# Unit ed Sta tes Cou rt of Appeals

For the Seventh Circui t Chic ago, I lli nois 60604

Submi tte d Septe mber 22, 2014 * Deci ded Septe mber 23, 2014

Before

RICHARD D. CUDAHY, Circ uit Judge

RICHARD A. POS NER, Circ uit Judge

MICHAEL S . KANNE, Circ uit Judge

No. 13-3379

LUIS VASQ UEZ, et al., Plaintiffs-Appellants,

v.
DANIEL BRAEMER, et al., Defen dants-Appellee s. Appeal from the United Stat es Di stric t Court for t he Western Di stric t of Wis consin.

No. 3:11-cv-00806

Barbara B. Cr abb, Judge

.

O R D E R

Five Wi scons i n pri soners appeal the gr ant of summ ary judgment in thi s su i t under 42 U.S.C. § 1983, assert i ng that defendant o ffi ci als at the Waupun Corr ecti onal 1 N O N P R E C E D E N T I A L D I S P O S I T I O N T o b e c i te d only i n a c c o r d an c e wi th F e d

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After exami ning the briefs and the recor d, we have conclu ded that o ral * arg ument i s unnecess ary . Thus, the appeal i s submi tte d on the briefsand record. See F E D

. R. A P P

. P. 34(a) (2)( C).

The defend ants are Dani el Braemer, a superv i sing offi cer at Waupun; Don 1 (continued...)No. 13-3379 Page 2

Insti tution acted wi th deliberate indi fference to their health and safety by subjecting them to conditi ons of admini strat i ve confi nement that depr i ved t hem of bas i c hu man needs, exacerbated their mental i llness es, and c aused them to exper i ence various physi cal health problems. We affi rm.

Admi ni strat i ve confi nement i s a nonpun i tive, i nvoluntar y segr egat ed status that i s ass i gned to i nmates wh o ar e beli eved inc apable of li ving in the gener al pris on populati on. At Waupun the warden, tak i ng i nto account the r ecommendati on from t he Seg reg ation ReviewTeam (a p anel that makes recommendations about i nmate confinement status and inclu des a sec uri ty superv i sor, a soci al worke r, a member of the Health Ser vic es Uni t staff, a memb er o f the Psych olog i cal Serv i ces Uni t staff, and the Cor rections P ro gr am Superv i sor) may assi gn an i nmate to admin i strat i ve confi nement, and subsequ ently place hi m i n segreg ation to pro tect staff, other i nmates, or t he i nmate hi mself from safety r i sks. Whi le i n segreg ation, inmates stay i n thei r 66-square-foot cell for 23 o r 24 hour s a day. Thes e cells are equi pped wi th mi ni mal fu rnis hi ngs li ke a si nk and observat i on wi ndow. Eachweek i nmates sh ower o n two occasi ons, recei ve t wo clean changes of clothes, and s pend up to four hours of o utdoor recreat i on i n open-ai r cells

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Each of the fi ve pr i soners i n thi s law sui t has a di agnosed mental i llness and was confined i n admini strat i ve confi nement at Waupun b ased on past behavi or showing that he was a safety ris k to hi mself , staff, or ot her in mates. Lui s Vas quez and Ju li an Lopez both suffer from majo r depr essi on. Vasquez, w ho has a hi stor y of serious m ental i llness and tried in 2009 to hang him self in hi s segregat i on cell us i ng dental floss, w as housed in segreg ation from 2007 to 2011 after he attempte d to inc i te a pr i son riot and

assau lted staff. Lopez, who has a h i stor y of v i olent crimes and ass aulti ng ot her inmates,

was s ent to segreg ation in 2010 after he placed a “hi t” on anot her in mate. David Greenwood and Javier Salazar bo th suffer fro m anti soci al personali ty disorder and adjustment di sorder (Greenwood also has i mpuls e contro l di sorder and Salazar has obsess i ve compulsi ve dis or der and depressi on). Both men were housed i n segreg ation, Greenwood fro m 2009 to 2011 for assau ltin g ot her in mates, and Salazar fro m 2008 to 2011 for bein g a leader i n the LatinKin gs gang and att empti ng to start a pyramid sch eme. Anthony R i ach s uffers from a myr i ad of mental i llness es inclu di ng majo r

(...continued) 1 St rahot a, Waupun ’s cu rr ent deputy warden; Willi am Pollard, Waupun ’s cu rr ent warden; Pamela Zank, the former Cor rections P ro gr am Superv i sor; and Michael Thurmer, Waupun ’s former warden.No. 13-3379 Page 3

depressi ve dis or der, soci al phobi a, polysubstanc e abus e, and anti soci al personali ty di sorder . He was placed in segreg ation from 2010 to 2012 for accu mulating more than 30 conduc t r epor ts, i nclu di ng ones for t hreate ni ng to killstaff m embers, and m ai li ng an unknown powder to a county Di stric t At tor ney’s offi ce.

In 2011 the fi ve pr i soners jo i ntly sued the defendants f or violati ng their Ei ghth Amendment ri ghts by housi ng them for pr olong ed periods in harsh s egr egat i on condi tions that ex acerbated their mental health i ssu es, cau sing them to atte mpt sui ci de, engage in other acts of self-harm, and develo p medi cal problems s uchas hypertensi on and vi tami n defi ci enci es. The di stric t court screened the complaint under 28 U.S .C. § 1915A and allowed them to pr oceed jo i ntly under F ederal Rule of Civi l Procedure 20(a) wi th their clai ms against the defendants.
The plainti ffs asked the court for assi stance of coun sel in li ght o f thei r lim i ted legal kno wledge and geog raphi c i solation—they were housed i n di fferent prison w i ngs and i n di fferent prisons (i n Jun e 2012 Vasquez w as transferred t o the Wisc onsi n Resource Center to r ecei ve mental health t reat ment). A magi strat e judge denied the request, character i zi ng the plain tiffs’ s ubm i ssi ons as adequ ate, addin g that the fi li ngs were “clearly written” and unaffected by any of t hei r asserted mental health pr oblems. The magi strat e judge ackno wledged the log i sti cal di ffi culti es involv ed in a multi -plainti ff s ui t, wi th at least o ne plainti ff hous ed at a different ins tituti on from t he other s, bu t pointed out that the plai nti ffs ’ deci si on to fi le a jo i nt sui t did not change the legal test under Pruitt v. Mot e, 503 F.3d 647 (7th Cir. 2007) ( en banc ).

After the defendants moved for summary j udgment, plai nti ffs renewed their request for couns el and thi s ti me also sought the assi stance of a medi cal expert to t esti fy about the harmful effec ts of their condi tions of confinement on their mental i llness

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The di stric t j udge gr anted the defendants’ motion for summ ary judgment. F i rst addressing plainti ffs ’ request for recruitment of couns el, the j udge found that the plai nti ffs were “capable advocates” wi th a “clear gr asp” of relevant factual an d legal i ssu es, and nothi ng i n thei r submi ssi ons reflected that plainti ffs suffered fro m mental defi ci enci es that affected thei r abi li ty t o liti gate the case. As f or their request for a medi cal expert, the j udge was n ot per suaded that any such appointment would be appropr i ate; plain tiffs h ad not shown that they tr i ed and fai led to o btai n an expert and, further, an ex pert would not sub stanti ally ai d the court in adjudi cating the case—parti cularly wi th reg ard to the plai nti ffs ’ burden of establi shing the defendants’ subjective i ntent necessary to prov e deliberate indi fference.No. 13-3379 Page 4

Proceedi ng to the merits, the judge concluded that the plai nti ffs sub mi tte d no evidenc e from whi ch a jury could conclu de i nfer that t he condi tions of their admini strat i ve confi nement—a weekly r egim en that allowed two showers, two clot hi ng changes, an d out-of-cell recreation four tim es a week—deprived them of the basi c needs of sani tation, clothing, and exer ci se. Nor, t he judge added, did three of the plai nti ffs —Salazar , Lopez, and Rai ch—s ubm i t suffi ci ent ev i dence from whi ch a jury could c onclude that the condi tions of admini strat i ve confi nement exacerbated t hei r mental health problems or po sed any ris k of serious h arm that would not have ex i sted outsi de admini strat i ve confi nement. As for the r emai ni ng plai nti ffs —Vasqu ez and Greenwood—t he judge found i t “closer” whether t hey subm i tte d suffi ci ent ev i dence that t hei r mental ill ness es were exacerbate d si gni fi cantly by their condi tions of confinement; both men had s ui ci dal thoughts and engaged in s ui ci dal behavi or whi le housed in admini strat i ve confi nement, and thei r mental-health pro viders had s uggested that bot h men’s d epressi on and behavi or relat ed to t hei r pr olong ed ter ms an d condi tions of confinement. But the “broad stat ements” of these two men’s treat i ng physi ci ans w ent “only so far ”; i n the judge’ s vi ew, the plai nti ffs ’ docto rs di d not speci fy whi ch parti cular condi tions exacerbate d the two men’s depressi on or whether feasible changes c ould be made to their condi tions that would have made a di fference to the men’s m ental health. But eve n i f the plai nti ffs ’ evidenc e were suffi ci ent to show that the condi tions of confinement exacerbated t hei r mental ill ness and cau sed them

unnec essary suffering, the judge concluded, the plainti ffs di d not submi t ev i dence from whi ch a jury could conclu de that defendants knew all thi s and c onsci ously di sregar ded the risk.
On appeal appellants fi rst ar gue that t he di stric t court abus ed i ts di screti on i n declini ng to recruit couns el becau se thei r case was i nherently complex and r equi red testim ony fro m a medi cal expert . But the court appli ed the corr ect standard, see Prui tt, 503 F.3d at 654–55, and r easonably found that the plai nti ffs —and partic ularly Vasquez, who had s ubs tantial experienc e li tigati ng cases before t he court, inc luding repr esenting hi mself in three j ury t rials —had sh own themselves to be capable advocates, able to follow court pr ocedures, and respond coherently and log i cally to leg al arguments. See Ol son v. Morga n , 750 F.3d 708, 712 (7th Cir. 2014); Romanelli v. S ulie ne , 615 F.3d 847, 852–53 (7th Ci r. 2010).
Appellants next ar gue that t he di stric t court abus ed i ts di screti on by denying them a court-appointed expert, whom they needed to help them sh ow how thei r confinement i n segreg ation exacerbated their mental i llness . But courts are no t r equi red to appo int exper t wi tnesses an d should ap poin t them only when n ecess ary toNo. 13-3379 Page 5

understand complex cas e facts or compli cated, confli cting evidenc e. See Gaviria v. Reynolds , 476 F.3d 940, 945 (D.C. Ci r. 2007) ; Walker v. Am. Home Shi eld Long Term Disability Plan , 180 F.3d 1065, 1070–71 (9th Cir. 1999). Regardless of what an expert mi ght hav e opin ed about the plain tiffs’ men tal health is sues , the court proper ly conclu ded that an exper t would not have helped establi sh the subjective deliberate-ind i fference standard. See L edford v. Sul livan , 105 F.3d 354, 359–60 (7th Cir. 1997); see also Gob ert v. Caldwell , 463 F.3d 339, 348 n.29 (5th Ci r. 2006).

Fin ally the appellants challen ge t he grant of sum mary j udgment on gr ounds that their affi davits c reat e a fact questi on about whether t hei r placement in segreg ation deni ed them—inmates su fferi ng from si gni fi cant mental i llness —a mi ni mal ci vili zed

measu re o f li fe’s nec essi ties, and wh ether defendants ac ted indi sregar d of a sub stanti al ris k of harm t o them. But defendants canbe li able only for conditi ons of whi ch they are subjectively aware, see Farmer v. Bre nnan , 511 U.S. 825, 837 (1994); Gillis v. L itscher, 468 F.3d 488, 491 (7th Cir. 2006); Caldwell v. Warden, FC I Talladega, 748 F.3d 1090, 1099–1100 (11th Ci r. 2014), and as the di stric t court explain ed, there was n o ev i dence that the defendants b eli eved t he condi tions of confinement i nappropr i ate for i nmates su fferi ng seri ous mental i llness or for t hese plainti ffs i n partic ular. Fo ur of the appellants (Salazar, Rai ch, Lopez, and G reenwoo d) di d not pr oduce evid ence sh owi ng that t hey to ld defendants that thei r condi tions were exacer bati ng their mental i llness or caus i ng them

severe mental di stress. Scarver v. L itscher, 434 F.3d 972, 975 (7th Cir. 2006) ( Scarv er “fai led to cite evid ence to ov ercome the defendants’ deni als that they k now these condi tions were makin g hi s mental i llness worse.”). It is tr ue that Vasquez wrote t o the defendants in 2010 requesti ng more outdoo r ex erci se to “stabi li ze [hi s] m ental health” (he beli eved t hat lack of exer ci se affected hi s mem or y, moo d, and over all health), bu t these lette rs as the di stric t courtobserve d, do not r eflect that the defendants beli eved that he faced seri ous harm. Star tin g in2008, the defendants gave Vasquez acc ess to a psychi atr i st and he began goin g to gr oup therapy . In 2011 Vasquez w ro te supervising offi cer (Braemer) seeking release from segr egat i on becaus e he was experi encing depressi on, anxiety, sui ci dal thoughts, and thought s of self-harm. Warden Pollard responded by re moving Vas quez from segreg ation in November 2011, afte r Vasquez’s psychi atr i st, Dr. Calli ster, confi rmed Vasquez’s d eclini ng mental health and requested that he be re leased from segreg ation.

Fin ally we agre e wi th the dis tr i ct court t hat the condi tions of confinement i denti fi ed by the plai nti ffs are not unc onsti tutional. Allowing i nmates only two showers and four hours of outsi de recreat i on each week does not v i olate t he Ei ghth Amendment. See Hardaway v. M eyerhoff , 734 F.3d 740, 744–45 (7th Cir. 2013) ( no violati on for access to showers that is only weekly ); Hender son v. Lane, 979 F.2d 466,No. 13-3379 Page 6

468–69 (7th Ci r. 1992) (same) ; Harris v. Fl emin g, 839 F.2d 1232, 1236 (7th Cir. 1988) ( no violati on when indoor exer ci se allowed); Hosna v. Groo se, 80 F.3d 298, 306 (8th Cir. 1996) (no violati on for week ly outdo or recreat i on in pri son yard t otaling three ho urs); Bailey v. Shill inger, 828 F.2d 651, 653 (10th Cir. 1987) ( no violation f or weekly o utdoor recreat i on lasti ng one hour ).

AFF IRM ED.