Clarence Lewis v. Kul B. Sood

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1646
C LARENCE L EWIS,
Plaintiff-Appellant,
v.
K UL B. SOOD, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:18-cv-04084 — Sara Darrow, Chief Judge.
____________________
A RGUED F EBRUARY 9, 2023 — DECIDED J ANUARY 14, 2025
____________________
Before EASTERBROOK, HAMILTON , and LEE, Circuit Judges.
LEE, Circuit Judge. Clarence Lewis sued various medical
staff members at his prison and asserted that they violated the
Eighth Amendment by being deliberately indifferent to his
various health maladies. On appeal, he contends that the dis-
trict court abused its discretion in denying his motions for re-
cruited counsel. Lewis has not shown any reasonable likeli-
hood that recruited counsel would have made a difference in
the outcome of his claims against Dr. Kul Sood, Dr. Catalino

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2 No. 21-1646
Bautista, Nurse Practitioner Lara Vollmer, or Health Care
Unit Administrator Lois Lindorff. Accordingly, the judgment
in their favor is affirmed. But because Dr. Dina Paul concedes
(and rightfully so) that Lewis’s appeal as to her has merit, we
reverse the judgment in favor of Dr. Paul and remand for fur-
ther proceedings.
I.
A. Factual Background
The following facts are undisputed. While Lewis was an
inmate at Hill Correctional Center in Galesburg, Illinois from
2013 to 2018, he was treated for various ailments. Dr. Sood
was the medical director of Hill from 2010 to 2016. Dr. Bau-
tista replaced Dr. Sood as the medical director until the end of
2018. Nurse Vollmer also treated Lewis during his incarcera-
tion. And Administrator Lindorff responded to a single griev-
ance about Lewis’s diabetes medication in 2018.1
1. Diabetes
Lewis was seen in the health care unit in March 2016 by
Dr. Sood. Dr. Sood ordered a blood test, as well as five days
of blood-glucose readings, to determine Lewis’s daily fasting
blood-glucose levels.
Within a week, Lewis attended a follow-up appointment
with Dr. Sood. The doctor told Lewis that his glucose readings
were recorded as 188, 192, 167, 172, and 152 milligrams per
deciliter, which was abnormally high. Lewis admitted that he
1 Lindorff did not participate in the direct treatment of inmates and
had no authority to override a diagnosis or treatment determination made
by a physician.

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No. 21-1646 3
had a family health history of diabetes and that his sister was
diabetic.
Based on those results, Dr. Sood advised Lewis to avoid
sugary foods. In addition, he ordered a hemoglobin A1C
(HA1C) blood test. An HA1C test measures a patient’s aver-
age blood-sugar level over the preceding two to three months
to determine whether a patient is diabetic. Lewis’s HA1C
level was 13.7, which indicated diabetes.
That same month, Nurse Vollmer examined Lewis. Lewis
reported vision changes, numbness in his lower extremities,
and fatigue. Based on Lewis’s glucose readings and his com-
plaints, she diagnosed the onset of Type 2 diabetes and pre-
scribed insulin injections, along with glucose readings, twice
daily. Nurse Vollmer ordered a follow-up appointment to
evaluate Lewis’s glucose readings and to determine whether
to adjust his insulin dose. She referred him to an ophthalmol-
ogist due to his vision complaints. The next day, Dr. Sood told
Lewis that he concurred with Nurse Vollmer’s diagnosis and
treatment plan.
Dr. Sood and Nurse Vollmer continued to treat Lewis’s di-
abetes with insulin and eventually replaced it with an oral
medication. After Dr. Bautista became medical director, he ex-
amined Lewis in November 2016 and found that Lewis’s dia-
betes was controlled with medication.
According to Lewis, in May 2018, he went about a week
without receiving his diabetes medication but did not experi-
ence any deleterious effects. Based on this, he surmised that
the medical staff had misdiagnosed his diabetes condition.
Nevertheless, he filed a complaint regarding the one-week de-
lay. In response, Administrator Lindorff investigated the

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4 No. 21-1646
claim, informed the grievance counselor that Lewis’s medica-
tion had already been ordered, and told Lewis that he would
be receiving the medication shortly.
2. Chronic Cough, Sinus Issues, and COPD
Dr. Bautista first treated Lewis for a sinus infection and
cough in July 2016. He suspected that Lewis had an upper res-
piratory infection and that his cough was being exacerbated
by his blood pressure medication. As a result, Dr. Bautista dis-
continued the medication and prescribed an antibiotic.
Nurse Vollmer examined Lewis the following month, and
he told her that he had been coughing and experiencing nasal
congestion for the past month. Based upon her examination,
she diagnosed him with a cough, upper respiratory infection,
and allergic rhinitis. She prescribed an antihistamine, a nasal
spray, and an antibiotic. She also advised Lewis to drink more
water.
Nurse Vollmer saw Lewis again a week later when he
complained of being short of breath. She observed that Lewis
was not in any acute distress and did not have a fever, chills,
or sweats. He did, however, have a continuous, non-produc-
tive cough. Based on the examination, Nurse Vollmer con-
cluded that Lewis had a persistent cough, history of tobacco
use, allergic rhinitis, and heartburn. She ordered a chest X-ray
to rule out pneumonia, renewed his prescriptions for his nasal
spray, and prescribed Pepcid for heartburn. When the X-ray
results became available, she reviewed them and ruled out
pneumonia.
Dr. Bautista also examined Lewis for his cough in Septem-
ber 2016. He noted that Lewis had had a cough for several
months and complained of shortness of breath when walking

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No. 21-1646 5
long distances. The doctor also remarked that the chest X-ray
had shown nothing out of the ordinary and that Lewis was
not in distress and his lungs were clear. Based on this infor-
mation, Dr. Bautista diagnosed Lewis with chronic obstruc-
tive pulmonary disease (COPD), a condition that blocks air-
flow and makes breathing difficult. He based this diagnosis
on his examination of Lewis, as well as Lewis’s subjective
complaints and history of smoking tobacco. The doctor pre-
scribed an Incruse Ellipta inhaler in order to control and pre-
vent COPD symptoms.
Throughout the following months, Dr. Bautista and Nurse
Vollmer continued to examine Lewis and treat his respiratory
problems by prescribing allergy medications and nasal
sprays, ordering blood tests, encouraging him to lose weight,
and advising him to increase his water intake to 100 ounces
per day. Dr. Bautista noted in November 2016, that Lewis’s
COPD was controlled, and he continued prescribing an in-
haler. And in mid-January 2017, Lewis informed the health
care unit that he had not coughed in three weeks after adher-
ing to his medication regimen. This led Dr. Bautista to con-
clude that Lewis’s cough symptoms had resolved. And, in
March 2017, Nurse Vollmer prescribed a six-month supply of
the same medications.
Despite this, Lewis believes he has been misdiagnosed
with COPD because he no longer experiences any adverse
symptoms. He would like to be admitted to a hospital so he
can confirm his COPD diagnosis.
3. Irritable Bowel Syndrome
Lewis informed Dr. Bautista in January 2017 that he had
experienced diarrhea for several weeks but believed the issue

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6 No. 21-1646
was getting better. Upon examining Lewis, Dr. Bautista found
that his abdomen was soft and non-tender with no irregulari-
ties. His assessment was that Lewis had diarrhea, but that it
was improving.
According to Lewis’s medical records, he next complained
of diarrhea in May 2017. At that time, Lewis reported that he
had bowel movements every fifteen minutes. Dr. Bautista ad-
mitted Lewis to the infirmary for observation, where he was
monitored for twenty-four hours but did not experience diar-
rhea.
In July 2017, Lewis reported having diarrhea to Nurse
Vollmer. Nurse Vollmer requested blood work and pre-
scribed a regular course of Imodium.
Dr. Bautista followed up with Lewis three weeks later.
Lewis told him that he had been experiencing rectal bleeding
on and off for a year and had up to fourteen loose stools a day.
Dr. Bautista conducted a rectal examination but found noth-
ing abnormal. He also ordered fecal occult blood test that re-
turned negative. Dr. Bautista noted that Lewis’s blood test re-
sults over a six-month span indicated a loss in iron levels. As
a result, Dr. Bautista assessed Lewis as having diarrhea, rectal
fluid, and iron-deficiency anemia. The doctor ordered chest
and abdominal X-rays, blood work, and a stool exam with a
gastrointestinal panel to test for viruses, bacteria, and para-
sites. He also prescribed an iron supplement and requested a
referral to a gastroenterologist for further recommendations;
this request was approved.
In August 2017, Dr. Bautista met with Lewis to discuss his
lab and X-ray results. Lewis reported he had diarrhea four-
teen times a day and experienced abdominal cramps. Dr.

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No. 21-1646 7
Bautista noted that Lewis’s abdomen was soft and non-tender
and that he had normal bowel sounds. He told Lewis that his
lab results and X-ray were unremarkable and that he was
scheduled for a gastroenterology consultation in September
2017. Dr. Bautista also prescribed medication to treat the di-
arrhea and cramps.
Dr. Bautista examined Lewis a week after the consultation
and told Lewis that the gastroenterologist had recommended
that he undergo a colonoscopy, an esophagogastroduodenos-
copy (EGD), biopsies to rule out Celiac disease, a re-check of
his blood panel, and the continuation of iron supplementa-
tion. Lewis did not report any additional symptoms at that
time, and Dr. Bautista agreed to proceed with the gastroenter-
ologist’s plan, and that plan of care was also approved upon
review.
Although the procedures were originally scheduled for
October 2017, the hospital had to reschedule the appointment.
As a result, Lewis underwent a colonoscopy, EGD, and biop-
sies at Pekin Hospital in December 2017.
After the procedures, Dr. Bautista met with Lewis again to
examine him and explain the results of the diagnostic tests,
which were unremarkable. Lewis reported a recurrence of
loose stools three days prior to this visit, and Dr. Bautista pre-
scribed Imodium.
In January 2018, Dr. Bautista examined Lewis again, and
Lewis told him that the Imodium had helped his diarrhea.
Lewis’s abdomen was soft and non-tender, and Dr. Bautista
found everything to be normal. As a result, Dr. Bautista pre-
scribed Imodium twice a day as needed. Dr. Bautista also

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8 No. 21-1646
replaced Lewis’s oral diabetes medicine with a different one
in case that it was contributing to his diarrhea.
Dr. Bautista saw Lewis again two weeks later, and Lewis
told him he had occasional loose stools and abdominal pain.
Dr. Bautista informed Lewis that his gastrointestinal panel
showed no abnormalities and that his colonoscopy and EGD
results were within normal limits. Nevertheless, Dr. Bautista
ordered a CT scan of Lewis’s abdomen, which was performed
at Cottage Hospital in March 2018.
Dr. Bautista then met with Lewis again in early April to
discuss his CT scan. According to Lewis, he was still experi-
encing soft stool. Upon examination, Dr. Bautista found that
Lewis’s abdomen was soft and non-tender and exhibited nor-
mal bowel sounds. After considering the relevant factors, Dr.
Bautista diagnosed Lewis with irritable bowel syndrome and
prescribed Imodium and ibuprofen.
Dr. Bautista’s final assessment of Lewis occurred in May
2018. Lewis again complained of loose stools. Dr. Bautista ex-
amined him again and noted that Lewis was not in acute dis-
tress and that the condition of his abdomen had not changed.
Dr. Bautista’s opinion was that Lewis suffered from diarrhea
and irritable bowel syndrome, for which he prescribed
Imodium.
4. Hepatitis C
Lewis asserts that, at some point after 2013, Dr. Paul diag-
nosed him with Hepatitis C. Dr. Paul informed him that she
would check on him every six months to see if his condition
was affecting his liver.
Lewis asked Dr. Paul why she was not prescribing medi-
cation to treat his condition, and she explained that the

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No. 21-1646 9
medication was costly, that he did not meet the guidelines for
eligibility, and “that’s how it goes when you are in prison.”
According to Lewis, when he emphasized that Dr. Paul would
rather save a dollar than a life, she repeated, “that’s how it is.”
B. Procedural History
In his lawsuit, Lewis alleges that Dr. Sood, Nurse Vollmer,
and Dr. Bautista misdiagnosed him as having diabetes and
COPD and mistreated him for these ailments. He also claims
that Lindorff should have expedited the delivery of his diabe-
tes medication after reviewing his grievance. Furthermore, he
contends that Dr. Bautista improperly delayed his colonos-
copy procedure and that Dr. Bautista and Nurse Vollmer
failed to provide effective medical treatment for his bowel dis-
order. These failures, according to Lewis, violated his Eighth
Amendment rights.
Additionally, Lewis asserts that Dr. Paul was deliberately
indifferent to his Hepatitis C condition when she denied him
medication on the ground that he did not meet the guidelines
for such treatment.
During the litigation, Lewis filed numerous motions for
recruitment of counsel. The district court denied each motion
and explained that Lewis had demonstrated an ability to rep-
resent himself and that it appeared that he was able to obtain
relevant documents in discovery.
After discovery, the defendants moved for summary
judgment. The district court granted summary judgment in
favor of Dr. Sood, Dr. Bautista, Nurse Vollmer, and Adminis-
trator Lindorff, after concluding that no reasonable juror
could find that they had acted with deliberate indifference to
Lewis’s serious health conditions.

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10 No. 21-1646
The court also granted summary judgment in Paul’s favor
but on different grounds. Lewis had raised a similar claim in
a prior lawsuit, although against different defendants, see Orr
v. Elyea, 2:08-cv-2232 (C.D. Ill.). Based on this, the district
court believed that the rule against claim splitting foreclosed
Lewis’s claim.
Lewis appeals, arguing principally that the district court
should have recruited pro bono counsel to assist him in this
case.
II.
A. Standard of Review
We review the denial of a motion for recruitment of coun-
sel for abuse of discretion. Greeno v. Daley, 414 F.3d 645, 658
(7th Cir. 2005). But even if a district court abused its discretion
in denying counsel, “we will reverse only upon a showing of
prejudice.” Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir. 2007).
“[A]n erroneous denial of pro bono counsel will be prejudicial
[only] if there is a reasonable likelihood that the presence of
counsel would have made a difference in the outcome of the
litigation.” Id. (emphasis removed).
B. Analysis
To support his argument that the district court abused its
discretion by not providing him with an attorney, Lewis
points to his learning disability and his sixth-grade-level read-
ing and math scores. But even assuming that the district court
erred, Lewis still must demonstrate that the error prejudiced
him to prevail on appeal. For the moment, we will focus on
his claims against Defendants Dr. Sood, Dr. Bautista, Nurse
Vollmer, and Administrator Lindorff.

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No. 21-1646 11
Lewis has given us no basis to conclude there is a reason-
able likelihood that having an attorney would have altered
the outcome of his claims against these defendants. Most con-
spicuously, he has not challenged the district court’s determi-
nation that the undisputed facts show these defendants were
not deliberately indifferent to his serious medical needs. Alt-
hough Lewis contends that these defendants persisted in
providing him with treatments known to be ineffective, he
has not pointed to any evidence to support this contention.
For example, Lewis believes that Dr. Sood, Dr. Bautista,
and Nurse Vollmer misdiagnosed him as having diabetes and
COPD, but his sole basis for this claim is the lack of any cur-
rent symptoms. By contrast, these diagnoses find ample sup-
port in Lewis’s test results, family history, prior smoking, and
his previous complaints of shortness of breath and a dry
cough.
He also asserts that more could have been done to treat his
irritable bowel syndrome. But the health care unit personnel
followed the recommendations of Lewis’s outside gastroen-
terologist, ordered a CT scan, consistently monitored Lewis’s
condition, and prescribed medication that, by Lewis’s own
admission, alleviated his symptoms.
On these facts, no rational jury could conclude that the
treatments these defendants provided Lewis for his medical
conditions were “blatantly inappropriate.” Greeno, 414 F.3d at
654 (internal quotation marks omitted). Lewis’s personal dis-
agreement with his diagnoses and treatment, without more,
is insufficient to fend off summary judgment. Thomas v. Mar-
tija, 991 F.3d 763, 772 (7th Cir. 2021) (“It is not enough that the
plaintiff simply believes the treatment was ineffective or dis-
agrees with the doctor’s chosen course of treatment.”); Pyles

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12 No. 21-1646
v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (“Disagreement be-
tween a prisoner and his doctor, or even between two medical
professionals, about the proper course of treatment generally
is insufficient, by itself, to establish an Eighth Amendment vi-
olation.”).
As for Administrator Lindorff, her interaction with Lewis
was limited to investigating his grievance regarding the delay
of his diabetes medication. It is undisputed that, as a Health
Care Unit Administrator, she did not treat inmates and lacked
authority to override any diagnosis or treatment determina-
tion. What is more, Lewis admits that any delay in his diabe-
tes medication had no deleterious effect on his well-being.
Given this factual record, providing Lewis with an attor-
ney would have made no difference in the outcome of his
claims against these four defendants. Thus, the judgment in
favor of Dr. Sood, Dr. Bautista, Nurse Vollmer, and Adminis-
trator Lindorff is affirmed.
Turning to Lewis’s claim against Dr. Paul regarding his
Hepatitis C condition, Lewis argues on appeal that the district
court’s application of claim splitting was erroneous. And Dr.
Paul rightly concedes the point.
Dr. Paul raised this affirmative defense for the first time at
summary judgment—sixteen months after Lewis had as-
serted the claim against Dr. Paul (and over three years after
he had filed his Hepatitis C-based claim in Orr). By waiting so
long to raise this defense, Dr. Paul acquiesced in Lewis’s as-
sertion of the claim in this case. See Lawler v. Peoria Sch. Dist.
No. 150, 837 F.3d 779, 785 (7th Cir. 2016) (holding that the de-
fendant acquiesced to claim splitting when it waited eighteen
months to raise it). Because remand is required on this ground

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No. 21-1646 13
alone, we need not address the parties’ alternative arguments.
If this claim proceeds to trial, the district court in its discretion
may wish to reconsider Lewis’s request for recruitment of
counsel.
For these reasons, the judgment in favor of Dr. Sood, Dr.
Bautista, Nurse Vollmer, and Administrator Lindorff is
AFFIRMED. The judgment in favor of Dr. Paul is VACATED,
and this matter is REMANDED to the district court for further
proceedings consistent with this opinion.

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