Davonte Love v. Kevin Nyklewicz

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 10, 2016 *
Decided March 11, 2016
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 15-1913
DAVONTE LOVE,
Plaintiff-Appellant,
v.
KEVIN NYKLEWICZ, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 11-C-882
Charles N. Clevert, Jr.,
Judge.
O R D E R
DaVonte Love, a Wisconsin inmate who is blind in one eye, challenges the grant
of summary judgment against him in this action under 42 U.S.C. § 1983, asserting that
his Eighth Amendment rights were violated when he was prevented from attending
medical appointments outside the jail. We affirm.
Because the district court decided this case on a motion for summary judgment,
we recite the facts in the light most favorable to Love, the nonmoving party. See Greeno v.
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 15-1913 Page 2
Daley, 414 F.3d 645, 648 (7th Cir. 2005). Love has been blind in his right eye since the age
of 10, the result of a childhood accident. At some unspecified time after the accident, he
underwent a partial enucleation. 1 In late 2008, while he was in Milwaukee County
custody, Love was seen by a nurse at the jail for pain and fluid drainage in his right eye
after being pepper-sprayed; she noticed a small amount of drainage dried around the
eye, but ruled out an infection and arranged for a nurse practitioner to evaluate and treat
him a few days later. Love complained of bleeding of the eye, but the examining nurse
practitioner remarked that she saw no redness, tearing, or inflammation of his eyelids.
Around this time, Love, through his “Huber” privileges,2 independently set up
an appointment at an optometrist’s office. The appointment, however, was not verified
by classification staff (the record does not say why), and he was not permitted to leave.
This appeal centers on two scheduled eye appointments that Love was not
permitted to attend the following summer, on June 17 and 22. Love’s June 17th
appointment was confirmed by a fax transmittal from America’s Best Contacts &
Eyeglasses in Milwaukee. The fax contained two handwritten notations from prison
classification officer Alicia Magee. One notation acknowledged that she had spoken to
an employee at the store and verified Love’s upcoming appointment; the other notation
remarked that she had informed Kevin Nyklewicz, a captain at the jail, and “he said hold
1 Partial enucleation, according to Dr. Michael Grebner, the medical director of
Milwaukee County Correctional Health Services during Love’s incarceration, “is a
surgical procedure performed following severe trauma to the eye when restoration of
vision is not possible. The contents of the eye are removed. An inert material is then
placed inside the empty globe and the globe is sewn closed.”
2 Love’s privileges under Wisconsin’s “Huber Law,” WIS . STAT . § 303.08,
permitted him to be released for medical treatment outside the jail (as well as for other
approved purposes). Inmates wishing to exercise Huber privileges set up their own
appointments, and classification staff at the jail then verify the appointments, ensure
travel arrangements, and confirm that the releases are appropriate, raise no security
concerns, and comply with judicial orders and the sheriff’s office’s policies. Although
these privileges enable inmates to schedule their own appointments, Dr. Grebner stated
that Milwaukee County’s correctional system “does not depend in any way upon inmate
initiated appointments,” and “all medically necessary outside inmate care is scheduled
through the Correctional Health System.”

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No. 15-1913 Page 3
off until he says send him.” (Captain Nyklewicz, for his part, stated in a declaration that
he had no involvement in day-to-day operations of the Huber program during 2008 and
2009, that he “did not personally see any of Love’s documented medical appointments
for which Love wanted to exercise his Huber privileges,” that Love never told him
directly about any health conditions, and that he had no access to Love’s medical
records.) Love’s June 22nd appointment was confirmed by a fax transmittal from Grange
Vision in Milwaukee, and Magee noted at the bottom of the fax that she had verified the
appointment with the office. Love was not permitted to attend either appointment.
Between September 21 and 24, Love scheduled two more appointments for eye
examinations and another with a chiropractor, but these too were not verified by
classification staff and Love was not released.
Love’s Huber privileges were subsequently suspended for a month at the
Milwaukee County Sheriff’s request (the record does not say why), and upon
reinstatement he was released to attend an eye examination on October 30. But he
missed a scheduled chiropractic appointment on November 2 and then did not return to
jail, and was considered an escapee until his apprehension two days later. He then was
placed in disciplinary housing and had no other appointments before his release from
county custody on December 22.
In September 2011 Love brought this suit against the Milwaukee County Sheriff,
various jail employees, a doctor, and the jail’s security director, alleging that they had
denied him his Huber privileges to attend eye and mental-health appointments, and he
requested the assistance of counsel. A magistrate judge screened his complaint,
see 28 U.S.C. § 1915A, and allowed him to proceed on his claim that defendants had been
deliberately indifferent to his serious medical needs. But the judge declined Love’s
request for counsel, explaining that he hadn’t shown he had tried to find a lawyer and in
any event the issues in the case appeared to be straightforward and Love’s own
submissions suggested that he was competent to litigate it himself.
After discovery Love amended his complaint, substituting Captain Nyklewicz
and two unnamed classification officers as defendants. Adding a claim under the
Americans with Disabilities Act, see 42 U.S.C. § 12132, he asserted that the classification
officers refused to follow a state judge’s order granting him Huber privileges to seek
medical care, mental-health treatment, work or job training, and education, and that
Captain Nyklewicz had cancelled his privileges in April 2010. The defendants moved to
dismiss the complaint, and the district court denied the motion, permitting Love to

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No. 15-1913 Page 4
proceed on only his deliberate-indifference claim. The court reopened discovery to
provide Love an opportunity to identify the unnamed defendants.
Love again requested recruitment of counsel, this time substantiating his efforts
to obtain a lawyer and asserting that his mental-health issues and limited education
hindered his ability to litigate his claim and had led him to depend on others’ assistance.
But the court declined to recruit counsel, stating that Love so far had shown that he was
capable of “advocating for himself, investigating his claims, and conducting discovery”;
the court reiterated that the claim was “not overly complex.”
The court granted the defendants’ motion for summary judgment. First,
regarding Love’s claim that the defendants had violated Wisconsin’s Huber statute, the
court explained that a claim asserting a violation of Wisconsin state law was not
cognizable under § 1983. See Domka v. Portage Cnty., Wis., 523 F.3d 776, 784 (7th Cir. 2008).
With respect to Love’s claim that his Eighth Amendment rights had been violated when
he was denied release from jail for medical appointments, the court explained that
Captain Nyklewicz could not be liable because he was alleged to have been personally
involved in only one incident, in April 2010—long after Love’s release from custody in
December 2009—and the court considered it undisputed, based on Nyklewicz’s
declaration, that he was not responsible for the day-to-day operations of the Huber
program in 2008 and 2009. And even if Captain Nyklewicz had been involved in
denying Love his Huber privileges, added the court, Love had not submitted evidence to
support a finding that any of these appointments was for a serious medical need (as
opposed to a routine examination). And to the extent Love asserted that he was being
denied release for mental-health needs, he could not point to any evidence reflecting that
he had appointments for mental-health treatment outside the jail. Finally, the court
remarked that Love had not asserted that the medical or mental-health treatment he
received at the jail was substandard.
On appeal Love first disputes the district court’s determination that he failed to
corroborate his claim that his appointments were needed to address a serious medical
need. We are skeptical of the district court’s conclusion that he hadn’t submitted
evidence to support a finding that he had a serious medical need. Even if Love had lost
sight in his right eye long before his incarceration, his medical records at the prison
reflect that on several occasions he was seen by medical staff in response to complaints
of chronic pain, discharge, and bleeding in his right eye—symptoms that even a
layperson could recognize as requiring a doctor’s attention. See Knight v. Wiseman,

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No. 15-1913 Page 5
590 F.3d 458, 463 (7th Cir. 2009). It is unclear from the record, however, whether Love’s
appointments at vision centers in June 2009 stemmed from these complaints.
But even if we assume that Love scheduled these appointments for a serious
medical need, he still had the burden at summary judgment to produce evidence
sufficient for a reasonable jury to infer that Captain Nyklewicz was deliberately
indifferent to his condition. See Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). Prison
officials can manifest deliberate indifference to a prisoner’s needs by “intentionally
denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104–05 (1976); Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 829 (7th Cir. 2009). According to Love,
Nyklewicz’s role in keeping him from his approved appointments is borne out by Alicia
Magee’s notation on the fax of June 2009, but that notation—without more—does not
permit the inference that Nyklewicz acted with the necessary mental state, i.e., that he
knew that Love’s appointments were necessary to address a serious medical need and
disregarded that need. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). Love cannot
point to evidence suggesting that he informed Nyklewicz about his condition, or that
Nyklewicz knew about—or should have been able to infer—his serious need to see an
eye doctor.
To the extent Love now asserts that the classification officers processing his
appointments knew about his needs and deliberately obstructed treatment, he does not
point to any evidence from which this reasonably could be inferred. Even if the staff had
seen Love’s records and knew of his medical needs, this knowledge by itself would not
be enough for a factfinder to conclude that the staff understood that outside care was
necessary or that medical staff had ignored or intentionally mistreated him. See Hayes v.
Snyder, 546 F.3d 516, 527 (7th Cir. 2008). In any event Love’s failure to identify these
classification officers—despite having had an opportunity through discovery to do
so—dooms his claim. A deliberate-indifference claim requires an inquiry into an
official’s state of mind, see Arnett, 658 F.3d at 751, and the individualized nature of this
inquiry requires “identified culprits,” See Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir.
2005) (quotation and internal citation omitted).
Finally Love contends that the district court abused its discretion in denying his
requests to recruit counsel. See 28 U.S.C. § 1915(e)(1). With regard to the denial of his
initial motion (and subsequent requests for reconsideration), Magistrate Judge
Goodstein and Judge Clevert properly determined that Love had not demonstrated
efforts to obtain counsel on his own. See Bracey v. Grondin, 712 F.3d 1012, 1016 (7th Cir.

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No. 15-1913 Page 6
2013). The subsequent denial is more problematic—Judge Clevert’s reasons were
cursory, as he did not explain why he deemed Love’s case “not overly complex,” let
alone address Love’s assertion that he needed to rely on others’ assistance—a factor
relevant to assessing Love’s personal ability to litigate the case. See Dewitt v. Corizon, Inc.,
760 F.3d 654, 658 (7th Cir. 2014). But Love has not shown how he was prejudiced by the
denial of counsel—a reasonable likelihood that counsel would have made a difference in
the outcome of the litigation. Id. at 657. Even if Love had been able to identify the
classification officers, the evidence does not permit an inference that they or Nyklewicz
knew of a substantial risk to Love if he were not allowed to attend his out-of-jail eye
appointments.
AFFIRMED.

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