# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 2, 2022 *

Decided September 2, 2022

Before

DIANE P. WOOD, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 22

‐ 1422

SHOMAS T. WINSTON,

Plaintiff

‐ Appellant

,

v

.

SHERRI A. PULDA, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Western District of

Wisconsin.

No. 20

‐ cv

‐ 367

‐jdp

J ames D. Peterson,

Chief Judge

.

O R D E R

Shomas Winston, a Wisconsin inmate, sued a doctor and two nurses under

Wisconsin law and the Eighth Amendment for their treatment of a sprained ankle that

healed quickly. Winston lost to the doctor at summary judgment and to the nurses at

trial. He no w argues that the doctor should have ordered an MRI and the court should

* We have agreed to decide the 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. F ED

. R. A PP

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 NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with F ED

. R. A PP

. P. 32.1No. 22

‐ 1422 Page 2

have recruited him a lawyer for trial. But the lack of an MRI yielded no foreseeable

harm, and the absence of counsel did not prejudice the trial; thus, we affirm.

Winston hurt his ankle playing basketball in late December 2019 and received

medical attention. Over the next three days, he saw two nurses and told them he did

not need crutches. A week later, after reporting tha t his left ankle was “bothering [him]

still off and on,” Winston met with nurse Sheri Pulda. Because Winston’s ankle had

minimal swelling and full range of motion, Pulda determined that he had s prained it

and prescribed the prison’s standard treatment regimen for that injury: take over

‐ the

‐

counter pain relievers, protect the injured area, then ice, compress, and elevate it. She

also told Winston that he could walk on it to the extent the pain was tolerable (she later

testified that walking increases bl ood circulation and promotes healing). Finally, she

said that she would refer him to a doctor if his ankle did not improve.

Ten days later and dissatisfied with the pace of healing, Winston saw a doctor

and received further treatment. He met with Dr. Frederick Kron, who ordered an x

‐ ray

but not an MRI (even though, acc ording to Winston, Kron planned to do so). Pending

the x

‐ ray results, Kron told Winston to use crutches and a cast boot. The x

‐ ray showed

no abnormalities, and after a week, Winston reported that the swelling was nearly gone

and that he felt much better. Kron diagnosed him with a sprained ankle and, in a note

in Winston’s medical file, wrote “PT ordered .” When Winston later complained about

not receiving that therapy, another nurse, Kris DeYoung, checked his medical records

and told him that she did not see an order for physical therapy in his file.

Months la ter, Winston moved to another prison. While there, he received an

MRI. It revealed a previously unknown, congenital flat

‐ foot condition that was

unrelated to his sprained ankle. Winston began to receive treatment for his flat foot.

Winston sued Kron, Pulda, and DeYoung, asserting violations of Wisconsin

negligence law and his rights under the Eighth Amendment. As relevant on a ppeal, he

alleged that Kron negligently failed to order an MRI; Pulda culpably let him walk on his

ankle and failed to refer him to a doctor immediately after his injury; and DeYoung

culpably failed to comply with Kr on’s instruction to arrange for physical therapy.

Winston unsuccessfully moved to recruit counsel. The court denied Winston’s

first motion because he had made no reasonable efforts to obtain counsel. It denied the

second because it could not tell then if the case was too complex for Winston to litigate

himself. Th e court allowed Winston to renew his motion once the issues became clearer.No. 22

‐ 1422 Page 3

The case ended adversely to Winston in stages. First, the district court granted

Kron’s motion for summary judgment. The court observed that no evidence suggested

that the standard of care for treating an ankle with some swelling required an MRI or

that Winston was harmed by Kron’s decision not to order one. Then, before Winston’s

claims against Pulda and DeYoung went to trial, Winston moved again for recruitment

of counsel, giving two reasons: he needed an expert to establish thei r standard of care

and the case was too complex for him to try to a jury. The court denied the motion.

Addressing only th e first reason, it concluded that Winston did not need an expert

because the jury could tell from its own experience whether either defendant was

negligent or deliberately indifferent. Later, after a one

‐ day trial, the jury returned a

verdict in favor of Pulda and DeYoung.

On appeal, Winston contests only two rulings : the summary

‐ judgment decision

with respect to whether Kron should have ordered an MRI and the denial of his final

motion for recruitment of counsel. We review the court’s former decision de novo, Pyles

v. Fahim

, 771 F.3d 403, 408 (7th Cir. 2014), and the latter for abuse of discretion, Pruitt v.

Mote

, 503 F .3d 647, 658 (7th Cir. 2007) (en banc).

First, Winston argues that Kron was negligent under Wisconsin law because his

failure to order an MRI violated the applicable standard of care, and an MRI would

have revealed Winston’s flat foot. But even if the standard of care fo r his ankle injury

includes an MRI, Winston’s claim fails. A negligence claim in Wisconsin requires

evidence of a reasonably foreseeable harm. See Tesar v. Anderson

, 789 N.W.2d 351, 354

n.7, 363 (Wis. 2010). But the harm that he a ttributes to the MRI’s absence—a failure to

detect his unrelated flat foot—was not reasonably foreseeable because no evidence

suggests that, at the time of Winston’s injury, Kron had reason to suspect that Winston

had an unrelated flat

‐ foot condition. Therefore, no rational jury could conclude that

Kron should have foreseen that an MRI might reveal Winston’s flat foot.

Second, Winston ch allenges the denial of his final motion for recruitment of

counsel. Pulda and DeYoung concede that the court abused its discretion in denying

this motion. The court had to weigh Winston’s ability to litigate against the difficulty of

the case, see Pruitt

, 503 F.3d at 654–55, but it considered only Wi nston’s need for an

expert. Even so, they correctly observe, Winston must show that he was prejudiced by

the denial. See id. at 659. That requires more than just a likelihood that counsel would

have performed better than Winston at trial

. Mejia v. Pfister

, 988 F.3d 415, 420 (7th Cir.No. 22

‐ 1422 Page 4

2021). Rather, Winston must show a “reasonable likelihood” that the outcome would

have been different with counsel. Pruitt

, 503 F.3d at 659.

To demonstrate prejudice, Winston offers several arguments, but none shows a

reasonable likelihood that, with counsel, the trial would have ended differently. He first

argues that a lawyer might have succe ssfully contested the defendants’ pretrial motion

to exclude evidence about his flat

‐ foot condition, enabling Winston to argue at trial that

the nurses exacerbated that condition when treating his ankle. But, as we just explained,

that condition was not foreseeable; thus the jury could not have used such evi dence to

find Pulda or DeYoung negligent or deliberately indifferent. See Petties v. Carter

,

836 F.3d 722, 728 (7th Cir. 2016) (deliberate indifference requires that defendant

consciously disregard substantial risk of harm); Tesar

, 789 N.W.2d at 363 (negligence

requires foreseeable harm).

Next, Winston argues that counsel might hav e secured an expert. He contends

that an expert could have shown that the nurses violated the applicable standard of care

by letting him walk on his ankle (to increase blood circulation), not getting him a doctor

immediately after his injury, and not scheduling physical therapy. But even if an expert

established that these omissions violated the applicable standard of care, Winston

produced no evidenc e that this conduct caused any short

‐ term or long

‐ term harm to

him, as he must. See Petties

, 836 F.3d at 728; Tesar

, 789 N.W.2d at 363. To the contrary, he

received the prison’s standard (and unchallenged) treatment regimen for a sprained

ankle: pain relievers and instructions to pro tect the injured area, ice it, compress it, and

elevate it. Further, his swelling and pain were well

‐ managed, he was offered crutches

immediately (which he initially refused) and a boot to use as needed, and his ankle had

mostly healed within three weeks without co mplications.

Winston also unpersuasively contends that counsel might have successfully

sought a mistrial. During the trial, the defense suggested that even if DeYoung had

overlooked Kron’s order for physical therapy, Winston could not have received that

therapy because of pandemic restrictions. But this contention di d not necessitate a

mistrial because Winston successfully objected to it, and the court instructed the jury

not to consider it. We presume that jurors follow such instructions, Wilson v. City of

Chicago

, 758 F.3d 875, 885 (7th Cir. 2014), and Winston gives us no reason to believe that

a lawyer could have upset that pr esumption.

Last, Winston cites other trial

‐ presentation hardships that he faced—difficulties

with PowerPoint, questioning witnesses, and organizing his case—but these do notNo. 22

‐ 1422 Page 5

show prejudice from the absence of counsel. Although “inept trial performance” may

establish prejudice, Pruitt

, 503 F.3d at 661, Winston was not inept. He summarized the

facts of the case, gave clear opening and closing statements, informed the jury of how

the facts map on to each element of his claims, and adequately questioned witnesses

about key facets of the case. See id

.

AFFIRMED