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Lewis v. McLean

United States Court of Appeals, Seventh Circuit

October 29, 2019

James A. Lewis, Plaintiff-Appellant,
Angela McLean and Joseph Cichanowicz, Defendants-Appellees.

          Submitted October 18, 2019

          Appeal from the United States District Court for the Western District of Wisconsin. No. 3:14-cv-00280-jdp - James D. Peterson, Chief Judge.

          Before Flaum, Ripple, and Sykes, Circuit Judges.

          Per Curiam.

         We 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.



         When 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."[1] The order directed Mr. Lewis to work with counsel and not communicate directly with the court "from this point for- ward."[2] Soon after, the district court directed Mr. Lewis to "state whether he intend[ed] to proceed with the medical malpractice claim"[3] 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.[4] 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.[5]

         At 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.[6] 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.[7] 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.

         Sometime between 6:00 and 6:15 a.m., Angela McLean, a nurse, and Lieutenant Joseph Cichanowicz, [8] 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?"[9] Nurse McLean and Lieutenant Cichanowicz then left.

         After 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.

         Lieutenant 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."[10] Mr. Lewis, however, was "sitting on his bed ... with his hands up on his lap" and was "coherent."[11] Lieutenant Cichanowicz recalled Mr. Lewis insisting that he could not reach the door and that he was "agitated" and "visibly upset."[12] 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.[13] 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 button."[14]

         Nurse 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).[15] 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.[16] 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 in pain.

         Before 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.[17] 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.

         The 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."[18] 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.[19] 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 well-supported.



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