Johnson, Van Dyke v. Doughty, Stephen

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