# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 28, 2021 *

Decided April 29, 2021

Before

FRANK H. EASTERBROOK, Circuit Judge

DIANE P. WOOD, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 20

‐ 1611

TIMOTHY G. TACKETT,

Plaintiff

‐ Appellant

,

v.

CATHY JESS, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 19

‐ CV

‐ 258

‐ JPS

J .P. Stadtmueller,

J udge

.

O R D E R

Beginning in 2017, Timothy Tackett, a Wisconsin prisoner, had multiple surgeries

for nerve damage, inflammation, and tissue damage in his left foot caused by a July

2015 accident at his prison job. Alleging that their deliberate indifference caused his

prolonged pain and eventual toe amputation, Tackett sued several prison officials,

medical providers, and employees at Racine Correctional Institution and Fox Lake

Correctional Institution under 42 U.S.C. § 1983 and state tort law. The district court

* 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 NONPRECEDENTIAL DISPOSITION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. 20

‐ 1611 Page 2

disposed of all claims in favor of the defendants. Because the court did not err in

granting the defendants’ motions to dismiss and for summary judgment, we affirm.

Background

Tackett began feeling pain in his left foot after dropping a printer on it in early

July 2015. He was housed at Raci ne at the time and requested treatment within days,

but received only Tylenol, ibuprofen, and a cane for three months. In October 2015,

Dr. Kevin Krembs treated Tackett’s pain with nortriptyline and steroid injections after

an x

‐ ray showed a “normal” left foot. The treatment did not alleviate Tackett’s pain,

however, and another doctor at Racine diagnosed him with nerve damage after

reviewing a second x

‐ ray in April 2016. Tack ett also saw an external specialist that

month, but staff at Racine never booked the recommended follow

‐ up appointment.

Tackett was prescribed orthotics to manage his pain, and he attended fittings

from July through September 2016. By November, his condition had improved slightly,

though he continued to feel pain. In response to Tackett’s reports of ongoing pain,

Dr. Krembs prescribed stronger medication (gabapentin) in January 2017. Tackett wrote

letters to Racine officials requesting the follow

‐ up specialist appoin tment and

describing his pain to no avail, but he did not file an administrative grievance.

Tackett was still managing his foot condition with pain medication and orthotics

when he was transferred to Fox Lake in June 2017. Upon arrival, Tackett’s sneakers,

which accommodated his orthotics, were confiscated due to a tear that could be used to

hide contraband. Two months later, Tackett saw an outside podiatrist, who diagnosed

him with neuroma, a painful nerve and tissue condition in his foot, and gave him a

cortisone injection. The podiatrist recommended surgery, and a Fox Lake doctor

ordered a magnetic resonance image (MRI), which showed inflammation (capsulitis

and bursitis) in his toe. After submitting inmate complaints requesting surgery in

October and early November 2017, Tackett had surgery in November.

Tackett returned to Fox Lake the evening of his surgery. The surgeon had

prescribed ibuprofen and hydrocodone, a controlled substance, “q6hr PRN,” or every

six hours as needed, but Fox Lake medical staff entered the hydrocodone prescription

as “quarter in die as needed,” meaning he would receive medications four times a day

and only during medical pass, which did not occur overnight. When Tackett awoke in

the middle of the night in pain and requested hydrocodone, nigh t supervisors Glenn

Bornick and Lonel LeBlanc refused after consulting the prescription. They provided himNo. 20

‐ 1611 Page 3

with ice instead, and Tackett submitted an inmate complaint about his medication

deprivation.

Tackett improved for several months, but in April 2018 another podiatrist,

Dr. Sarik Parikh, diagnosed him with a flail toe and recommended another surgery.

Tackett’s flail toe was amputated in July, and he was again prescribed hydrocodone

every six hours, but night officers again denied Tackett the pain med ication based on

the prescription on file. Prison officials also declined to authorize a prescription for

Lyrica; per prison policy, lower

‐ risk medications are substituted for Lyrica unless they

are proven ineffective. Tackett submitted two inmate grievances due to these

deprivations, and Lyrica was approved two months later.

In September 2018, Tackett attended fitting sessions for new orthotics ordered by

Dr. Parikh. Around the same time, he had two post

‐ surgery follow

‐ up appointments

cancelled without explanation, and he continued to experience pain. Tackett saw

Dr. Parikh again in January 2019. At this appointment, Dr. Parikh recommended

another surgery and mentioned that Tackett’s condition likely would not have been so

severe had his original injury been promptly treated.

In March 2018, Tackett sued 21 people from the Racine and Fox Lake institutions

for deliberate indifference in violation of the Eighth Amendment and for state

‐ law

negligence and medical malpractice. After the court in the Western District of

Wisconsin dismissed seven defendants at screening, the case was transferred to the

Eastern District. Tackett moved for recruited counsel several times, but the court denied

each motion. The defendants all filed motions to dismiss, which the court granted in

part; it later entered summary judgment for the remaining defendants. Tackett appeals.

Analysis

A. Dismissal of Racine Medical Defendants

Tackett challenges the district court’s determination that he failed to exhaust his

administrative remedies for the claims against the Racine defendants, as required by the

Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). He argues that the complaints he

submitted after his transfer to Fox Lake satisfied the exhaustion requirement for the

Racine defendants under the continuing

‐ violation doctrine because his insufficient

medical care began at Racine and continued after his transfer.No. 20

‐ 1611 Page 4

The continuing

‐ violation doctrine does not save Tackett’s claims from dismissal

for lack of exhaustion, however. This is not an instance where a single grievance serves

as notice of an ongoing condition or policy, as in Turley v. Rednour

, 729 F.3d 645, 650

(7th Cir. 2013). Tackett’ s pain was ongoing, but the failure to treat it adequately and

schedule appointments were discrete acts, not a single course of conduct that continued

even after his transfer to a new institution. See Nat ʹ l R.R. Passenger Corp. v. Morgan

, 536

U.S. 101, 113–15 (2002).

Tackett’s argument that the complaints he submitted at Fox Lake exh aust against

the Racine defendants cannot stand. Other than the requirement that it occur, which

comes from § 1997e(a), exhaustion of remedies is governed by state law. Jones v. Bock

,

549 U.S. 199, 218 (2007); Riccardo v. Rausch

, 375 F.3d 521, 523 (7th Cir. 2004) (“Prisoners

must follow state rules about the time and content of grievances.”). We have held that

under the applicable provision of Wisconsin law, which requires prisoners to “clearly

identify the issue” they are grieving, a grievance suffices “if it provides notice to the

prison of ‘the nature of the wrong for which redress is sought.’” Schillinger v. Kiley

,

954 F.3d 990, 995 (7th Cir. 2020) (internal citation omitted).

The district court reasonably concluded that Tackett’s Fox Lake complaints failed

to exhaust the claims against the Racine medical defendants. True, neither the federal

statute nor the Wisconsin regulations require grievances to name individuals

responsible for the complained

‐ of harm. See Jones

, 549 U.S. at 218. But Tackett’s

grievances focused on the delay in scheduling his surgery and his post

‐ surgery

medication deprivation and only generally referenced continuing pain since 2017 (when

he arrived at Fox Lake); they did not give notice that he was complaining about a lack

of medical care at Racine, so there was no opportunity for the Department of

Corrections to investigate or correct any problem there. See Schillinger

, 954 F.3d at 995.

Further, the two letters Tackett sent while at Racine were insufficient to exhaust,

because a prisoner must properly use the prison’s formal grievance process. See Lockett

v. Bonson

, 937 F.3d 1016, 1025 (7th Cir. 2019). Letters to officials—in lieu of formal

complaints—cannot be substituted for this process. W IS

. A DMIN

. C ODE § DOC 310.07. †

† Tackett does not challenge the dismissal of defendant Lyyski on exhaustion grounds

and concedes that the dismissal of the Wisconsin Department of Corrections complaint

officers (Bartow, Alsum, Davidson, and Jess) was proper. He also raises no argument

regarding the state medical malpractice claims against the Racine medical defendants.No. 20

‐ 1611 Page 5

B. Dismissal of Negligence Claims against Non

‐ Medical Defendants

Tackett also attacks the district court’s grant of defendants’ motion to dismiss the

state

‐ law negligence claims against Racine’s warden, who, he argues, knew of his

medical deprivations, and Fox Lake officers LeBlanc and Bornick, who refused to

provide Hydrocodone the night after Tackett’s first surg ery. He contends that the court

improperly applied Wisconsin ʹ s notice of claim statute, which requires litigants

bringing civil claims against state employees to notify the state attorney general of a

potential suit within 120 days of the incident. W IS

. S TAT

. § 893.82(3), (5m). Tackett

asserts that he did not need to comply with the notice statute, because the statute

exempts medical malpractice suits, and these defendants acted in a medical capacity.

W IS

. S TAT

. § 893.82(5m). Although Tackett’s claims stemmed from medical inattention,

he sued the non

‐ medical defendants for negligence. Non

‐ doctors may not be sued for

medical malpractice for the purposes of the notice statute, Patients Comp. Fund v.

Lutheran Hosp.

‐ LaCrosse, Inc.

, 588 N.W.2d 35, 41 (Wis. 1999) (noting only physicians and

nurse anesthetists are mandatorily liable for malpractice claims); see also W IS

. S TAT

. § 655.002, so the district court did not err in granting this part of the motion to dismiss.

C. Summary Judgment for Fox Lake Non

‐ Medical Defendants

Tackett next attacks the entry of summary judgment on his Eighth Amendment

claims against night officers LeBlanc and Bornick at Fox Lake. He argues that the court

erred in resolving material factual disputes at the summary judgment stage regarding

the officers’ knowledge of, and failure to address, his pain. Specifically, he maintains

that they impermissibly denied him hydrocodone and should have consulted with

medical staff about his prescription.

Tackett’s argument fails because no material issue of fact remains for officers

LeBlanc and Bornick. As non

‐ medical officials, they were entitled to rely on medical

personnel—and their prescriptions—when deciding whether to dispense medications to

prisoners. See Eagan v. Dempsey

, 987 F.3d 667, 694 (7th Cir. 2021). LeBlanc and Bornick

consulted the prescription on file—directing that Tackett receive hydrocodone upon

request at each of the four medical passes (which did not occur at night)—before

denying him pain medication. Because they justifiably relied on the prescription on file

rather than the discharge instructions and prescription Tackett presented, LeBlanc and

The district court relinquished supplemental jurisdiction over those claims and

properly dismissed them without prejudice, see Harvey v. Town of Merrillville

, 649 F.3d

526, 533 (7th Cir. 2011), so Tackett is free to bring them in state court.No. 20

‐ 1611 Page 6

Bornick were not deliberately indifferent in failing to further consult medical personnel

at one in the morning or provide hydrocodone in spite of the entered prescription. That

they further commented on inmates’ potential abuse of prescribed pain medication does

not overcome the lack of deliberate indifference here.

D. Summary Judgment for Fox Lake Medical Defendants

Tackett further challenges the entry of summary judgment for Fox Lake medical

personnel, including health

‐ services manager Candice Whitman, nurse Julie Ludwig,

and Dr. Charles Larson, who approved his hydrocodone prescription for four times a

day at medical pass only, rather than every six hours, as ordered by the surgeon.

Tackett argues that each of these persons knew of, and were responsible for, depriving

him of his prescribed medication and his resulting pain and suffering.

Tackett’s arguments are unavailing, however. He failed to bear his burden of

producing evidence that Dr. Larson was deliberately indifferent in ordering his

hydrocodone prescription as “QID PRN,” to be distributed at the four daily medical

passes upon request. Although the prescription differed from the surgeon’s

recommendation of every six hours (which would include the middle of the night),

Dr. Larson’s actions were not so “blatantly inappropriate” as to constitute indifference,

Pyles v. Fahim

, 771 F.3d 403, 409 (7th Cir. 2014), for there is no evidence that the

discrepancy was due to anything other than simple negligence. We generally defer to

medical professionals’ judgment. Id. And Dr. Larson’s actions in this case—ordering a

prescription that would still have provided hydrocodone four times a day upon

request, just at different intervals—are not so far afield as to call “into question whether

the doctor actually was exercising his professional judgment.” Id. Thus, summary

judgment was proper.

The entry of summary judgment for nurse Ludwig was similarly justified.

Ludwig denied Tackett pain medication outside of the daily medical passes, in

accordance with his en tered prescription of QID PRN. To demonstrate deliberate

indifference by Ludwig, Tackett must show that her decisions were so indefensible in

light of a serious medical need that “no minimally competent professional would have

so responded.” Id. Tackett does not provide evidence that Ludwig’s decision not to

provide hydrocodone at night, nor her role in being the one to inform Tackett of the

denial, meets the high standard for deliberate indifference. See id. (“Something more

than negligence or even malpractice is required.”)No. 20

‐ 1611 Page 7

With respect to Whitman, the administrator, Tackett cites no evidence that she

was personally involved in the decision to withhold post

‐ surgery pain medication at

night. Instead, he emphasizes her job description, which includes overseeing treatment

plans, her receipt of the paperwork from the hospital the day of his surgery, and her

knowledge of his complaints through conversations with complaint

‐ review officers. But

Whitman ca nnot be held responsible for his deprivations if she was not personally

involved in dispensing medication. See Owens v. Evans

, 878 F.3d 559, 563 (7th Cir. 2017).

And supervisors cannot be held vicariously liable under § 1983 for others’ violations.

Horshaw v. Casper

, 910 F.3d 1027, 1029 (7th Cir. 2018).

E. Motions to Recruit Counsel

Finally, Tackett contends the district court abused its discretion each time it

denied his motion for recruited counsel. Tackett believes the complexity of the medical

issues involved and the difficulty of obtaining discovery from the Racine defendants

when he was housed at Fox Lake entitled him to recruited counsel.

The district court denied four motions for attorney representation. One decision,

issued during discovery, stated: “This Court does not entertain such motions until after

the close of discovery.” This was an abuse of discretion. In deciding a motion to recruit

counsel, a cour t must consider whether the plaintiff has made a reasonable attempt to

obtain counsel and whether, given the difficulty of the case, the plaintiff appears

competent to litigate the case himself. See Olson v. Morgan

, 750 F.3d 708, 711 (7th Cir.

2014) (citing Pruitt v. Mote

, 503 F.3d 647, 654 (7th Cir. 2007) (en banc)). The second step

is an individualized inquiry that looks to the difficulty of the case relative to the

plaintiff’s abilities, as demonstrated by his “literacy, communication skills, educational

level, and litigation experience,” and, if relevant, his “intellectual capacity and

psychological history.” Pruitt

, 503 F.3d at 655; Pennewell v. Parish

, 923 F.3d 486, 491 (7th

Cir. 2019) (“particularized consideration” required). A general rule is not consistent

with the discretionary nature of the decision. See Eagan

, 987 F.3d at 686. Even though we

have said that it will be difficult to gauge very early on whether a plaintiff is competent

to litigate, a judge may not refuse to consider the Pruitt factors simply because

discovery has not yet closed; we have denounced any “judge

‐ made bright

‐ line rules” in

this area. See Mapes v. Indiana

, 932 F.3d 968, 971 (7th Cir. 2019).

To obtain relief on appeal, however, Tackett must persuade us that the district

court’s error prejudiced him. See Henderson v. Ghosh

, 755 F.3d 559, 564–55 (7th Cir. 2014).

He has not. Although Tackett cites challenges based on his transfer to Fox Lake and the

medical issues in the case, he does not adequately explain how counsel would haveNo. 20

‐ 1611 Page 8

changed the outcome of his case at the discovery stage, particularly as counsel could not

have overcome Tackett’s pre

‐ filing failures to comply with the notice statute and

exhaustion requirement. See Mejia v. Pfister

, 988 F.3d 415, 419 (7th Cir. 2021) (upholding

denials of motions to recruit counsel despite litigant’s missteps dur ing discovery).

The district court adequately considered the remaining three motions under

Pruitt

. The court observed that Tackett had named six attorneys he contacted regarding

his case, but provided no other information substantiating his efforts to obtain counsel.

Further, Tackett did not adequately allege that he could not litigate the case himself;

although he asserted that counsel would more effectively litigate a case of this

complexity, the court properly noted that Tackett had not identified any limitations that

would prevent him from presenting his case. See Romanelli v. Suliene

, 615 F.3d 847, 852

(7th Cir. 2010) (the district court need only reasonably apply the co rrect legal standard).

As the court explained, the fact that an attorney would litigate more effectively than a

pro se litigant is not, in itself, sufficient to compel recruitment of counsel. See Henderson

,

755 F.3d at 564 (noting that the supply of recruitable counsel is too low to meet

demand). The court thus did not abuse its discretion in denying Tackett’s motions on

these grounds.

AFFIRMED