Eric D. Conner v. JOLINDA J. WATERMAN, NATHAN BETHEL, and SANDRA MCARDLE

NONPRECEDENTIAL DISPOSITION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
Argued January 29, 2020
Decided February 11, 2020

Before

WILLIAM J. BAUER, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 19-2317
ERIC D. CONNER,
Plaintiff-Appellant,
v.
JOLINDA J. WATERMAN, NATHAN BETHEL,
and SANDRA MCARDLE,
Defendants-Appellees.

Appeal from the United
States District Court for the
Eastern District of Wisconsin.

No. 17-CV-948
David E. Jones,
Magistrate Judge.
Order

Eric Conner contends that staff members at a prison in Wisconsin violated the Cruel
and Unusual Punishments Clause of the Eighth Amendment, applied to the states by
the Fourteenth, when they did not ensure that he always received a medicated cream to
treat his dry and cracking feet. The parties consented, 28 U.S.C. §636(c), to decision by a
magistrate judge, who awarded summary judgment to the defendants.

Conner has spent a good deal of his prison time in what Wisconsin calls an observa-
tion cell. When released from observation he threatens self harm. He does not carry

No. 19-2317 Page 2
through on the threats, which a psychologist has concluded are manipulative, but they
precipitate return to an observation cell. (He has sued over his occasional removal from
observation cells, though he was unsuccessful. Conner v. Rubin-Asch, No. 19-1626 (7th
Cir. Nov. 4, 2019) (nonprecedential decision).) But while he is in an observation cell the
prison restricts his possessions, lest they be used to commit suicide or inflict non-lethal
harm. Conner has filed suits about these limitations. This is one of them. Conner v. Ho-
em, No. 18-3075 (7th Cir. Apr. 23, 2019) (nonprecedential decision), is another.

Conner has dry and cracking skin, especially on his feet. When he arrived at the
Wisconsin Secure Program Facility the medical staff furnished him with Minerin cream,
an over-the-counter medication that alleviates this condition. He took that cream with
him when assigned to an observation cell and soon used it to block the cameras that aid
the observation. (He applied the cream to toilet paper, then stuck the paper to the cam-
eras’ lenses.) That caused the prison to take away the tubes of cream. The prison’s psy-
chologist put a note outside Conner’s cell instructing other members of the staff not to
let Conner have the tubes again but to apply the cream during daily rounds. Some days
that worked, but others it did not—either because Conner refused to allow the cream to
be applied (he asserted that it would come off on the floor because he was not allowed
to wear socks while under observation) or because the staff making medical rounds did
not have it or failed to apply it. This spotty delivery during a several-week period in
2017 violated the Constitution, Conner contends.

The argument is frivolous. The Eighth Amendment prevents a prison from ignoring
a prisoner’s serious medical conditions, see Farmer v. Brennan, 511 U.S. 825 (1994), but
Conner’s condition is not serious. We held exactly that in Hoem when rejecting Conner’s
contention that the absence of reliable cream administrations prevented him from tak-
ing showers, because his skin would dry out afterward. We stated that no reasonable
jury could find that the lack of skin cream (and its effect on showers) was cruel and un-
usual under contemporary standards of decency or deprives Conner of basic needs. We
relied on Farmer, 511 U.S. at 846, and Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

Hoem and this proceeding began as one suit, which the magistrate judge split into
two. The propriety of that decision is not before us, though it is questionable. One of the
items at issue in Hoem was skin cream, which Conner asserted was essential to allow
him to shower. Because of this overlap, joinder was proper under Fed. R. Civ. P. 18 and
20(a)(2)(B). The magistrate judge’s decision to split the complaint under Rule 21 sepa-
rated the defendants into different groups, but the theories of liability still coincide. We
repeat what we said in Hoem: the short-term absence of a cream that might alleviate dry
and cracking skin does not present a plausible constitutional claim.

No. 19-2317 Page 3
What’s more, although the Eighth Amendment prevents a prison from ignoring a
prisoner’s serious medical needs, the record shows that these defendants did not ignore
Conner’s skin condition. He was provided with an appropriate cream, which he mis-
used. After taking the cream away, defendants still provided treatment, though not on
the schedule Conner preferred. The district court properly granted judgment for the de-
fendants.

Because this suit is frivolous, the claim in the district court counts as one “strike” for
the purpose of 28 U.S.C. §1915(g), and this appeal is a second.
AFFIRMED