Jimmy Thompson v. Salvador Godinez , 561 F. App'x 515 ( 2014 )

NONPRECEDENTIAL DISPOSITION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 April 8, 2014*
Decided April 9, 2014
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13-3016
JIMMY E. THOMPSON, Appeal from the United States District
Plaintiff–Appellant, Court for the Southern District of Illinois.
v. No. 13-617-GPM
SALVADOR A. GODINEZ, et al., G. Patrick Murphy,
Defendants–Appellees. Judge.
ORDER
Jimmy Thompson, a prisoner at Lawrence Correctional Center in Illinois, claims
in this action under 42 U.S.C. § 1983 that medical staff violated the Eighth Amendment
by ignoring his chronic back pain and a fatty tumor on his forehead. Thompson also
named as defendants a number of grievance officers and other administrators who, he
*
The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. See FED. R. APP. P.
34(a)(2)(C).
No. 13-3016 Page 2
says, should have involved themselves in the medical staff’s treatment decisions. At
screening the district court dismissed the suit on the ground that Thompson’s complaint
fails to state a claim. See 28 U.S.C. § 1915A(b)(1). We agree with the district court that
Thompson has not stated a claim of deliberate indifference against any member of the
medical staff, and for that reason neither could the other defendants be liable for not
intervening in his medical care. For purposes of this appeal, we accept as true
Thompson’s allegations about the medical staff as supplemented by his attached
medical records. See Smith v. Knox County Jail, 666 F.3d 1037, 1039 (7th Cir. 2012);
Thompson v. Ill. Dept. of Prof’l Regulation, 300 F.3d 750, 753 (7th Cir. 2002).
Thompson’s back pain predated his incarceration at Lawrence, but the pain
worsened in August 2011 after another inmate picked him up and “slammed” him on
his back in the concrete prison yard. Thompson immediately was taken to the infirmary
but was sent back to his cell without treatment. Later that day his back and hip began to
hurt, but the guard on duty ignored his requests to be seen by a nurse. The next day
Thompson told the nurse who delivered his psychiatric medication that he was in pain,
but she did not take him to the infirmary.
Five days after the incident, on August 31, Thompson saw a nurse in his unit
who gave him 30 regular-strength Tylenol pills for his pain. Then in September an
unnamed nurse twice gave him 30 pills of ibuprofen. An X-ray taken on September 8
revealed degenerative changes in Thompson’s spine but no fracture. At the end of
September, a nurse offered him more Ibuprofen, but Thompson declined and told her it
was ineffective and asked for stronger pills.
In October 2011, Thompson saw Mary Hardy, a nurse practitioner, and
Dr. Phillip Martin, the healthcare administrator at Lawrence. Hardy explained the
results of the X-ray and taught Thompson several exercises to help alleviate his back
pain. Then in February 2012, Thompson saw Dr. James Fenoglio, another physician at
the prison infirmary, who ordered a second X-ray. That X-ray showed mild scoliosis
and degenerative changes. At Thompson’s follow-up visit later that same month,
Dr. Fenoglio prescribed a 90-day supply of 500 mg naproxen, a pain-reliever. The
physician also prescribed physical therapy, which Thompson completed in April. At
Thompson’s next appointment in September 2012 (and his last with Dr. Fenoglio), the
physician changed Thompson’s prescription to a 90-day supply of Ultram, a brand of
opiod pain-reliever used to treat moderate to severe pain. See Tramodol, NATIONAL
LIBRARY OF MEDICINE, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0012486/
?report=details (last visited Mar. 27, 2014).
No. 13-3016 Page 3
Thompson’s treatment continued with other prison physicians. In October 2012
he requested for his back either a brace, special shoes, or some type of wrap, but
Dr. Matticks declined to order any of these. Thompson continued to consult with a
physical therapist, who instructed him on exercises to help his back. Thompson saw
Dr. Vipin Shah in December 2012, though, by Thompson’s account, this examination
was limited to the doctor asking him to lift his legs one at a time and to bend at the
waist. In April 2013, Thompson says, Nurse Hardy told him she would not see him
because he had been treated by another doctor two weeks previously. Then in May 2013
an unnamed physician ordered a third X-ray, which showed degenerative disc disease.
Thompson has named as defendants Nurse Hardy and Drs. Martin, Fenoglio,
Matticks, and Shah. Yet in his detailed complaint, which he submitted in June 2013,
Thompson also recounts seeing at least four other physicians and receiving ibuprofen
and refills of Ultram through the first months of 2013. In his complaint Thompson
acknowledges improvement but alleges that he still has chronic back pain.
Except for Dr. Shah, all of the defendants also saw Thompson about a lipoma on
his forehead. A lipoma is a benign, fatty tumor, STEDMAN’S MEDICAL DICTIONARY 1107
(28th ed. 2006), which usually is diagnosed through physical examination and requires
no treatment. Lipomas, CLEVELAND CLINIC, http://my.clevelandclinic.org/disorders/
lipomas/hic_lipomas.aspx (last visited Mar. 19, 2014). Thompson’s lipoma developed in
2003, before his incarceration at Lawrence. Thompson believes that it causes him to
become “faintish and dizzy,” but the defendants have told him repeatedly that there is
no medical reason to remove it.
The district court concluded that Thompson’s complaint fails to state a claim of
deliberate indifference to a serious medical need. See 28 U.S.C. § 1915A(b)(1). The court
reasoned that Thompson’s allegations suggest nothing more than disagreement with
the defendants’ exercise of medical judgment and thus negate an essential element of
that claim. On appeal Thompson focuses on his back pain and counters that the court
overlooked “days and months” when he did not receive treatment for back pain despite
his complaints. He points to his allegation that for three weeks in February 2012
between his appointments with Dr. Fenoglio he received no medication. Also,
Thompson says in his complaint, he was never told that the naproxen prescribed by
Dr. Fenoglio that month was for 90 days. Thus, he says, he went without pain
medication from May 22 (when the supply ran out) until his next appointment with
Dr. Fenoglio on September 4, 2012. In his appellate brief Thompson also explains that
No. 13-3016 Page 4
after he filed his complaint (and shortly after the third X-ray was taken), a new
physician at Lawrence prescribed him twice-daily pain medication and a brace.
To prove that he has been denied medical care in violation of the Eighth
Amendment, Thompson would have to establish that a defendant knew about but
disregarded a substantial risk of harm from an objectively serious medical condition.
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Vance v. Rumsfeld, 701 F.3d 193, 204 (7th Cir.
2012); Edwards v. Snyder, 478 F.3d 827, 830–31 (7th Cir. 2007). Deliberate indifference is
conduct that is intentional or reckless and not simply negligent. Berry v. Peterman, 604
F.3d 435, 440 (7th Cir. 2010). A plaintiff may plead himself out of court by revealing in
his complaint facts that defeat his claim, see Edwards, 478 F.3d at 830; Ciarpaglini v. Saini,
352 F.3d 328, 331 (7th Cir. 2003), although not every acknowledgment of having
received some medical care will defeat a claim of deliberate indifference, see Edwards,
478 F.3d at 831; Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). The district court
essentially concluded that Thompson pleaded himself out of court concerning both his
back pain and lipoma, and we agree.
Like the district court, we assume that Thompson’s back pain is a serious medical
condition, but his detailed complaint confirms that the defendants were attentive, not
indifferent, to that ailment. The defendants, and many other medical providers at
Lawrence, evaluated him repeatedly, sent him for X-rays and physical therapy, and
prescribed and adjusted the dosage of different drugs when he complained that some
were not effective. And although Thompson alleges that there were lapses in his
prescriptions for pain medication, he does not attribute this lack of treatment to any of
the named defendants or even hint that one or more of the defendants knew that he
needed a resupply of medication.
Thompson’s complaint makes apparent that he was not satisfied with the care he
received largely because, on his view, appropriate treatment must include a “steady
flow” of pain medication, a brace, or at least special shoes. But that disagreement with
the defendants could not establish deliberate indifference. See Budd v. Motley, 711 F.3d
840, 844 (7th Cir. 2013) (upholding dismissal at screening of prisoner’s claim of
deliberate indifference to leg wound since complaint detailed extensive medical care,
including testing, medication, and multiple hospital visits over period of several
weeks); Ciarpaglini, 352 F.3d at 329–31 (upholding dismissal at screening of inmate’s
claim that prison physicians had denied him medical care by discontinuing medications
for ADHD and panic disorder, since inmate acknowledged frequent visits with his
doctors and thus alleged only a disagreement with their treatment decisions); Gutierrez
No. 13-3016 Page 5
v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997) (upholding dismissal on complaint of
inmate’s claim of deliberate indifference to painful cyst, since claim was “fatally
undermined by his own factual allegations” of repeated treatment over ten months). We
conclude that the district court correctly dismissed Thompson’s claim of deliberate
indifference to his back pain.
Thompson’s claim about his lipoma is even weaker. His medical records show
that the lipoma first appeared in 2003, before he was incarcerated at Lawrence. Since his
arrival at the prison in 2007, these defendants and other physicians periodically have
measured and evaluated the lipoma; each time the conclusion was that removal is not
medically necessary. Moreover, a December 2012 progress note (written by a physician
who is not a defendant) explains that Thompson decided to cease treatment after being
told that, despite his belief that the lipoma causes dizziness, the condition actually is
benign. These details negate Thompson’s claim that doctors disregarded a substantial
risk of harm from the lipoma, which cannot be called a serious medical condition.
See Holloway, 700 F.3d at 1072; Edwards, 478 F.3d at 831.
We have reviewed the remainder of Thompson’s arguments, and none has merit.
Accordingly, we AFFIRM the judgment dismissing Thompson’s complaint. Thompson
incurred one “strike” for filing his complaint and a second for pursuing this appeal.
See 28 U.S.C. § 1915(g); Robinson v. Sherrod, 631 F.3d 839, 843 (7th Cir. 2011).