In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 23-1253 SHAWN RILEY, Plaintiff-Appellant, v.
JOLINDA WATERMAN and SANDRA MCARDLE, Defendants-Appellees. ____________________
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:20-cv-01252 — Pamela Pepper, Chief Judge. ____________________
ARGUED SEPTEMBER 18, 2024 — DECIDED JANUARY 27, 2025 ____________________
Before RIPPLE, JACKSON-AKIWUMI, and KOLAR, Circuit Judges. RIPPLE, Circuit Judge. Shawn Riley, formerly a prisoner at the Wisconsin Secure Program Facility (“WSPF”), filed this action under 42 U.S.C. § 1983 against WSPF’s Health Services Manager, Jolinda Waterman, and WSPF Nurse Practitioner Sandra McArdle (“NP McArdle”), in the United States 2 No. 23-1253
District Court for the Eastern District of Wisconsin, 1 alleging they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. 2 The district court granted the defendants’ motions for summary judgment and denied Mr. Riley’s two motions to appoint counsel. In this ap- peal, Mr. Riley contends that the district court erred in grant- ing the summary judgment motions. He also submits that the district court abused its discretion by denying his second mo- tion to appoint counsel. For the reasons set forth in this opin- ion, we affirm the judgment of the district court. 3 I BACKGROUND A. Ms. Waterman served as the WSPF Health Services Man- ager from January 2015 until her retirement in May 2019. In that capacity, she “managed the health care services provided by the [Health Services Unit (‘HSU’)] and provided overall administrative support and direction.” 4 She did not evaluate or treat inmates, nor did she make referrals to or approve treatment recommendations from offsite specialists. Ms. Wa- terman also had no role in referring inmates’ special needs re- quests to the Special Needs Committee (“SNC”). 5 Those tasks
1 The jurisdiction of the district court is predicated on 28 U.S.C. §§ 1331
and 1343. 2 The Eighth Amendment is applicable to the states through the Four-
teenth Amendment. See Robinson v. California, 370 U.S. 660, 666 (1962). 3 Our jurisdiction is secure under 28 U.S.C. § 1291.
4 R.36 at 6 ¶ 26.
5 Mr. Riley did not dispute this fact. No. 23-1253 3
were reserved for Advanced Care Providers such as NP McArdle. After an inmate visited an offsite provider, an Ad- vanced Care Provider would record the offsite provider’s rec- ommendations in the inmate’s medical file and, if the Ad- vanced Care Provider agreed with the recommendation, or- der the suggested treatment. Additionally, Advanced Care Providers were to refer inmates’ special needs requests to the SNC instead of ordering items. Mr. Riley first received medical treatment pertinent to this case on July 27, 2016, when he visited the HSU for foot and leg pain. A nonparty provider ordered ibuprofen, physical therapy, knee braces, and stretching. The next month, he sub- mitted a Health Services Request 6 (“HSR”) because he was experiencing “serious” hip and back pain after playing bas- ketball. 7 A nonparty provider replied, informing him that he was scheduled to be seen in the HSU. In September 2016, Ms. Waterman responded to another HSR from Mr. Riley in which he had asked to consult with an orthopedist. 8 She indi- cated that Mr. Riley previously had consulted with an ortho- pedist, and that there were no additional consults ordered. NP McArdle first saw Mr. Riley for his pain on January 4, 2017. She ordered foot x-rays and ankle braces. 9 She also re- ferred him to a podiatrist and a physical therapist. Later in January 2017, another provider at the prison ordered
6 Inmates submit HSRs to receive nonemergency medical treatment.
7 R.42-1 at 25.
8 In her role as Health Services Manager, Ms. Waterman only saw and re-
sponded to HSRs when HSU staff specifically forwarded them to her. 9 Mr. Riley may not have received the ankle braces until April 2017, de-
spite NP McArdle’s contention that she provided them on January 4, 2017. 4 No. 23-1253
Mr. Riley a TheraBand for his physical therapy. And on Feb- ruary 20, 2017, NP McArdle ordered soft shoe inserts for Mr. Riley. Mr. Riley went to his first appointment with a podiatrist, Dr. Michael Jacobs, on March 24, 2017. Dr. Jacobs diagnosed him with plantar fasciitis in both feet, “[a]nkle equinus sec- ondary to tight heel cord,” and “[p]es planovalgus.” 10 He rec- ommended soft inserts and “high top athletic type shoes,” but held off on prescription orthotics. 11 Reviewing Dr. Jacobs’s recommendations, NP McArdle noted that Mr. Riley had soft inserts and could purchase his own high-top shoes “per pol- icy.” 12 WSPF’s personal property policy limits inmates’ pos- sessions. All inmates receive one pair of state-issued shoes, and three circumstances permit an inmate to wear other shoes. First, an inmate may wear orthopedic shoes provided by the HSU. Second, an inmate may buy shoes from an ap- proved vendor catalog, spending no more than $75 per pair. Third, an inmate may buy medically necessary shoes from a non-approved vendor with permission from the SNC. Mr. Riley filed an HSR on March 24, stating that the inserts alone would not suffice and requesting ankle and back braces. He was placed on the HSU provider list for an evaluation. On March 29, 2017, NP McArdle ordered x-rays of his spine, hip, and right knee. On March 31, 2017, another inmate overheard Ms. Waterman tell a corrections officer that a specialist had
10 R.42-1 at 43.
11 Id.
12 Id. at 34. No. 23-1253 5
recommended Mr. Riley receive a personal medical item, but “Riley had another th[ing] coming.” 13 Mr. Riley received ankle braces to wear “when up and about” on April 11, 2017. 14 That same day, Mr. Riley submit- ted an HSR addressed to Ms. Waterman, asking for guidance on getting high-top shoes per Dr. Jacobs’s orders. He stated that he could not find “adequate” shoes for $75. 15 A nonparty provider responded, “You will need to adhere to policy.”16 On April 25, 2017, NP McArdle scheduled an appointment for Mr. Riley to be fitted for custom orthotics. She also instructed him not to play basketball or run, but instead to use the exer- cise bike. Two days later, NP McArdle ordered an electromy- ography (“EMG”) for Mr. Riley that came back negative. 17 Mr. Riley saw Dr. Jacobs again on May 5, 2017. Dr. Jacobs recommended prescription orthotics for Mr. Riley and told him that he would need to break them in but to follow up if he still had difficulty after one month. Dr. Jacobs also sug- gested continued stretching, physical therapy, and, “if possi- ble,” an “athletic type shoe, high-top in nature.” 18 NP McArdle issued a physical therapy referral, but only noted the shoe recommendation in Mr. Riley’s file. Mr. Riley saw a physical therapist on May 23, 2017, who prescribed a transcutaneous electrical nerve stimulation (“TENS”) unit to
13 R.46-1 at 99.
14 R.38-2 at 40.
15 R.42-1 at 20.
16 Id.
17 A negative EMG indicates that Mr. Riley did not have neuropathy.
18 Id. at 42. 6 No. 23-1253
alleviate his pain. 19 The provider did not recommend further sessions “[due to] lack of success [with] PT in past.” 20 Mr. Riley received his custom orthotics on May 24, 2017. The following day, he informed the HSU that they did not “mitigate, address[,] nor correct” his pain, and the padding tore off. 21 In June 2017, Mr. Riley reiterated that the orthotics were “useless.” 22 NP McArdle recommended that he give them at least a month but also indicated that she had re- quested a follow-up podiatry appointment. Mr. Riley submit- ted more HSRs during the summer of 2017. On June 19, 2017, he indicated that he purchased high-top shoes from the cata- log that were “actually mid,” 23 and asked to be seen by the podiatrist within the week. NP McArdle replied that she had scheduled an appointment. In July and August, he reported persistent pain and alleged, among other things, that the HSU delayed his seeing a specialist 24 and declined to evaluate him for night splints. Ms. Waterman responded that a podiatry follow-up was scheduled and night splints had been ordered. She also noted that he had not requested more extra strength Tylenol and informed him that the HSU has “NOTHING to do with personal shoes.” 25
19 A few months passed before he received it.
20 Id. at 41.
21 Id. at 21.
22 Id. at 22.
23 Id. at 24.
24 The usual wait time for a podiatry appointment was six to twelve
weeks, though it could be longer. 25 Id. at 11–12. No. 23-1253 7
Because Mr. Riley had to wait to see Dr. Jacobs, HSU staff offered Mr. Riley an appointment with “Dr. Miller.” 26 Mr. Ri- ley’s medical file indicates that Dr. Miller recommended “air bubbled athletic tennis shoes” at their August 15, 2017 ap- pointment. 27 That recommendation was not approved. Mr. Riley sent another HSR, asking that his medical file be up- dated to reflect Dr. Miller’s additional recommendations for air bubbled athletic sandals, personal socks, and an herbal pain remedy. Ms. Waterman spoke with Dr. Miller and re- plied to Mr. Riley: “You purely circumvented the shoe policy. HSU does not purchase athletic shoes. You can purchase your shower sandals and socks through canteen. There is no ap- proval for herbal supplement turmeric in the” Department of Corrections (“DOC”). 28 Mr. Riley submitted another extensive HSR on August 25, 2017. In response, Ms. Waterman informed him that his podi- atry appointment was scheduled. She also noted that “plantar fasciitis is a chronic condition. It is not easily treated,” and di- rected him to purchase shoes from the catalog.29 In late Sep- tember 2017, NP McArdle ordered Mr. Riley a physical ther- apy ball. Mr. Riley submitted more HSRs in October 2017, al- leging that he was still suffering from untreated chronic pain. Ms. Waterman and NP McArdle responded, refuting his alle- gations that he was not being treated. Ms. Waterman noted that he had not refilled his Naproxen prescription, and NP McArdle reminded him of the EMG, physical therapy,
26 R.46-1 at 57.
27 R.38-2 at 29; see R.42-1 at 17.
28 R.42-1 at 17.
29 R.38-2 at 8. 8 No. 23-1253
and medications he had received. On October 13, 2017, an- other inmate witnessed Ms. Waterman telling a nurse, “What- ever you do, don’t make any orders or notes about shoes, I’m in hot water about it.” 30 Mr. Riley saw Dr. Jacobs for the third time on November 17, 2017. Dr. Jacobs indicated that “a shock absorption shoe with air-type shock absorption … would be optimum,” but noted that this type of shoe may not be permissible. 31 On De- cember 1, 2017, Mr. Riley received a memorandum from “HSU Staff” that read, “HSU reviewed your request for a spe- cial shoe restriction. … Your specific request has been DENIED. You must follow the property guidelines.” 32 On De- cember 14, 2017, Mr. Riley wrote an HSR asking why the HSU was following all specialist recommendations except those for medical shoes. NP McArdle referred him to the catalog be- cause “HSU does not provide personal athletic shoes.” 33 In January 2018, NP McArdle ordered a podiatry follow- up to assess whether Mr. Riley needed APEX shoes, which are orthopedic shoes provided by the HSU. She also referred him to an orthopedist for his knee pain. Mr. Riley saw an orthope- dic surgeon, Dr. Edward Riley, on March 23, 2018. Comment- ing on Dr. Riley’s recommendation that Mr. Riley be allowed to purchase non-catalog shoes, NP McArdle wrote, “Not
30 R.51-1 at 61.
31 R.42-1 at 38.
32 R.38-2 at 1. This form differed from the DOC-3758 “Notice of Special
Needs Committee Decision” forms he had received in response to his re- quests to eat in his cell and receive an extra pillow. R.38-2 at 37; R.51-1 at 10. 33 R.42-1 at 5. No. 23-1253 9
allowed per DOC policy.” 34 But she did recommend him for APEX shoes. Mr. Riley saw Dr. Jacobs for the fourth time on April 20, 2018. Dr. Jacobs recommended “air-filled athletic shoe gear,” commenting that Mr. Riley could be allowed to purchase from a non-catalog supplier and exceed the $75 price limit.35 But he noted that “these are simply recommendations.” 36 In Mr. Riley’s Progress Notes, Ms. Waterman wrote, “Personal shoes are not provided through HSU medical restrictions.”37 On May 9, 2018, NP McArdle explained again that Mr. Riley could purchase personal athletic shoes that would address his plantar fasciitis from the catalog. Later that month, she re- ferred him to the University of Wisconsin’s podiatry clinic for a second opinion on his foot and ankle pain. On May 15, 2018, Mr. Riley received another memorandum from HSU Staff in- forming him that his shoe request had been denied. Mr. Riley submitted an HSR on June 13, 2018, alleging that the HSU was “refusing the ordered care.” 38 He stated that the Naproxen, cream, braces, wraps, and TENS treatments were “all of no use.” 39 NP McArdle responded that specialists’ rec- ommendations “are just that.”40 She also suggested that he ice
34 R.38-2 at 26.
35 R.42-1 at 37.
36 Id.
37 R.38-2 at 25.
38 R.42-1 at 6.
39 Id.
40 Id. 10 No. 23-1253
and strengthen his feet and ankles. He sent another HSR the next day, asking whether WSPF would “honor UW’s ser- vices.” 41 NP McArdle informed him that specialist recom- mendations are fulfilled “if allowed by DOC policy … and se- curity concerns.” 42 On July 11, 2018, Mr. Riley saw a podiatrist, Dr. Audra Smith, at the University of Wisconsin’s clinic. Assessing his condition, she explained, “this is about proper support and until he gets the right shoes and inserts, this pain will not go away and it will continue to get worse.” 43 Dr. Smith recom- mended that Mr. Riley be allowed to purchase shoes from outside the catalog that exceeded the $75 limit, but did note that some shoes in the catalog may be suitable. She wrote, “There are a lot of shoes out there … that work for orthotics and the condition that he has, so I believe from the catalog some of the New Balance options work for guys.” 44 She also suggested Naproxen twice a day and physical therapy. A week later, NP McArdle advised Mr. Riley that the DOC’s rule against purchasing outside shoes was a security rule, not an HSU rule, and “[t]he warden is the only person who can waive a security rule.” 45 A year later, Mr. Riley was transferred to a new facility.
41 Id. at 8.
42 Id.
43 R.38-2 at 45.
44 Id.
45 R.42-1 at 26. No. 23-1253 11
B. After Mr. Riley filed his pro se complaint, he filed a motion to appoint counsel, noting that expert witnesses probably would be required at trial for his medical claim. He also em- phasized the case’s factual complexity, his limited legal knowledge, and his transfer to a new institution. He informed the court that he had tried to obtain counsel, attaching the let- ter AA Sabel Law Office had sent declining assistance and the letter he had sent to attorney Michael Witt that was returned to Mr. Riley as not deliverable. The district court denied his motion without prejudice on October 30, 2020, concluding that his concerns about expert testimony were premature, and that the case’s complexity and his limited knowledge of the law were not unique. The court also screened his complaint and ordered him to file an amended complaint, which he did on December 9, 2020. As his case progressed, Mr. Riley again tried to obtain counsel. In an August 2021 letter, attorney Lonnie D. Story in- dicated that he was sending a retainer agreement for Mr. Ri- ley to execute. Mr. Story sent another letter on September 21, 2021. In that letter, he declined to represent Mr. Riley in an- other matter but confirmed that he would continue to repre- sent Mr. Riley in his civil suit. Mr. Story corrected himself a month later and informed Mr. Riley that the September letter had been sent in error. He indicated that his firm would not represent Mr. Riley and that he would return Mr. Riley’s doc- uments shortly. Mr. Riley received this letter “on or around October 25, 2021,” after the discovery deadline. 46
46 R.33 at 2. 12 No. 23-1253
On November 16, 2021, Mr. Riley filed his second motion to appoint counsel. He again stated that the legal and factual issues were too complex for him to litigate. He also recounted his confusion with Mr. Story, attaching Mr. Story’s three let- ters. Ms. Waterman and NP McArdle filed motions for sum- mary judgment the following week. On August 16, 2022, the district court granted the defend- ants’ motions for summary judgment and denied Mr. Riley’s second motion to appoint counsel. Addressing Mr. Riley’s Eighth Amendment claim, the court acknowledged that his chronic pain was an objectively serious medical condition of which Ms. Waterman and NP McArdle were aware. How- ever, held the court, neither of these defendants was deliber- ately indifferent to his serious medical needs. The court noted the repeated treatment of his plantar fasciitis. It also rejected his contention that they had ignored the specialists’ recom- mendations, because none of the podiatrists prescribed a spe- cific shoe for Mr. Riley. Moreover, the court found that the SNC had reviewed and denied Mr. Riley’s special shoe re- quests twice. And the court did not interpret Ms. Waterman’s comments regarding Mr. Riley’s shoes as malicious—at most, they indicated frustration. The court then addressed Mr. Riley’s motion to appoint counsel, first noting that Mr. Riley had made a reasonable at- tempt to secure counsel. However, in the court’s view, he was sufficiently competent to litigate the case himself. He could communicate effectively with the court and follow instruc- tions, and his amended complaint was “clear and straightfor- ward.” Riley v. Waterman, No. 20-cv-1252, 2022 WL 3369548, at *19 (E.D. Wis. Aug. 16, 2022). Furthermore, his misunder- standing with Mr. Story was “not a basis for the court to No. 23-1253 13
recruit counsel.” Id. It may have warranted deadline exten- sions, but Mr. Riley had not requested them. II DISCUSSION A. We review the district court’s order granting summary judgment de novo, viewing the facts in the light most favora- ble to Mr. Riley and drawing all reasonable inferences in his favor. See Clemons v. Wexford Health Sources, Inc., 106 F.4th 628, 634 (7th Cir. 2024). Summary judgment is appropriate if “there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Prison officials’ deliberate indifference to an inmate’s seri- ous medical needs violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on a deliberate indifference claim, the plaintiff must prove (1) that he had an objectively serious medical condition (2) to which prison offi- cials were “deliberately, that is subjectively, indifferent.” Johnson v. Dominguez, 5 F.4th 818, 824 (7th Cir. 2021) (quoting Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016)). The defendants do not dispute that plantar fasciitis-related pain is an objectively serious medical condi- tion. We therefore focus on the second element of the claim. Prison officials are deliberately indifferent when they know of and disregard a substantial risk to the inmate’s health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Medical negligence is not enough; the chosen treatment plan must “represent[] so significant a departure from accepted profes- sional standards or practices that it calls into question 14 No. 23-1253
whether the [provider] actually was exercising … profes- sional judgment.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). In assessing a claim that a prisoner was subjected to such treatment, “we look at the totality of an inmate’s medical care when considering whether that care evidences deliberate indifference to serious medical needs.” Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc). An inmate may establish deliberate indifference by demonstrating that prison officials ignored a specialist’s in- structions. See Zaya v. Sood, 836 F.3d 800, 805–06 (7th Cir. 2016). But “[d]isagreement … between two medical profes- sionals[] about the proper course of treatment generally is in- sufficient, by itself, to establish an Eighth Amendment viola- tion.” Pyles, 771 F.3d at 409 (citing Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006)). In Zaya, we reversed a grant of summary judgment where the prison physician waited seven weeks to send an inmate for a follow-up appointment, which was four weeks longer than the specialist had recommended. Because the specialist had “actually described the risks of fur- ther delay,” there was a genuine dispute about whether the prison doctor “simply ignored”—as opposed to disagreed with—the specialist’s instructions. 836 F.3d at 806–07. Persisting with an ineffective course of treatment also can constitute deliberate indifference. In Greeno, we reversed a grant of summary judgment where the defendants refused to change the inmate’s medication despite his repeated reports that it was not working. See Greeno v. Daley, 414 F.3d 645, 654– 55 (7th Cir. 2005). However, in Reck, we affirmed a grant of summary judgment where the defendant physician referred the inmate to a specialist and prescribed medications to No. 23-1253 15
manage his condition in the meantime. See Reck v. Wexford Health Sources, Inc., 27 F.4th 473, 480, 485 (7th Cir. 2022). With those standards in mind, we now turn to Mr. Riley’s claims against Ms. Waterman and NP McArdle. Mr. Riley submits that the district court erred in granting summary judgment for the defendants because they ignored specialists’ recommendations to allow him to buy high-top shoes, per- sisted with an ineffective course of treatment, and denied him access to the SNC. Considering the totality of medical care Mr. Riley re- ceived, there was no Eighth Amendment violation. First, the record supports the district court’s conclusion that Ms. Wa- terman and NP McArdle did not ignore the specialists’ rec- ommendations that Mr. Riley be permitted to acquire high- top shoes. Instead, they sought to comply with both DOC pol- icy and the treatment recommendations by instructing Mr. Ri- ley to order suitable shoes from the catalog.47 But, even if their refusal to permit Mr. Riley to order shoes from outside the approved catalog constitutes a disagreement with specialists’ recommendations, disagreements between medical profes- sionals about the proper course of treatment rarely amount to deliberate indifference. See Pyles, 771 F.3d at 409; Zaya, 836 F.3d at 805. There is certainly nothing in this record to justify departure from that general rule. Nor does the record support the view that the defendants doggedly persisted in an ineffective course of treatment.
47 Indeed, one specialist, Dr. Smith, acknowledged that there were suitable
shoes in the catalog: “There are a lot of shoes out there … that work for orthotics and the condition that he has, so I believe from the catalog some of the New Balance options work for guys.” R.38-2 at 45. 16 No. 23-1253
When NP McArdle first saw Mr. Riley for foot pain, she or- dered ankle braces and foot x-rays. She later ordered soft shoe inserts, then custom orthotics when the inserts did not allevi- ate his pain. When Mr. Riley’s discomfort persisted, she did more diagnostic testing in the form of x-rays and an EMG. To help him manage the pain, she also ensured that Mr. Riley re- ceived pain medications, ice, and a TENS unit. In addition to these treatments, she referred Mr. Riley to offsite specialists on six occasions. See Reck, 27 F.4th at 485. Overall, NP McArdle provided extensive medical care in accordance with the specialists’ recommendations. 48 The record contains no evidence from which a jury could infer that the defendants knew these treatments would be ineffectual but persisted an- yway. Moreover, a reasonable jury could not conclude that the defendants were deliberately indifferent in declining to ele- vate Mr. Riley’s shoe requests to the SNC. Because Ms. Wa- terman was not an Advanced Care Provider, she was not re- sponsible for referring special needs requests to the SNC.49 NP McArdle was an Advanced Care Provider and could have referred his requests. As we stated in Petties, deviation from an established protocol can be circumstantial evidence of de- liberate indifference. 836 F.3d at 729. But as we also empha- sized in that case, an overarching consideration in assessing a deliberate indifference claim is an examination of the totality
48 As Health Services Manager, Ms. Waterman was not personally in-
volved in Mr. Riley’s medical care beyond responding to some of his HSRs. 49 Therefore, even if her comments that Mr. Riley had “another th[ing]
coming” and she was “in hot water about” shoes demonstrate frustration, she was not deliberately indifferent. R.46-1 at 99; R.51-1 at 61. No. 23-1253 17
of circumstances of the patient’s care. Id. at 728. Moreover, even if, with the benefit of hindsight, NP McArdle should have sent forward Mr. Riley’s requests, there is no indication that her failure to do so constituted deliberate indifference. She knew he was receiving treatment for his condition and that he had declined to buy suitable shoes available to him. She also knew that the specialists understood that prison se- curity concerns might well preclude Mr. Riley’s procuring the optimum model of shoe. In the context of the totality of care provided to Mr. Riley, a rationale jury could not conclude that NP McArdle’s decision that Mr. Riley should give the shoe choices available to him a more sustained try amounted to de- liberate indifference. For these reasons, the district court properly concluded that Ms. Waterman and NP McArdle were not deliberately indifferent to Mr. Riley’s condition. B. Mr. Riley also submits that the district court abused its dis- cretion in denying his second motion to appoint counsel. He is correct in stating that we review a district court’s denial of a request for appointed counsel for abuse of discretion. Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007) (en banc). Pruitt makes clear that a court abuses its discretion when “(1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.” Id. (quoting Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir. 2004)). 18 No. 23-1253
1. We begin by stating the governing principles that are well- established by statute and case law. First, a federal civil liti- gant has no right to court-recruited counsel. See Dewitt v. Cori- zon, Inc., 760 F.3d 654, 657 (7th Cir. 2014). But under the fed- eral in forma pauperis statute, the court may request an attor- ney for “any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). In so doing, the district court must make the fol- lowing inquiries: “(1) [H]as the indigent plaintiff made a rea- sonable attempt to obtain counsel or been effectively pre- cluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it him- self?” Pruitt, 503 F.3d at 654–55. 50 If the district court abused its discretion in conducting that inquiry, “we will reverse only upon a showing of prejudice.” Id. at 659. In determining whether a plaintiff appears competent to litigate the case without the assistance of counsel, the court must consider “both the factual and legal complexity of the plaintiff’s claims and the competence of the plaintiff to litigate those claims himself,” which are “necessarily intertwined.” Eagan v. Dempsey, 987 F.3d 667, 682 (7th Cir. 2021) (quoting Pruitt, 503 F.3d at 655). There are no “fixed criteria” for as- sessing whether a plaintiff is sufficiently competent to litigate his case, but “a district court certainly should consider the plaintiff’s literacy, communication skills, educational level, litigation experience, intellectual capacity, and psychological
50 To the degree that the district court considered the merits of Mr. Riley’s
case in its consideration of the motion to appoint counsel, see R.64 at 48 (“Whether a lawyer had presented the evidence or the plaintiff presented it himself, the evidence does not support the plaintiff’s claims.”), it did not abuse its discretion. See Watts v. Kidman, 42 F.4th 755, 763 (7th Cir. 2022). No. 23-1253 19
history.” Id. Nor are there fixed criteria for evaluating the complexity of the plaintiff’s claims, but “[s]ome of the circum- stances that require judicial consideration are the phase of the litigation, if the prisoner has been transferred between facili- ties, if the claims involved the state of mind of the defendant such as those involving deliberate indifference, and if the case involves complex medical evidence, including expert testi- mony.” Thomas v. Wardell, 951 F.3d 854, 860 (7th Cir. 2020); see Eagan, 987 F.3d at 682–83. 2. Keeping in mind the deference we owe the district court, we now evaluate the denial of Mr. Riley’s request for ap- pointed counsel. Mr. Riley made reasonable attempts to ob- tain counsel prior to filing his motion. He contacted at least four attorneys, all of whom either declined to take his case or did not reply. Even though Mr. Riley’s correspondence with one of those attorneys prompted confusion, the district court was on solid ground in concluding that Mr. Riley’s misunder- standing with Mr. Story was not, standing alone, a ground for recruiting counsel. Instead, Mr. Riley could have moved to re- open discovery or to extend the deadline for his response to the defendants’ summary judgment motions. Thus, we must determine whether the district court abused its discretion in determining that Mr. Riley appeared competent to litigate his case without the assistance of counsel. We first consider the nature of the case. Relatively straightforward claims of deliberate indifference do not re- quire appointed counsel. See Perez v. Fenoglio, 792 F.3d 768, 20 No. 23-1253
784 (7th Cir. 2015). 51 Because he “received at least some medi- cal treatment,” Mr. Riley had to show “a substantial depar- ture from acceptable professional judgment, practice, or standards.” 52 Questions of proper medical treatment often in- volve complex medical evidence and require expert testi- mony. But Mr. Riley’s claim primarily rests on the defend- ants’ intent, not on complex medical evidence. The primary question is not whether the specialists were correct to recom- mend high-top shoes; instead, it is whether Ms. Waterman and NP McArdle consulted the specialists at all. The record reveals that they reviewed the specialists’ proposed treat- ments, most of which were cabined as recommendations.53 Although state-of-mind questions can be difficult for pro se litigants, see Eagan, 987 F.3d at 683, here the district court was entitled to conclude, on the record before it, that this case
51 See also Johnson v. Doughty, 433 F.3d 1001 (7th Cir. 2006). In Johnson, the
plaintiff alleged that prison officials were deliberately indifferent because they treated his hernia through non-surgical means. See id. at 1003. The district court did not abuse its discretion by declining to appoint counsel because the case “was not overly difficult.” Id. at 1007. We note that John- son predated Pruitt but is cited favorably in Pruitt. See Pruitt, 503 F.3d at 654–56. 52 Appellant’s Br. 37 (quoting Eagan v. Dempsey, 987 F.3d 667, 683 (7th Cir.
2021) (emphasis in original)). 53 When he recommended a “shock absorption shoe” for Mr. Riley, Dr. Ja-
cobs recognized that this type of shoe may not be permissible. R.42-1 at 38. At a later appointment, Dr. Jacobs reiterated that his shoe suggestions “are simply recommendations.” Id. at 37. And Dr. Smith “recommended” that Mr. Riley be allowed to purchase non-catalog shoes but noted that some shoes from the catalog could work for his orthotics. R.38-2 at 45. No. 23-1253 21
presented no particular difficulties that would have been ameliorated by the participation of counsel at summary judg- ment. 54 We next consider the district court’s estimation of the com- plexity of the case considering Mr. Riley’s litigation capabili- ties. See Pruitt, 503 F.3d at 655. The court addressed this point and clearly believed that Mr. Riley was sufficiently competent to litigate the case himself. Indeed, the court gave specific rea- sons for its conclusion. In its view, Mr. Riley “had no diffi- culty communicating with the court in writing” and filed a “clear and straightforward” amended complaint that ade- quately explained the facts. Riley, 2022 WL 3369548, at *19. He also responded to the defendants’ arguments, cited source documents, and filed hundreds of pages of documents with the court. Mr. Riley “[was] a better communicator than many unrepresented plaintiffs,” and did a “very thorough, capable job of representing himself.” Id. Because Mr. Riley was suffi- ciently able to litigate his relatively straightforward deliberate indifference case, the district court did not abuse its discretion in declining to appoint counsel. Conclusion The judgment of the district court is affirmed. AFFIRMED
54 Mr. Riley’s contention that his transfer to a new facility warranted the
appointment of counsel is equally unavailing. In Santiago, an inmate’s transfer should have been considered because he did not know the names of some of the defendants and witnesses. See Santiago v. Walls, 599 F.3d 749, 763 (7th Cir. 2010). In contrast, Mr. Riley knew the identities of both defendants and was able to obtain declarations from two witnesses. He also conducted discovery from his new institution. 22 No. 23-1253
JACKSON-AKIWUMI, Circuit Judge, dissenting in part. I dis- sent in part because there are facts in the record from which a jury could find for Shawn Riley on his claim that defendants were deliberately indifferent to his serious medical needs. Be- low, I highlight those facts before explaining my differing analysis of the claim. I conclude with a brief note about Riley’s motion for appointment of counsel, though I join my col- leagues’ resolution of this second issue. I There are three sets of facts in this hefty evidentiary record which, when taken with the factual background recited in the majority opinion, compel my conclusion that Riley’s case should have proceeded to a jury trial. First is the timing and repetition of the specialists’ recom- mendations about Riley’s care. As shown below, physicians made numerous specific recommendations that Riley receive high-top athletic shoes: Date Specialist Recommendation
March 24, 2017 Dr. Jacobs “high top athletic type shoes”
May 5, 2017 Dr. Jacobs “athletic type shoe, high-top in nature”
November 17, Dr. Jacobs “shoe gear that will allow ad- 2017 equate depth to accommo- date orthotic”
March 23, 2018 Dr. Riley “I restated on the prison form the diagnoses and recs Dr. Ja- cobs had put down 11/18/17” No. 23-1253 23
April 20, 2018 Dr. Jacobs “air-ęȱ ȱ ȱ ȱ … above 75 dollars patient would be responsible.”
July 11, 2018 Dr. Smith “allow him to purchase his own personal shoes from an outside catalog and exceed the $75 limit as needed. He needs stability athletic-style shoes that can accommodate his orthotics.” 1
Second is the prison’s policy that required nurses, includ- ing McArdle, to refer requests for non-vendor footwear to the Special Needs Committee (SNC). Specifically, prison policy mandated that “[p]rescribing practitioners shall refer items … for review of special needs [by the SNC] rather than write or- ders for specific items.” 2 Regarding shoes, the policy stated that the Health Service Unit (HSU) had no power to permit inmates to order shoes from outside the prison’s vendor cata- log, and the only way to access such shoes was approval from the SNC. The SNC was comprised of medical and security staff. When reviewing requests for special items, the SNC con- sidered the inmate’s medical record, the requested item’s medical benefit, and the potential effect on the prison’s secu- rity environment.
1 R. 42-1 at 43; R. 42-1 at 42; R. 42-1 at 38; R. 38-2 at 51; R. 42-1 at 37; R.
38-2 at 45. 2 R. 38-5 at 2 (emphasis added). 24 No. 23-1253
Third is Waterman’s stated disregard for the specialists’ recommendations concerning Riley. Waterman told an HSU nurse not to “make any orders or notes about shoes” because she was “in hot water about it.”3 Waterman also remarked that Riley “had another th[ing] coming” if he thought he would get access to the specialist-recommended footwear.4 II With these facts in mind, I turn to the four ways I depart from my colleagues’ analysis of the deliberate indifference is- sue. The majority opinion concludes that Riley’s claims fail be- cause Waterman and McArdle “did not ignore the specialists’ recommendations that Mr. Riley be permitted to acquire high- top shoes[, but] [i]nstead … sought to comply with both DOC policy and the treatment recommendation by instructing Mr. Riley to order suitable shoes from the catalog.” Ante, at 15. But there is evidence from which a jury could conclude that the defendants intentionally denied Riley shoes and failed to comply with policy. Prison policy required nurses to refer non-vendor shoe re- quests to the SNC. Nurses were not allowed to take any other action because the SNC had sole authority to determine whether shoes were medically necessary and permissible. A jury considering that the specialists’ recommendations for Ri- ley were not referred to the SNC despite the mandatory policy language, along with Waterman’s instructions to the nurses not to make “any order or notes about shoes,” could conclude
3 R. 51-1 at 61.
4 Id. at 87. No. 23-1253 25
that the defendants not only ignored policy but purposely ob- structed the established review system for non-vendor shoe requests. The majority opinion’s contrary conclusion rests on the premise that acceptable shoes were available to Riley through the vendor catalog. But that factual premise is disputed. Ri- ley’s health service requests, which were submitted to the HSU, stated that the “high top” shoe he ordered from the cat- alog was “actually mid[-top],” and did not provide adequate foot support or accommodate his orthotics. 5 Plus, the final two specialist recommendations expressly stated that Riley needed shoes from outside the catalog. Given this factual dis- pute, I find it impossible to conclude, as my colleagues do, that the defendants “did not ignore the specialists’ recom- mendations” and the defendants “sought to comply” with DOC policy. Ante, at 15. Next, the majority reasons that even if McArdle and Wa- terman disagreed with the specialists’ recommendations, “disagreements between medical professionals about the proper course of treatment rarely amount to deliberate indif- ference.” Ante, at 15. But that deferential consideration only applies where the medical practitioner is exercising medical judgment. See McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (explaining that “[w]hen a medical professional acts in his pro- fessional capacity,” the professional’s treatment is judged against a highly deferential substantial departure standard) (emphasis added)); Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (“A medical professional is entitled to deference in treat- ment decisions …”) (emphasis added)).
5 R. 42-1 at 24. 26 No. 23-1253
Here, it is disputed whether McArdle exercised any med- ical judgment in denying Riley access to the SNC. After Dr. Jacobs recommended high-top shoes with adequate depth, McArdle advised Riley “that DOC will not allow him to wear personal shoes which are different from those available to all inmates.” 6 Then, six days after Dr. Smith recommended that Riley be allowed high-top shoes from an outside vendor, McArdle noted in Riley’s chart that he was not allowed to purchase outside shoes due to “a security rule, not an HSU rule.” 7 McArdle’s exclusive reliance on a security rule is not an application of medical judgment and is therefore not enti- tled to deference. A jury question remains. Elsewhere, the majority determines that the record cannot support an inference that the defendants persisted in ineffec- tive treatment. The prison provided Riley with a plethora of treatments, I agree. But the defendants blocked Riley’s access to the single treatment that his specialists recommended again and again: high-top shoes. Our caselaw tells us that a prison official who “persists in a course of treatment known to be ineffective” can be found to have been deliberately in- different. Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc). And as the majority notes, Dr. Smith told the defend- ants that “until [Riley] gets the right shoes and inserts, this pain will not go away and it will continue to get worse.” Ante, at 10. Riley told the defendants at least a dozen times that he was in “chronic, debilitating pain” and the care he had been provided was not helping. 8 Still, the defendants persisted in a
6 Id. at 28.
7 Id. at 26.
8 Id. at 5, 6, 9–16, 18, 19, 21–25. No. 23-1253 27
course of treatment that did not include the one intervention that his specialists all agreed would help: athletic shoes high enough to support his ankles and deep enough to accommo- date his orthotics. This is sufficient record evidence to create a material issue of fact for a jury. Finally, the majority states that a jury could not conclude that “the defendants were deliberately indifferent in declin- ing to elevate Mr. Riley’s shoe requests to the SNC.” Ante, at 16. Deliberate indifference can be inferred where—as we have here—a prison official refuses to follow existing protocol. Pet- ties, 836 F.3d at 728. Waterman told an HSU nurse not to “make any orders or notes about shoes,” despite policy re- quiring that nurses refer all non-vendor shoe requests to the SNC. And over the course of sixteen months, McArdle, a nurse required to refer requests to the SNC rather than judge them on her own, declined to send the committee any of Ri- ley’s six specialists’ recommendations. From this refusal to follow protocol—Waterman’s instructions to ignore policy and McArdle’s actual ignoring of policy—a jury could con- clude that the defendants were deliberately indifferent. In sum, the record evidence shows six specialist recom- mendations for high-top shoes, two obstructionist statements from Waterman, and zero referrals to the SNC. All while Riley reported, over and over again, “chronic, debilitating pain” with no relief from other treatment.9 This is sufficient, in my view, for Riley to argue to a jury that the defendants were de- liberately indifferent to his serious medical needs.
9 Id. at 5, 6, 9–16, 18, 19, 21–25. 28 No. 23-1253
III On the other issue before us, I agree with my colleagues that the district court did not abuse its discretion in denying Riley’s second motion for appointment of counsel. I pause here only to note that another district court judge could have easily granted Riley counsel given the following four consid- erations: (1) the advanced stage of litigation, see Perez v. Feno- glio, 792 F.3d 768, 785 (7th Cir. 2015) (discussing complexities of litigation past the initial pleading stage); (2) the fact that Riley had been transferred away from the facility where his claims arose, see Pennewell v. Parish, 923 F.3d 486, 491 (7th Cir. 2019) (“[A] prisoner who is transferred to a facility where the events underlying his claims did not take place faces addi- tional hurdles.”); (3) the fact that Riley’s case involved prov- ing the mental state of his medical providers, see Eagan v. Dempsey, 987 F.3d 667, 683 (7th Cir. 2021) (“We also have noted the increased complexity in constitutional claims in- volving the state of mind of the defendant, such as deliberate indifference.”); and (4) Riley’s loss of access to the legal library during the COVID-19 pandemic, see id. at 685 (finding plain- tiff’s transfer to “a facility with few resources and more re- stricted movement” was relevant to a determination of com- petency to litigate a case without assistance of counsel). But we review appointment of counsel decisions deferentially, and the district court here was within its discretion to deny Riley counsel. For these reasons, I join in part and dissent in part.