Shaun J. Matz v. Gabriel Galloway

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 20, 2024 *
Decided September 20, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-1716
SHAUN J. MATZ,
Plaintiff-Appellant,
v.
GABRIEL GALLOWAY,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 18-cv-748-wmc
William M. Conley,
Judge.
O R D E R
Shaun Matz, a Wisconsin prisoner, sued attorney Gabriel Galloway, alleging that
Galloway’s malpractice caused Matz to lose his civil-rights suit. Because Matz did not
raise a genuine issue of material fact about whether he would have prevailed on any of
* 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).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 24-1716 Page 2
his civil-rights claims but for Galloway’s errors, the district court entered summary
judgment for Galloway. We affirm.
In 2010, Matz filed a complaint under 42 U.S.C. § 1983, alleging that fifteen
officials at Columbia Correctional Institution violated his rights under the Eighth
Amendment by failing to prevent him from engaging in self-harm, administering
inadequate mental-health treatment, housing him in conditions that they knew would
exacerbate his mental illness, and transferring him to another prison that worsened his
self-harming behavior. The district court recruited Galloway to represent Matz in the
lawsuit.
During discovery, Galloway contacted numerous medical professionals in
Wisconsin and other states and found one doctor willing to serve as a medical expert. A
few months later, Galloway reported to the court at a telephone conference that the
doctor had reviewed Matz’s medical records but declined to author a report. Galloway
did not secure another expert.
The defendants then moved for summary judgment, and the court granted the
motion in part. The court concluded that Matz had presented no evidence to support
his claims that prison officials had been deliberately indifferent to the conditions of his
confinement, his mental-health treatment, or his transfer to another prison. The court
denied the motion for summary judgment as to Matz’s claim that four prison officials
were deliberately indifferent to his substantial risk of self-harm. On that claim, the
parties proceeded to a jury trial.
During trial, Galloway called Matz and the four remaining defendants (a
psychologist and three correctional officers) as witnesses. Galloway did not offer any
expert testimony. The defendants did not present any witnesses. The jury returned a
verdict in favor of the defendants.
Four years later, Matz sued Galloway in federal court under the diversity
jurisdiction, 18 U.S.C. § 1332, alleging that Galloway committed legal malpractice when
he failed to call an expert witness and chose not to call as witnesses other inmates that
Matz says provided supportive affidavits for him in a different case. Galloway filed a
motion to dismiss, arguing that Matz could not prove that Galloway’s conduct caused
the jury to find against Matz. The district court denied the motion, concluding that Matz
had met the minimal pleading requirements.

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No. 24-1716 Page 3
Matz moved five times for recruitment of counsel to assist him in litigating the
case, asserting that he suffers from, among other conditions, major depressive disorder
and schizoaffective disorder, which rendered him incapable of competently litigating
the case on his own.
The district court denied each of his motions. The court first explained that,
based on the factors laid out in Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc),
Matz’s filings were well-written, and he demonstrated a proficient understanding of the
factual and legal issues. Further, the court explained that the difficulty of convincing
attorneys to take on prisoner cases, coupled with the risk that Matz would later sue the
attorney for malpractice if the case were unsuccessful, weighed against recruiting
counsel.
The court also warned Matz that it was considering entering summary judgment
for Galloway because Matz had failed to present any evidence that the outcome in his
case would have been different but for Galloway’s errors. See FED. R. C IV. P. 56(f). The
court gave Matz an opportunity to submit responsive evidence.
In response, Matz stated only that Galloway had failed to return unspecified
evidence to him after the case ended. The court concluded that the response was
insufficient, and it entered summary judgment for Galloway. The court noted that Matz
could have sought discovery from Galloway to obtain relevant evidence, contacted the
Department of Corrections for records, called on inmates to corroborate his version of
events, or submitted a sworn declaration pointing to specific evidence that would have
proven his deliberate-indifference claims.
Matz now appeals. He first argues that the district court wrongly denied his
multiple requests for counsel. We review the district court’s decisions for an abuse of
discretion. See Ealy v. Watson, 109 F.4th 958, 967 (7th Cir. 2024).
Litigants do not have a right to counsel in civil cases, see Pruitt, 503 F.3d at 657,
though a pro se litigant’s request for counsel is entitled to careful consideration,
see Diggs v. Ghosh, 850 F.3d 905, 911–12 (7th Cir. 2017). Here, careful consideration was
given: The court reasonably concluded that Matz’s pro se filings were coherent, Matz
demonstrated a sufficient grasp of the law and facts involved in the case, and the
reputational risk in representing Matz—given the malpractice suit against Galloway—
warranted withholding the court’s limited pro bono resources. See, e.g., Cartwright v.
Silver Cross Hosp., 962 F.3d 933, 934 (7th Cir. 2020) (“The courts must be careful stewards
of this limited [pro bono] resource.”).

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No. 24-1716 Page 4
Next, Matz argues that the district court erred when it sua sponte entered
summary judgment in Galloway’s favor under Federal Rule of Civil Procedure 56(f)
without ensuring certain procedures were followed. Specifically, Matz contends that he
was not given an adequate opportunity to respond to the court’s concerns, nor did the
court follow procedures regarding the submission of proposed findings of fact and
sworn testimony. We review the district court’s grant of summary judgment de novo.
See Ealy, 109 F.4th at 964.
Rule 56(f) allows summary judgment on the court’s own motion if the court
notifies the parties of the potentially dispositive issue and gives them a chance to
respond. See FED. R. C IV. P. 56(f); Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Gaetjens
v. City of Loves Park, 4 F.4th 487, 495 (7th Cir. 2021). This procedure is the same even for
pro se litigants like Matz. See Williams v. Wahner, 731 F.3d 731, 733 (7th Cir. 2013).
Matz received adequate notice but did not present any evidence to create a
genuine issue of fact about whether Galloway’s performance amounted to malpractice.
Specifically, to prove legal malpractice in Wisconsin, Matz must show that Galloway
breached a standard of reasonable care and that Matz would have prevailed on the
merits in the underlying action but for the breach. Helmbrecht v. St. Paul Ins. Co.,
362 N.W.2d 118, 124 (Wis. 1985); see Pierce v. Colwell, 563 N.W.2d 166, 169 (Wis. Ct. App.
1997). The court told Matz that he had not presented any evidence from which a
reasonable factfinder could conclude that he would have won his civil-rights suit had it
not been for Galloway’s errors.
Although Matz responded, we agree with the district court that no reasonable
juror could conclude that Galloway’s omissions could have changed the outcome of the
litigation. Matz insists that Galloway was negligent for failing to call inmate witnesses
who had provided affidavits for Matz in a different case. But he does not explain what
was in those affidavits (and we cannot locate them in the record) that would have
bolstered his case. Further, Matz’s deliberate-indifference claims would have failed
even if Galloway had retained a medical expert to testify about Matz’s mental-health
status: Matz did not show that alternatives to his confinement would have prevented
self-harm or that the defendants knew about better options; he did not prove that the
defendants were aware of his inability to stop his self-harm; he did not demonstrate
that other prisons offered better mental-health treatment or that the defendants knew of
disparities in treatment; and he lacked evidence that the defendants were aware of his
mental-health crisis.
AFFIRMED

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