facts sufficient to

form a basis for personal liability against the grievance offi-

cials for violations of the Eighth Amendment. The complaint

alleges that the named defendants each obtained actual

knowledge of Perez’s objectively serious medical condition

and inadequate medical care through Perez’s coherent and

highly detailed grievances and other correspondences. It al-

so alleges that each of these officials failed to exercise his or

her authority to intervene on Perez’s behalf to rectify the sit-

uation, suggesting they either approved of or turned a blind

eye to his allegedly unconstitutional treatment. Gentry, 65

F.3d at 561. Perez’s claims against the grievance officials thus

should have been allowed to proceed.

Again, we emphasize that the district court screened Pe-

rez’s complaint before discovery, before submission of any

evidence, and before the defendants were even served pro-

cess. At this early stage of the litigation, we ask only whether

Perez’s complaint, liberally construed, Arnett, 658 F.3d at

751, and drawing all reasonable inferences in his favor, Thu-

lin, 771 F.3d at 997, contains facts sufficient to state a plausi-

ble Eighth Amendment claim against the grievance defend-

ants. We believe that it has. Of course, discovery will shed

light on whether, as the State contends, the grievance de-

fendants took “the needed action to investigate” Perez’s

grievances, Vance, 97 F.3d at 993, and “reasonably rel[ied] on

the judgment of medical professionals.” Johnson v. Doughty,

433 F.3d 1001, 1011 (7th Cir. 2006). However, these are ques-

20 No. 12-3084

tions of fact that simply cannot be resolved in the absence of

a record.

Therefore, we reverse the dismissal of Perez’s complaint

with respect to all of the defendants.

B. Perez’s Complaint States a Valid First Amend-

ment Retaliation Claim

Perez further argues that his complaint states a valid

First Amendment claim of retaliation by way of an attached

grievance. See, e.g., Arnett, 658 F.3d at 746 (documents “at-

tached to the complaint” are “part of the complaint”). That

grievance, dated May 20, 2010, alleged the following:

[T]he Health Care Professionals at this facility

have been deliberately indifferent in providing

needed care. It seems as though I am being

punished in retribution for a prior grievance I

had filed on January 2, 2010 in regards to their

not providing me with my medication (Remer-

on 45mg) for 20 days in total disregard[] to

doctor’s order and prescription.

To state a First Amendment claim for retaliation, a plain-

tiff must allege that “(1) he engaged in activity protected by

the First Amendment; (2) he suffered a deprivation that

would likely deter First Amendment activity in the future;

and (3) the First Amendment activity was at least a motivat-

ing factor in the defendants’ decision to take the retaliatory

action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).

With respect to the first of these elements, filing a non-

frivolous grievance is a constitutionally protected activity

sufficient to support a retaliation claim. Thomson v. Washing-

ton, 362 F.3d 969, 971 (7th Cir. 2004). With respect to the sec-

No. 12-3084 21

ond, we have held that denial of medical treatment is a dep-

rivation likely to dissuade a reasonable person from engag-

ing in future First Amendment activity. See Murphy v. Lane,

833 F.2d 106, 108 (7th Cir. 1987). Here, Perez alleges that be-

cause he brought a grievance against prison officials for

withholding of his prescribed depression medication, mem-

bers of the prison’s medical staff (including Dr. Fenoglio and

Administrator Martin) denied him adequate care when he

injured his hand. These allegations suffice to state a claim of

retaliation, which the district court should have recognized

and allowed Perez to pursue. See 28 U.S.C. § 1915A(b) (as

part of the screening process “the court shall identify cog-

nizable claims”).

C. Dismissal With Prejudice Was Problematic

Because we reverse the district court’s dismissal of the

complaint, we need not address whether dismissal with

prejudice was an abuse of discretion. We note, however, that

the PLRA’s screening requirement does not—either explicit-

ly or implicitly—justify deviation from the usual procedural

practice, Jones v. Bock, 549 U.S. 199, 214 (2007), which in this

circuit is for courts to grant leave to amend or to dismiss

without prejudice. See Luevano v. Wal-Mart Stores, Inc., 722

F.3d 1014, 1024 (7th Cir. 2013) (collecting cases); Powers v.

Snyder, 484 F.3d 929, 933 (7th Cir. 2007) (noting that in pro se

prisoner cases, deficient pleadings should be dismissed

“with leave to replead, rather than … with prejudice,” which

would “count as a ‘strike,’ limiting the plaintiff’s right to

bring subsequent suits”). Upon remand, Perez should be

able to amend his pleading, should he so choose, “once as a

matter of course” and thereafter as justice requires. See Fed.

R. Civ. P. 15(a); Crestview Vill. Apartments v. U.S. Dep’t of

22 No. 12-3084

Hous. and Urban Dev., 383 F.3d 552, 557 (7th Cir. 2004) (“A

motion to dismiss does not constitute a responsive pleading

for purposes of Rule 15(a); thus, an order dismissing the

original complaint normally does not eliminate the plaintiff’s

right to amend once as a matter of right.”); Luevano, 722 F.3d

at 1023 (“District courts must allow [in forma pauperis] plain-

tiffs leave to amend at least once in all circumstances in

which such leave would be granted to fee-paying plaintiffs

under Rule 15(a).”).

D. Perez’s Request for Pro Bono Counsel

Perez also argues the district court should have appoint-

ed counsel under 28 U.S.C. § 1915(e)(1). We review denials

of requests for pro bono counsel for abuse of discretion, ask-

ing not whether the district court’s decision was right, but

whether it was “reasonable.” Henderson v. Ghosh, 755 F.3d

559, 564 (7th Cir. 2014) (internal citations omitted).

In a civil case, the district court has discretion to recruit

counsel to represent a litigant who is unable to afford one. 28

U.S.C. § 1915(e)(1). If a plaintiff makes a reasonable attempt

to secure counsel, the court must examine “whether the dif-

ficulty of the case—factually and legally—exceeds the par-

ticular plaintiff’s capacity as a layperson to coherently pre-

sent it.” Pruitt v. Mott, 503 F.3d 647, 655 (7th Cir. 2007) (en

banc). “There are no fixed requirements for determining a

plaintiff’s competence to litigate his own case.” Id. Normally,

the district court will “take into consideration the plaintiff’s

literacy, communication skills, educational level, and litiga-

tion experience” in relationship to the difficulties of the par-

ticular case. Id. But “in the end, the estimation as to whether

a plaintiff can handle his own case must be a practical one,

made in light of whatever relevant evidence is available on

No. 12-3084 23

the question.” Santiago v. Walls, 599 F.3d 749, 762 (7th Cir.

2010) (internal citations and quotation marks omitted).

According to Perez, the district court did not adequately

consider the difficulties posed by Perez’s case and whether

he was capable of litigating it. We disagree. The district

court considered Perez’s ability to litigate the case, noting

that Perez (who had attended some college) lucidly set forth

his allegations in his complaint. Cf. Pruitt, 503 F.3d at 649,

660-61 (finding abuse of discretion not to recruit counsel for

an inmate with the “educational level of an early sixth grad-

er”). The court also considered the complexity of his case,

observing that it presented a relatively straightforward claim

of deliberate indifference. See Olson v. Morgan, 750 F.3d 708,

712 (7th Cir. 2014) (rejecting inmate’s argument “state-of-

mind questions are categorically too difficult for pro se liti-

gants”). Based on these considerations, we believe that the

district court’s denial of counsel was not unreasonable.

However, when deciding whether to recruit counsel, we

encourage district courts in future cases to also consider the

severity of the medical condition that the inmate has alleged.

Where an inmate suffers a serious medical condition, it

could be a red flag that prison officials may have failed to

“take reasonable measures to guarantee the safety” of that

inmate. Farmer, 511 U.S. at 832. Courts should be hesitant to

dismiss a pro se complaint that states a serious medical con-

dition (as Perez’s did), yet fails perhaps to adequately allege

deliberate indifference. As we have stated, whether there has

been deliberate indifference on the part of a defendant is an

issue that requires the “subtle appreciation of legal causation

and of the duties imposed upon state prison officials by the

Eighth Amendment.” Santiago, 599 F.3d at 761. Even a pro se

24 No. 12-3084

litigant with a meritorious claim may fail to grasp these sub-

tleties. Where an inmate alleges an objectively serious medi-

cal condition, it may be better to appoint counsel—so that he

or she can investigate and flesh out any claim that may ex-

ist—than to dismiss a potentially meritorious claim and

leave the prisoner in harm’s way. In this regard, we are re-

minded that prisoners have been “[s]tripped … of virtually

every means of self-protection and foreclosed … [from] ac-

cess to outside aid.” Farmer, 511 U.S. at 833. District courts

should remain cognizant of the common law adage that the

“public … [is] required to care for the prisoner, who cannot

by reason of the deprivation of his liberty, care for himself.”

Estelle, 429 U.S. at 103-04.

Thus far, our analysis has focused on the considerations

district courts should take into account when determining

whether to recruit counsel at the initial pleadings stage.

Those considerations change as a case progresses to discov-

ery or trial. Taking depositions, conducting witness exami-

nations, applying the rules of evidence, and making opening

statements are beyond the ability of most pro se litigants to

successfully carry out. See Santiago, 599 F.3d at 763-64; Hen-

derson, 755 F.3d at 567. These tasks are even more challeng-

ing in cases, like Perez’s, where complex medical evidence

(including expert testimony) is needed to assess the adequa-

cy of the treatment received. See e.g., Greeno, 414 F.3d at 658;

Santiago, 599 F.3d at 761. District courts abuse their discre-

tion where they fail to consider the complexities of ad-

vanced-stage litigation activities and whether a litigant is

capable of handling them. Id. Our cases would thus suggest

that Perez should likely be granted pro bono counsel upon

remand, once his case moves beyond the pleadings stage.

No. 12-3084 25

We emphasize, however, that counsel is critical at all

stages of litigation. For this reason, courts should strive to

implement programs to help locate pro bono assistance for

indigent litigants. See Henderson, 755 F.3d at 563 (describing

the Trial Bar Pro Bono Program instituted by the United

States District Court for the Northern District of Illinois).

III. CONCLUSION

The judgment of the district court is REVERSED, and this

case is REMANDED for further proceedings consistent with

this opinion.