Jamie Lastovich v. DEBRA KNISBECK and TAMRA WOLLIN

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 30, 2023*
Decided June 30, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-1574
JAMIE LASTOVICH,
Plaintiff-Appellant,
v.
DEBRA KNISBECK and TAMRA
WOLLIN,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 20-CV-886
Stephen C. Dries,
Magistrate Judge.
O R D E R
When Jamie Lastovich, a Wisconsin prisoner, complained of difficulty breathing
and a possible lung infection, prison nursing staff examined him, administered
breathing treatment, and had his blood tested for an infection. Lastovich was
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1574 Page 2
dissatisfied with the care that he received and sued the staff for deliberate indifference
to his medical needs. The district court accepted the defendants’ unopposed statement
of facts and entered summary judgment for them. Because the court permissibly
accepted the defendants’ version of the facts and correctly determined that no
reasonable jury could find any defendant deliberately indifferent on those facts, we
affirm the judgment.
Because the district court accepted the defendants’ proposed facts as undisputed,
we recount the facts accordingly, still viewing them in the light most favorable to
Lastovich. McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783, 786–87 (7th Cir. 2019).
Lastovich’s concern about his lungs began almost immediately upon arriving at
Dodge County Detention Facility. During an initial health screening, he told nurse
Tamra Wollin that he might have bronchitis. Several weeks later, Lastovich suspected
that he had developed pneumonia and submitted a healthcare request. He was
examined by Nurse Practitioner Debra Knisbeck, who noted his complaints of shortness
of breath and a cough, but also his overall improvement. After ensuring that he was not
wheezing or making other abnormal sounds, she administered a nebulizer breathing
treatment to help his cough. She then took a blood sample to check for an infection, and
the results came back normal. She decided against prescribing antibiotics and told
Lastovich to follow up as needed.
Weeks later, Lastovich submitted another request for care over breathing
difficulties and he again mentioned a concern about pneumonia. But two days later, he
reported that he no longer wished to be seen because he felt better.
Lastovich sued the two nurses under 42 U.S.C. § 1983, asserting that they
violated his Eighth Amendment rights when they were deliberately indifferent to his
medical needs. The district judge provided Lastovich with a handout answering pro se
litigants’ common questions for litigating in federal court. Later, a magistrate judge,
presiding by consent under 28 U.S.C. § 636(c), provided him with copies of the relevant
local and federal rules.
As the case proceeded to discovery, Lastovich repeatedly asked the court to
recruit counsel to assist him. The court denied these motions, explaining that Lastovich
had shown that he was able to litigate his case and did not need legal training to
participate in discovery or respond to a motion for summary judgment.

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No. 22-1574 Page 3
Defendants moved for summary judgment, supported by their undisputed facts
showing that Lastovich received constitutionally adequate care. They also tendered,
consistent with Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992), the relevant local and
federal rules that explained the procedures for Lastovich to respond and the
consequences for not doing so. The court then warned Lastovich that it would accept
the defendants’ facts as undisputed if he failed to respond to the summary judgment
motion with supporting evidence. Lastovich again asked the court to recruit counsel,
moved to compel production of evidence, and sought an extension of time to respond to
the defendants’ motion. The court declined to recruit counsel for the same reasons
previously given. As for his request for evidence, the court ruled that discovery had
closed but could be reopened if Lastovich needed certain evidence to respond to the
defendants’ motion. The court extended the deadline for Lastovich’s response.
Before that deadline, Lastovich submitted a four-page letter to “let the court
know some more facts in response to the [defendants’] motion for summary judgment.”
He asserted, for instance, that he told nursing staff that he felt unwell, that they did not
treat him, and that he was purchasing and taking acetaminophen. The court construed
this letter as Lastovich’s response to the defendants’ motion.
Several weeks later, Lastovich moved again both to have counsel recruited on his
behalf and to compel production of evidence.
The court resolved the pending motions and entered summary judgment for the
defendants. First, the court denied the motion to compel, noting that Lastovich did not
move to reopen discovery despite having been instructed how to do so, and in any
event, he failed to make a good faith attempt to confer with the defendants about his
discovery requests, as required under Rule 37 of the Federal Rules of Civil Procedure.
Second, the court explained that Lastovich failed under Local Rule 56(b)(2) to oppose
the defendants’ summary judgment motion, including their proposed findings of fact,
by submitting or citing evidence, or even substantively responding to the defendants’
arguments. Based on the defendants’ unopposed version of the facts, the court
concluded that Knisbeck and Wollin demonstrated that they provided all the care
required under the Eighth Amendment. Specifically, nursing staff thoroughly examined
and sufficiently treated Lastovich when he first asked to be seen for respiratory
symptoms. And Lastovich’s cancellation of his second request to be seen left them no
reason to believe that he was still in danger.

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No. 22-1574 Page 4
Lastovich then submitted to the district court several post-judgment filings,
including certain medical records that, he maintains, show that he was treated for sepsis
and other serious conditions within 24 hours of his release from prison.
On appeal, Lastovich primarily insists that these medical records demonstrate
the defendants’ deliberate indifference to his lung condition. But a party may not
introduce new evidence that could and should have been presented to the district court
before judgment, Barrington Music Prods., Inc. v. Music & Arts Ctr., 924 F.3d 966, 968
(7th Cir. 2019), and Lastovich does not justify his delay. At the time of judgment, the
court had only Lastovich’s four-page letter as a response, which the court permissibly
deemed deficient under Local Rule 56(b)(2) because it included only a vague narrative
of his claims, without citation to competent evidence.
Next, without engaging the district court’s decision to accept the defendants’
version of the facts, Lastovich generally contests the court’s conclusion that the two
nurses provided sufficient medical care. He argues that they should have tested his
mucus and taken an x-ray of his chest to diagnose his symptoms and rule out a lung
infection. But the “high bar” of deliberate indifference requires showing “something
approaching a total unconcern for the prisoner’s welfare in the face of serious risks,”
Rasho v. Jeffreys, 22 F.4th 703, 710 (7th Cir. 2022) (citation omitted), and Lastovich
provided no such evidence. The defendants presented evidence that Knisbeck
responded to Lastovich’s request for care by providing breathing treatment and a blood
test that yielded normal results, and that Lastovich soon felt better and declined to be
seen again.
Finally, Lastovich raises several contentions related to the court’s management of
his case. He argues, for instance, that the defendants’ failure to produce evidence
during discovery prevented him from adequately responding to their proposed facts.
But he does not engage with the district court’s ruling that he failed to confer with the
defendants in good faith. See F ED. R. CIV. P. 37(a)(1). Lastovich also challenges the
court’s denials of his requests for counsel, but his claims were too weak to “warrant
marshaling scarce legal and expert resources toward his case.” Watts v. Kidman, 42 F.4th
755, 767 (7th Cir. 2022).
AFFIRMED

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