The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1585
VICTOR R. BROWN,
Plaintiff-Appellant,
v.
DANIEL LAVOIE,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:20-cv-00319 — Lynn Adelman, Judge.
____________________
ARGUED SEPTEMBER 19, 2023 — DECIDED JANUARY 23, 2024
AMENDED JANUARY 25, 2024
____________________
Before EASTERBROOK, WOOD, and KIRSCH, Circuit Judges.
WOOD, Circuit Judge. Victor Brown, an inmate in the Wis-
consin Department of Corrections, has a history of self-harm.
One morning while he was particularly upset, Brown forced
a two-inch metal screw into his own flesh by his left elbow.
The screw was embedded so deeply that it could not be seen
without manipulating the skin, and so a prison nurse called
the prison doctor, Daniel LaVoie, to extract it.
2 No. 22-1585
Dr. LaVoie twice tried, and twice failed, to extract the
screw using a pair of metal-ring forceps. He did so without
using any anesthetic to deaden the site. When he first in-
formed Brown that this would be his approach, Brown pro-
tested by attempting to head-butt him. During the second at-
tempt, Dr. LaVoie again refused to apply an anesthetic, even
though Brown’s pain was obvious. The doctor poked at
Brown’s arm and tried to pull on the screw for several
minutes as Brown shouted in pain. He paused only to make
dismissive comments, such as telling Brown that he needed to
change his attitude. Eventually Brown was taken to a local
hospital, where staff administered an anesthetic and removed
the screw painlessly and quickly.
In this lawsuit, Brown claims that Dr. LaVoie was deliber-
ately indifferent to his serious medical condition in violation
of the Eighth Amendment. The district court granted sum-
mary judgment to Dr. LaVoie. Although it was willing to as-
sume that Brown had a serious medical condition, it con-
cluded that Dr. LaVoie was not deliberately indifferent to that
condition and thus did not violate Brown’s Eighth Amend-
ment rights. For good measure, the court added that in any
event Dr. LaVoie was entitled to qualified immunity. We see
things differently. When we view the record in the light most
favorable to Brown, as we must, there is a genuine dispute of
material fact about Dr. LaVoie’s state of mind. We therefore
reverse and remand for further proceedings.
I
A closer look at the record helps to explain why summary
judgment on both those grounds was premature. Brown al-
leges that around noon on August 21, 2019, two prison super-
visors were called to his cell after he had an altercation with
No. 22-1585 3
an official. The cell window was covered with a towel when
they arrived. Brown informed them that he had removed the
mirror from the cell wall; he banged it against the door as
proof. The supervisors asked Brown to remove the towel from
his window, but he did not immediately do so. Instead,
Brown swallowed six pieces of metal and inserted a two-inch
metal screw from the mirror into his flesh at the crook of his
left elbow. He then removed the towel and told the supervi-
sors what he had done.
More prison officials arrived after Brown agreed to come
out of his cell. They handcuffed Brown, placed a spit-guard
over his mouth, strapped him into a restraint chair, and took
him to a nurse’s station in the prison. The nurse inspected
Brown’s inner left elbow and determined that Brown needed
to see a doctor. In a video recording of the incident, the nurse
can be heard saying, “I gotta call a doctor. … I can feel it in
there … but I can’t even see it.”
Still strapped into the restraint chair, Brown was brought
to a hearing room, where he sat for over half an hour. Several
officials approached him during that time. Brown indicated to
the first that he would not allow the prison doctor to remove
the screw. A second official told Brown that he would be kept
in restraints until the screw was removed. This official sug-
gested that Brown should permit the doctor to remove it so
that he could go to bed. Brown eventually agreed to see the
doctor, at which point he was carted back to the nurse’s sta-
tion.
Dr. LaVoie was waiting at the station when Brown arrived.
He studied Brown’s inner elbow from a short distance and
then drew a pair of metal-ring forceps from a sterile bag. As
Dr. LaVoie bent down to extract the screw with the tool,
4 No. 22-1585
Brown asked whether anesthetics would be used to numb the
site. Dr. LaVoie said “No.” Frightened, Brown immediately
reacted by attempting to head-butt the doctor. Dr. LaVoie
quickly backed away, but before leaving the station, he said
to Brown: “Well, maybe you deserve to be strapped down in
the bed.”
Video from the incident shows that the officials next took
Brown to a cell and strapped him into a restraint bed. They
secured Brown’s torso with belts across his chest and legs, and
restricted his limbs by fastening his upper arms, wrists, and
ankles to the bed. Brown believed that he would remain
strapped down until the screw was removed, and so he even-
tually agreed to see the doctor again. When Dr. LaVoie en-
tered the cell to make a second attempt at removal, Brown
specifically said, through the spit-guard, “I want you to use
anesthesia.” Dr. LaVoie replied, “No. You stuck a screw in
your arm, not me, and this is a consequence of your actions.”
This time, Dr. LaVoie worked at Brown’s arm for nearly
five minutes. Prison officials stood around Brown to help the
doctor; some of them prevented Brown from raising his neck
so that he could see his arm. Brown had several dissociative
experiences, and within 90 seconds, his arm started bleed-
ing—so much so that an official requested a trash can “for the
bloody stuff.” The video recording of the incident shows that
as Brown shouted in pain, Dr. LaVoie responded with dis-
missive comments, and a tone of annoyance, perhaps even
sarcasm. The following is a partial transcription of what was
said:
Brown: Alright, I need a break. I need a break.
Break. Ow, you fucker! I need a break!
No. 22-1585 5
Dr. LaVoie: This is—this is not something I did.
Do you understand that—Mr. Brown?
Brown: You got a real slick attitude, huh?
Dr. LaVoie: Yeah, well, your attitude is the one
that needs to change.
…
Brown: Can’t you just—pull it out?
Dr. LaVoie: Well, you didn’t put it in right.
Brown: Ow!
Dr. LaVoie: You put it in so it’s hard to get out.
So next time, don’t do that.
…
Brown: I don’t like that. I don’t want [indiscern-
ible]
Dr. LaVoie: You don’t want what?
Brown: I can’t go—I can’t keep going on like
that.
Prison Official: He’s close.
Brown: No, he’s not! It’s not even on the surface!
Dr. LaVoie: I thought he was agreeing to have
this done.
Prison Official: He did agree.
…
Brown: Stop! STOP! STOP!! You bitch! I’m re-
fusing!
6 No. 22-1585
Even after Brown begged Dr. LaVoie to stop, the doctor
persisted in poking in Brown’s arm for another few seconds.
Brown then shouted, “Why do you keeping digging in my
arm?” Dr. LaVoie finally gave up, stood, and said to Brown:
“No. You know what? It can stay there. That’s fine.” He wiped
the ring forceps and left the cell.
Brown fell asleep in the restraint bed, where he remained
(still strapped in) for nearly four hours until he was taken to
a local hospital, accompanied by three officials. The hospital
staff “deemed it obvious” that local anesthesia was required
for the procedure, and after administering an anesthetic they
painlessly removed the screw in under three minutes.
II
Invoking 42 U.S.C. § 1983, Brown filed this lawsuit against
Dr. LaVoie, who, he asserted, had acted with deliberate indif-
ference toward Brown’s serious medical condition in viola-
tion of the Eighth Amendment. Brown also contended that
several other prison officials had violated the Eighth Amend-
ment by failing to intervene to stop Dr. LaVoie. The latter
claims have all been resolved, and so we say no more about
them.
Along with his complaint, Brown filed a motion to recruit
counsel pursuant to 28 U.S.C. § 1915(e)(1). The district court
denied this request, both initially and on reconsideration. Af-
ter the district court issued a screening order, Brown renewed
his request for counsel. This time he attached to the motion
the letters he sent to 24 attorneys seeking assistance with his
case. In the motion itself, Brown explained that he suffers
from several mental illnesses and a documented learning dis-
ability, all of which affect his ability to engage in this
No. 22-1585 7
litigation; that although he is 28 years old, he has completed
school through only the eighth grade and has not earned a
GED; and that he relies on the assistance of other prisoners to
conduct his case. The district court denied this request as well.
Dr. LaVoie then moved for summary judgment. He ar-
gued that Brown could not succeed on the merits of his Eighth
Amendment claim and that even if Brown cleared that hurdle,
Dr. LaVoie was entitled to qualified immunity. The doctor
submitted a short declaration to support his motion. His ac-
count was similar to the one from Brown that we have de-
scribed above, but there are some differences. Dr. LaVoie
stated that when he first tried to remove the screw, Brown
asked whether he would use an anesthetic, and Dr. LaVoie
said no. Brown’s version to this point is the same. Brown then
attempted to head-butt him—something Brown concedes that
he did. Dr. LaVoie said that in response to the head-butt, he
paused the treatment; Brown agrees that the doctor backed
off then. Brown adds, however, that as Dr. LaVoie left, he
commented that “maybe [Brown] deserve[d] to be strapped
down in the bed.”
Both parties agree that Dr. LaVoie tried again to remove
the screw. Brown adds that he specifically asked Dr. LaVoie
to use anesthesia before the second attempt, but that Dr. La-
Voie refused. The only explanation he gave, according to
Brown, was that Brown had “stuck a screw in [his] arm” and
that “this [was] a consequence of [his] actions.” Both sides
agree that Dr. LaVoie stopped after about five minutes,
shortly after Brown shouted that he revoked his consent. Dr.
LaVoie did not explain his chosen course of treatment, why
he continued it as Brown shouted in pain, or what he meant
by saying essentially that Brown deserved the pain.
8 No. 22-1585
The district court granted summary judgment in favor of
Dr. LaVoie. In so doing, it found that no rational trier of fact
could conclude that Dr. LaVoie’s decision not to use anesthe-
sia and his wielding of the forceps inside Brown’s flesh
amounted to deliberate indifference. The court thought that
this conclusion followed from Snipes v. DeTella, 95 F.3d 586
(7th Cir. 1996), a case in which we held that a prison doctor
did not violate the Eighth Amendment by removing a broken
toenail without applying topical anesthesia. The court
acknowledged that the removal of a screw “may have been
more invasive than the removal of a toenail,” but it reasoned
that the attempted screw removal “was not a ‘major surgery’
that ‘obviously’ required some form of anesthetic.” As an al-
ternative basis for summary judgment, the district court con-
cluded that Dr. LaVoie was entitled to qualified immunity.
This was so, the court said, because in light of Snipes, Brown
had no clearly established right to an anesthetic.
At this stage of the appeal, Brown challenges the district
court’s judgment in favor of Dr. LaVoie. In an earlier order,
we affirmed the district court’s rulings on other aspects of the
case, but we recruited counsel to assist with Brown’s claim
against Dr. LaVoie. * See Brown v. LaVoie, No. 22-1585, 2023 WL
154798 (7th Cir. Jan. 11, 2023). The remaining issues before us
are whether Dr. LaVoie was entitled to summary judgment
and whether the district court abused its discretion by not re-
cruiting counsel to assist Brown with this claim. Because we
reverse on the first ground, we have no need to reach the sec-
ond.
* We thank Madeline Clark and the firm of Jones Day for their assis-
tance to Brown and to the court.
No. 22-1585 9
III
As we already have noted, we review the district court’s
order awarding summary judgment de novo, construing the
record in the light most favorable to Brown and drawing all
reasonable inferences in his favor. See Burton v. Downey, 805
F.3d 776, 783 (7th Cir. 2015).
The Eighth Amendment to the United States Constitution
lies at the center of this case. Among other things, it protects
prisoners from being subjected to “unnecessary and wanton
infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).
That proscription includes “deliberate indifference to serious
medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104
(1976). “To determine if the Eighth Amendment has been vi-
olated in the prison medical context, we perform a two-step
analysis, first examining whether a plaintiff suffered from an
objectively serious medical condition, and then determining
whether the individual defendant was deliberately indifferent
to that condition.” Petties v. Carter, 836 F.3d 722, 727–28 (7th
Cir. 2016) (en banc). The parties do not dispute that Brown suf-
fered from an objectively serious medical condition, and so
we need only determine whether a reasonable trier of fact
could conclude that Dr. LaVoie was deliberately indifferent to
Brown’s condition.
A. Deliberate Indifference
The deliberate-indifference standard of the Eighth
Amendment mirrors the recklessness standard of the criminal
law. See Rivera v. Gupta, 836 F.3d 839, 842 (7th Cir. 2016). In
order to state a deliberate-indifference claim against a prison
doctor, it is thus not enough to show “mere” negligence in
treating a serious medical condition. See Estelle, 429 U.S. at
10 No. 22-1585
105–06. At the same time, a plaintiff does not bear the burden
of showing that a doctor intentionally denied necessary treat-
ment. See Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999).
The key question is whether the record contains the requi-
site evidence of a culpable mental state on the doctor’s part.
“[T]he prison official must act or fail to act despite his
knowledge of a substantial risk of serious harm.” Gil v. Reed,
382 F.3d 649, 664 (7th Cir. 2004) (citing Farmer v. Brennan, 511
U.S. 825, 837 (1994)). We apply this standard both when a
plaintiff claims that a doctor provided no medical treatment,
and when the claim is that the doctor provided inadequate
treatment. Indeed, we have stressed that “[a] doctor who pro-
vides some treatment may still be held liable if he possessed
a sufficiently culpable mental state.” Zaya v. Sood, 836 F.3d
800, 805 (7th Cir. 2016) (citing Petties, 836 F.3d at 729–30) (em-
phasis omitted).
We also have emphasized the importance of deferring to
the professional judgment of medical personnel. See, e.g., Sain
v. Wood, 512 F.3d 886, 894–95 (7th Cir. 2008). This is because
“[a] doctor who claims to have exercised professional judg-
ment is effectively asserting that he lacked a sufficiently cul-
pable mental state.” Zaya, 836 F.3d at 805. Even then, however,
a doctor is entitled to summary judgment only “if no reason-
able jury could discredit that claim.” Id.
We have identified several prototypical situations in
which a jury might discredit a prison doctor’s proffered justi-
fication for his chosen course of treatment. See generally Pet-
ties, 836 F.3d at 729–31. It is not necessary to restate each of
them here; it is enough to note just one. Where a plaintiff puts
forward evidence that a doctor failed to exercise medical
judgment, it is for the jury to decide whether the doctor had a
No. 22-1585 11
sufficiently culpable mental state. See Rasho v. Elyea, 856 F.3d
469, 476 (7th Cir. 2017) (citing Petties, 836 F.3d at 730). A plain-
tiff may show a lack of professional judgment by introducing
evidence of some other motive for the doctor’s chosen course
of action, such as hostility or ill-will towards the plaintiff. See
Rivera, 836 F.3d at 842; Rasho, 856 F.3d at 476.
Brown has put forward sufficient evidence to raise a ma-
terial question about Dr. LaVoie’s state of mind. Both Dr. La-
Voie’s own statements and his troublesome course of treat-
ment could support a finding of deliberate indifference. The
record shows that Dr. LaVoie viewed the procedure as a “con-
sequence” of Brown’s behavior, and that he persisted in his
efforts to remove the screw without applying anesthesia as
Brown shouted in pain and pleaded for an end to it. As Dr.
LaVoie continued to root around with the ring forceps in an
effort to grab the screw embedded in Brown’s arm, he told
Brown that he needed a change of attitude, reminded him that
it was his own fault the screw was in his arm, and blamed him
for inserting it in a way that made removal more challenging.
These comments could be interpreted as signs of annoyance,
if not hostility. Some of them come across as sarcastic (or so a
jury could find). And in addition to Dr. LaVoie’s behavior
throughout the procedure, the record shows that Dr. LaVoie
persisted in his unsuccessful efforts to remove the screw
(which took longer than the hospital’s successful procedure)
and thereby callously prolonged Brown’s pain.
Taking the record evidence in the light most favorable to
Brown, a jury could find that medical judgment did not moti-
vate Dr. LaVoie’s chosen course of treatment. First, the fact
that Brown had tried to head-butt Dr. LaVoie supports the in-
ference that the doctor wanted to inflict pain upon Brown in
12 No. 22-1585
retaliation for Brown’s action; similarly, a jury could see the
doctor’s response as based on “personal hostility,” Rivera, 836
F.3d at 842, or “personal prejudices or animosity,” Rasho, 856
F.3d at 476. In addition, a reasonable jury could infer from the
content and tone of his comments that Dr. LaVoie chose not
to use anesthesia because he intended to punish Brown for
inserting the screw into his elbow in the first place. Looking
at Dr. LaVoie’s statement to Brown that he needed to change
his attitude, a jury might infer that the doctor persisted with-
out anesthesia to deter Brown from engaging in similar acts
of self-harm in the future. If any non-medical reasons of this
kind motivated the doctor’s judgment, then that would be a
basis for a finding of deliberate indifference. (It should go
without saying, but we add in the interest of completeness,
that a rational jury might equally reject these inferences and
find in Dr. LaVoie’s favor.)
Our conclusion is reinforced by the fact that Dr. LaVoie
has offered no evidence that he did exercise medical judgment
in attempting to remove the screw from Brown’s arm. His
declaration in support of summary judgment was limited to a
brief statement of what happened. Nothing in it suggests that
he exercised professional judgment either in his assessment of
the need for anesthesia or in his decision to use the forceps for
a screw buried so far in the flesh that the nurse could not even
see it. While the failure to present such evidence is not neces-
sarily dispositive at the summary judgment stage, its absence
here is striking because it is “common sense” that pulling a
screw from Brown’s flesh without anesthesia could carry a
substantial risk of harm. Gil, 385 F.3d at 662; see also Petties,
836 F.3d at 729. But even if Dr. LaVoie were to introduce evi-
dence that he exercised medical judgment, his state of mind
would remain a question for the jury. Evidence to that effect
No. 22-1585 13
would merely contribute to the existing dispute about Dr. La-
Voie’s motivation, and so his credibility and the weight to as-
sign his testimony would be matters for the jury to decide. See
Rasho, 856 F.3d at 476–77 (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)).
As we noted earlier, the district court felt itself bound by
our decision in Snipes, where we held that a prison doctor who
decided not to anesthetize an inmate’s toe before removing a
partially torn-off toenail did not act with deliberate indiffer-
ence. See 95 F.3d at 591. The district court took Snipes to mean
that a prison doctor need not apply an anesthetic when per-
forming a minor surgery. And because removing a screw
from the arm is not major surgery, the court reasoned, Dr. La-
Voie did not act with deliberate indifference when he chose
not to anesthetize Brown’s arm. Dr. LaVoie, both in the dis-
trict court and on appeal, relies on the same understanding of
Snipes.
But Snipes does not establish a rigid rule about the use of
anesthesia, much less a rule about the line between major and
minor surgery. As an initial matter, it is a far cry between the
removal of a torn toenail and the extraction of a two-inch
screw embedded beneath the surface of the arm. And once we
look beyond the nature of the injury to the reasoning that sup-
ported Snipes, that case becomes increasingly inapposite. In
Snipes, there was no question about the doctor’s motivation;
the doctor was understood to have exercised his medical
judgment, and the only issue before us was whether his deci-
sion not to administer an anesthetic conformed to contempo-
rary medical expertise and practices. As we have noted be-
fore, Snipes was based on the determination that “reasonable
medical minds may differ over the appropriate treatment for”
14 No. 22-1585
removing a busted toenail. King v. Kramer, 680 F.3d 1013, 1019
(7th Cir. 2012). The doctor had to weigh the risks of using an-
esthesia (including the possibility “that an injection of anes-
thetic would have hurt more than quickly removing the nail”)
in light of the benefits of doing so. Snipes, 95 F.3d at 591–92.
Given the prevailing medical practices of that time, we deter-
mined that the balance could tip either way. Here, by contrast,
the issue is whether Dr. LaVoie exercised any medical judg-
ment, and there was no evidence at all indicating that he
weighed the risks and benefits of using anesthesia for the ex-
traction procedure. Our decision here is thus entirely con-
sistent with Snipes.
B. Qualified Immunity
Dr. LaVoie argues that even if he was deliberately indiffer-
ent to Brown’s condition, he is nonetheless entitled to sum-
mary judgment on qualified-immunity grounds. The district
court agreed. But qualified immunity is not a basis for sum-
mary judgment here.
“The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their con-
duct does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We already have
noted that Brown’s Eighth Amendment claim turns on Dr. La-
Voie’s state of mind. If, in attempting to remove the screw as
he did, Dr. LaVoie was motivated by a desire to punish Brown
or otherwise inflict or prolong pain, then his conduct violated
clearly established law under the Eighth Amendment. See,
e.g., Gil, 381 F.3d at 661–62. Whether that (or something else)
No. 22-1585 15
was Dr. LaVoie’s motive, is a question that only a jury may
resolve.
IV
As we noted at the outset, Brown also challenges the dis-
trict court’s denial of his second motion for recruited counsel.
Given our decision on the deliberate-indifference element, we
need not decide whether that denial amounted to an abuse of
discretion. But on remand we encourage the district court to
consider whether it might now be appropriate to recruit coun-
sel to assist Brown. Cases involving state-of-mind require-
ments may be difficult for pro se litigants, see, e.g., Pruitt v.
Mote, 503 F.3d 647, 655–56 (7th Cir. 2007) (en banc), and the
considerations that inform whether to recruit counsel often
change as a case progresses toward discovery or a trial, see,
e.g., Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015). We are
confident that the district court will revisit that decision on
remand with Brown’s circumstances in mind.
The judgment of the district court is REVERSED and
Brown’s case against Dr. LaVoie is REMANDED for further
proceedings consistent with this opinion.
16 No. 22-1585
KIRSCH, Circuit Judge, concurring in the judgment. I agree
with the result. In reaching that result, the majority focuses on
Dr. LaVoie’s comments to Brown, which a jury could view as
dismissive, annoyed, or sarcastic. But we need not look to
these comments at all. Instead, I would find a genuine dispute
of material fact because the hospital staff “deemed it obvious”
that Brown required anesthesia for the screw removal, and
Dr. LaVoie has offered no explanation whatsoever for his re-
fusal to administer anesthesia. Considering only this evi-
dence, a jury could find that Dr. LaVoie was deliberately in-
different to Brown’s serious medical needs because his treat-
ment decision was “so far afield of accepted professional
standards as to raise the inference that it was not actually
based on a medical judgment.” Arnett v. Webster, 658 F.3d 742,
751 (7th Cir. 2011) (quotation omitted). For this reason, I agree
that the district court’s grant of summary judgment should be
reversed.