James Owens v. Stephen Duncan ( 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NONPRECEDENTIAL DISPOSITION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 September 17, 2019*
Decided September 18, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-3504
JAMES OWENS, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District
of Illinois.
v. No. 15-cv-1143-MJR-SCW
STEPHEN DUNCAN, et al., Michael J. Reagan,
Defendants-Appellees. Judge.
ORDER
James Owens, an Illinois inmate who suffered from bone spurs in his jaw, sued a
prison dentist, grievance administrators, and four unnamed prison staff members,
alleging that they were deliberately indifferent to his jaw pain in violation of the Eighth
Amendment, and that the dentist retaliated against him for filing grievances about his
treatment. At screening, the district court dismissed Owens’s claims against the
* 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. 17-3504 Page 2
unnamed staff members, as well as the retaliation claim. It later entered summary
judgment for the remaining defendants on the deliberate-indifference claims. We
affirm.
Owens visited Dr. Mark Litherland, the prison dentist, in March 2015 because of
a sore jaw. Owens had ongoing dental issues and had previously had a tooth extracted.
Dr. Litherland suspected either an infection or bone spurs (spontaneous bone growths
that sometimes follow extraction) caused Owens’s pain and prescribed an antibiotic and
ibuprofen (alongside Owens’s ongoing daily prescription for naproxen sodium). At a
follow-up visit two weeks later, Dr. Litherland located and removed the bone spur.
Owens complained again of jaw pain in June, but according to Owens, prison
staff members did not promptly respond to his complaints. Owens filed a grievance
stating that over a two-week period, one staff member did not call him to see a nurse on
the same day that he submitted a sick-call request, and another canceled a sick-call
appointment. A third staff member denied Owens’s request for pain medication the day
after he filed the grievance. He was also informed that he could not see Dr. Litherland
for a week because he was out of the office.
Dr. Litherland examined Owens four days after he filed his grievance. The
dentist found and removed a second bone spur and informed prison administrators
that Owens had received treatment. The administrators dismissed the grievance based
on this report.
A few days later, Owens complained of pain to medical staff so they sent him to
Dr. Litherland. The dentist anesthetized the area, made an incision in Owens’s gum,
and trimmed the edge of Owens’s jaw bone to “make future bone spurs less likely and
promote healing of the excavation site.” He did not suture the incision because he
believed it was “small enough to heal on its own.” Dr. Litherland then prescribed an
antibiotic and ibuprofen and scheduled a follow-up visit for a week later. Before the
visit, Owens requested more pain medication, but a nurse did not provide it. At the
visit, the dentist noted that Owens’s incision was healing and made another follow-up
appointment. During that visit, Dr. Litherland prescribed more ibuprofen and gave
Owens salt packets to rinse out his mouth. Owens’s jaw fully healed within a month
after the procedure.
Nevertheless, Owens filed a second, “emergency” grievance with the prison
warden in August 2015. He repeated the allegations from his first grievance, added that
another nurse had denied him pain medication, and complained that Dr. Litherland
No. 17-3504 Page 3
should have stitched up the incision. Owens conceded that the cut already had healed
and that Dr. Litherland gave him pain medication—just not immediately upon Owens’s
request. The warden determined that this grievance was not an emergency.
Owens then sued Dr. Litherland and several prison officials for deliberately
disregarding his pain. He alleged that (1) Dr. Litherland treated him improperly, denied
medication, and retaliated against him for filing grievances; (2) four unnamed prison
staff members prolonged his pain by denying his requests for care; and (3) grievance
administrators refused to intervene. At screening, the district court dismissed Owens’s
“bare-bones” deliberate-indifference claims against the unnamed prison staff because
he had not alleged that any staff member “was aware of the level of harm [he] was
experiencing.” The court also dismissed the retaliation claim against Dr. Litherland—
based on Owens’s allegation that, out of anger over the June 2015 grievance, the dentist
“d[u]g around” in his mouth with a dental probe and cut his gums without stitching up
the incision, causing unnecessary pain. The court concluded that this could not amount
to retaliation because it had not actually deterred Owens from filing more grievances.
After the dismissal, Owens filed a motion to recruit counsel, but the court never ruled
on it. Ultimately, the court entered summary judgment for the defendants on the
remaining claims, concluding that Dr. Litherland had exercised his medical judgment in
treating Owens and that the grievance administrators had properly relied on that
judgment.
On appeal, Owens first argues that a jury could reasonably find that
Dr. Litherland and the prison administrators deliberately ignored his pain. To survive
summary judgment, Owens needed to show that (1) his medical need was objectively
serious, and (2) the defendants consciously disregarded his need for treatment.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Petties v. Carter, 836 F.3d 722, 728 (7th Cir.
2016) (en banc). “[D]eliberate indifference to prolonged, unnecessary pain can itself be
the basis for an Eighth Amendment claim.” Smith v. Knox Cty. Jail, 666 F.3d 1037, 1040
(7th Cir. 2012).
We agree with the district court that no jury could find that Dr. Litherland or the
prison staff deliberately ignored Owens’s pain. Dr. Litherland responded to Owens’s
complaints by searching for and removing bone spurs, prescribing antibiotics and
analgesics, and scheduling several follow-up visits (at which he again prescribed pain
medicine). The only conceivable delay in Owens’s care was for the period in June he
cited in his first grievance, when two unnamed staff members allegedly denied him
additional pain medication and Dr. Litherland was out of the office. But these facts
No. 17-3504 Page 4
provide no evidence of deliberate indifference—a subjective state of mind akin to
criminal recklessness. See Farmer, 511 U.S. at 839–40; see also Wilson v. Adams, 901 F.3d
816, 821–22 (7th Cir. 2018) (affirming grant of summary judgment on claim of deliberate
indifference where “totality” of care showed proper attention to inmate’s pain).
Moreover, Dr. Litherland’s decision to leave the incision to heal on its own was rooted
in his medical judgment. Exercises of medical judgment—even when they prove wrong
(which Dr. Litherland’s did not)—are inconsistent with a deliberately indifferent state of
mind. See Petties, 836 F.3d at 729. As for the grievance administrators, Owens lacks
evidence that they did anything more than rely on Dr. Litherland’s professional
judgment, which they were entitled to do. See Rasho v. Elyea, 856 F.3d 469, 478–79
(7th Cir. 2017).
Owens also challenges the district court’s dismissal of his other claims at
screening. First, he contends that the district court erred in dismissing his claims against
the four unnamed prison staff members who allegedly denied him care or medication
through the “sick call” process at various times. The district court deemed these claims
“bare bones,” and we agree that Owens’s sparse allegations do not amount to a
plausible claim that these defendants knew of and disregarded a serious medical risk.
See Johnson v. City of Shelby, 574 U.S. 10 (2014) (“A plaintiff . . . must plead facts sufficient
to show that her claim has substantive plausibility.”). Each staff member had a single
interaction with Owens: two failed to summon him for sick call even though he had
registered, and two did not give him pain medication when he requested it. These
limited interactions do not give rise to a plausible claim that they knew Owens had a
serious condition yet acted with indifference. Cf. Perez v. Fenoglio, 792 F.3d 768, 780
(7th Cir. 2015) (prisoner stated deliberate-indifference claim where he alleged
“knowledge of his severe injury” and failure “to provide adequate medical treatment”);
see also Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir. 1997) (“isolated instances of
neglect … cannot support a finding of deliberate indifference”).
Regarding the retaliation claim, we again agree with the district court’s
dismissal, if not its reasoning. Owens alleged that, upon learning that he filed a
grievance over his inability to obtain medication in Dr. Litherland’s absence, the dentist
became angry and “d[u]g around” with a dental probe and slit his gums, causing him
unnecessary pain. Alleging that a medical provider vengefully inflicted unnecessary
pain in response to activity protected by the First Amendment sufficiently states a
retaliation claim. See Perez, 792 F.3d at 783; Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009). And filing a grievance is a protected activity. See Perez, 792 F.3d at 783. Whether a
deprivation would “actually deter a person of ordinary firmness” is not a question to
No. 17-3504 Page 5
“address at the pleading stage,” Bridges, 557 F.3d at 552, so we disagree with the district
court that Owens’s claim failed because he was not deterred from filing grievances.
But, again, Owens’s allegations are not plausible. His complaint reveals that the
“dig[ging]” and the incision were done under anesthesia as part of a procedure to treat
his pain. Owens faults Dr. Litherland’s decision to let the incision heal naturally instead
of stitching it, but Owens’s disagreement with this treatment decision is insufficient to
support any inference of an improper motive. See Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005). Even if the retaliation claim should have passed screening, the record
developed on Owens’s related claims assures us that the procedure, and the subsequent
care for the wound, were well within the bounds of permissible medical judgment and
not the wanton infliction of pain.
Finally, Owens argues that the district court erred in failing to address his
motion to recruit counsel who could have helped him retain a medical expert. A judge’s
failure to rule on a motion to recruit counsel is an abuse of discretion. See Childress
v. Walker, 787 F.3d 433, 443 (7th Cir. 2015). But here, the error was harmless because it
did not prejudice Owens. See Wallace v. Tilley, 41 F.3d 296, 303 (7th Cir. 1994) (citing
Brown-Bey v. United States, 720 F.2d 467, 471 (7th Cir. 1983)); see also Childress, 787 F.3d
at 443 (relying on Brown-Bey). The absence of medical testimony is not what doomed
Owens’s deliberate-indifference claims—rather, the defendants’ evidence showed them
to be meritless. Even if the court had recruited counsel, a medical expert’s analysis of
this record—showing frequent, responsive care and pain management—could amount
only to a differing opinion about the best course of treatment, which cannot support a
finding of deliberate indifference. See Greeno, 414 F.3d at 653.
AFFIRMED