Jason Perry v. Mary Sims

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1497
JASON PERRY,
Plaintiff-Appellant,
v.
MARY R. SIMS, Ph.D., H.S.P.P., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cv-00197 — Jane Magnus-Stinson, Chief Judge.
____________________
ARGUED OCTOBER 30, 2020 — DECIDED MARCH 3, 2021
____________________
Before MANION, ROVNER, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Jason Perry suffers from serious
mental illness and is serving a 70-year sentence for murdering
his former wife during a fit of paranoia in 2013. Indiana prison
officials have had their hands full trying to treat and control
Perry’s illness. In 2016, while housed in the Wabash Valley
Correctional Facility in southern Indiana, Perry’s condition
worsened. A medical review and administrative hearing cul-
minated in a decision to forcibly administer the antipsychotic
2 No. 19-1497
medication Haldol, and injections continued for about six
months. Perry later sued the medical personnel who decided
on this course of treatment, alleging that the forcible medica-
tion violated the Eighth Amendment’s prohibition on cruel
and unusual punishment and the Fourteenth Amendment’s
Due Process Clause. Throughout the litigation Perry asked
the district court to appoint counsel to assist him. The district
court denied those requests, finding that Perry not only un-
derstood his case but also quite ably prosecuted it. In the end,
the district court entered summary judgment for the defend-
ants. We affirm on all fronts.
I
A
Jason Perry murdered his former wife Jessica Tice in
Princeton, Indiana on May 22, 2013. He pleaded guilty and
received a 70-year sentence. As part of deciding where to
house Perry, Indiana officials conducted a mental-health eval-
uation at the state’s Reception Diagnostic Center in Plainfield.
The examination revealed Perry’s long history of mental ill-
ness, defined by two suicide attempts, severe depression, par-
anoid schizophrenia, and auditory hallucinations. The Indi-
ana Department of Corrections assigned Perry to a restricted
housing unit in the Wabash Valley Correctional Facility.
Over time Perry found himself disagreeing with treatment
decisions made by the Wabash Valley medical team. Argu-
ments ensued, with Perry exhibiting extreme paranoia, threat-
ening the staff, and declining to take prescribed medications.
The situation deteriorated in early 2016. By June 2016, psy-
chologist Michael R. Mannarino observed that Perry feared
and mistrusted other inmates and wanted to be transferred
No. 19-1497 3
into protective custody. Dr. Mannarino prescribed the antide-
pressant nortriptyline to ease Perry’s symptoms but the facil-
ity denied the transfer request.
A second doctor, psychiatrist Brion A. Bertsch, began see-
ing Perry around this same time and learned that he was not
taking his antidepressant “96% of the time.” Dr. Bertsch fur-
ther observed that Perry became agitated and accused his doc-
tors of conspiring with inmates against him and “trying to get
[him] killed.” The medical staff recommended a trial run of
the antipsychotic medication Geodon. Perry refused it.
About a month passed and Dr. Bertsch reported that Perry
seemed more at ease and was taking his prescribed medica-
tion. Perry also agreed to take Geodon as well as a second
medication to reduce the muscle stiffness that often accompa-
nies antipsychotic medication.
But Perry’s condition worsened in August 2016. He re-
fused all medication, stopped eating because he feared some-
one had poisoned his food, and renewed his conspiracy
claims against the Wabash Valley medical staff. Perry also
threatened to kill himself if left in his cell any longer.
Concerned that Perry represented a harm to himself and
others, Dr. Bertsch recommended putting him on Haldol—an
antipsychotic used to control acute schizophrenia. Perry again
refused, so the Wabash Valley medical team faced the ques-
tion whether they should forcibly administer the drug.
The Department of Corrections has established criteria
governing the involuntary medication of inmates. Those cri-
teria require a determination that the inmate suffers from a
mental illness as well as accompanying findings that medica-
tion is not only in the inmate’s best medical interest, but also
4 No. 19-1497
that the inmate is either gravely disabled, exhibits deteriora-
tion in routine functioning, or poses a likelihood of serious
harm to himself or others. The Department also assigns a
Medical Treatment Review Committee to conduct a hearing
on these questions.
Perry’s hearing occurred on August 11. He received notice
of the hearing the day before and appeared in person. Perry
argued that Dr. Bertsch proposed the course of forced Haldol
injections as part of an ongoing personal vendetta against
him. Perry also complained that Haldol caused his muscles to
lock up. He reminded the Review Committee that his medical
records listed this reaction under the allergies section.
The Review Committee determined that the involuntary
administration of Haldol was in Perry’s best interest because
he had refused food and medication, threatened suicide, and
had a history of violence (including killing his former wife)
during episodes of intense paranoia. No other treatment path
was available, the Review Committee concluded, because
Perry refused voluntary medication and “no interventions
ha[d] proved effective without medication.” Medical Director
Michael Mitcheff promptly reviewed and affirmed the Re-
view Committee’s decision.
Perry received his first Haldol injection along with a Ben-
adryl injection on August 11, 2016, following the Review
Committee hearing. Dr. Bertsch observed that Perry experi-
enced no complications or distress from the medication. But
Perry insisted otherwise, contending that within a few days
of his first Haldol injection he experienced muscle spasms, in-
creased anxiety, difficulty breathing, chest pains, and restless-
ness. Dr. Mannarino visited Perry and determined that he re-
mained mobile and was exaggerating his symptoms. When
No. 19-1497 5
Perry continued to complain, Dr. Bertsch halved the Haldol
dosage. The injections continued regularly in three-week in-
tervals until February 2017, when Perry left Wabash Valley
and moved to the New Castle Correctional Facility. New Cas-
tle discontinued the Haldol injections, citing Perry’s avowed
allergy.
B
Invoking 42 U.S.C. § 1983, Perry sued the Wabash Valley
medical professionals responsible for the Haldol injections.
He alleged in his pro se complaint that the defendants exhib-
ited deliberate indifference to his serious medical condition—
his proffered Haldol allergy—in violation of the Eighth
Amendment, and that the decision to proceed with the invol-
untary injections offended the Fourteenth Amendment’s Due
Process Clause.
Perry actively prosecuted his claims. He filed motions and
discovery requests, survived the dismissal stage, and op-
posed a preliminary motion for summary judgment. He also
repeatedly asked the district court to appoint him counsel as
the case progressed toward summary judgment. The district
court denied these requests, observing that Perry had demon-
strated an understanding of the facts and law and otherwise
showed himself able to litigate his claims.
In time the district court granted the defendants’ motion
for summary judgment. The court explained that Perry did
not suffer an Eighth Amendment violation, as “there is no
medical evidence to support a conclusion that Perry is aller-
gic” to Haldol. To the contrary, Perry’s complaints of muscle
stiffness—which the court found were “irregular and incon-
sistent”—reflected a common and expected side effect of
6 No. 19-1497
antipsychotic medications like Haldol, and not an allergic re-
action that presented grave medical risk. Even if Perry could
demonstrate a serious medical need, the Wabash Valley med-
ical staff regularly assessed his condition, prescribed Bena-
dryl to counteract any side effect, and ultimately halved the
Haldol dosage. This course of care, the district court con-
cluded, did not constitute deliberate indifference.
Nor, the district court continued, did the defendants de-
prive Perry of due process. To the contrary, Perry benefited
from an impartial Review Committee that reasonably con-
cluded involuntary medication was in his best medical inter-
est due to his paranoia, thoughts of self-harm, and refusal to
take prescribed medication. What is more, Perry had the op-
portunity to appear and present his position, but at no point
identified “any further evidence that he could have pre-
sented.”
Perry now appeals.
II
We begin with Perry’s challenges to the district court’s
summary judgment rulings on the involuntary Haldol injec-
tions. Perry maintains that the forced medication offended the
Eighth Amendment and was the fruit of an unfair process that
violated the Fourteenth Amendment.
“Summary judgment is proper only if the defendants
show that no material facts are in genuine dispute and that
they are entitled to judgment as a matter of law.” Machicote v.
Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020) (citing FED. R.
CIV. P. 56(a)). A genuine dispute over a material fact exists if
“the evidence is such that a reasonable jury could return a ver-
dict” for the nonmovant. Anderson v. Liberty Lobby, Inc.,
No. 19-1497 7
477 U.S. 242, 248 (1986). We review the district court’s grant
of summary judgment de novo, drawing all reasonable infer-
ences in Perry’s favor. Machicote, 969 F.3d at 827.
A
The framework governing an Eighth Amendment chal-
lenge to prison medical care is well established. Prison offi-
cials violate the prohibition on cruel and unusual punishment
if they act with deliberate indifference to a prisoner’s serious
medical condition. See Farmer v. Brennan, 511 U.S. 825, 837
(1994). Liability arises only where an official has knowledge
of a substantial risk of harm stemming from a serious medical
condition and fails to take reasonable measures to mitigate
the risk. See id. A medical condition is serious if it “has been
diagnosed by a physician as mandating treatment” or “is so
obvious that even a lay person would perceive the need for a
doctor’s attention.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005).
Perry insists that the Wabash Valley medical staff pre-
scribed and continued a course of Haldol injections knowing
that he is allergic to the medication. The district court was
right to conclude that Perry’s contention lacks support in the
medical evidence. His professed allergy has not been diag-
nosed by a physician. What supports the contention is Perry’s
own self-diagnosis. In making that observation, we have no
reason to doubt that Perry frequently experienced muscle
tightening and locking up upon receiving Haldol injections.
But the medical evidence is clear that those reactions reflect
common side effects of Haldol and did not themselves consti-
tute an excessive risk to Perry’s health.
8 No. 19-1497
Even more, the record reflects that the defendants at-
tended carefully to Perry’s health and safety. The medical
staff prescribed Benadryl with the first Haldol injection as a
precautionary measure. And when Perry complained of mus-
cle stiffness, Dr. Bertsch cut the Haldol dosage in half. The
Wabash Valley medical team regularly monitored his condi-
tion and he never exhibited signs of an allergic reaction such
as a rash or high blood pressure following an injection.
Though the record contains a few references to labored
breathing, Perry did not connect this symptom to the injec-
tions in any way. On this evidence, a jury could not find that
Perry’s medical team turned a blind eye to a serious medical
need.
B
Nor can we say Perry was denied due process within the
Wabash Valley facility. The Supreme Court has held that pris-
oners possess “a significant liberty interest in avoiding the un-
wanted administration of antipsychotic drugs under the Due
Process Clause of the Fourteenth Amendment.” Washington v.
Harper, 494 U.S. 210, 221–22 (1990). A prisoner may argue he
lost the protection recognized in Harper if the state fails to sat-
isfy any of the following three requirements. First, “the state
must find that medication is in the prisoner’s medical interest
(independent of institutional concerns).” Fuller v. Dillon,
236 F.3d 876, 881 (7th Cir. 2001) (citation omitted). Second, “the
tribunal or panel that reviews a treating physician’s decision
to prescribe forced medication must exercise impartial and in-
dependent judgment, taking account of the inmate’s best in-
terest.” Id. (citation omitted). Third, “the prisoner must be able
to argue capably before a review tribunal that he does not
need forced medication.” Id. (citation omitted). Perry
No. 19-1497 9
contends that Wabash Valley officials failed to satisfy the first
and third requirements. We see the analysis another way.
The Review Committee received sufficient information to
conclude that the involuntary injections were in Perry’s best
medical interest. Perry has a lengthy and well-documented
history of mental illness. He threatened suicide, exhibited ex-
treme paranoia toward fellow inmates, and declined to eat or
to take his prescribed medications. On this evidence—all of
which was before the Review Committee—the defendants
demonstrated that Perry’s condition had so deteriorated by
August 2016 as to warrant the forcible Haldol injections rec-
ommended by the Wabash Valley medical team. See id. (con-
cluding that involuntary medication was in the patient’s best
interest because he “thought he was being poisoned, experi-
enced auditory hallucinations, and tried to kill himself on two
occasions”).
Perry begs to differ, emphasizing that the defendants had
their minds set on Haldol and never considered an alterna-
tive. Even if there is some truth in that observation, the anal-
ysis would not end there. The question under the Due Process
Clause is not whether the precise medication recommended
by a physician reflected the best course of treatment. See Har-
per, 494 U.S. at 231 (“[A]n inmate’s interests are adequately
protected, and perhaps better served, by allowing the deci-
sion to medicate to be made by medical professionals rather
than a judge.”). Rather, the controlling inquiry is whether the
Review Committee had enough evidence to demonstrate that
Perry was a danger to himself or others so as to justify the in-
voluntary administration of Haldol. We agree with the district
court’s conclusion that it did.
10 No. 19-1497
As for the procedural aspects of the August 11 hearing,
Perry appeared and had a full and fair opportunity to oppose
the proposed course of treatment. He complained of being al-
lergic to Haldol, explained his suspicion that the medical staff
were conspiring against him, and reiterated his fear that he
had been poisoned.
Perry’s primary contention on appeal is that he had no
chance at the hearing to present and cross-examine witnesses.
Though our prior cases have not elaborated in detail what it
means for a prisoner to “argue capably” as required by Har-
per, we are confident the record here does not support Perry’s
contentions. Recognize what Perry is not saying. He does not
contend that the Review Panel refused to hear from this or
that witness or to consider certain documents or other infor-
mation he tendered at the hearing. Nor does he contend that
the Review Panel declined any affirmative request he lodged
at the hearing. See McPherson v. McBride, 188 F.3d 784, 786 (7th
Cir. 1999) (rejecting the argument “that the due process clause
requires the consideration of evidence that could have been
but was not presented at the hearing”). On this record, no rea-
sonable jury could conclude that the defendants deprived
Perry of due process at the August 11 hearing.
III
We close by addressing Perry’s contention that the district
court abused its discretion in denying his numerous requests
to appoint counsel. Perry filed a total of four motions, and the
district court’s denials of the second, third, and fourth mo-
tions are before us on appeal. There is no way, Perry urges,
that someone who suffers from such longstanding and acute
mental illness—someone who prison officials could bring
No. 19-1497 11
under control only by forcibly injecting Haldol—could repre-
sent himself in prosecuting constitutional claims in federal
court.
At that level of generality, Perry’s position has something
to it. But we cannot decide the appeal at that level. To do so
would be tantamount to mental illness creating a legal entitle-
ment to the appointment of counsel. The law does not support
this categorical proposition. We need to go deeper into the
facts and circumstances and ask, as the district court did,
whether Perry, notwithstanding his history of mental illness,
appeared capable of representing himself. Of course, mental
illness is a pertinent and important factor, but it does not itself
resolve the question. The controlling framework instead
comes from our en banc decision in Pruitt v. Mote, 503 F.3d 647(7th Cir. 2007).
In Pruitt we explained that a district court confronted with
a motion for the appointment of counsel under 28 U.S.C.
§ 1915(e)(1) must ask two questions. First, the court must con-
sider whether the indigent plaintiff “made a reasonable at-
tempt to obtain counsel or [has] been effectively precluded
from doing so.” Id. at 654. And if so, second, the court must
consider whether he appears competent to litigate on his own,
considering the complexity of the case. Id.All agree that Perry satisfied his threshold burden of try-
ing on his own to recruit counsel. The district court therefore
focused on the second question: “whether the difficulty of the
case—factually and legally—exceeds the particular plaintiff’s
capacity as a layperson to coherently present it to the judge or
jury himself.” Id. at 655. This inquiry is a practical one, and
“the court should consider any available relevant evidence.”
Eagan v. Dempsey, 2021 WL 456002, at *9 (7th Cir. Feb. 9, 2021).
12 No. 19-1497
We review the district court’s denial of a § 1915(e)(1) mo-
tion for an abuse of discretion, asking “not whether we would
have recruited a volunteer lawyer in the circumstances, but
whether the district court applied the correct legal standard
and reached a reasonable decision based on facts supported
by the record.” Pruitt, 503 F.3d at 658.
The district court applied these exact principles and deter-
mined that Perry ably litigated his case on his own. We see no
abuse of discretion. As the district court recognized, Perry’s
claims are not so complex as to require the assistance of coun-
sel. Perry showed he understood the facts, including the in-
formation in his medical records, and was able to marshal
those facts into coherent arguments in support of both of his
claims.
To be sure, our court has emphasized that constitutional
claims involving the defendant’s state of mind—like the sub-
jective deliberate-indifference analysis—may entail meaning-
ful complexity. See Eagan, 2021 WL 456002, at *9. The same is
true for claims involving complex medical issues. See id.;
Pruitt, 503 F.3d at 655–56. But we have resisted hard and fast
rules in this context, preferring instead to focus on the actual
experience of the particular pro se litigant. See Pruitt, 503 F.3d
at 656. We chart that same course here.
We see no error in the district court’s assessment of Perry’s
case as falling on the less complex, more manageable side of
the spectrum. See id. at 655 (recognizing that complexity and
competence are “necessarily intertwined”). Yes, Perry has but
a tenth-grade education, limited access to legal materials and
writing supplies, and minimal litigation experience. But the
district court witnessed firsthand that Perry, who later earned
a GED, exhibited no meaningful difficulty describing the facts
No. 19-1497 13
or conveying his arguments in many “comprehensible fil-
ings.” All of this left the district court of a mind that Perry,
despite undeniably suffering from mental illness, could rep-
resent himself.
Our own review of Perry’s filings in the district court
leaves us with the same impression. Perry’s complaint was
plenty coherent and survived the dismissal stage. See
28 U.S.C. § 1915A(b). All the more impressive, Perry success-
fully opposed the defendants’ preliminary motion for sum-
mary judgment. Perry’s success on this latter score is no small
feat given the obstacles pro se litigants—and especially pro se
prisoners—often face. Perry’s brief in opposition to summary
judgment recognized the issues presented and was well-orga-
nized with numbered headings and a coherent substantive
analysis. The brief identified controlling legal authority, in-
cluding Federal Rule of Civil Procedure 56, the Prison Litiga-
tion Reform Act, and numerous binding cases.
Along the way in the district court Perry likewise demon-
strated familiarity with discovery procedures. He filed a mo-
tion for court-issued subpoenas, as well as a request for the
production of documents from the defendants in which he
correctly identified Federal Rule of Civil Procedure 34, de-
fined the term “document,” and advanced detailed, relevant,
and precise requests in a well-presented submission. Alt-
hough Perry contends that the discovery process posed chal-
lenges—a reality we readily accept—the district court fairly
observed that “[t]o the extent that Mr. Perry states that he has
been unable to pursue discovery, he has not identified specific
discovery that he has not been able to obtain.”
No doubt some of Perry’s filings in the district court were
more articulate than others. Nor do we disagree with Perry
14 No. 19-1497
that the district court could have added more detail to some
of the orders denying his requests for the appointment of
counsel. In the end, though, what remains of overarching im-
portance is that the district court applied the correct legal
standards from Pruitt and exercised its discretion on ration-
ales reasonably supported by the record. We see no abuse of
discretion by the district court, and our analysis can end there.
Even if we took the next step in the Pruitt sequence and
considered whether Perry has made the requisite showing of
prejudice, he would fare no better. See 503 F.3d at 659. Suffice
it to say that Perry did not have the upper hand on the merits
of his two claims. The Wabash Valley medical staff responded
to the very difficult challenges Perry presented with diligence
and care, not deliberate indifference. And the decision to for-
cibly administer Haldol was the product of a fair and reason-
able process that included input from Perry himself. Our re-
view of the record leaves us with the conviction that there is
not “a reasonable likelihood that the presence of counsel
would have made a difference in the outcome of the litiga-
tion.” Id. (emphasis omitted).
For these reasons, we AFFIRM.