# UnitedStates Cou rt of App eals
For the Seventh Circui t Chic ago, I lli nois 60604

Submi tte d April 8, 2014 * Deci ded April 10, 2014

Before

FRANK H. EASTERBROO K, Circ uit Judge

ILANA DIAM OND ROVNER, Circ uit Judge

ANN CLAIRE WI LLIAMS , Circ uit Judge

No. 13-1522

GERMAINE A. ELCO CK, Plaintiff–Appell ant,

v.
KELLY DAVIDSON, et al., Defen dants–Appellees

. Appeal from the United Stat es Di stric t Court for t he Central Dis tr i ct of Illi noi s.

No. 10-1095
James E. Shadi d, Chief Ju dge.

O R D E R

Germai ne Elcock, an inmate at Dwi ght Co rr ecti onal Center i n Illinoi s, appealsthe gr ant of summ ary judgment ag ai nst her i n thi s su i t asserting unc onsti tutional condi tions of confinement and deli berate indi fference to a v omi tin g epis ode she had at the prison and her subs equent di agnosi s of Hepati tis A. See 42 U.S.C. § 1983. We affi rm. 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 t e d o n l y i n a c c o r d a n c e w i t h F e d

. R

. A p p
. P

. 3 2

. 1

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

. R. A P P

. P. 34(a)( 2)(C).No. 13-1522 Page 2

In early 2010 Elcock su ed two nurses and three prison offi ci als after she experienc ed a bout of vo mi tin g and sever e stomach pain—the result, she beli eves, of drinki ng contami nated water at the prison the previous n i ght. Accor ding to her complai nt, Elcock drank tap water from her cell i n May 2009—after a bri ef period du ring wh i ch the water t aps had b een turned off becaus e of pump f ai lure, and then resto red. A g rievance
couns elor later clari fi ed that t he taps had been s hut off bec ause of pu mp fai lure, and not contami nated water. The day afte r dr i nki ng the water , Elcock says, s he felt naus eated and vomited several times . Nurse Jess i ca Chi cke vis i ted her cell ear ly thatmornin g and offered her Ty lenol. Elcock says s he repeat edly to ld one pris on offi cer, Theresa Mer edi th, of her v omi tin g att acks and as ked to go t o the infi rmary ; Mer edi th allegedly responded by alert i ng her superv i sors, Li eutenant Kelly Davi dson and Serg eant James Boland. Accordi ng to Elcock, Davi dson was also i n the wing that mo rnin g but di d not chec k on her . That afternoo n Nurse Jerri Angeloff w ent to Elcock’s celland told Elcock that t here was nothi ng she could d o to tr eat her , but recommended sh e tak e small s i ps of bott led water. Elcock says she felt bett er as the after noon passed, bu t was weak for the next several day s. Th e followi ng day, she added, she fi led an emergency gr i evance requestin g a docto r’s exam, but her r equest was i gnor ed by Warden Car olyn Trancoso. The sam e day that she fi led her complaint, Elcock fi led the fi rst o f seven motions seeki ng the r ecrui tment of counsel to assi st her, but the court deni ed the motion becau se Elcock had not demonstrat ed that she tr i ed to find couns el on her o wn. Three months later she requested the assi stance of a law yer and again the court denied her request, thi s ti me becau se her clai ms w ere no t so complex that she c ould not r epresent her self. In Sept ember Elcock made the same request, and the court summ arily deni ed i t. In early 2011 Trancoso, Mer edi th, David son, and Boland m ov ed for summary judgment o n the gr ound that Elcock had not ex haus ted her admin i strat i ve r emedi es. The court deni ed the motion, finding that Elcock in May 2009 had fi led a grievance in whi ch s he complained that Davids on and Mer edi th i gnor ed her pleas for medi cal c are and that Trancoso deni ed emerge ncy rev i ew. The c ourt di smi ssed B oland from the sui t, however , becau se Elc ock inher gr i evances had not named hi m or o therwis e shown that he knew about her r equests for medi cal c are. Elcock requested a lawyer ag ai n in August, and the court summ arily deni ed the motion. She renewed her r equest i n September, seek ing assi stance at an evid entiary hearin g to reconsi der whether she had exhausted her admi ni strat i ve r emedi es in accordance w i th Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). The court also deni ed thi s request, explain i ng that Elcock was capab le of arg uing that she had exhausted her admini strat i ve r emedi es. The n extmonth Elcock yet ag ain asked for a lawyer , and theNo. 13-1522 Page 3

judge r ei ter ated that she w as competent to r epresent her self at that stage o f the proceedings.
Di scovery ensued an d Elcock learned, when s he obtain ed her medi cal records, that a Hepati tis A antib ody t est perfor med in September 2011 was posi tive. In early 2012 she asked the courtto appo i nt an exper t to “testif y as to ho w [h er] expo sure to water contami nated wi th human w aste carries a s i gni fi cant ris k of contr acti ng viral di seases such as Hepati tis A.” The court deni ed the motion, explai ning that Elcock did n ot show that speci ali zed or sci entifi c knowledge would ai d the fact-finder inan ass essm ent of deliberate indi fference. So on ther eafter Elcock mov ed to amend her complai nt to add (1) al legations of havin g r ecei ved t he posi tive result on the t est for Hepat i tis A antib odiessi x months earlier and, (2) a clai m that the defendants violated her r i ght t o decent li ving condi tions

. The court deni ed thi s request: the pro posed facts w ere “unnecess ary ” and her complaint already i nclu ded a clai m about her condi tions of confinement. In May 2012 Elcock fi led her seventh mot i on for r ecrui tment of counsel, bu t the court r ei ter ated that she had d emonstrat ed that she was c ompetent t o liti gate her clai ms, an d thus deni ed her r equest. In June 2012 the nurses and remai ning state defendants fi led separate mot i ons for
sum mary j udgment. In support o f thei r ar gument that t hey were not deliberately i ndi fferent to a seri ous medi cal need, the nurses sub mi tte d an affi davit from Dr. Art hur Funk, an i nternal medi cine spec i ali st and the Regional Medi cal D i recto r for Wexfor d Health Sour ces, Inc . (a pri vat e company that pr ov i des medi cal c are t o Illinoi s pris oners under contr act wi th the Illinoi s Department of Cor rections) , who ass ert ed that symptoms of Hepati tis A mani fest several weeks after exposure, t hat ther e i s no spec i fi c tr eatment, and that a po si tive result on an antib ody t est occurs when a pati ent has been prev i ously i nfected by or v accinated for Hepat i tis A and therefo re has develo ped i mmu ni ty t o it. To su pport their posi tion that they did not subject Elcock t o unc onsti tutional c ondi tions of confinement, the pris on offi ci als inclu ded the affi davit of Davi d Delong, a water plant o perat or at Dwi ght, who cor ro borat ed hi s testi mony that the water at Dwi ght g enerally was safe to drink wi th results from ro uti ne water t ests perfor med in May 2009 confi rming that t he water was “sati sfac tor y.” In Februar y 2013 the cour t gr anted summ ary judgment for both the stat e defendants and the nurses. The court det ermin ed that Elcock’s epi sode of vo mi tin g and stomach pai n in May 2009 was not obj ecti vely seri ous and that her symptoms resolv ed on their own. Nor had Elcock shown that the defendants w ere deliberately indi fferent to her medi cal needs ; she adm i tte d at her depo si tion that the nurses twi ce examined her on the day she was vomi tin g and to ld her ther e was n o tr eatment they could offer otherNo. 13-1522 Page 4

than to sugg est she si p water. As for her condi tions -of-c onfi nement clai m, the court found un di sputed the defendants’ evi dence—pri mari ly Delong’s affi davit—that the water was safe to drink. On appeal Elcock chal lenges the court’ s grant o f su mmary j udgment for Trancoso, Davi dson, and Meredith, and argues that ther e i s a di spute about whether the water at Dwi ght was uns afe for consump tion from May 2 t o May 7, 2009, the period when s he beli eves she contracted Hepatiti s A. Elcock insi sts that the defendants wi thheld results of water t ests performed o n those dates. But she intro duced n o ev i dence to support t hi s charge or contest Delong’s testimony that (1) water samples at Dw i ght ar e perfor med monthly, and (2) the sam ples he s tudi ed from May 2009 showed that the water was s afe to dr i nk. Elcock also generally challenges the court ’s grantof sum mary j udgment for nurses Angeloff and Chi cke. To prev ai l on her clai m that the nurses violated the Ei ghth Amendment, Elc ock had to establi sh that they acted with reckless or mali ci ous intent t o deny her medic al care for an o bjectively serious condi tion. See F armer v. Brenn an , 511 U.S. 825, 834 (1994) ; Earl v. Racine C ounty Jail , 718 F.3d 689, 692 (7th Cir. 2013); McGow an v. Huli ck , 612 F.3d 636, 641 (7th Cir. 2010). Even i f we as sum e Elcock’s condi tion w as objectively serious, s he di d not meet her burden. As the di stric t courtnoted, Elcock admi tte d that she was examined by nurse Chi cke pro mptly on t he mornin g she becam e si ck and agai n that day by A ngeloff, who explai ned to Elcock that there was n o ot her tr eatment they could prov i de for her symptoms, and Elc ock’s symptoms resolv ed wi thout t reat ment soon after that. Next Elcock challenges Ser geant Bo land’s di smi ssalfrom the case, and argues that the courtov erlo oke d a grievance attached to her complaint i n whi ch s he acc used Boland of denyi ng her medic al care after she drank contami nated water. But e ven if the court o ver look ed that g rievance, Elc ock cannot show that she was prej udi ced by the
ov ersi ght because, asthe courtdeter mined, she di d not show that she exper i enced a suffi ci ently serious m edi cal c ondi tion or dis pute the defendants’ evidenc e that t he water at Dwi ght was safe to drin k. Elcock also admi tte d at her depo si tion that she never spoke to Boland about her illn ess, an d, since he w as not personally involved in her medi cal c are, Bo land could not be held li able und er § 1983. See Vi nni ng-El v. Evans , 657 F.3d 591, 592 (7th Cir. 2011); Burks v. Raemisc h , 555 F.3d 592, 593–94 (7th Cir. 2009)

. Elcock also ch allenges the court’ s repeated denials of her r equest for counsel on gr ounds that she had d i ffi culty understanding complex medi cal and s ci entifi c documents, as well as conduc tin g dis cover y. But as the courtfound, her symptoms were notcomplex, she had p rev i ously li tigated sever al laws ui ts, staved o ff s umm ary judgment in thi s cas e, acti vely partici pated indi scovery , and su cces sfu lly move d toNo. 13-1522 Page 5

compel di scovery . The court di d not abuse i ts di screti on i n concl uding that t he cas e’s di ffi culty di d not ex ceed her capaci ty. See Navejar v. Iyiola , 718 F.3d 692, 696 (7th Cir. 2013); Pruitt v. Mot e, 503 F.3d 647, 654 (7th Cir. 2007) ( en banc ). Next Elcock ar gues that the cour t’s deni al of her mot i on to amend her complaint (to add allegations relati ng to her te sti ng posi tive for Hepatiti s A) prevente d her fro m strengt hening her clai m of deliberate indi fference. But her clai m turned on what facts the defendants knew in 2009 whenshe c omplai ned that the water had made her si ck. Elcock had to demonstrat e that t he defendants knewof and di sregar ded a seri ous ri sk to her health, see Holloway v. Del. County She riff , 700 F.3d 1063, 1073 (7th Cir. 2012); Dale v. Posto n , 548 F.3d 563, 569 (7th Cir. 2008), and test r esults fro m 2011 do not bear on that questi on or show when sh e contracte d the di sease. Bec ause the proposed amendments would not have helped Elcock prev ai l on her clai ms, the court di d not abuse i ts di screti on i n denying her mot i on to amend. See Adams v. City of Indianapolis , 742 F.3d 720, 733–34 (7th Ci r. 2014); Soltys v. Costello , 520 F.3d 737, 743 (7th Cir. 2008). Last Elcock argues that t he court abused i ts di screti on by fai ling to appoi nt an exper t to help her understand the water t est results and her Hepati tis A test fr om 2011. A court may appoin t ex pert s pursu ant to F E D

. R. E V I D . 706(a), and gener ally exper ts may testify i f sc i entifi c or speci ali zed knowledge wi ll help the court to understand the evidenc e or deci de a di sputed fac t. F E D

. R. E V I D . 702(a); Ledford v. Su llivan , 105 F.3d 354, 358–59 (7th Ci r. 1997); Gaviria v. Reynolds , 476 F.3d 940, 945 (D.C. Ci r. 2007). The i ssu es to be deci ded i n thi s cas e were whether Elcock had a seriousi llness and, i f so, wh ether the defendants w ere deliberately indi fferent to i t. But ex perttestim ony is not necessary to explainsymptoms that can be un dersto od by a layper son, Gil v. Reed, 381 F.3d 649, 659 (7th Ci r. 2004), and whether defendants w ere deliberately indi fferent is a subjective test that would not hav e benefi tte d from an exper t v ersed i n water te sti ng or her liver condi tion. We have r eviewed the remainder of Elcock’s arg uments, an d none has m erit. AFF IRM ED.