                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                              Submitted July 19, 2006*
                               Decided July 25, 2006

                                       Before

                   Hon. KENNETH F. RIPPLE, Circuit Judge

                   Hon. DANIEL A. MANION, Circuit Judge

                   Hon. DIANE P. WOOD, Circuit Judge

No. 05-3659

TITUS HENDERSON,                              Appeal from the United States District
     Plaintiff-Appellant,                     Court for the Western District of
                                              Wisconsin.
      v.
                                              No. 03 C 729
DAVID BELFUEIL, JEFFREY P.
ENDICOTT, SUZANNE DEHAAN,                     Barbara B. Crabb,
et al.,                                       Chief Judge.
        Defendants-Appellees.


                                     ORDER

       On September 18, 2002, Tronnie Dismuke, an inmate at Redgranite
Correctional Institution (RGCI) in Redgranite, Wisconsin, was attacked in the


      *
         After an examination of 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. App. P. 34(a)(2). We have received notification that the state
employee defendants will not be participating in this appeal. Accordingly, the appeal
will be submitted for decision without the filing of a brief by the state employee
defendants.
No. 05-3659                                                                   Page 2

shower and was left with blood on his hand and back. Corrections officers
discovered a makeshift weapon—a pair of tweezers affixed to a pen—stashed in a
laundry basket in the shower area. Dismuke identified it as the weapon used to
attack him, and he identified fellow inmate Titus Henderson as his attacker.
Henderson denied any involvement.

       Corrections officers contacted defendant David Belfueil, a detective with the
Redgranite Police Department and the liaison between the department and RGCI,
to investigate the incident. Belfueil interviewed Henderson at RGCI on September
26 after obtaining a waiver of his Miranda rights. On October 1, Henderson was
brought to a medical examination room at the prison to have blood drawn in
furtherance of the investigation. Belfueil says Henderson consented to the blood
test; Henderson denies having consented to the procedure and says he insisted that
Belfueil get a warrant. Henderson claims he was held down by two prison guards
while the sample was taken; Belfueil avers that the sample was taken without
incident. It is undisputed that the nurse who took the blood sample did not
successfully draw blood on the first attempt and had to insert the needle a second
time.

       Henderson filed suit under 42 U.S.C. § 1983 against various defendants
whom he alleged violated his rights under the First, Fourth, and Eighth
Amendments. As relevant here, Henderson claimed that the prison nurse used
excessive force to take the blood sample. Originally, Henderson named “Jane Doe”
in his complaint, but after the defendants advised the district court that the nurse
was likely Judith Chojnacki, Henderson amended his complaint and named
Chojnacki. However, another nurse, Karen Lalone, was later substituted as a
defendant when defense counsel came to believe that Chojnacki was in the room but
was not the nurse who drew Henderson’s blood. Henderson protested and accused
the defendants of misconduct. Defense counsel then proposed bringing Chojnacki
back into the case and allowing Henderson to proceed against the two nurses as
codefendants. Henderson insisted that he be allowed to amend his complaint for a
third time if the defendants were permitted to substitute parties again. The district
court agreed to make both nurses parties but denied Henderson’s motion to amend
his complaint. Ultimately, the district court granted summary judgment for Lalone
and Chojnacki. In the court’s view, because the blood was drawn to further a
legitimate criminal investigation, there was no wanton infliction of pain and no
constitutional violation.

       David Belfueil moved for summary judgment on Henderson’s claims that
Belfueil violated his Eighth Amendment rights by causing a needle to be stuck
forcibly into his arm and infringed his Fourth Amendment rights by subjecting him
to a blood test without a warrant or his consent. The district granted the motion as
to the Eighth Amendment claim, applying an analysis similar to the one it had
No. 05-3659                                                                   Page 3

employed with respect to Henderson’s claim against the nurses, but denied the
motion as to the Fourth Amendment claim.

      The district court found that Belfueil had no warrant for the search and that
a question of fact existed as to whether Henderson consented to have his blood
drawn. A trial was needed, therefore, on the narrow issue of whether consent had
been given. Trial was set for August 2005. Prior to trial, Henderson moved for
appointment of counsel (as he had done twice before), and he also filed a motion for
the waiver of witness fees. The court denied both motions. At trial, the jury
returned a special verdict in which it found that Henderson was not subjected to a
blood draw without his consent. The district court entered judgment in favor of
Belfueil.

       First, we address Henderson’s arguments relating to his claims against the
nurses. Henderson challenges the district court’s denial of his motion to amend his
complaint for the second time. Henderson’s argument on appeal is unclear, but he
seems to take issue with the district court’s refusal to allow him to add Karen
Lalone as a defendant—though she is one—and accuses defense counsel of
substituting defendants to create delay and “gain a second chance at a dispositive
motion.”

        The district court premised its denial of Henderson’s request on undue delay.
Fed. R. Civ. P. 15(a); Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861-62
(7th Cir. 2001). Henderson sought to amend his complaint over a year after it was
filed, after the district court had already granted two motions for summary
judgment and was entertaining a third. He had no explanation for the delay. See
Bethany Pharmacal Co., 241 F.3d at 861. The district court also noted that
Henderson’s “amended” complaint largely mirrored his original, repeating claims
that already had been dismissed. To the extent the complaint contained new
allegations, they could have been made earlier. We cannot say that the district
court abused its discretion in denying Henderson’s motion. See Conyers v. Abitz,
416 F.3d 580, 586 (7th Cir. 2005).

       Henderson next challenges the grant of summary judgment for Chojnacki
and Lalone on his Eighth Amendment claim. He argues that the district court
erroneously accepted the defendants’ recharacterization of his claim. Whereas
Henderson claimed that the nurses had used excessive force in drawing his blood,
they framed the issue as whether they had been deliberately indifferent to his
serious medical needs. The district court recognized the incongruity but concluded
it was not fatal to the defendants’ motion. The court determined that the
defendants nonetheless had demonstrated that they had not acted with a
sufficiently culpable state of mind to be liable for wantonly inflicting pain.
No. 05-3659                                                                        Page 4

       We agree that summary judgment was properly granted for the nurses. At
base, Henderson claims that too much force was brought to bear in drawing his
blood. But an Eighth Amendment claim cannot be predicated on the de minimis
use of force, see Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004), and it is difficult
to view the second needle prick as anything more. Moreover, to survive summary
judgment, a prisoner must have evidence supporting a reliable inference of
wantonness in the infliction of pain. Id. That the nurse did not reach Henderson’s
vein on the first try does not invite the inference that she acted “maliciously and
sadistically for the very purpose of causing harm.” See Harper v. Albert, 400 F.3d
1052, 1065 (7th Cir. 2005) (internal quotation marks omitted). We note, however,
that the simple fact that the nurse who drew the blood did so for a legitimate
purpose—to further the criminal investigation—is not enough to carry the day. If
the purpose was just but the means employed were gratuitously cruel, then the
nurse would have committed an Eighth Amendment violation. See Walker v.
Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002) (explaining that the Eighth
Amendment proscribes the “unnecessary and wanton infliction of pain”). But
Henderson adduced no evidence to suggest that the nurse who drew his blood used
any such means.

       Henderson’s remaining arguments relate to his claims against David
Belfueil. He challenges various discretionary rulings by the district court,
beginning with the court’s denial of his motion for appointment of counsel for trial.
Henderson had unsuccessfully moved for counsel twice during earlier stages of the
proceedings. The third time, the district court denied the motion because the sole
remaining issue was whether Henderson had consented to the blood test, and the
court deemed this a simple factual issue about which Henderson was competent to
testify. Moreover, Henderson had demonstrated in this and other cases before the
same judge that he had the skills to tell his version of the facts, make legal
arguments, and conduct any necessary discovery.

       To determine whether the district court abused its discretion in denying
Henderson’s motion, we ask first whether he was competent to try the case himself,
and if not, whether the presence of counsel would have changed the outcome.
Farmer v. Hass, 990 F.2d 319, 322 (7th Cir. 1993). As the district court recognized,
this case was not particularly difficult. By the time trial was set, the case was little
more than a swearing contest between Henderson and Belfueil. Henderson had
proven competent to present his case, managing to defend successfully, in part,
Belfueil’s summary judgment motion. See Johnson v. Doughty, 433 F.3d 1001, 1007
(7th Cir. 2006). Henderson mentions his lack of “trial experience,” but as we have
noted, if that were the benchmark, “an overwhelming number of pro se litigants
would become entitled to counsel.” See id.
No. 05-3659                                                                    Page 5

       Henderson next argues that the district court improperly denied his request
for a waiver of witness fees so that he could compel certain witness to testify at
trial. However, the district court had no statutory authority to waive the witness
fees for Henderson because he is indigent, see 28 U.S.C. § 1915(d), and its refusal to
do so was therefore not an abuse of discretion. Marozsan v. United States, 90 F.3d
1284, 1290-91 (7th Cir. 1996); McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir.
1987).

       Finally, Henderson argues that the district court erroneously instructed the
jury that he could recover damages only if he suffered a physical injury—rather
than just an unreasonable search. The jury instructions do not address the issue of
damages, but we think Henderson means to challenge a pretrial order entered by
the district court. In that order the district court stated: “In order to recover
compensatory damages, plaintiff must introduce evidence of physical harm suffered
as a result of defendant’s actions. If plaintiff presents evidence of physical injury,
he may then present evidence of mental or emotional injuries suffered as a result of
defendant’s actions. If the court permits it, the jury may award punitive damages
as a deterrence to a defendant.”

       The district court overlooked the possibility of an award of nominal damages
in the event that the jury found Belfueil had committed a constitutional tort but did
not find a basis for awarding compensatory damages, i.e., a physical injury. In that
sense, the district court’s summation of the law of damages was incomplete, because
nominal damages are available to a plaintiff who proves a constitutional violation
but does not establish actual compensable harm. Calhoun v. DeTella, 319 F.3d 936,
941-42 (7th Cir. 2003) (collecting cases); see Briggs v. Marshall, 93 F.3d 355, 360
(7th Cir. 1996) (holding that court may award nominal damages to remedy Fourth
Amendment violation). But as we have noted, the jury was never instructed on the
issue of damages. It was convened to decide only the narrow factual issue of
whether Henderson had consented to the blood draw. The jury found that he had
not been subjected to a search without his consent, and therefore the district court
entered judgment in favor of Belfueil. Given the jury’s factual finding, there was no
unreasonable search and no violation of the Fourth Amendment, and we need not
reach the issue of damages.

                                                                          AFFIRMED
