O R D E R Victor Brown sued correctional officers at the Green Bay Correctional… v. Daniel L. Lavoie

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 13, 2022 *
Decided January 11, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1585
O R D E R
Victor Brown sued correctional officers at the Green Bay Correctional Institution
for not preventing his self-harm, for holding him down while the prison doctor tried to
extract a screw from his arm, and for insisting at the hospital that Brown not receive
stitches. Brown also sued the doctor, Daniel LaVoie, for trying to remove the two-inch
screw embedded in his arm without using a topical anesthetic and being deliberately
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
VICTOR R. BROWN,
Plaintiff-Appellant,
v.
DANIEL L. LAVOIE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 20-C-319
Lynn Adelman,
Judge.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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indifferent to the pain and suffering caused by the procedure. After paring down
Brown’s claims at screening, the district court later entered summary judgment for the
defendants. Brown appeals the screening order and summary judgment rulings as well
as the denial of his motions to recruit counsel. We affirm the district court’s dispositive
rulings on all of Brown’s claims except one. We withhold judgment on the Eighth
Amendment claim against LaVoie so that we may recruit counsel and have the appeal
re-briefed and argued with respect to that claim and any relevant interlocutory rulings.
We construe the summary judgment record, which includes video and audio
recordings from the officers’ handheld and body cameras, in the light most favorable to
Brown. Miles v. Anton, 42 F.4th 777, 780 (7th Cir. 2022). On August 21, 2019, correctional
officers Jay VanLanen and Drew Weycker arrived at Brown’s cell after Brown, who has
a history of mental illness and self-harm, had a dispute with a third officer. Brown had
covered his cell window with a towel, and he told VanLanen and Weycker that he was
removing the metal mirror from his wall. He then hit the mirror against the wall to
prove he had removed it. VanLanen and Weycker instructed Brown to remove the
towel and give them the mirror. Brown refused. He then swallowed six pieces of metal
and shoved a two-inch screw from the mirror into the crook of his left arm. He told the
officers what he had done and then opened the door. The officers placed Brown in a
restraint chair and brought him to the health unit.
There, officers cuffed Brown’s left arm to a tether, restricted movement of his left
hand, and placed a spit mask on him. When the prison doctor, Daniel LaVoie, arrived to
remove the screw, Brown asked LaVoie if he would use an anesthetic first; LaVoie
replied, “no.” In fear, Brown tried to head-butt LaVoie. Officers then strapped Brown to
a bed for the procedure. When Brown asked LaVoie to use anesthesia, LaVoie again
refused without explanation. LaVoie used various metal tools to dig into Brown’s arm,
causing him to bleed and experience severe pain. Brown yelled in pain and asked for a
break from the digging. He also tried to move away from LaVoie, but VanLanen
ordered nearby officers to hold him down. LaVoie continued to use metal instruments
on Brown’s arm, and Brown again yelled and cursed, demanding the procedure stop.
LaVoie and the officers determined Brown was refusing treatment, and LaVoie stopped
his efforts when Brown yelled again.
About four hours later, Brown was transferred to a hospital. There, a doctor used
local anesthesia and removed the screw in under three minutes. After removing the
screw, the doctor wanted to close the wound with stitches. But defendant David
Wisniewski, another correctional officer, insisted that the doctor use a different method
because Brown had a history of removing stitches. (Dr. LaVoie also attested to this

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history.) The adhesive wound-closure strips that were used instead did not stay on, and
Brown’s wound became infected.
In its screening order under 28 U.S.C. § 1915A, the district court determined that
Brown could proceed on an Eighth Amendment claim against LaVoie for attempting to
remove the screw without anesthesia. The court also permitted Brown to bring Eighth
Amendment claims against VanLanen and the officers who held him down while
LaVoie worked, and against Wisniewski for telling the doctor not to use stitches.
After screening, Brown moved for the court to recruit counsel for him. He stated
that he could not afford a lawyer and had contacted at least 20 attorneys to represent
him. He explained that he has multiple, severe mental illnesses that greatly affect his
daily functioning and his ability to litigate his case. He asserted that the case is complex
and might require a medical expert, and that he has just an eighth-grade education.
The court denied his motion. It found that Brown made a reasonable effort to
obtain a lawyer himself. But it concluded that “despite [his] concerns about his mental
illnesses and lack of education, his filings are quite good.” The court noted that Brown’s
complaint was detailed, that his filings cited case law and statutes, and that he had
experience representing himself in other cases. Lastly, the court disagreed that Brown
would need a medical expert to support his deliberate indifference claims.
The defendants then moved for partial summary judgment on the claim against
Wisniewski because Brown failed to exhaust his administrative remedies. Their
evidence showed that Brown had submitted one grievance about Wisniewski
forbidding the use of stitches, but it was rejected as untimely because Brown submitted
it more than 14 days after the incident. Brown responded that, under prison rules, he
can file just one grievance per week, and so he could not timely file this one amid his
other, timely, grievances about the incident. Although the prison has an exception to the
one-grievance-per-week rule for complaints about health and safety matters, he argued
that the prison does not adhere to it, and he therefore had “good cause” for his tardy
submission. WISC. A DMIN. C ODE DOC § 310.07(11). But the court concluded that
Brown’s untimely complaint failed to exhaust administrative remedies because even if
Brown thought it would not have been accepted under the health and safety exception,
he had to try pursuing this remedy.
Next, the defendants moved for summary judgment on the merits of the
Eighth Amendment claims and also argued that they had qualified immunity because it
was not clearly established at the time of the incident that a doctor had to use anesthesia
for this type of procedure.

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The court considered Brown’s verified complaint and his declarations, despite
his failure to comply with local summary judgment rules. But it nevertheless concluded
that there was no genuine dispute of material fact and entered summary judgment for
the defendants. Relying heavily on Snipes v. DeTella, in which we affirmed judgment for
a physician who removed a prisoner’s toenail without anesthetic, the court determined
that LaVoie did not violate the Eighth Amendment. 95 F.3d 586 (7th Cir. 1996). It
followed, the court concluded, that the officers who held Brown down could not be
liable for failing to intervene. Alternatively, the court concluded that all the defendants
were entitled to qualified immunity because even if there had been a constitutional
violation, the right to minor surgery without anesthetic was not clearly established at
the time of Brown’s injury.
Brown appeals and first argues that the district court failed to recognize certain
claims in his complaint. We review the screening order de novo and accept the factual
allegations in the complaint as true. Schillinger v. Kiley, 954 F.3d 990, 994 (7th Cir. 2020).
Brown contends that he stated a failure-to-protect claim against VanLanen and Weycker
for allowing him to engage in self-harm. To state such a claim, Brown needed to allege
facts that plausibly suggested that these officers “knew of and disregarded a serious
risk” and “effectively condone[d]” his self-harm. Eagan v. Dempsey, 987 F.3d 667, 693–94
(7th Cir. 2021). But Brown’s complaint suggests the opposite: the officers could not see
into the cell, and when they heard Brown’s threats, they tried to convince him to
remove the towel and give them the mirror and screws. Although Brown suggests that
they could have used stun guns or pepper spray to stop him, prison staff must take only
“reasonable measures” to ensure someone’s safety, while avoiding the use of excessive
force. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517
(1984)). The complaint did not plausibly allege that storming the cell and immobilizing
Brown would have achieved this balance; nor did Brown, who asserted only that he
told the officers he was removing the mirror from the wall, plausibly suggest that he
gave officers “sufficient notice to alert [them]” to an excessive risk to his safety, such as
ingesting metal or embedding a screw in his arm. Eagan, 987 F.3d at 694.
Brown next challenges the summary judgment rulings. He first argues that he
did not fail to exhaust his administrative remedies with respect to his claim against
Wisniewski. We review a court’s exhaustion rulings de novo. Schillinger, 954 F.3d at 995.
Here, the court correctly determined that Brown needed to comply with Wisconsin’s
requirement that incarcerated people submit complaints within 14 days of the relevant
event. W IS . A DMIN. C ODE DOC § 310.07; see Woodford v. Ngo, 548 U.S. 81, 95 (2006). And,
as the district court explained, even if Brown believed that the “health and safety”
exception would be ignored and submitting a timely grievance would be futile, he still
needed to try. See Williams v. Rajoli, 44 F.4th 1041, 1045 (7th Cir. 2022). On appeal,

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Brown also argues that the exception is not defined, making it “unavailable” for those
who cannot discern whether it applies to their complaints. But the health and safety
exception was “officially on the books,” and, as far as the record shows, the policy was
not “unduly difficult to navigate” or otherwise not “available” as we interpret that
term. Miles, 42 F.4th at 780.
Brown also challenges the summary judgment decision on his Eighth
Amendment claims against all defendants. Regardless of the outcome of the deliberate
indifference claim against LaVoie, however, a reasonable jury could not find the
remaining defendants liable for failing to intervene to stop an Eighth Amendment
violation. First, the correctional staff: Officers can rely on the judgment of medical
professionals about treating injury and illness. Eagan, 987 F.3d at 694. Absent evidence
that the officers have actual knowledge that a treatment is inappropriate, they are not
deliberately indifferent when they defer to a medical professional. Id.; Giles v. Godinez,
914 F.3d 1040, 1049–50 (7th Cir. 2019). Here, there is no evidence that any of the officers
had reason to question how LaVoie was removing the screw. Not only did the officers
follow LaVoie’s lead, but the videos depict the officers’ “concern, not indifference”
towards Brown. See Lee v. Young, 533 F.3d 505, 511 (7th Cir. 2008). One officer
repeatedly tries to reassure Brown that they are helping him and trying to “save his
arm.” And although the officers restrained Brown, nothing we see or hear in the video
would allow a reasonable jury to conclude that any officer acted with deliberate
indifference to Brown’s pain, including when they held him down. The officers had to
keep the doctor and themselves safe from Brown, and Brown safe from himself in his
agitated state. See Farmer, 511 U.S. at 832; Rice ex rel. v. Corr. Med. Servs., 675 F.3d 650,
668 (7th Cir. 2012) (restraining an inmate in good faith and for safety reasons was not
excessive force). Therefore, we will affirm the district court’s judgment in favor of Jay
VanLanen, Drew Weycker, Joshua Gomm, Tristan Retzlaff, Alex Bonis, Michael Neveu,
Miles Arne, Justin Maher, David Yang, Jason Gibbs, and Colin Freubrodt.
We are less sure with respect to LaVoie, however. In particular, we note that the
record contains very little evidence about why he went about the procedure as he did,
and why he did not reassess the decision not to use an anesthetic once it appeared that
Brown was in so much pain that he could not hold still and demanded that the
procedure be halted. LaVoie’s declaration does not say that he believed anesthetic was
unnecessary based on his medical judgment; indeed, his state of mind is not addressed
by the defense at all. And there is at least some evidence that LaVoie was reacting to the
attempted head-butt or to what he repeatedly told Brown was a situation of Brown’s
own making. See, e.g., Eagan, 987 F.3d at 692 (teaching inmate a lesson about self-
destructive behavior is not a medical decision). For the same reasons, we reserve the
question whether the judgment for LaVoie could be affirmed solely on qualified

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immunity grounds. By separate order, therefore, we will recruit counsel for Brown and
require re-briefing and oral argument of the appeal as it pertains to the Eighth
Amendment claim against LaVoie, only.
This briefing might address the district court’s decisions not to recruit counsel for
Brown based on his claim against LaVoie, but we conclude that Brown does not, and
could not, make a critical showing on appeal with respect to his claims against the other
defendants: prejudice. Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir. 2007) (en banc). These
defendants were involved for safety reasons; they made no medical decisions, and their
liability does not depend on their knowledge of medical practices. Thus, the absence of
a medical expert was a non-issue. Further, as we have discussed, the correctional staff
were essentially providing security during the medical procedure, as to which they
properly let the doctor take the lead. A lawyer could not have changed these facts, and
so we do not see a “reasonable likelihood” of a different outcome. Id. (emphasis
omitted); see also Tidwell v. Hicks, 791 F.3d 704, 709 (7th Cir. 2015). Regarding the claim
against LaVoie, however, counsel will be free (but not compelled) to argue that the
district court erred by not recruiting counsel to assist Brown at the summary judgment
stage, and that the error was prejudicial. See generally James v. Eli, 889 F.3d 320, 331
(7th Cir. 2018).
For the reasons stated above, we AFFIRM the judgment with respect to
defendants WISNIEWSKI, VANLANEN, WEYCKER, GOMM, RETZLAFF, BONIS,
NEVEU, ARNE, MAHER, YANG, GIBBS, and FRUEBRODT.
We will not enter judgment until the balance of the appeal is decided. A separate
order will issue regarding the appointment of counsel for the remainder of the appeal,
which will be re-captioned to include only Daniel LaVoie as the defendant-appellee.

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