Eugene Cherry v. Scott Eckstein ( 2019 )

NONPRECEDENTIAL DISPOSITION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 February 6, 2019*
Decided February 11, 2019
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 18-1695
EUGENE L. CHERRY, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 16-CV-1606
SCOTT ECKSTEIN, et al.,
Defendants-Appellees. William C. Griesbach,
Chief Judge.
ORDER
Eugene Cherry, a Wisconsin inmate suffering from a testicular hernia, sued
prison officials for their deliberate indifference to his pain. He argues that officials
violated his Eighth Amendment rights because they denied his request to see a doctor
immediately, and instead scheduled him for an appointment several weeks later. The
district court entered summary judgment for the defendants, and we affirm.
* We have agreed to decide the 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. 18-1695 Page 2
Susan Peters, a nurse practitioner at Green Bay Correctional Institution,
diagnosed Cherry with hypertension and ordered him to visit the health services unit
twice per week for two weeks to monitor his blood pressure. Cherry maintains, and we
accept for purposes of this decision, that at one such check September 29, 2016, he
complained to Peters and a nurse about his “excruciating” testicular pain, but they
refused his request to see a doctor immediately. Instead they told him to “take Tylenol”
and submit a written request for a doctor’s appointment.
On October 5, Cherry submitted a Health Services Request for an appointment
with a doctor to discuss “cold medicine and a pain in [his] right testicle.” Mary Alsteen,
a nurse clinician, examined Cherry the following day. Although Cherry attests that he
told Alsteen that his pain was “excruciating,” Alsteen avers that he “walked with no
distress” and that he reported his pain to be a zero out of ten during the appointment
(he claimed that the pain struck three or four times per day). Treatment notes,
moreover, reflect that Cherry denied urinary problems, testicle swelling, redness, or
lumps. Alsteen scheduled him for a non-urgent doctor appointment. About three weeks
later, at a checkup with nurse Dan Dassow, Cherry again complained of testicle pain
and demanded unsuccessfully to see a doctor “immediately.”
Meanwhile, a prison complaint examiner dismissed a grievance Cherry had
submitted after health services providers denied his September 29 request to see a
doctor. After interviewing Jean Lutsey, the health services manager, the examiner
determined that the providers who treated Cherry had responded appropriately. Per
prison policy, each appointment’s length is scheduled based on the service, so there was
no time for a doctor to examine Cherry when he visited the health services unit for
blood-pressure checks. And Cherry had been scheduled for a doctor appointment after
he submitted a request form that complied with prison policy.
On October 26, 2016, Dr. Lisa Allen examined Cherry and diagnosed him with an
“intermittently symptomatic” inguinal hernia. She noted that Cherry “appeared to be in
no acute distress,” and that he again denied “swelling, redness [or] … lesions.” She
counseled Cherry on the importance of “conservative measures prior to any invasive
procedures” and prescribed a scrotal support belt, which health services officers
provided. Dr. Allen further recommended an ultrasound within two months; Peters
scheduled one for December 8. The ultrasound confirmed Dr. Allen’s diagnosis, but
Cherry’s hernia was “without obstruction or gangrene.” Health services officers
continued to monitor Cherry’s symptoms, prescribing painkillers and replacing the belt
when he requested it, though Cherry complained it did little to relieve his symptoms.
No. 18-1695 Page 3
Dr. Allen, moreover, had warned Cherry of the signs that surgery or another
intervention was warranted, but Cherry reported none.
Cherry sued Peters, Dassow, Alsteen, Lutsey, and the prison warden for
deliberate indifference to his serious medical needs based on their failure to send him to
a doctor immediately after he reported his pain at his appointment on September 29.
The district judge entered summary judgment for the defendants, and we review that
decision de novo, viewing the facts and drawing all reasonable inferences in Cherry’s
favor. Daugherty v. Page, 906 F.3d 606, 609 (7th Cir. 2018).
On appeal, Cherry maintains that prison medical staff were deliberately
indifferent to his medical needs by delaying his doctor appointment for the four weeks
between September 29 and October 26. He argues he raised a genuine issue of material
fact because his affidavit—in which he swears that he repeatedly reported excruciating
pain yet was denied immediate doctor visits—squarely contradicts defendants’
accounts of those visits. We agree with the district judge that any factual dispute is
immaterial, however, because, even accepting his version of the facts, a reasonable jury
could not find in Cherry’s favor.
To survive summary judgment on his deliberate indifference claim, Cherry
needed to present evidence showing (1) his medical need was objectively serious, and
(2) prison officials consciously disregarded his need. See Farmer v. Brennan, 511 U.S. 825,
834 (1994); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). Here, Cherry’s claim is
premised on allegations that the defendants unreasonably delayed treatment. Even
without a corresponding exacerbation of an underlying condition, “deliberate
indifference to prolonged, unnecessary pain can itself be the basis for an Eighth
Amendment claim.” Smith v. Knox Cty. Jail, 666 F.3d 1037, 1039–40 (7th Cir. 2012);
see also Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir. 1997) (“[D]elays in treating
painful medical conditions that are not life-threatening can support Eighth Amendment
claims.”). Whether a delay is tolerable “depends on the seriousness of the condition and
the ease of providing treatment.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010).
Cherry has failed to meet his burden of providing sufficient evidence from which
a reasonable jury could conclude that the defendants unnecessarily prolonged his pain
by unreasonably delaying treatment. Even assuming that his need was objectively
serious and that he told health services employees that he was experiencing
“excruciating pain,” the record reveals that Peters, Alsteen, and Dassow did not
disregard Cherry’s condition. To the contrary, they treated him, told him how to
request an appointment, and scheduled him for one with Alsteen the day after he
No. 18-1695 Page 4
submitted his request. Alsteen examined Cherry, concluded that his pain was not
urgent, and scheduled him for a doctor appointment to take place three weeks later.
Given the thoroughness of Alsteen’s examination and Cherry’s lack of symptoms, we
cannot say that the decision to schedule a non-urgent doctor appointment constituted
deliberate indifference. See Gutierrez, 111 F.3d at 1374 (delaying appointment based on
recent evaluation of patient’s condition was reasonable). And Dr. Allen’s conservative
treatment—prescribing only symptomatic relief and an ultrasound within two
months—suggests that the outcome would not have differed even if an earlier doctor’s
appointment had been scheduled. The delay, therefore, could not have caused Cherry
to unnecessarily suffer pain that could have been mitigated by an earlier appointment.
Cf. Greeno v. Daley, 414 F.3d 645, 651, 655 (7th Cir. 2005) (finding deliberate indifference
where delaying patient-requested intervention postponed successful treatment).
Cherry’s claims also fail against the remaining defendants. Lutsey did not know
of Cherry’s request until after Cherry submitted his grievance and was already
scheduled for a doctor appointment. The warden, moreover, was not notified until after
Cherry filed his lawsuit. A defendant cannot be liable under § 1983 without direct
involvement in the allegedly unconstitutional acts. See Farmer, 511 U.S. at 837–38; Arnett
v. Webster, 658 F.3d 742, 755–56 (7th Cir. 2011).
AFFIRMED