September 27, 2017
from the United States District Court for the Southern
District of Illinois. No. 13-cv-70 - J. Phil Gilbert,
Ripple, Sykes, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
the Eighth Amendment's protection against "cruel and
unusual punishments, " convicted prisoners must receive
a minimum level of care. The Eighth Amendment prohibits
prison staff from subjecting inmates to excessive force
without a legitimate penological purpose, from deliberately
failing to prevent other staff from using unlawful force, and
from acting with deliberate indifference to inmates'
serious medical needs. In this case, inmate Joseph Wilborn
was injured in a fight with Menard Correctional Center
officers. The fight left Wilborn with bruises, a laceration,
and a dislocated shoulder. He sued the correctional officers
under 42 U.S.C. § 1983, alleging that they violated his
Eighth Amendment rights by using excessive force or by
failing to intervene and prevent it. He also sued two prison
nurses for acting with deliberate indifference toward his
district court dismissed the claims against the nurses before
trial because Wilborn failed to exhaust administrative
remedies. The remaining claims were tried to the court.
Wilborn tried the case on his own, without a lawyer. Partway
through the trial, the district court granted judgment as a
matter of law for one defendant officer. After the trial, the
district court issued written findings of fact and
conclusions of law. The court found that the officers were
more credible than Wilborn and his witnesses and entered
judgment in favor of all remaining defendants.
appeals the court's dismissal of his claims against the
nurses for failure to exhaust administrative remedies and the
findings of fact and conclusions of law after the trial. He
also argues that the district court abused its discretion by
failing to recruit counsel to assist him. We affirm.
Factual & Procedural Background
Wilborn's Attack and His Injuries
28, 2011 Wilborn was an inmate at the Menard Correctional
Center in Illinois. At around 4:20 p.m. that day,
defendant-officers William Johnson, Andrew Bennett, and James
Lloyd were preparing inmates to walk from the North 1 cell
house to the chow hall for dinner. With the cell doors open,
Wilborn rushed out of his cell and attacked
Johnson.Bennett and Lloyd responded by taking
Wilborn to the ground and ordering him to "cuff
up." According to the officers, Wilborn did not comply
and violently resisted.
officers' testimony was generally consistent. Johnson,
Bennett, and Lloyd testified that they took Wilborn to the
ground fairly quickly after the struggle began. They said
they ended up on top of Wilborn, who resisted restraints for
two to three minutes by kicking, thrashing, and thrusting his
head backwards at them. The officers uniformly described
striking his major muscle groups (neck, shoulders, biceps,
thighs) to gain compliance, but they denied striking his
face. They described how Officer David Ealey arrived while
Wilborn was still resisting and administered pepper spray
before Wilborn was handcuffed. Lloyd and another officer then
escorted Wilborn to North 2 to see a medical technician. The
officers denied striking Wilborn after they had restrained
told a very different story. He testified that he was
compliant and in handcuffs when Ealey used the pepper spray.
He also testified that the officers continued to beat him
after restraining him, including on the walk from North 1 to
North 2. His former cellmate supported his story, testifying
that Wilborn never resisted and that the officers kicked and
beat Wilborn after they cuffed him. Finally, Wilborn claimed
that defendant Major William Rees observed the other offic-
ers' conduct and failed to intervene. Rees testified to
the contrary. He said that he arrived after the officers had
restrained Wilborn. Rees said he observed that Wilborn had
been pepper-sprayed and instructed the officers to take
Wilborn to a medical technician.
the altercation, medical staff at Menard examined Wilborn.
They did not treat him for long, though, because later that
day the Illinois Department of Corrections issued Wilborn a
disciplinary ticket for the fight and transferred him to
Tamms Correctional Center. Upon intake at Tamms, defendant
nurses Lakeisha Hamby and Shelby Dunn evaluated Wilborn. They
recorded his cuts and bruises, gave him acetaminophen, and
told him to use his cell sink to clean up. They also noted
that Wilborn's right shoulder appeared abnormal and that
he complained of dislocation. Deciding this was not a major
injury, they placed Wilborn on a list to see a doctor first
thing the next day. Tamms staff then placed Wilborn in the
infirmary overnight. He remained in significant pain.
saw a doctor at Tamms the next morning. The Tamms doctor sent
Wilborn to an outside hospital, where another doctor
diagnosed and reduced Wilborn's dislocated right shoulder
at about 3:00 p.m., almost twenty-four hours after the fight.
Wilborn returned to the infirmary at Tamms and remained there
until August 23, 2011.
This Federal Lawsuit
November 2012 Wilborn filed a pro se complaint in
the Northern District of Illinois under 42 U.S.C. §
1983. The case was transferred to the Southern District of
Illinois where the events occurred. Wilborn asserted nine
counts against sixteen named defendants and numerous John
Does alleging that they violated his First and Eighth
Amendment rights. After screening and severing claims under
28 U.S.C. § 1915A, the district court allowed the
allegations in this case to proceed. Wilborn pursues four
claims in this appeal: (1) his excessive force claim against
the Menard officers; (2) his state-law battery claim against
the same officers; (3) his deliberate indifference claim
against Major Rees; and (4) his deliberate indifference claim
against Tamms nurses Hamby and Dunn.
Dunn and Hamby moved for summary judgment on the ground that
Wilborn had failed to exhaust administrative grievance
procedures for his claims against them as required under the
Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The
district court held an evidentiary hearing under Pavey v.
Conley ("Pavey I"),544 F.3d 739 (7th Cir.
2008), to resolve the relevant factual disputes. After the
hearing, the district court found that ...