Olson v. Morgan, 12–2786.

• Decision Date: 16 May 2014
• Docket Number: No. 12–2786.,12–2786.
• Citation: 750 F.3d 708
• Parties: Jeffrey E. OLSON, Plaintiff–Appellant, v. Donald MORGAN, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

750 F.3d 708

Jeffrey E. OLSON, Plaintiff–Appellant,

v.Donald MORGAN, et al., Defendants–Appellees.

No. 12–2786.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 1, 2013.

Decided April 30, 2014.

Rehearing Denied May 16, 2014.

Scott Jared Fisher, Attorney, Neal, Gerber & Eisenberg LLP, Chicago, IL, for Plaintiff–Appellant.

Anthony D. Russomanno, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendants–Appellees.

Before POSNER, FLAUM, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Jeffrey Olson, an inmate in a Wisconsin prison, was attacked by his cellmate, Thomas Russell, and suffered a broken tooth in the scuffle. Olson had warned Sergeant Randy Schneider, a correctional officer, that Russell was not taking his medications and might become violent, but Sergeant Schneider did not move Olson to a new cell. After the attack Olson brought this § 1983 lawsuit alleging that Sergeant Schneider violated the Eighth Amendment by not doing more to protect him from Russell. Because his broken tooth was not treated for several weeks, he brought another claim against the manager of the prison's health-services unit, Lillian Tenebruso, arguing that she too violated the Eighth Amendment by delaying his treatment. The district court denied Olson's many requests for counsel, finding that Olson was a competent pro se litigant and that his claims were not especially complex, and ultimately granted summary judgment against Olson on all counts.

We affirm. We find no abuse of discretion in the court's decision not to recruit counsel for Olson; the district court applied the correct legal standard and properly considered both Olson's ability to represent himself and the complexity of Olson's case. Summary judgment was proper because there is no evidence that Sergeant Schneider was subjectively aware that Russell was dangerous or that Tenebruso failed to act promptly once she learned of Olson's serious medical needs. Because Olson has no evidence to prove deliberate indifference, his claims must fail.

I. Background

Olson shared a cell with Russell at the Columbia Correctional Institution for about a week in late March 2007. Olson claims that on March 27 he approached Sergeant Schneider and told him: “[M]y celly, Russell, has twice tried to swing off on me and I want him moved ... I fear he's gonna try to do it again ... he isn't taking his meds and hears voices that tell him to attack people ... he needs his own cell.” Sergeant Schneider asked other officers on duty about Russell, but nobody had heard of any problems between Olson and Russell or of any issues with Russell's medication. Nonetheless, Sergeant Schneider asked the officer supervising distribution to be sure Russell took his medication.

The next evening Russell attacked Olson, damaging one of Olson's teeth. The nurse on duty recommended that the tooth be pulled, but apparently nobody scheduled a dental appointment for Olson. Olson alleges that he requested an appointment in several letters that he sent to Tenebruso, the health-services manager, but most of those letters aren't in the record. The earliest letter in the record is an April 8 request for aspirin, which was denied on April 13. Next is an April 14 note from Tenebruso to Olson indicating that she had received several requests from him that day expressing concern about his tooth and directing him to fill out the proper form if he wanted to be seen by a doctor. Olson didn't fill out this form—instead he sent an abrasive response insisting that no other form was needed—but Tenebruso referred him to the dentist anyway on April 16. On April 19 the tooth was removed.

Olson brought this § 1983 lawsuit against Sergeant Schneider and Tenebruso (and a few other prison officials who are not part of this appeal), alleging that they violated the Eighth Amendment by acting with deliberate indifference to the risk of an attack by Russell and to his dental needs. He repeatedly asked the district court to appoint counsel for him, but the magistrate judge assigned to the case refused each request. The first few were denied because Olson failed to show that he had tried to secure a lawyer on his own; the last request was denied because the judge determined that Olson was sufficiently competent to handle a case of this complexity.

In two separate orders, the judge granted summary judgment against Olson on all counts. The first order found no evidence that Tenebruso was aware that Olson had a serious medical condition or that Tenebruso knew about Olson's dental needs more than a few days before the tooth was pulled. The order also directed the government to provide additional information about Russell's prison records, reasoning that a pro se litigant like Olson might not have known how to get around the government's objections to producing these documents. After reviewing the submissions, the judge concluded that Russell had a clean record in prison and that Sergeant Schneider could not have anticipated the attack, and accordingly entered final judgment against Olson.

II. Discussion

Olson's primary argument on appeal is that the district court should have recruited counsel to represent him. He also argues that summary judgment was improper because there was sufficient evidence in the record to create a genuine issue about whether Sergeant Schneider and Tenebruso were deliberately indifferent to his needs. Neither contention has merit.

A. Request For Counsel

There is no right to court-appointed counsel in federal civil litigation. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir.2007) (en banc). District courts may nonetheless ask lawyers to represent indigent litigants on a volunteer basis. See28 U.S.C. § 1915(e)(1). Whether to recruit an attorney is a difficult decision: Almost everyone would benefit from having a lawyer, but there are too many indigent litigants and too few lawyers willing and able to volunteer for these cases. District courts are thus placed in the unenviable position of identifying, among a sea of people lacking counsel, those who need counsel the most. This task is necessarily entrusted to the district court's discretion; our job is to ensure that the district court applied the proper legal standards without abusing that discretion. See Pruitt, 503 F.3d at 658.

In deciding whether to request counsel, district courts must ask two questions: “(1) [H]as the indigent plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself?” Id. at 654. The magistrate judge found the first element satisfied once Olson submitted letters from several attorneys declining to assist him. The parties spend some time quibbling about whether Olson had demonstrated reasonable efforts before that point; we don't need to address that dispute because even after presenting the letters, Olson couldn't satisfy the second part of the test.

To decide the second question—whether Olson appeared competent to litigate the case himself—the judge properly considered both the complexity of the case and Olson's capabilities. See id. at 655. The judge found that the law governing Olson's claims was “straightforward” and that the relevant substantive and procedural rules could be explained to Olson in pretrial conferences and orders. We agree that Olson's claims were not especially complex. The key disputes here were whether Sergeant Schneider knew that Russell was dangerous and whether Tenebruso knew that Olson had a serious medical condition. While some state-of-mind issues may involve subtle questions too complex for pro se litigants, see Santiago v. Walls, 599 F.3d 749, 761 (7th Cir.2010), there was nothing subtle about the problem here: Olson had no evidence that the defendants knew about the risk to his safety or the pain in his tooth. Moreover, Olson understood this problem, which is why he made diligent efforts to obtain prison records that might prove the defendants' deliberate indifference. We reject Olson's argument that state-of-mind questions are categorically too difficult for pro se litigants. See, e.g., Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir.2010) (finding that proving deliberate indifference was not too complex for a pro se litigant).

The judge then concluded that Olson was competent to handle a case of this complexity. Olson didn't have to be as proficient as a seasoned civil-rights attorney; the test is “whether the difficulty of the case—factually and legally—exceeds the particular plaintiff's capacity as a layperson to coherently present it to the judge or jury himself.” Pruitt, 503 F.3d at 655. The judge properly evaluated Olson's abilities by looking at his pleadings and competence in early phases of the litigation, concluding that “[h]is submissions are well written and he appears capable of following instructions and making intelligible arguments.” We agree. Indeed, Olson's submissions to the district court were much better than the average pro se litigant's and compare well to some pleadings filed by licensed attorneys. Olson points out that he suffers from severe depression and adult hyperactivity disorder (among other issues), but he never explains why those conditions would prevent him from coherently presenting his case, and his capable pleadings suggested that he was competent despite his mental-health problems. With the court's instruction, he was able to conduct discovery and even make sophisticated, successful arguments on obscure subjects like exhaustion of remedies. It was not an abuse of discretion to conclude that Olson had the ability to coherently present his claims.

Nonetheless, Olson argues that he couldn't handle this litigation himself because shortly after the attack, he was transferred to a different prison. He told the district court that the transfer “hamper[ed] his ability to obtain...