Full Opinion (html_with_citations)

                               In the

    United States Court of Appeals
                  For the Seventh Circuit
                     ____________________
No. 19-1562
JAMES A. LEWIS,
                                                 Plaintiff-Appellant,
                                 v.

ANGELA MCLEAN and
JOSEPH CICHANOWICZ,
                                              Defendants-Appellees.
                     ____________________

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

 SUBMITTED OCTOBER 18, 2019 — DECIDED OCTOBER 29, 2019
                ____________________

   Before FLAUM, RIPPLE, and SYKES, Circuit Judges.
    PER CURIAM. We previously vacated the entry of sum-
mary 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 rea-
sonable jury could find that a nurse and a correctional officer
acted with deliberate indifference by delaying medical atten-
tion for Mr. Lewis’s painful back condition. Lewis v. McLean,
2                                                  No. 19-1562
864 F.3d 556
, 563–65 (7th Cir. 2017). We also suggested that,
on remand, the district court should consider whether to re-
instate 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 dis-
trict 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.
                               I.
                         BACKGROUND
   When the district court first recruited counsel for
Mr. Lewis on remand, its order explained that “the scope of
                                                               1
representation extends to proceedings in this court only.”
The order directed Mr. Lewis to work with counsel and not
communicate directly with the court “from this point for-
             2
ward.” Soon after, the district court directed Mr. Lewis to
“state whether he intend[ed] to proceed with the medical
                     3
malpractice claim” 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


1   R.113 at 1.
2
Id.
3   R.117.
No. 19-1562                                                        3

                                               4
the defendants for spoliation of evidence. The district court
reminded Mr. Lewis to communicate through his attorney.
Counsel later informed the court that Mr. Lewis was with-
drawing his motion to reinstate the medical malpractice
          5
claim.
    At trial, Mr. Lewis testified that a little after 5:00 a.m. on
February 8, 2014, after waking and trying to stand, he expe-
rienced debilitating pain from the base of his neck down his
back. “[T]here[ was] nothing wrong” with his arms or legs,
                                                                    6
but the pain confined him to a sitting position on his bed.
Through the pain, he leaned forward about four feet and
“barely hit” the call button to the left of his cell door to indi-
                                  7
cate a medical emergency. 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
                                                   8
nurse, and Lieutenant Joseph Cichanowicz, a security su-
pervisor, 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


4   R.121.
5   R.135.
6   R.193 at 16:21–24; 10:6–12.
7
Id.
 at 10:14–24; 11:13–14.
8Mr. Cichanowicz has since been promoted to Captain. R.193 at 117:15–
18.
4                                                  No. 19-1562

hands through the trap in the cell door for shackling. Lieu-
tenant Cichanowicz told Mr. Lewis that, because he had
reached the call button next to the cell door, he could man-
age 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 but-
ton—a feat he deemed impossible because of the pain. Lieu-
tenant Cichanowicz suggested that Mr. Lewis could crawl to
the door. After some back-and-forth, Mr. Lewis yelled,
                                                               9
“What part of ‘I can’t stand’ don’t you all understand?”
Nurse McLean and Lieutenant Cichanowicz then left.
    After another twenty to thirty minutes, Mr. Lewis at-
tempted 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, de-
manded that the officers use a neck brace and stretcher, but
instead they shackled Mr. Lewis and put him in a wheel-
chair. 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 respond-
ed to Mr. Lewis’s call, he did not consider Mr. Lewis’s situa-

9
Id.
 at 17:4–5.
No. 19-1562                                                      5

tion a medical emergency—which would involve symptoms
like “excessive blood loss,” “unconscious[ness],” or “shallow
                 10
breathing.” Mr. Lewis, however, was “sitting on his bed …
                                                       11
with his hands up on his lap” and was “coherent.” Lieu-
tenant Cichanowicz recalled Mr. Lewis insisting that he
could not reach the door and that he was “agitated” and
                         12
“visibly upset.” 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
       13
cell. Lieutenant Cichanowicz doubted Mr. Lewis because,
as he opined, the reach from Mr. Lewis’s bed to the trap
                                                            14
door would have been “about the reach for the button.”
   Nurse McLean, too, testified that she did not view
Mr. Lewis’s situation as a “serious medical emergency” be-
cause Mr. Lewis was talking and breathing, had an airway,
was sitting, and was not paralyzed (he could move his ex-
                15
tremities). 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



10
Id.
 at 131:6–11.
11
Id.
 at 138:6–19.
12
Id.
 at 138:14–15; 146:22.
13   Id. at 138:19.
14   Id. at 148:23–24.
15   R.190 at 16:2–19.
6                                                             No. 19-1562

                                                       16
forward to push the button minutes later. 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
              17
7:12 a.m. 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 con-
trast, 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 any-
thing 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.




16   Id. at 16:2–6.
17   We do not know the significance of the 7:12 a.m. start time.
No. 19-1562                                                    7

    The jury returned a verdict in the defendants’ favor.
Mr. Lewis brought a pro se motion to set aside the jury ver-
dict and for a new trial, arguing that he received ineffective
assistance of counsel and that the court had erroneously re-
fused 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 re-
cruited counsel represented him “on his federal claim, on-
       18
ly.” The district court denied his motion because a civil liti-
gant 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 ev-
er 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
            19
alike. The court also considered whether the verdict was
against the weight of the evidence but, after viewing the ev-
idence in the light most favorable to the verdict, concluded
that it was well-supported.
                               II.
                        DISCUSSION
   We review a decision to deny a Rule 59(a) motion for
abuse of discretion. Moore ex rel. Estate of Grady v. Tuelja, 546

18   R.164 at 1.
19   R.172 at 3.
8                                                  No. 19-
1562 F.3d 423
, 427 (7th Cir. 2008). A new trial is appropriate if the
jury’s verdict is “against the manifest weight of the evidence
or if the trial was in some way unfair to the moving party.”
Martinez v. City of Chicago,
900 F.3d 838, 844
 (7th Cir. 2018)
(quoting Venson v. Altamirano,
749 F.3d 641, 656
 (7th Cir.
2014)) (internal quotation marks omitted).
    Mr. Lewis submits that the trial was unfair to him. He
first contends that the district court improperly denied him
the opportunity to present pro se motions to reinstate his
state-law claim for medical malpractice. Specifically,
Mr. Lewis argues that the “four corners” of the district
court’s order recruiting counsel limited the scope of repre-
sentation to only the “proceedings in this court only,” which
                                                    20
did not at that time include a malpractice claim. This is a
strained reading of that order; as the district court explained,
the “‘[p]roceedings in this court’ include all matters leading
                                        21
up to a final judgment on the merits.” Any motion to rein-
state a state-law claim over which the district court previous-
ly had exercised jurisdiction is obviously included in such
proceeding. See Lewis, 864 F.3d at 565–66. Because his medi-
cal malpractice claim was also against the physician who al-
legedly failed to give instructions to take him to a hospital
using a stretcher and neck brace, Mr. Lewis adds that the
denial of his motion to reinstate the claim deprived him of
the chance to have the physician testify at trial. The district
court, however, could not have revived a claim against the
physician: we ruled in the first appeal that summary judg-
ment was properly entered in her favor on all claims.
Id.
 at

20   Appellant’s Br. 12–13.
21   R.113 at 1 n.1.
No. 19-1562                                                   9

563. Furthermore, Mr. Lewis could have subpoenaed the
doctor’s testimony regardless whether she was a defendant.
    Mr. Lewis next contends that the district court wrongly
prevented him from representing himself at trial. He admits
that he did not ask the court to allow him to represent him-
self, but he now protests that an earlier order convinced him
he could not. He cites the order advising him, when newly
represented, “that he must refrain from filing directly with
                                      22
the court now that he has counsel.” Mr. Lewis views this
advice as inconsistent with the district court’s later statement
that if Mr. Lewis had wanted to represent himself at trial,
“he should have brought that issue to [this court’s] attention
                                           23
at that time, not in a post-trial motion.” There is nothing
confusing or contradictory about the two orders. One ad-
vised him that only counsel should file papers with the court
while Mr. Lewis was represented. The second made the sen-
sible observation that the court could not have granted a re-
quest that was never made. Nothing stopped Mr. Lewis
from asking recruited counsel to withdraw. Cty., Mun.
Emps.’ Supervisors’ & Foremen’s Union Local 1001 v. Laborers’
Int’l Union,
365 F.3d 576, 579
 (7th Cir. 2004) (“[A]n attorney
must withdraw from the representation as soon as the client
so instructs.”). Mr. Lewis’s misunderstanding of these two
orders is not grounds for a new trial.
    Mr. Lewis also contends that the defendants unfairly
prejudiced his case by failing to produce a video recording
of his cell between 5:15 a.m. and 7:12 a.m. Mr. Lewis argues


22   Appellant’s Br. 16–18; R.122.
23   R.165 at 3.
10                                                  No. 19-1562

that he was denied the chance to corroborate his testimony
about being immobilized by pain during this time period.
We also expressed concern about the whereabouts of the
missing video; in our previous decision, we advised the dis-
trict court to consider reopening discovery so that Mr. Lewis
could “explore more fully whether additional recordings ex-
ist and, if not, why more video was not preserved.” Lewis,
864 F.3d at 565
. On remand, with the assistance of counsel,
Mr. Lewis did just that. But the district court ultimately con-
cluded that neither defendant was responsible for not retain-
ing the video.
    Although Mr. Lewis does seem to argue on appeal that
the defendants destroyed the video in bad faith, he does not
argue that these defendants had a duty to preserve the video
recording. For an adverse-inference instruction to be given,
he needed to establish both a duty to preserve and destruc-
tion in bad faith. See Bracey v. Grondin,
712 F.3d 1012, 1019
(7th Cir. 2013). We “review a district court’s denial of an ad-
verse inference instruction for abuse of discretion.”
Id.
 (citing
Park v. City of Chicago,
297 F.3d 606, 615
 (7th Cir. 2002)).
Thus, where Mr. Lewis did not establish (or even allege) that
the defendants had a duty to preserve the video, the district
court was within its discretion in declining to give an ad-
verse-inference instruction for spoliation of evidence.
   Despite not making a finding of spoliation, the district
court prohibited the defendants from arguing that Mr. Lewis
could move during that time. Mr. Lewis insists that the de-
fendants violated that admonition by introducing testimony
that he could move his hands and that he did not cry and
beg. It was never in question, however, that Mr. Lewis could
move his hands—Mr. Lewis testified that he reached for-
No. 19-1562                                                 11

ward twice to touch the call button and that there was
                                         24
“nothing wrong” with his arms or legs. Nor was it in dis-
pute that Mr. Lewis cried and begged for help—both while
he was in bed and while on the floor—during this time peri-
od. No one testified otherwise: Lieutenant Cichanowicz testi-
fied that Mr. Lewis became “emotional” and “visibly upset”
                          25
while they talked; Nurse McLean agreed that Mr. Lewis
had asked for help and been adamant about feeling such
pain that he could not stand.
    Mr. Lewis also argues that the verdict was against the
manifest weight of the evidence. When asked to overturn a
jury verdict, our “narrow” role is to determine if a “reasona-
ble basis exists in the record to support the verdict.” Grady,
546 F.3d at 429 (quoting Trzcinski v. Am. Cas. Co.,
953 F.2d 307, 315
 (7th Cir. 1992)) (internal quotation marks omitted).
A verdict is set aside only if no rational jury could have ren-
dered it.
Id. at 427
.
    We note that the district court applied an incorrect
standard when ruling on the Rule 59 motion by viewing the
evidence in the light most favorable to the prevailing parties.
The district court relied on Kapelanski v. Johnson,
390 F.3d 525, 530
 (7th Cir. 2004), where we viewed the evidence in the
light most favorable to the prevailing parties upon appellate
review of the record. The district court was required, howev-
er, to perform “its own assessment of the evidence present-
ed.” Mejia v. Cook Cty.,
650 F.3d 631, 634
 (7th Cir. 2011). In
Mejia, we reversed the district court for viewing the evidence


24   R.193 at 16:21–24.
25
Id.
 at 146:20–22.
12                                                 No. 19-1562

in the light most favorable to the prevailing party, rather
than “neutrally.” Id.; see 11 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 2806 (3d ed. 2019).
    The use of the wrong standard “normally make[s] a re-
mand appropriate.” Mejia,
650 F.3d at 634
. In Mejia, the dis-
trict court denied the motion for a new trial because it rea-
soned that “it could not set aside the verdict on
weight-of-the-evidence grounds ‘unless the testimony is
such that reasonable persons could not believe it, because it
contradicts indisputable physical facts or laws.’”
Id. at 633
.
We held that the “indisputable facts” language applies only
when the district court seeks to remove evidence from the
weighing process.
Id. at 634
. It does not apply when the
court merely weighs evidence.
Id.
 Reasoning that usage of
the “indisputable facts” language “elevate[s] the standard
for a motion for a new trial,” and noting that the district
court’s discussion of the facts “[made] clear that the district
court wrongly believed that its power to weigh the evidence
was limited by the ‘indisputable facts’ language,” we re-
manded the case for reconsideration under the proper
standard.
Id.
 We emphasized that “the district court is in the
best position to evaluate the evidence and determine wheth-
er the verdict was against the manifest weight”—so it must
perform its own assessment of the evidence presented.
Id. at 635
.
    In this case, by contrast, the district court’s error was
harmless. We are confident that a rational jury could have
arrived at the verdict even when the evidence is viewed neu-
trally. Indeed, the district court explicitly stated that “[t]he
jury could reasonably find that neither Cichanowicz and
McClean [sic] had consciously failed to take reasonable
No. 19-1562                                                       13

measures to provide treatment for Lewis’s serious medical
           26
need.”          It   concluded   that   the   jury’s   verdict   was
                                         27
“well-supported by the evidence.” Therefore, although the
district court stated the wrong standard, it applied the correct
one.
    We agree that this verdict is well-supported. Prison offi-
cials are liable under the Eighth Amendment if they know of
and disregard a substantial risk of serious harm to an in-
mate’s health. See Farmer v. Brennan,
511 U.S. 825, 837
 (1994).
Delaying treatment can constitute deliberate indifference in
some circumstances. Perez v. Fenoglio,
792 F.3d 768
, 777–78
(7th Cir. 2015). In this case, however, a jury reasonably could
find that Lieutenant Cichanowicz and Nurse McLean were
justified in not immediately sending Mr. Lewis to the hospi-
tal when he would not agree to be transported to the health
unit. Nurse McLean could not treat Mr. Lewis in his cell, and
Lieutenant Cichanowicz testified that officers must be wary
of attempts to lure them into prisoners’ cells. See Scarver v.
Litscher,
434 F.3d 972, 977
 (7th Cir. 2006) (discussing relation-
ship between security concerns and treatment of prisoners).
Nurse McLean did not think emergency care was necessary
when Mr. Lewis could move his limbs, breathe, and talk; in
other words, she exercised her professional judgment. “[A]
treatment decision that’s based on professional judgment
cannot evince deliberate indifference.” Zaya v. Sood,
836 F.3d 800, 805
 (7th Cir. 2016). Lieutenant Cichanowicz was entitled
to rely on that judgment. See Giles v. Godinez,
914 F.3d 1040, 1049
 (7th Cir. 2019). A rational jury could find that, even if

26   R.165 at 3.
27
Id.
14                                              No. 19-1562

wrong, the decision to monitor Mr. Lewis and wait to call a
physician until his condition grew worse did not rise to the
level of deliberate indifference.
   For these reasons, we affirm the judgment of the district
court.
                                                AFFIRMED