Wilborn v. Ealey

881 F.3d 998

Joseph WILBORN, Plaintiff-Appellant,

v.David EALEY, et al., Defendants-Appellees.

No. 16-2106

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2017

Decided February 7, 2018

Rehearing and Rehearing En Banc Denied March 14, 2018^*

Denis Yavorskiy, Attorney, WINSTON & STRAWN LLP, Chicago, IL, for Plaintiff-Appellant.

Sarah A. Hunger, Attorney, OFFICE OF THE ATTORNEY GENERAL, Civil Appeals Division, Chicago, IL, for David Ealey, Andrew Bennett, and James Lloyd.

Lynsey Anne Stewart, Julie Ann Teuscher, Attorneys, CASSIDAY SCHADE LLP, Chicago, IL, for Shelby Dunn and Lakeisha Hamby.

Before Ripple, Sykes, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Under 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 injuries.

The 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.

Wilborn 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.

I. Factual & Procedural Background

A. Wilborn's Attack and His Injuries

On July 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.¹ 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.

The 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 him.

Wilborn 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 officers' 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.

After 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.

Wilborn 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.

B. This Federal Lawsuit

In 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.

Nurses 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 Wilborn failed to follow the administrative grievance process and dismissed the claims against Dunn and Hamby.

Throughout the pretrial phase of the lawsuit, Wilborn requested that the court recruit counsel for him under 28 U.S.C. § 1915(e)(1). The district court denied his requests until July 2014, when it agreed to try to recruit counsel. After contacting more than 400 attorneys over many months, the district court found a volunteer to be Wilborn's stand-by counsel at trial. Just shy of a month later, however, the volunteer counsel cited a scheduling conflict and the district court granted his motion to withdraw. Wilborn did not renew his request for recruited counsel, and the district court did not renew its search. Wilborn proceeded to trial pro se.

The district court held a bench trial on the remaining issues in April 2016. Wilborn began by testifying in narrative form and then called seven witnesses: defendants Rees, Dunn, and Hamby; three inmates; and an external investigator. After Wilborn rested, the district court entered judgment as a matter of law for Rees. The defendant officers then testified on their own behalf. In its findings of fact, the district court found the officers more credible than Wilborn and his witnesses. The court also found that Wilborn's injuries were consistent with the officers' version of the fight and concluded that they used force in good faith and as reasonably necessary to restrain Wilborn. The court entered final judgment in favor of all defendants.

II. Analysis

On appeal, Wilborn argues that the district court erred in four ways: first, by finding that he failed to exhaust administrative remedies against nurses Dunn and Hamby; second, by crediting the officers' version of the facts concerning their violent encounter; third, by granting judgment as a matter of law for Rees; and fourth, by failing to recruit another lawyer for him. We review each argument in turn and ultimately affirm.

A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act required Wilborn to exhaust "such administrative remedies as are available" before suing the Tamms nurses for deliberate indifference to his pain. 42 U.S.C. § 1997e(a). The district court held an evidentiary hearing under Pavey to determine which administrative remedies Wilborn had pursued and when. After the hearing, the district court concluded that Wilborn failed to exhaust those remedies by missing a filing deadline without good cause. The court therefore dismissed the claims against Tamms nurses Dunn and Hamby. Wilborn argues that he either met the deadline or had good cause for missing it. We reject both arguments.

1. Standard of Review

A preliminary question requires clarification. We have sometimes written that we review de novo a dismissal after a Pavey hearing, e.g., Hernandez v. Dart , 814 F.3d 836, 840 (7th Cir. 2016), but that is only part of the story. At Pavey hearings, judges may hear evidence, find facts, and determine credibility. Pavey v. Conley ("Pavey II "), 663 F.3d 899, 904 (7th Cir. 2011) ; Pavey I , 544 F.3d at 742. After finding facts, the...