Chicago, Illinois 60604 Submitted January 17, 2014 Decided January 27, 2014 Before… v. Paul Sumnicht

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 17, 2014*
Decided January 27, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13-­‐‑3107
OSCAR GARNER,
Plaintiff-­‐‑Appellant,
v.
PAUL SUMNICHT, et al.,
Defendants-­‐‑Appellees.
Appeal from the United
States District Court for the
Western District of Wiscon-­‐‑
sin.
No. 11-­‐‑cv-­‐‑829-­‐‑slc
Stephen L. Crocker, Magis-­‐‑
trate Judge.
Order
Oscar Garner, a Wisconsin prisoner who claims to be mentally ill, contends in this
suit under 42 U.S.C. §1983 that a prison physician and other defendants violated the
Constitution by subjecting him to cruel and unusual punishment. He suffers from lac-­‐‑
tose intolerance and has symptoms similar to irritable bowel syndrome. He regularly
sought treatment. For more than four years the prison’s medical staff refused to give
him a lactose-­‐‑free diet and often declined to provide lactase supplements or other medi-­‐‑
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 13-­‐‑3107 Page 2
cine. Instead it told him to be careful when choosing foods from the prison’s regular
menu, and when his weight dropped unduly it furnished a daily bag of high-­‐‑calorie
foods (some of them also high in lactose) to replace what he missed by declining lac-­‐‑
tose-­‐‑containing foods on the prison’s regular diet. Garner maintains that this approach,
emphasizing self-­‐‑discipline (and dependent on a prisoner’s ability to learn and remem-­‐‑
ber which foods he can tolerate and which he can’t), has not worked, and that his condi-­‐‑
tion is painful and has caused him diarrhea, vomiting, vitamin deficiency, and severe
weight loss. The prison’s approach is so obviously bad, Garner maintains, that it vio-­‐‑
lates the eighth amendment under the approach taken in Farmer v. Brennan, 511 U.S. 825
(1994), and Estelle v. Gamble, 429 U.S. 97 (1976).
The district court granted summary judgment for the defendants. 2013 U.S. Dist.
LEXIS 127112 (W.D. Wis. Sept. 6, 2013). The court concluded that because the prison’s
medical staff regularly listened to Garner and did something about his condition, the
problem is at most medical malpractice, which Farmer holds does not violate the eighth
amendment. (This is the essence of the court’s long and careful opinion; given our dis-­‐‑
position, we can omit details.)
One potential problem with the district court’s approach is that 4½ years is a long
time for medical personnel to stick with a treatment regimen that does not appear to
work. The Constitution does not duplicate the law of medical malpractice or ensure top-­‐‑
notch care, but neither does it allow prisons to bypass available treatments that would
solve a prisoner’s serious medical problem and stick with drugs or regimens known not
to work. See, e.g., Gonzalez v. Feinerman, 663 F.3d 311, 314–15 (7th Cir. 2011); Berry v. Pe-­‐‑
terman, 604 F.3d 435, 441 (7th Cir. 2010); Greeno v. Daley, 414 F.3d 645, 653–55 (7th Cir.
2005). We call this a “potential” problem, however, because it is not clear on this record
that the other approaches Garner favors would do better for him; perhaps the approach
taken by the prison’s medical staff is normal in the medical profession in light of costs
and side effects associated with Garner’s proposals, or perhaps the approach he favors
would not have worked much better for him than the one the prison adopted.
We are not physicians, nor is the magistrate judge. To resolve a claim such as Gar-­‐‑
ner’s—to distinguish among sound but unavailing treatment, malpractice, and deliber-­‐‑
ate refusal to apply a treatment that would work for the patient—requires focused evi-­‐‑
dence, not just the sort of general information posted on WebMD or another online re-­‐‑
source. Cf. Jackson v. Pollion, 733 F.3d 786 (7th Cir. 2013). Normally we would expect the
plaintiff in a serious case about medical treatment to offer expert testimony. But Garner
is a prisoner, who not only does not have a lawyer but also claims to be mentally ill.

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No. 13-­‐‑3107 Page 3
Under these circumstances, the district court should have attempted to recruit a
lawyer for Garner, who appears to be unable to present a case dependent on medical
evidence—yet has enough of a substantive claim that the court cannot dismiss it as ob-­‐‑
viously deficient. The criteria of Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc), in-­‐‑
dicate the value of counsel here. Even though Garner may not have distinctly alerted
the court to the reasons why he needed a lawyer, it is possible that with his mental limi-­‐‑
tations Garner himself may not have understood how valuable counsel could have been
in this suit at the summary judgment stage.
One of Garner’s appellate arguments is that the district court should have helped
him secure counsel. The court understood him to have asked for assistance in obtaining
counsel but took the timing of the request as signifying that Garner wanted a lawyer
only for trial. Having decided to grant summary judgment, the judge thought it unnec-­‐‑
essary to rule on Garner’s request, calling it “moot”. We suppose that it is possible to
understand the request as one limited to trial, but Garner needed counsel sooner, to
help compile a record, more than he would have needed counsel later. A judge should
take account of a prisoner’s (especially a mentally subpar prisoner’s) unfamiliarity with
the law, and the legal process, before assuming that a plaintiff has abjured the assis-­‐‑
tance of counsel at what may be the most important stage of the litigation. Garner’s re-­‐‑
quest certainly was not “moot”; there is a live controversy between these litigants.
We therefore vacate the judgment and remand this case so that the district court
may attempt to find a lawyer willing to represent Garner. The court should allow both
sides to secure and present expert medical evidence and then proceed as appropriate
under this order and decisions such as Gonzalez, Berry, and Greeno.
VACATED AND REMANDED

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