United States District Court, W.D. Wisconsin
SCOTT A. BROWN, Plaintiff,
LUCAS WOGERNESE, Defendant.
OPINION & ORDER
D. PETERSON District Judge
plaintiff Scott Brown, a prisoner at the Columbia
Correctional Institution (CCI), asserts an Eighth Amendment
claim against defendant Lucas Wogernese, one of Brown's
former prison guards. Brown contends that Wogernese was
deliberately indifferent toward Brown's serious medical
condition because Wogernese failed to place him in protective
restraints despite Brown's threats of self-harm.
moves for the court's assistance in recruiting counsel. I
will deny that motion. Both sides move for summary judgment.
I will deny Brown's motion and grant Wogernese's
because no reasonable jury could find that Wogernese was
deliberately indifferent to Brown's risk.
January 2015, the prison officials at CCI placed Brown on
“one-on-one constant direct observation” status
after Brown had threatened to harm himself. Dkt. 79, ¶
6. This meant that, under the prison's policy, at least
one correctional officer had to watch Brown at all times and
record Brown's behavior every five minutes. Brown could
have in his cell only bare necessities such as clothing, a
mattress, and toiletries. Constant direct observation status
is a measure reserved for inmates at risk of imminent
morning of January 22, 2015, Brown attempted to harm himself
in his cell. The parties dispute how he carried out his
attempt. According to the prison guard assigned to observe
Brown that morning, he saw Brown scratching his arm with his
fingernails and picking at a scab, which was from a
superficial injury that Brown had inflicted on himself during
a prior self-harm incident. Brown, on the other hand, states
that he was cutting himself with an inhaler, not his
fingernails. He states that he was not allowed to have an
inhaler but managed to keep this prohibited item in his cell,
presumably by hiding it from the guards. The guard reported
Brown's behavior to his supervisor, but the prison
officials determined that the injury was only superficial,
and they took no measure other than maintaining the constant
observation of Brown's behavior.
arrived at Brown's cell later to check on Brown. The
parties agree that, when Wogernese arrived at Brown's
cell, Brown had stopped scratching (or cutting) himself. Dkt.
79, ¶ 31. They also agree that Brown had smeared his own
blood on his cell door and that Wogernese saw the blood. The
parties dispute how much blood was smeared. Wogernese says
the smeared blood was about the size of a quarter. Brown says
it was more than a few drops and that it was “quite a
bit of blood.” Id. ¶ 31. But Brown does
not dispute that he had only a superficial injury and that
Wogernese did not see Brown attempting to hurt himself.
Id. ¶¶ 25, 31-32. The parties also agree
that Brown had a history of causing himself injuries and
smearing blood on his cell door.
told Wogernese that he would continue to hurt himself until
he hit a vein and asked Wogernese to place him in protective
restraints. But under the Department of Corrections'
policy, the prison staff members cannot place the inmates in
protective restraints unless less restrictive measures would
be ineffective. Id., ¶¶ 36-37.
to Wogernese, he exercised his judgment to determine that
placing Brown in protective restraints was not necessary.
Wogernese states that he made this decision because Brown had
stopped scratching his arm and because Wogernese saw only a
limited amount of blood along with a minor injury that was
unlikely to lead to a significant bodily harm. He also states
that he thought no additional measure was necessary because
Brown was already on constant observation status. He left
Brown's cell without implementing additional measures.
resumed attempting to harm himself after Wogernese left.
Brown covered the opening of his cell door and remained out
of sight of the correctional officer assigned to observe him.
It is unclear exactly how long he remained out of sight, but
the correctional officer discovered that Brown had harmed
himself further and took him to a physician and eventually to
the psychological services. Dkt. 65, ¶¶ 13-21. The
physician who examined Brown states that his cut was two to
three centimeters long and “was through all skin layers
into fat, but not exposing and therefore not injuring,
deeper, more vital structures, such as muscles, tendons, and
major blood vessels.” Id. ¶¶ 13-14.
Brown's wound was sutured to aid healing. The physician
states that “Brown has an extensive history of
self-injury, most of which are not serious, and none of which
have been life-threatening[, ]” Id. ¶ 21,
which I take to mean that at least some of the injuries were
serious. Brown commenced this case about a year after the
incident, in January 2016.
Motion for counsel
moves for the court's assistance in recruiting counsel.
Litigants in civil cases do not have a constitutional right
to counsel, and the court has the discretion to determine
whether assistance in recruiting counsel is appropriate.
See 28 U.S.C. § 1915(e)(1); Pruitt v.
Mote, 503 F.3d 647, 654, 656 (7th Cir. 2007) (en banc).
Before assisting in recruiting counsel, this court generally
requires a pro se litigant to satisfy two requirements.
First, the pro se litigant must show that he has made
reasonable efforts to recruit counsel on his own. See
Jackson v. Cty. of McLean, 953 F.2d 1070, 1072-73 (7th
Cir. 1992) (“[T]he district judge must first determine
if the indigent has made reasonable efforts to retain counsel
and was unsuccessful or that the indigent was effectively
precluded from making such efforts”). Generally, this
court requires that the pro se litigant provide the names and
addresses of at least three attorneys who declined to
once the pro se litigant has shown that he made some
reasonable attempt to recruit counsel, the court “must
examine whether the difficulty of the case-factually and
legally-exceeds” his competence to litigate his claims.
Perez v. Fenoglio, 792 F.3d 768, 784 (7th Cir. 2015)
(internal citation and quotation marks omitted). Assessing
the litigant's competence is a “practical”
inquiry, Santiago v. Walls,599 F.3d 749, 762 (7th
Cir. 2010), and no fixed requirement exists, but courts
generally consider the litigant's ...