James A. Lewis, Plaintiff-Appellant,
Angela McLean and Joseph Cichanowicz, Defendants-Appellees.
Submitted October 18, 2019
from the United States District Court for the Western
District of Wisconsin. No. 3:14-cv-00280-jdp - James D.
Peterson, Chief Judge.
Flaum, Ripple, and Sykes, Circuit Judges.
previously vacated the entry of summary judgment for certain
defendants in this case brought by James Lewis, a Wisconsin
prisoner, for alleged violations of his Eighth Amendment
rights. We concluded that a reasonable jury could find that a
nurse and a correctional officer acted with deliberate
indifference by delaying medical attention for Mr.
Lewis's painful back condition. Lewis v. McLean,
864 F.3d 556, 563-65 (7th Cir. 2017). We also suggested that,
on remand, the district court should consider whether to
reinstate Mr. Lewis's state-law medical malpractice claim
against the nurse. Id. at 566. On remand, Mr. Lewis
went to trial and was represented by recruited counsel. The
jury found for the defendants. Mr. Lewis immediately moved,
pro se, to set aside the verdict and for a new trial. The
district court, construing Mr. Lewis's motion under
Federal Rule of Civil Procedure 59(a), denied his motion.
Because we conclude that there is a rational basis for the
jury's decision, and that the district court committed no
error warranting further proceedings, we affirm the judgment
of the district court.
the district court first recruited counsel for Mr. Lewis on
remand, its order explained that "the scope of
representation extends to proceedings in this court
only." The order directed Mr. Lewis to work with
counsel and not communicate directly with the court
"from this point for- ward." Soon after, the
district court directed Mr. Lewis to "state whether he
intend[ed] to proceed with the medical malpractice
claim" but received no response. Several months
later, Mr. Lewis filed a pro se motion to
"reinstate" his medical malpractice claim and to
impose sanctions on the defendants for spoliation of
evidence. The district court reminded Mr. Lewis to
communicate through his attorney. Counsel later informed the
court that Mr. Lewis was withdrawing his motion to reinstate
the medical malpractice claim.
trial, Mr. Lewis testified that a little after 5:00 a.m. on
February 8, 2014, after waking and trying to stand, he
experienced debilitating pain from the base of his neck down
his back. "[T]here[ was] nothing wrong" with his
arms or legs, but the pain confined him to a sitting position
on his bed. Through the pain, he leaned forward about
four feet and "barely hit" the call button to the
left of his cell door to indi- cate a medical
emergency. Around 5:40 a.m., a correctional officer
came to Mr. Lewis's cell. Mr. Lewis asked to see a nurse.
Fifteen minutes later, after no one else appeared, Mr. Lewis
hit the button again.
between 6:00 and 6:15 a.m., Angela McLean, a nurse, and
Lieutenant Joseph Cichanowicz,  a security supervisor, came to
Mr. Lewis's cell. When Nurse McLean told Mr. Lewis that
she could evaluate him only in the prison's Health
Services Unit, Mr. Lewis said that he was unable to stand up.
Lieutenant Cichanowicz told Mr. Lewis to put his hands
through the trap in the cell door for shackling. Lieutenant
Cichanowicz told Mr. Lewis that, because he had reached the
call button next to the cell door, he could manage to reach
his hands out the trap in the door. Mr. Lewis testified that
the cell door was recessed, so he would have had to reach an
extra six to eight inches beyond the call button-a feat he
deemed impossible because of the pain. Lieutenant Cichanowicz
suggested that Mr. Lewis could crawl to the door. After some
back-and-forth, Mr. Lewis yelled, "What part of 'I
can't stand' don't you all
understand?" Nurse McLean and Lieutenant Cichanowicz
another twenty to thirty minutes, Mr. Lewis attempted to ease
himself to the floor. When his knees hit the floor, he fell
to his side, screaming in pain. Around 7:30 a.m., a
correctional officer monitoring the security video notified
Nurse McLean that Mr. Lewis was on the floor, and Nurse
McLean called a physician. The physician then ordered that
Mr. Lewis be transported to a hospital emergency room. A few
correctional officers, along with medical first respond-ers,
arrived around 7:50 a.m. Mr. Lewis, a former nurse, demanded
that the officers use a neck brace and stretcher, but instead
they shackled Mr. Lewis and put him in a wheelchair. Mr.
Lewis was driven to the hospital, arriving at 8:53 a.m.
There, a physician diagnosed muscle spasms and prescribed
morphine for his pain. About an hour later, Mr. Lewis left
the hospital able to stand and walk on his own.
Cichanowicz testified that when he responded to Mr.
Lewis's call, he did not consider Mr. Lewis's situa-
tion a medical emergency-which would involve symptoms like
"excessive blood loss/'
"unconscious[ness]," or "shallow
breathing." Mr. Lewis, however, was "sitting on
his bed ... with his hands up on his lap" and was
"coherent." Lieutenant Cichanowicz recalled Mr.
Lewis insisting that he could not reach the door and that he
was "agitated" and "visibly
upset." Lieutenant Cichanowicz testified,
however, that sometimes an inmate initially unwilling to be
restrained later changes his mind. Further, he testified,
there was a risk that Mr. Lewis had created a
"setup" to lure officers into his
cell. Lieutenant Cichanowicz doubted Mr. Lewis
because, as he opined, the reach from Mr. Lewis's bed to
the trap door would have been "about the reach for the
McLean, too, testified that she did not view Mr. Lewis's
situation as a "serious medical emergency" because
Mr. Lewis was talking and breathing, had an airway, was
sitting, and was not paralyzed (he could move his
extremities). Her progress note, written at 6:40 a.m.,
stated that Lieutenant Cichanowicz told her that the video
feed of Mr. Lewis's cell showed that Mr. Lewis had sat up
at 5:15 a.m. and "then [did] not move again" until
he leaned forward to push the button minutes
later. Nurse McLean did not find that
remarkable for someone with back pain. She and Lieutenant
Cichanowicz decided to monitor Mr. Lewis before acting
further. She called a physician once she learned from another
correctional officer that Mr. Lewis was on the floor, crying
trial, Mr. Lewis's attorney moved for an
adverse-inference jury instruction based on spoliation of
evidence. The defendants did not produce video of Mr.
Lewis's cell between 5:15 a.m., when Mr. Lewis first sat
up in bed, and 7:12 a.m. The only video of Mr. Lewis on this
day begins at 7:12 a.m. and was preserved because of the cell
extraction that occurred later that morning. The defendants
explained that the video feed records only when there is
movement in a cell. Even if the video had recorded between
5:15 a.m. and 7:12 a.m., the recording would have been
automatically overwritten when the digital video recorders
reached their storage capacities unless someone specifically
downloaded the recording and saved it on a separate database.
In contrast, the prison preserved the existing video that
began at 7:12 a.m. because of that morning's cell
extraction. Further, neither Nurse McLean nor Lieutenant
Cichanowicz had anything to do with the video-retention
policy. The district court denied a spoliation instruction
but prohibited the defendants from arguing that Mr. Lewis was
able to move during this time period.
jury returned a verdict in the defendants' favor. Mr.
Lewis brought a pro se motion to set aside the jury verdict
and for a new trial, arguing that he received ineffective
assistance of counsel and that the court had erroneously
refused to allow him to represent himself and personally
cross-examine Nurse McLean. In a supplement, Mr. Lewis also
argued that the district court should have granted his pro se
motion to reinstate the malpractice claim because recruited
counsel represented him "on his federal claim,
only." The district court denied his motion
because a civil litigant has no constitutional right to
counsel, Pruitt v. Mote, 503 F.3d 647, 656 (7th Cir.
2007), and because the transcript did not reflect (nor could
the court recall) that Mr. Lewis had ever expressed a desire
to conduct Nurse McLean's cross-examination himself.
Further, the court rejected the idea that Mr. Lewis had
represented himself on the state-law claim, explaining that
the court had "recruited counsel to represent Lewis in
all of his claims before this court arising out of the events
at issue in this case-federal and state alike. The court
also considered whether the verdict was against the weight of
the evidence but, after viewing the evidence in the light
most favorable to the verdict, concluded that it was