United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Argued June 12, 2019 

Decided June 14, 2019 

Before 

DIANE P. WOOD, Chief Judge 

AMY C. BARRETT, Circuit Judge 

AMY J. ST. EVE, Circuit Judge

No. 16-1231 

ANDERSON R. DASILVA, 

 Plaintiff-Appellant, 

v. 

ROBERT J. RYMARKIEWICZ and 

KRISTINE DEYOUNG, 

 Defendants-Appellees. 

 Appeal from the United States District 

Court for the Eastern District of Wisconsin. 

No. 14-CV-812 

William E. Duffin, 

Magistrate Judge.

O R D E R 

Anderson DaSilva, a Wisconsin state inmate, repeatedly asked the district court 

to recruit counsel for him in his Eighth Amendment deliberate-indifference suit. The 

district court denied his requests and ultimately granted summary judgment for the 

defendants. On appeal, DaSilva challenges only the decision not to recruit counsel. 

Because we conclude that the lack of counsel did not prejudice him, we affirm. 

Background 

Reviewing the entry of summary judgment for the defendants, we construe all 

facts and draw all reasonable inferences in DaSilva’s favor. See Kemp v. Liebel, 877 F.3d 

346, 350 (7th Cir. 2017). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 16-1231 Page 2 

I. Factual 

After vomiting most of the day on Christmas Eve 2013, Anderson DaSilva fainted 

in his cell and hit his head, cutting his forehead. His cellmate called for help. By the 

time Officer Robert Rymarkiewicz arrived, DaSilva was conscious and the bleeding 

from the cut had slowed. 

At about 10:30 p.m., Rymarkiewicz phoned Kristine DeYoung, the prison’s 

on-call nurse, and told her what had happened. He said that the bleeding had been 

controlled and the cut did not appear to need stitches. Rymarkiewicz also reported that 

DaSilva was speaking to officials and seemed to be “ok.” DeYoung, who was at home, 

said that she would come examine DaSilva but that it would take her about 30 minutes 

to get to the prison. She told Rymarkiewicz to get DaSilva to lie down and sip clear 

fluids, and to call if DaSilva’s condition worsened. Although prison policy requires her 

to, DeYoung did not speak to DaSilva directly. 

Back in his cell, DaSilva became dizzy. He got up to vomit and his cut (which 

had not been bandaged) again began bleeding. His cellmate yelled for help. 

Rymarkiewicz returned to DaSilva’s cell and ordered other officers to phone DeYoung. 

At about 11:30 p.m., Rymarkiewicz again spoke with DeYoung, who was still at 

home. This time DeYoung asked to speak with DaSilva, but Rymarkiewicz told her that 

DaSilva spoke mostly Spanish. The officials agreed that DaSilva should be taken to the 

emergency room. He arrived at the hospital shortly after midnight, about an hour and a 

half after his fall. Medical staff diagnosed him with a concussion and a small laceration, 

which they stapled closed. Hospital records note that the cut was not actively bleeding 

and that DaSilva’s speech and motor skills were normal. He was discharged about an 

hour later in stable condition. For several weeks after the injury, DaSilva complained of 

headaches, vomiting, and dizziness. 

II. Procedural 

 In 2014, DaSilva filed a pro se complaint under 42 U.S.C. § 1983, alleging that 

Rymarkiewicz and DeYoung had violated the Eighth Amendment and Wisconsin law 

by delaying medical treatment for his injury and exposing him to a “threat of further 

injury.” At the same time, he moved the court to recruit counsel for him. See 28 U.S.C. 

§ 1915(e)(1). The motion for counsel included a statement from another inmate—

identified as “the writer of these legal papers and helper to the plaintiff”—who noted 

that DaSilva (a native Portuguese speaker) speaks English well but struggles to use it in 
No. 16-1231 Page 3 

writing. The district court denied the motion because DaSilva had not attached proof of 

any attempt to secure counsel on his own. 

DaSilva soon filed a second motion for counsel, this time supplemented with the 

required documentation. He asserted that his ability to represent himself was hindered 

by his incarceration, lack of prison library time, and limited English skills. He also said 

that his Eighth Amendment claim was “very complicated,” and that counsel would be 

able to retain an expert, investigate his malpractice claim, and question potential 

witnesses. The district court denied the motion, finding DaSilva competent to litigate on 

his own. The court noted that his Eighth Amendment claim was “not the type ... that 

often requires expert testimony” because it turned on the parties’ personal knowledge 

about how the defendants treated DaSilva’s injury before he was taken to the hospital. 

As for his state-law claim, the district court said that DaSilva could not compel the 

government or recruited counsel to bear the cost of hiring an expert. 

Shortly thereafter, DaSilva twice moved the district court to order the prison to 

release “any and all records” relating to his injury and ongoing health issues, explaining 

that “I already try to get [them] myself but they not even respond my requests.” The 

court denied the motions because DaSilva “failed to adhere to discovery procedures” 

and because it had no authority to order the prison, a non-party, to respond. It advised 

DaSilva to try to obtain the information through discovery requests served on the 

defendants directly. DaSilva promptly filed a series of interrogatories, but he did so 

with the court, not the defendants. 

A few months later, DaSilva filed a third motion for counsel, reiterating that his 

ability to represent himself was limited by his imprisonment and lack of library access. 

He added that prison staff had stolen his legal papers, restricted his phone privileges, 

and failed to turn over his records, and that the inmate who had been assisting him had 

since been moved. The district court denied the motion, noting the case’s “narrow 

scope” and DaSilva’s “ability to communicate effectively” (reflected in his motions and 

interrogatories). It cautioned DaSilva to adhere to prison policies and “to be patient 

(within reason)” while the prison processed his records requests, or to avail himself of 

the internal grievance process or discovery procedures. As for the alleged retaliation, 

the court noted that “[w]hile frustrating and perhaps unfair, [DaSilva] has not alleged 

any actions ... that have interfered with his ability to ... [litigate] on his own.” 
No. 16-1231 Page 4 

DaSilva continued to file procedurally defective discovery requests with the 

court, even after his transfer to a new prison. He also sent the court a letter asking for an 

attorney, adamant that the prison would “ignore” his record requests if he remained 

uncounseled. The district court did not respond to the letter, but it denied each of his 

discovery motions—some for failing to comply with procedural rules and others on the 

merits (despite procedural errors). DaSilva was eventually able to obtain discovery, 

including incident reports, answers to interrogatories, and numerous medical records 

from the hospital and prison. 

In fall 2015, the parties filed cross-motions for summary judgment. The 

defendants moved to strike DaSilva’s motion as procedurally deficient. DaSilva 

responded to the motion to strike and to some but not all of the defendants’ proposed 

facts. He also sent the court a letter, again asking for counsel and explaining that he did 

not “know how to do Erverythin [sic]” in his case. He added that the court should now 

have “all [his] medical records,” incident reports, answers to his discovery requests, and 

everything “the defendants sent [him].” 

The magistrate judge, proceeding by consent, see 28 U.S.C. § 636(c), granted the 

defendants’ summary-judgment motion and denied DaSilva’s. In its ruling, the court 

noted that DaSilva had responded to “only some” of the defendants’ proposed facts, so 

it deemed the rest admitted. It drew additional facts from DaSilva’s sworn complaint. 

The court concluded that his Eighth Amendment claim failed because he could not 

show that either defendant was deliberately indifferent to his injury. Further, he failed 

to present evidence establishing that the delay in treatment “had any detrimental effect 

on him”—a “fatal” omission. The court then dismissed the state-law malpractice claim 

because DaSilva did not submit expert testimony on the standard of care, as required. 

Analysis 

With the assistance of recruited counsel on appeal, DaSilva challenges only the 

district court’s decision not to recruit counsel for him. We review denials of counsel 

under 28 U.S.C. §1915(e)(1) for an abuse of discretion and will reverse only if prejudice 

is shown. Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir. 2007) (en banc). Here, we need only 

address the prejudice prong because it is dispositive. Tidwell v. Hicks, 791 F.3d 704, 709 

(7th Cir. 2015). To succeed on this appeal, DaSilva must show “a reasonable likelihood that 
No. 16-1231 Page 5 

the presence of counsel would have made a difference in the outcome of the litigation.” 

Pruitt, 503 F.3d at 659 (emphasis in original). 

DaSilva argues that his “‘poor performance’ during discovery and his inability to 

respond adequately during summary judgment are sufficient to establish prejudice.” 

Regarding his limitations in carrying out discovery, DaSilva points out that instead of 

seeking medical records through requests made to the defendants, he filed “multiple 

improper motions with the court.” Indeed, counsel might have avoided these missteps, 

but DaSilva was not prejudiced by them; the defendants still responded to some 

procedurally deficient motions, and the district court addressed several others on the 

merits. DaSilva also contends that he “never obtained his full medical records,” 

particularly those documenting his health problems since the incident. But post-injury 

evidence of this sort is not relevant to whether the defendants’ response to his initial 

injury violated his rights. In any case, as DaSilva himself stated, the district court had 

“all [of his] medical records” before it ruled on the motions for summary judgment. 

(DaSilva’s motion was accompanied by 49 pages of exhibits—including medical records 

from the prison and the hospital, some of which document post-injury issues.) 

As for his inability to respond at the summary-judgment stage, DaSilva contends 

that, without counsel, he failed to point out a genuine dispute of material fact in the 

record. Specifically, he asserts that three hours passed “between the moment his need 

for medical attention arose and the time he was examined ... at the hospital,” but the 

district court accepted the defendants’ position that “the entire incident was only an 

hour and a half.” Any dispute over the timeline, however, is not genuine. In his sworn 

complaint (on which the district court relied for some facts), DaSilva himself stated that 

he arrived at the hospital “approximately 1 hour and 30 minutes after he initially 

required emergency medical attention.” 

To establish an Eighth Amendment claim for deliberate indifference to serious 

medical needs, DaSilva had to show that he suffered from an objectively serious 

medical condition and that the defendants were deliberately indifferent to this need. 

Wilson v. Adams, 901 F.3d 816, 820 (7th Cir. 2018). Ultimately, DaSilva lost at summary 

judgment not because his claim was complex or beyond his capabilities to litigate, but 

because he cannot establish that either defendant “knew of a substantial risk of harm to 

[his health] and disregarded the risk.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).

As for DeYoung, no reasonable jury could find that her actions were “so far afield from 

an appropriate medical response ... that they fell outside the bounds of her professional 

judgment.” King v. Kramer, 680 F.3d 1013, 1019 (7th Cir. 2012). DeYoung’s instructions to 
No. 16-1231 Page 6 

return DaSilva to his cell and her failure to examine him must be viewed in light of the 

information that she had; and it is undisputed that Rymarkiewicz initially told her that 

DaSilva’s bleeding had slowed and that he appeared “ok.” As soon as news of his 

condition changed (e.g., DaSilva vomited and was bleeding again), so did her 

instructions, and she directed that he be taken to the hospital. 

As for Rymarkiewicz, as a non-medical official, he was entitled to defer to 

DeYoung’s professional judgment, see Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 

2010), and there is no dispute that he did so here. His alleged lie to DeYoung (regarding 

DaSilva’s English abilities) may have prevented the nurse and DaSilva from talking 

directly, as prison policy required, but no reasonable jury could find that this 

misstatement alone constituted deliberate indifference. See Estate of Simpson v. Gorbett, 

863 F.3d 740, 746 (7th Cir. 2017) (noting that § 1983 “protects against constitutional 

violations, not violations of departmental regulation and practices”) (internal quotation 

marks omitted). 

DaSilva’s Eighth Amendment claim is untenable for another reason: he failed to 

offer any evidence that the delay in treatment “exacerbated [his] injury or unnecessarily 

prolonged pain.” Petties v. Carter, 836 F.3d 722, 730–31 (7th Cir. 2016) (en banc). DaSilva 

argues on appeal that the decision to return him to his cell led him to fall again, which 

may have “aggravated his condition and prolonged his post-concussive symptoms.” 

But in the district court, DaSilva complained only of the risk that he “could have hit his 

head a second time and suffered a more serious brain injury or died”; he never alleged 

that further harm actually occurred. 

Finally, the district court dismissed DaSilva’s state-law medical-malpractice 

claim because he did not submit expert testimony on the accepted standard of care— 

an error that counsel likely would have remedied. However, given the evidence in the 

record, we doubt that DaSilva could have found an expert to opine that the treatment 

he received fell below the standard of care. Moreover, in Wisconsin, an expert’s 

disagreement with a treatment decision is not enough to establish a claim. See Nowatske 

v. Osterloh, 543 N.W.2d 265, 275–76 (Wis. 1996), abrogated on other grounds by Nommensen 

v. Am. Cont'l Ins. Co., 629 N.W.2d 301, 313 n.6 (Wis. 2001). 

For these reasons, we affirm the judgment.