# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 11, 2018 *

Decided May 14, 2018

Before

DIANE P. WOOD, Chief Judge

DANIEL A. MANION, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 17

‐ 2787

SHANNON PATTERSON,

Plaintiff

‐ Appellant

,

v

.

RANDALL HEPP, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 16

‐ CV

‐ 942

‐ JPS

J .P. Stadtmueller,

J udge

.

O R D E R

Shannon Patterson, a Wisconsin inmate, challenges only the district court’s

refusal to recruit counsel for him in his suit under the Eighth Amendment against

officials at Fox Lake Correctional Institution. Because Patterson has not shown that a

lawyer would have made a difference in his case, we affirm the judgment.

* We have agreed to decide this case without oral argument because the briefs

and record adequately present the facts and legal arguments, and oral argument would

not significantly aid the court. See F ED

. R. A PP

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 NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 2787 Page 2

This case arises out of a fall that Patterson suffered at Fox Lake after tripping

over a loose floor tile outside his cell. (For years, the floors at the prison had been

deteriorating, with some tiles bulging unevenly up to a third of an inch off the ground.)

As a result of the fall, Patterson says that he aggravated prior injuries from a car

accident, including fractures in his ribs, left leg, and left scapula. Prison officials

promptly dispatched him to an outside emergency room, where doctors noted only a

large bruise on his leg. They x

‐ rayed the leg, saw only his prior fractures, and

prescribed ibuprofen.

While at Fox Lake, Patterson has received extensive treatment for his leg injury.

He had frequent appointments with outside medical providers at the University of

Wisconsin Hospital and Clinics and regularly saw a specialist who performed two

surgeries in hopes of reducing the pain in his leg and increasing his mobility. After his

fall, Patterson also began to complain of pain in his back and neck, but the prison’s

nurses and doctors found no objective evidence to corroborate those complaints.

(Patterson, however, criticizes the examination by the prison’s doctor, Charles Larson,

as cursory.)

About a month after his fall, an X

‐ ray of Patterson’s back and shoulders revealed

reduced space in one disk of his lower back but no acute injuries, aside from the scapula

fracture for which Patterson repeatedly has declined surgery. Fox Lake’s doctor,

Richard Steliga, diagnosed Patterson with chronic pain syndrome and concurred with

Dr. Larson that Patterson’s current medications were appropriate. The following year,

Patterson’s leg specialist recommended that he try physical therapy for his back and

neck, and Patterson did so. Several months later, he was given a transcutaneous

electrical nerve stimulation unit to reduce his pain.

Patterson then filed this suit, alleging that Warden Randall Hepp and

Superintendent John Maggioncalda had negligently or recklessly ignored the risks

posed by the uneven prison floor and that various medical staff—Drs. Larson and

Steliga, nurse practitioner Robert Frank, and two administrative employees of the

medical unit—were deliberately indifferent to his pain and negligent with his

treatment.

Patterson later received electromyography tests that revealed mild, chronic

neuropathy in his left leg but no evidence of nerve damage in his upper body. On theNo. 17

‐ 2787 Page 3

advice of Patterson’s leg specialist, the prison doctors sought to have Patterson see a

spine specialist, but by the time defendants moved for summary judgment he had not

yet seen one.

Two months before the close of discovery, Patterson requested counsel based on

his legal inexperience, his difficulty concentrating (caused by a head injury from his

pre

‐ incarceration car accident), and his need to rely on a jailhouse lawyer for help in

drafting legal documents. The court denied the request because Patterson had not

shown that his case was so complex that he could not adequately litigate it despite any

mental impairments. The court acknowledged Patterson’s reliance on the jailhouse

lawyer, but determined that he had not shown he was incapable of litigating alone.

Days before the defendants moved for summary judgment, Patterson again

asked the court to recruit him counsel based on a recent psychological exam diagnosing

him with “mild neurocognitive disorder,” as well as an affidavit from the jailhouse

lawyer attesting to Patterson’s difficulties concentrating and remembering. The court

denied this motion too, noting the psychiatrist’s conclusion that Patterson was “quite

clear in his thought process” and able to articulate his thoughts, if given time.

The court proceeded to grant defendants’ motion for summary judgment. With

regard to Patterson’s claims about the floor condition, the court determined that the

prison’s loose tiles were not dangerous enough to violate the Eighth Amendment and

that Hepp and Maggioncalda were entitled to immunity for any state

‐ law negligence

claim. On Patterson’s Eighth Amendment claim relating to his post

‐ fall medical care,

the court concluded that he had not provided evidence for a jury to find that the

prison’s staff was deliberately indifferent to his pain. The court dismissed Patterson’s

state

‐ law medical malpractice claim because he did not produce any expert testimony

that his treatment fell below the applicable standard of care. Finally the court denied

another of Patterson’s requests for counsel—his third—which he had filed at the close

of briefing on the summary judgment motion. He then sought reconsideration, asking a

fourth time for the assistance of counsel, but that motion was also denied.

On appeal Patterson challenges only the first two denials of his request for

counsel. The district court abused its discretion in denying his requests, he says,

because the court disregarded his myriad limitations—his inability on his own to collect

and present complex medical evidence; his reliance on the assistance of a jailhouse

lawyer to prepare his case; and his concentration lapses lingering from his brain injury.No. 17

‐ 2787 Page 4

In support he cites Jackson v. Hepp

, 558 F. App’x 689 (7th Cir. 2014), a prisoner’s

‐ rights

case in which we vacated summary judgment for defendant officials because the

plaintiff, who had been taking psychiatric medications that made it difficult for him to

focus, needed help from counsel to address gaps in the evidence.

After a district court finds that a pro se litigant has tried to find a lawyer, it must

ask “whether the difficulty of the case—factually and legally—exceeds the particular

plaintiff’s capacity as a layperson to coherently present it.” Pruitt v. Mote

, 503 F.3d 647,

655 (7th Cir. 2007) ( en banc ). We review the court’s decision not to recruit counsel for an

abuse of discretion. Id. at 658. But even if the court has abused its discretion, we will not

reverse unless the appellant can show that he was prejudiced by his lack of counsel.

See Tidwell v. Hicks

, 791 F.3d 704, 709 (7th Cir. 2015). In making this determination, we

ask if there is “a reasonable likelihood that the presence of counsel would have made a

difference in the outcome of the litigation.” Pruitt

, 503 F.3d at 659 (emphasis omitted).

We need not consider here whether the district court mishandled Patterson’s first

two motions for counsel, because he has not shown that the court’s decision prejudiced

him. No lawyer could help him overcome the district court’s proper determination that

the uneven floor at Fox Lake was not a danger of constitutional magnitude and that

Hepp and Maggioncalda were immune from damages claims under Wisconsin law.

See Pyles v. Fahim

, 771 F.3d 403, 410 (7th Cir. 2014) (“Federal courts consistently have

adopted the view that slippery surfaces

... in prisons, without more, cannot constitute a

hazardous condition of confinement.”); Brown v. Acuity

, 833 N.W.2d 96, 106 (Wis. 2013)

(describing scope of discretionary immunity under Wisconsin law).

Nor do we see a reasonable likelihood that a lawyer could have avoided

summary judgment on Patterson’s medical claims. To show medical malpractice, he

would have needed an expert to testify that the treatment he received—treatment on

which the emergency

‐ room staff, the prison staff, and the outside specialist all

concurred—fell below the standard of care. And for the constitutional claim, the expert

would have to opine that the treatment deviated so far from this standard that the

doctors’ deliberate indifference could be inferred. See Petties v. Carter

, 836 F.3d 722, 729

(7th Cir. 2016) ( en banc ), cert. denied

, 137 S. Ct. 1578 (2017). Mere disagreement with the

defendants’ diagnostic and treatment decisions would not be enough for either claim.

See id. ; Nowatske v. Osterloh

, 543 N.W.2d 265, 275–76 (Wis. 1996); Francois v. Mokrohisky

,

226 N.W.2d 470, 472 (Wis. 1975). Given the extensive treatment Patterson received here,

finding such an expert would at best be unlikely.No. 17

‐ 2787 Page 5

Finally, Patterson’s case is distinguishable from Jackson

. The doctors in Jackson

had ignored a specialist’s instructions to clean Jackson’s post

‐ surgical wounds, and the

wounds eventually became severely infected. See 558 F. App’x at 691–92. Such

disregard for treatment advice can be a strong hint of deliberate indifference. See, e.g.,

Arnett v. Webster

, 658 F.3d 742, 753 (7th Cir. 2011). In contrast, Patterson’s doctors

generally implemented the specialist’s recommendations. And on the one occasion

when they did not do so—when they did not at first provide Patterson softer shoes as

suggested—they conferred with the specialist and located shoes that met his

recommendation and satisfied the prison regulations. The thorough treatment Patterson

received shows that his claims failed not for lack of his own abilities (or for those of the

jailhouse lawyer) but because nothing he alleged suggested malpractice, let alone

deliberate indifference. See Jackson v. Kotter

, 541 F.3d 688, 700 (7th Cir. 2008).

AFFIRMED