Roger Graham v. Dushan Zatecky ( 2021 )

NONPRECEDENTIAL DISPOSITION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 June 29, 2021*
Decided June 30, 2021
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20‐2999
ROGER GRAHAM, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:19‐cv‐00851‐JRS‐TAB
DUSHAN ZATECKY, et al., James R. Sweeny II,
Defendants‐Appellees. Judge.
ORDER
Roger Graham, an Indiana inmate, was working in the woodshop at Pendleton
Correctional Facility when a piece of wood entered his hand. He received two surgeries
to correct the problem. Graham has now sued prison officials under 42 U.S.C. § 1983,
accusing them of violating his rights under the Eighth Amendment by refusing to
authorize a third surgery. The district court entered summary judgment for defendants.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20‐2999 Page 2
It correctly reasoned that the undisputed evidence established that the treatment
Graham received was constitutionally adequate, so we affirm.
Graham’s injury occurred in August 2017. He was working in Pendleton’s
furniture woodshop when a machine malfunctioned, sending a piece of wood deep into
his right hand. Graham went to the infirmary where Dr. Paul Talbot immediately
ordered that an outside hospital provide emergency treatment. At the hospital, a
surgeon removed the wood from Graham’s hand, sutured the wound closed, prescribed
Graham an antibiotic, and sent him back to Pendleton.
Graham later had a second surgery. Two months after the first surgery, Graham
began complaining of intermittent hand pain. Dr. Talbot examined Graham and,
suspecting that wood might still be lodged in the hand, ordered an X‐ray. The X‐ray
showed no foreign objects, however, so he did not refer Graham to any outside
providers. That January, Dr. Talbot again saw Graham, who still complained of hand
pain. At that visit, Dr. Talbot could see and feel a foreign body in Graham’s hand, so he
ordered an ultrasound. The ultrasound revealed splinters of wood, leading Dr. Talbot to
consult with a hand surgeon. That surgeon recommended, and Graham later received, a
second surgery to remove the wood splinters. The surgery occurred in May 2018, about
eight months after the first surgery.
Graham wanted a third surgery. When Dr. Talbot saw Graham shortly after his
second surgery, Graham insisted that wood remained in his hand. Dr. Talbot noted that
Graham had full use of the hand: he was working in the woodshop and performed all
activities of daily living. Because Graham could use his hand and the surgeon (who saw
him the day before) noted no problems, Dr. Talbot ordered no other intervention.
Graham repeated these complaints a few months later to a nurse practitioner, who
submitted a request for a consultation about more surgery. After discussing the matter
with the regional medical director of Wexford of Indiana, LLC, the prison’s medical
provider, the prison’s medical staff determined that “conservative onsite treatment”
was advisable.
Medical staff revisited the issue of a third surgery in June 2019. The regional
medical director concluded that, because Graham’s hand was not swelling and it had
full range of motion with no sign of infection, additional X‐rays would determine
whether surgery was needed. The X‐rays revealed a splinter on the inside of Graham’s
fourth finger. Graham’s medical providers discussed the splinter and concurred that
non‐surgical conservative care remained appropriate. They based this conclusion on the
No. 20‐2999 Page 3
location of the splinter, the function of his hand, and the need for Graham, a type‐II
diabetic, to lose weight and to control his blood‐sugar levels better before a third,
elective surgery.
Graham next sued Dr. Talbot, Wexford, and prison staff for violating his Eighth
Amendment rights by failing to authorize a third surgery. Near the end of discovery,
Graham asked the court to recruit counsel for him. It denied that request, finding that
Graham wrote well and organized his facts and arguments coherently, so he could
litigate the case himself. Later, the court entered summary judgment for defendants.
Graham contests that decision only as to Wexford and Dr. Talbot, so we say no more
about the other defendants. The court reasoned that Dr. Talbot exercised professional
judgment in denying a third surgery, so no reasonable jury could conclude that he
violated the Eighth Amendment. And, the court added, Graham identified no policy or
custom of Wexford’s that led to such a violation.
Graham argues that summary judgment for Dr. Talbot was improper. He accepts
that Dr. Talbot responded adequately through the second surgery, but he contends that
the doctor violated his Eighth Amendment rights by refusing to recommend a third
surgery. To avoid summary judgment, Graham needed to submit evidence that
Dr. Talbot intentionally or recklessly disregarded a need for a third surgery.
See Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc). The record does not
permit such a finding. To the contrary, after the second surgery, Dr. Talbot examined
Graham’s hand and reasonably decided against another surgery based on three
undisputed medical factors: first, his hand had full range of motion and no infection;
second, an X‐ray placed a single splinter in one finger, and it could be addressed non‐
surgically; and third, other medical professionals concurred that an elective surgery was
risky because of Graham’s weight and diabetes. Graham responds that his diabetes was
not a factor in deciding whether to perform the first two surgeries. But those surgeries
were not elective, and no evidence suggests that, after two recent surgeries, the benefit
of a third, elective procedure outweighed the risk to him from his diabetes. On this
record, then, a jury could not find that Dr. Talbot’s decision was so far afield that no
other professional would also follow it. See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.
2014).
Graham’s remaining claim against Wexford also fails. Because the undisputed
evidence reveals that the care Graham received for his hand injury was constitutionally
adequate, Wexford cannot be held liable for a deficient policy or practice. See id. at 412;
see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
No. 20‐2999 Page 4
Graham also argues, unpersuasively, that the district court abused its discretion
when it decided not to recruit counsel for him. See Pruitt v. Mote, 503 F.3d 647, 658
(7th Cir. 2007) (en banc). In denying the request, the court weighed the nature of the
case against his competency to litigate it and reasonably found that, in light of his
writing and organizational skills, Graham could proceed unassisted. See id. at 654–55.
Graham responds that he had help preparing his filings, and when evaluating a pro se
plaintiff’s ability to litigate a case, a court should focus on the litigant’s personal skills
rather than “on the abilities of his jailhouse lawyer who had been preparing his filings
for him.” Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir. 2014). But in his deposition,
Graham testified that he received help with typing only, not substance. Thus, the court
applied the appropriate legal analysis. Graham also argued in the district court that he
wanted a lawyer to help him find an expert to examine his hand. But he was not
entitled to wait until near the end of discovery to raise requests that, if granted, would
require an extension of discovery. See Stevo v. Frasor, 662 F.3d 880, 886 (7th Cir. 2011).
AFFIRMED