Victor R. Brown v. Daniel LaVoie, No. 22-1585 (7th Cir. 2024)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on January 11, 2023.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1585 VICTOR R. BROWN, Plaintiff-Appellant, v. DANIEL LAVOIE, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:20-cv-00319 — Lynn Adelman, Judge. ____________________ ARGUED SEPTEMBER 19, 2023 — DECIDED JANUARY 23, 2024 ____________________ Before EASTERBROOK, WOOD, and KIRSCH, Circuit Judges. WOOD, Circuit Judge. Victor Brown, an inmate in the Wisconsin Department of Corrections, has a history of self-harm. One morning while he was particularly upset, Brown forced a two-inch metal screw into his own esh by his left elbow. The screw was embedded so deeply that it could not be seen without manipulating the skin, and so a prison nurse called the prison doctor, Daniel LaVoie, to extract it. 2 No. 22-1585 Dr. LaVoie twice tried, and twice failed, to extract the screw using a pair of metal-ring forceps. He did so without using any anesthetic to deaden the site. When he rst informed Brown that this would be his approach, Brown protested by attempting to head-butt him. During the second attempt, Dr. LaVoie again refused to apply an anesthetic, even though Brown’s pain was obvious. The doctor poked at Brown’s arm and tried to pull on the screw for several minutes as Brown shouted in pain. He paused only to make dismissive comments, such as telling Brown that he needed to change his attitude. Eventually Brown was taken to a local hospital, where sta administered an anesthetic and removed the screw painlessly and quickly. In this lawsuit, Brown claims that Dr. LaVoie was deliberately indi erent to his serious medical condition in violation of the Eighth Amendment. The district court granted summary judgment to Dr. LaVoie. Although it was willing to assume that Brown had a serious medical condition, it concluded that Dr. LaVoie was not deliberately indi erent to that condition and thus did not violate Brown’s Eighth Amendment rights. For good measure, the court added that in any event Dr. LaVoie was entitled to quali ed immunity. We see things di erently. When we view the record in the light most favorable to Brown, as we must, there is a genuine dispute of material fact about Dr. LaVoie’s state of mind. We therefore reverse and remand for further proceedings. I A closer look at the record helps to explain why summary judgment on both those grounds was premature. Brown alleges that around noon on August 21, 2019, two prison supervisors were called to his cell after he had an altercation with No. 22-1585 3 an o cial. The cell window was covered with a towel when they arrived. Brown informed them that he had removed the mirror from the cell wall; he banged it against the door as proof. The supervisors asked Brown to remove the towel from his window, but he did not immediately do so. Instead, Brown swallowed six pieces of metal and inserted a two-inch metal screw from the mirror into his esh at the crook of his left elbow. He then removed the towel and told the supervisors what he had done. More prison o cials arrived after Brown agreed to come out of his cell. They handcu ed Brown, placed a spit-guard over his mouth, strapped him into a restraint chair, and took him to a nurse’s station in the prison. The nurse inspected Brown’s inner left elbow and determined that Brown needed to see a doctor. In a video recording of the incident, the nurse can be heard saying, “I gotta call a doctor. … I can feel it in there … but I can’t even see it.” Still strapped into the restraint chair, Brown was brought to a hearing room, where he sat for over half an hour. Several o cials approached him during that time. Brown indicated to the rst that he would not allow the prison doctor to remove the screw. A second o cial told Brown that he would be kept in restraints until the screw was removed. This o cial suggested that Brown should permit the doctor to remove it so that he could go to bed. Brown eventually agreed to see the doctor, at which point he was carted back to the nurse’s station. Dr. LaVoie was waiting at the station when Brown arrived. He studied Brown’s inner elbow from a short distance and then drew a pair of metal-ring forceps from a sterile bag. As Dr. LaVoie bent down to extract the screw with the tool, 4 No. 22-1585 Brown asked whether anesthetics would be used to numb the site. Dr. LaVoie said “No.” Frightened, Brown immediately reacted by attempting to head-butt the doctor. Dr. LaVoie quickly backed away, but before leaving the station, he said to Brown: “Well, maybe you deserve to be strapped down in the bed.” Video from the incident shows that the o cials next took Brown to a cell and strapped him into a restraint bed. They secured Brown’s torso with belts across his chest and legs, and restricted his limbs by fastening his upper arms, wrists, and ankles to the bed. Brown believed that he would remain strapped down until the screw was removed, and so he eventually agreed to see the doctor again. When Dr. LaVoie entered the cell to make a second attempt at removal, Brown speci cally said, through the spit-guard, “I want you to use anesthesia.” Dr. LaVoie replied, “No. You stuck a screw in your arm, not me, and this is a consequence of your actions.” This time, Dr. LaVoie worked at Brown’s arm for nearly ve minutes. Prison o cials stood around Brown to help the doctor; some of them prevented Brown from raising his neck so that he could see his arm. Brown had several dissociative experiences, and within 90 seconds, his arm started bleeding—so much so that an o cial requested a trash can “for the bloody stu .” The video recording of the incident shows that as Brown shouted in pain, Dr. LaVoie responded with dismissive comments, and a tone of annoyance, perhaps even sarcasm. The following is a partial transcription of what was said: Brown: Alright, I need a break. I need a break. Break. Ow, you fucker! I need a break! No. 22-1585 Dr. LaVoie: This is—this is not something I did. Do you understand that—Mr. Brown? Brown: You got a real slick attitude, huh? Dr. LaVoie: Yeah, well, your attitude is the one that needs to change. … Brown: Can’t you just—pull it out? Dr. LaVoie: Well, you didn’t put it in right. Brown: Ow! Dr. LaVoie: You put it in so it’s hard to get out. So next time, don’t do that. … Brown: I don’t like that. I don’t want [indiscernible] Dr. LaVoie: You don’t want what? Brown: I can’t go—I can’t keep going on like that. Prison O cial: He’s close. Brown: No, he’s not! It’s not even on the surface! Dr. LaVoie: I thought he was agreeing to have this done. Prison O cial: He did agree. … Brown: Stop! STOP! STOP!! You bitch! I’m refusing! 5 6 No. 22-1585 Even after Brown begged Dr. LaVoie to stop, the doctor persisted in poking in Brown’s arm for another few seconds. Brown then shouted, “Why do you keeping digging in my arm?” Dr. LaVoie nally gave up, stood, and said to Brown: “No. You know what? It can stay there. That’s ne.” He wiped the ring forceps and left the cell. Brown fell asleep in the restraint bed, where he remained (still strapped in) for nearly four hours until he was taken to a local hospital, accompanied by three o cials. The hospital sta “deemed it obvious” that local anesthesia was required for the procedure, and after administering an anesthetic they painlessly removed the screw in under three minutes. II Invoking 42 U.S.C. § 1983, Brown led this lawsuit against Dr. LaVoie, who, he asserted, had acted with deliberate indifference toward Brown’s serious medical condition in violation of the Eighth Amendment. Brown also contended that several other prison o cials had violated the Eighth Amendment by failing to intervene to stop Dr. LaVoie. The latter claims have all been resolved, and so we say no more about them. Along with his complaint, Brown led a motion to recruit counsel pursuant to 28 U.S.C. § 1915(e)(1). The district court denied this request, both initially and on reconsideration. After the district court issued a screening order, Brown renewed his request for counsel. This time he attached to the motion the letters he sent to 24 attorneys seeking assistance with his case. In the motion itself, Brown explained that he su ers from several mental illnesses and a documented learning disability, all of which a ect his ability to engage in this No. 22-1585 7 litigation; that although he is 28 years old, he has completed school through only the eighth grade and has not earned a GED; and that he relies on the assistance of other prisoners to conduct his case. The district court denied this request as well. Dr. LaVoie then moved for summary judgment. He argued that Brown could not succeed on the merits of his Eighth Amendment claim and that even if Brown cleared that hurdle, Dr. LaVoie was entitled to quali ed immunity. The doctor submitted a short declaration to support his motion. His account was similar to the one from Brown that we have described above, but there are some di erences. Dr. LaVoie stated that when he rst tried to remove the screw, Brown asked whether he would use an anesthetic, and Dr. LaVoie said no. Brown’s version to this point is the same. Brown then attempted to head-butt him—something Brown concedes that he did. Dr. LaVoie said that in response to the head-butt, he paused the treatment; Brown agrees that the doctor backed o then. Brown adds, however, that as Dr. LaVoie left, he commented that “maybe [Brown] deserve[d] to be strapped down in the bed.” Both parties agree that Dr. LaVoie tried again to remove the screw. Brown adds that he speci cally asked Dr. LaVoie to use anesthesia before the second attempt, but that Dr. LaVoie refused. The only explanation he gave, according to Brown, was that Brown had “stuck a screw in [his] arm” and that “this [was] a consequence of [his] actions.” Both sides agree that Dr. LaVoie stopped after about ve minutes, shortly after Brown shouted that he revoked his consent. Dr. LaVoie did not explain his chosen course of treatment, why he continued it as Brown shouted in pain, or what he meant by saying essentially that Brown deserved the pain. 8 No. 22-1585 The district court granted summary judgment in favor of Dr. LaVoie. In so doing, it found that no rational trier of fact could conclude that Dr. LaVoie’s decision not to use anesthesia and his wielding of the forceps inside Brown’s esh amounted to deliberate indi erence. The court thought that this conclusion followed from Snipes v. DeTella, 95 F.3d 586 (7th Cir. 1996), a case in which we held that a prison doctor did not violate the Eighth Amendment by removing a broken toenail without applying topical anesthesia. The court acknowledged that the removal of a screw “may have been more invasive than the removal of a toenail,” but it reasoned that the attempted screw removal “was not a ‘major surgery’ that ‘obviously’ required some form of anesthetic.” As an alternative basis for summary judgment, the district court concluded that Dr. LaVoie was entitled to quali ed immunity. This was so, the court said, because in light of Snipes, Brown had no clearly established right to an anesthetic. At this stage of the appeal, Brown challenges the district court’s judgment in favor of Dr. LaVoie. In an earlier order, we a rmed the district court’s rulings on other aspects of the case, but we recruited counsel to assist with Brown’s claim against Dr. LaVoie. 1 See Brown v. LaVoie, No. 22-1585, 2023 WL 154798 (7th Cir. Jan. 11, 2023). The remaining issues before us are whether Dr. LaVoie was entitled to summary judgment and whether the district court abused its discretion by not recruiting counsel to assist Brown with this claim. Because we reverse on the rst ground, we have no need to reach the second. 1 We thank Madeline Clark and the firm of Jones Day for their assistance to Brown and to the court. No. 22-1585 9 III As we already have noted, we review the district court’s order awarding summary judgment de novo, construing the record in the light most favorable to Brown and drawing all reasonable inferences in his favor. See Burton v. Downey, 805 F.3d 776, 783 (7th Cir. 2015). The Eighth Amendment to the United States Constitution lies at the center of this case. Among other things, it protects prisoners from being subjected to “unnecessary and wanton in iction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). That proscription includes “deliberate indi erence to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “To determine if the Eighth Amendment has been violated in the prison medical context, we perform a two-step analysis, rst examining whether a plainti su ered from an objectively serious medical condition, and then determining whether the individual defendant was deliberately indi erent to that condition.” Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016) (en banc). The parties do not dispute that Brown suffered from an objectively serious medical condition, and so we need only determine whether a reasonable trier of fact could conclude that Dr. LaVoie was deliberately indi erent to Brown’s condition. A. Deliberate Indi erence The deliberate-indi erence standard of the Eighth Amendment mirrors the recklessness standard of the criminal law. See Rivera v. Gupta, 836 F.3d 839, 842 (7th Cir. 2016). In order to state a deliberate-indi erence claim against a prison doctor, it is thus not enough to show “mere” negligence in treating a serious medical condition. See Estelle, 429 U.S. at 10 No. 22-1585 105–06. At the same time, a plainti does not bear the burden of showing that a doctor intentionally denied necessary treatment. See Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). The key question is whether the record contains the requisite evidence of a culpable mental state on the doctor’s part. “[T]he prison o cial must act or fail to act despite his knowledge of a substantial risk of serious harm.” Gil v. Reed, 382 F.3d 649, 664 (7th Cir. 2004) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). We apply this standard both when a plainti claims that a doctor provided no medical treatment, and when the claim is that the doctor provided inadequate treatment. Indeed, we have stressed that “[a] doctor who provides some treatment may still be held liable if he possessed a su ciently culpable mental state.” Zaya v. Sood, 836 F.3d 800, 805 (7th Cir. 2016) (citing Petties, 836 F.3d at 729–30) (emphasis omitted). We also have emphasized the importance of deferring to the professional judgment of medical personnel. See, e.g., Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir. 2008). This is because “[a] doctor who claims to have exercised professional judgment is e ectively asserting that he lacked a su ciently culpable mental state.” Zaya, 836 F.3d at 805. Even then, however, a doctor is entitled to summary judgment only “if no reasonable jury could discredit that claim.” Id. We have identi ed several prototypical situations in which a jury might discredit a prison doctor’s pro ered justi cation for his chosen course of treatment. See generally Petties, 836 F.3d at 729–31. It is not necessary to restate each of them here; it is enough to note just one. Where a plainti puts forward evidence that a doctor failed to exercise medical judgment, it is for the jury to decide whether the doctor had a No. 22-1585 11 su ciently culpable mental state. See Rasho v. Elyea, 856 F.3d 469, 476 (7th Cir. 2017) (citing Petties, 836 F.3d at 730). A plainti may show a lack of professional judgment by introducing evidence of some other motive for the doctor’s chosen course of action, such as hostility or ill-will towards the plainti . See Rivera, 836 F.3d at 842; Rasho, 856 F.3d at 476. Brown has put forward su cient evidence to raise a material question about Dr. LaVoie’s state of mind. Both Dr. LaVoie’s own statements and his troublesome course of treatment could support a nding of deliberate indi erence. The record shows that Dr. LaVoie viewed the procedure as a “consequence” of Brown’s behavior, and that he persisted in his e orts to remove the screw without applying anesthesia as Brown shouted in pain and pleaded for an end to it. As Dr. LaVoie continued to root around with the ring forceps in an e ort to grab the screw embedded in Brown’s arm, he told Brown that he needed a change of attitude, reminded him that it was his own fault the screw was in his arm, and blamed him for inserting it in a way that made removal more challenging. These comments could be interpreted as signs of annoyance, if not hostility. Some of them come across as sarcastic (or so a jury could nd). And in addition to Dr. LaVoie’s behavior throughout the procedure, the record shows that Dr. LaVoie persisted in his unsuccessful e orts to remove the screw (which took longer than the hospital’s successful procedure) and thereby callously prolonged Brown’s pain. Taking the record evidence in the light most favorable to Brown, a jury could nd that medical judgment did not motivate Dr. LaVoie’s chosen course of treatment. First, the fact that Brown had tried to head-butt Dr. LaVoie supports the inference that the doctor wanted to in ict pain upon Brown in 12 No. 22-1585 retaliation for Brown’s action; similarly, a jury could see the doctor’s response as based on “personal hostility,” Rivera, 836 F.3d at 842, or “personal prejudices or animosity,” Rasho, 856 F.3d at 476. In addition, a reasonable jury could infer from the content and tone of his comments that Dr. LaVoie chose not to use anesthesia because he intended to punish Brown for inserting the screw into his elbow in the rst place. Looking at Dr. LaVoie’s statement to Brown that he needed to change his attitude, a jury might infer that the doctor persisted without anesthesia to deter Brown from engaging in similar acts of self-harm in the future. If any non-medical reasons of this kind motivated the doctor’s judgment, then that would be a basis for a nding of deliberate indi erence. (It should go without saying, but we add in the interest of completeness, that a rational jury might equally reject these inferences and nd in Dr. LaVoie’s favor.) Our conclusion is reinforced by the fact that Dr. LaVoie has o ered no evidence that he did exercise medical judgment in attempting to remove the screw from Brown’s arm. His declaration in support of summary judgment was limited to a brief statement of what happened. Nothing in it suggests that he exercised professional judgment either in his assessment of the need for anesthesia or in his decision to use the forceps for a screw buried so far in the esh that the nurse could not even see it. While the failure to present such evidence is not necessarily dispositive at the summary judgment stage, its absence here is striking because it is “common sense” that pulling a screw from Brown’s esh without anesthesia could carry a substantial risk of harm. Gil, 385 F.3d at 662; see also Petties, 836 F.3d at 729. But even if Dr. LaVoie were to introduce evidence that he exercised medical judgment, his state of mind would remain a question for the jury. Evidence to that e ect No. 22-1585 13 would merely contribute to the existing dispute about Dr. LaVoie’s motivation, and so his credibility and the weight to assign his testimony would be matters for the jury to decide. See Rasho, 856 F.3d at 476–77 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). As we noted earlier, the district court felt itself bound by our decision in Snipes, where we held that a prison doctor who decided not to anesthetize an inmate’s toe before removing a partially torn-o toenail did not act with deliberate indi erence. See 95 F.3d at 591. The district court took Snipes to mean that a prison doctor need not apply an anesthetic when performing a minor surgery. And because removing a screw from the arm is not major surgery, the court reasoned, Dr. LaVoie did not act with deliberate indi erence when he chose not to anesthetize Brown’s arm. Dr. LaVoie, both in the district court and on appeal, relies on the same understanding of Snipes.2 But Snipes does not establish a rigid rule about the use of anesthesia, much less a rule about the line between major and minor surgery. As an initial matter, it is a far cry between the removal of a torn toenail and the extraction of a two-inch screw embedded beneath the surface of the arm. And once we look beyond the nature of the injury to the reasoning that supported Snipes, that case becomes increasingly inapposite. In Snipes, there was no question about the doctor’s motivation; the doctor was understood to have exercised his medical judgment, and the only issue before us was whether his decision not to administer an anesthetic conformed to 2 Dr. LaVoie withdrew his arguments on the merits of Brown’s Eighth Amendment claim, and so we do not elaborate upon them here. 14 No. 22-1585 contemporary medical expertise and practices. As we have noted before, Snipes was based on the determination that “reasonable medical minds may di er over the appropriate treatment for” removing a busted toenail. King v. Kramer, 680 F.3d 1013, 1019 (7th Cir. 2012). The doctor had to weigh the risks of using anesthesia (including the possibility “that an injection of anesthetic would have hurt more than quickly removing the nail”) in light of the bene ts of doing so. Snipes, 95 F.3d at 591–92. Given the prevailing medical practices of that time, we determined that the balance could tip either way. Here, by contrast, the issue is whether Dr. LaVoie exercised any medical judgment, and there was no evidence at all indicating that he weighed the risks and bene ts of using anesthesia for the extraction procedure. Our decision here is thus entirely consistent with Snipes. B. Quali ed Immunity Dr. LaVoie argues that even if he was deliberately indi erent to Brown’s condition, he is nonetheless entitled to summary judgment on quali ed-immunity grounds. The district court agreed. But quali ed immunity is not a basis for summary judgment here. “The doctrine of quali ed immunity protects government o cials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). We already have noted that Brown’s Eighth Amendment claim turns on Dr. LaVoie’s state of mind. If, in attempting to remove the screw as he did, Dr. LaVoie was motivated by a desire to punish Brown or otherwise in ict or prolong pain, then his conduct violated No. 22-1585 15 clearly established law under the Eighth Amendment. See, e.g., Gil, 381 F.3d at 661–62. Whether that (or something else) was Dr. LaVoie’s motive, is a question that only a jury may resolve. IV As we noted at the outset, Brown also challenges the district court’s denial of his second motion for recruited counsel. Given our decision on the deliberate-indi erence element, we need not decide whether that denial amounted to an abuse of discretion. But on remand we encourage the district court to consider whether it might now be appropriate to recruit counsel to assist Brown. Cases involving state-of-mind requirements may be di cult for pro se litigants, see, e.g., Pruitt v. Mote, 503 F.3d 647, 655–56 (7th Cir. 2007) (en banc), and the considerations that inform whether to recruit counsel often change as a case progresses toward discovery or a trial, see, e.g., Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015). We are con dent that the district court will revisit that decision on remand with Brown’s circumstances in mind. The judgment of the district court is REVERSED and Brown’s case against Dr. LaVoie is REMANDED for further proceedings consistent with this opinion. 16 No. 22-1585 KIRSCH, Circuit Judge, concurring in the judgment. I agree with the result. In reaching that result, the majority focuses on Dr. LaVoie’s comments to Brown, which a jury could view as dismissive, annoyed, or sarcastic. But we need not look to these comments at all. Instead, I would nd a genuine dispute of material fact because the hospital sta “deemed it obvious” that Brown required anesthesia for the screw removal, and Dr. LaVoie has o ered no explanation whatsoever for his refusal to administer anesthesia. Considering only this evidence, a jury could nd that Dr. LaVoie was deliberately indi erent to Brown’s serious medical needs because his treatment decision was “so far a eld of accepted professional standards as to raise the inference that it was not actually based on a medical judgment.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (quotation omitted). For this reason, I agree that the district court’s grant of summary judgment should be reversed.
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