Timothy Tackett v. Cathy Jess ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
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, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 19‐CV‐258‐JPS
CATHY JESS, et al., J.P. Stadtmueller,
Defendants‐Appellees. Judge.
ORDER
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 FED. R. APP. P. 34(a)(2)(C).
No. 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 Racine 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. Tackett 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 appointment 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, night supervisors Glenn
Bornick and Lonel LeBlanc refused after consulting the prescription. They provided him
No. 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 medication 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 Natʹl R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 113–15 (2002).
Tackett’s argument that the complaints he submitted at Fox Lake exhaust 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. WIS. ADMIN. CODE § 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 surgery. He contends that the court
improperly applied Wisconsinʹs 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. WIS. STAT. § 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.
WIS. STAT. § 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 WIS. STAT.
§ 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 entered 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 cannot 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 court 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 have
No. 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 during 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 correct 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