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Brown v. Wogernese

United States District Court, W.D. Wisconsin

January 27, 2017

SCOTT A. BROWN, Plaintiff,

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Pro se 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.

         Brown 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.


         In 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 suicidal behavior.

         In the 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.

         Wogernese 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.

         Brown 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.

         According 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.

         Brown 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.


         A. Motion for counsel

         Brown 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 represent him.

         Second, 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 ...

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