NONPRECEDENTIAL DISPOSITION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 August 31, 2011*
Decided September 9, 2011
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11‐1535
CARLOS A. MONTAÑEZ, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 10‐419‐MJR
ADRIAN FEINERMAN, et al., Michael J. Reagan,
Defendants‐Appellees. Judge.
O R D E R
Carlos Montañez, an inmate at Menard Correctional Center in Illinois, filed suit
under
42 U.S.C. § 1983 claiming principally that four members of the prison healthcare staff
deliberately ignored his medical conditions. At screening the district court dismissed much
of the complaint for failure to state a claim, see 28 U.S.C. § 1915A(b)(1), and dismissed the
remainder on the ground that Montañez had not exhausted his administrative remedies
*
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 oral argument is unnecessary. Accordingly, the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).
No. 11‐1535 Page 2
before filing suit, see id. § 1997e(a). Montañez appeals, and at this stage we accept as true
the allegations in his complaint and attachments. See Gleash v. Yuswak,
308 F.3d 758, 760 (7th
Cir. 2002).
Montañez suffers from prostatitis, kidney stones, and pain in his right hip, knee, and
hamstring. His prostatitis, an inflamation of the prostate gland that can cause painful
urination, was diagnosed around the beginning of 2009. By February of that year, Montañez
had been treated by a prison physician and referred to a urologist, who in April 2009
prescribed antibiotics, the muscle relaxant Flomax, and the pain reliever Ultram. Montañez
continued to complain of pain and difficulty urinating and was sent to the urologist again in
August 2009. The urologist again prescribed Ultram, though Montañez waited several
weeks before he got it. Montañez also underwent a prostate ultrasound in February 2010
and was told that the results were normal. He later complained about not seeing the
urologist regularly, though he was still seeing prison doctors and nurses. His prescriptions
for Flomax and Ultram were renewed in April 2010, and he again was given an antibiotic.
Dr. Magid Fahim, the current medical director at Menard, may have stopped the Ultram
prescription in May 2010, but Montañez filed an emergency grievance and got it back,
correcting the “mistake,” he said, after “several days” of delay.
Dr. Feinerman, a prison physician and former medical director, first suggested in
August 2009 that Montañez might also have kidney stones. From then until October 2009 he
complained in grievances that his kidney stones had not been treated and that he wanted
them removed. He still had not received any treatment when around the beginning of June
2010 he passed two stones and had blood in his urine.
Montañez also suffers from pain in his right hip, knee, and hamstring. At some point
he was prescribed Naproxen for arthritis and Motrin for pain, but he complained in June
2009 that his pain had worsened and the medications were no longer adequate. Nurse
Christine Brown responded to his request and told him that he was on the list to see
Dr. Feinerman. After that, as recounted in his many grievances, Montañez repeatedly saw
doctors and nurses for his leg pain but was never satisfied with the outcome. When
Dr. Feinerman ordered x‐rays of his right leg in July 2009, Montañez countered that he
wanted further tests. When Dr. Fahim prescribed Motrin in March 2010 after Montañez had
aggravated an old knee injury, he demanded an MRI, surgery, and more pain medication
but was refused by both Dr. Feinerman and Dr. Fahim. Several months later Nurse Brown
told Montañez that his knee x‐ray had not shown a fracture or abnormality and that the
doctors did not feel an MRI or orthopedic referral was medically necessary.
Montañez filed his complaint in the district court in June 2010 and appended over
100 pages of correspondence discussing his concerns about medical issues. That
No. 11‐1535 Page 3
correspondence, virtually all from 2009 and much of it informal complaints directed to his
prison counselor, fleshes out the allegations in Montañez’s complaint. He claims that
Dr. Feinerman, Dr. Fahim, and Nurse Brown showed deliberate indifference to his medical
needs by failing to investigate properly the origin of his symptoms and providing poor
treatment. (Montañez also claims that the administrator of the healthcare unit, as well as the
warden and an assistant warden, violated his right to due process by ignoring or
mishandling his inmate grievances. Yet as the district court recognized, the Constitution
does not obligate prisons to provide a grievance process, nor does the existence of a
grievance process itself create a protected interest. Owens v. Hinsley,
635 F.3d 950, 953‐54
(7th Cir. 2011); Grieveson v. Anderson,
538 F.3d 763, 772‐73 (7th Cir. 2008). Thus, if the
defendants were not involved in the underlying harm, the mishandling of an inmate
grievance alone cannot be a basis for liability under § 1983. Owens,
635 F.3d at 953‐54; George
v. Smith,
507 F.3d 605, 609‐10 (7th Cir. 2007); see Greeno v. Daley,
414 F.3d 645, 656‐57 (7th
Cir. 2005). Since Montañez does not allege that they were personally involved in his medical
treatment, we need not say anything more about these defendants.)
In dismissing Montañez’s complaint prior to service, the district court concluded that
his allegations, for the most part, amounted to a disagreement with the defendants over
what medical treatment was appropriate for his conditions. This was true, the court
reasoned, as to Montañez’s allegations about his prostatitis and the pain in his hip and leg.
On the other hand, the court continued, Montañez raised an inference of deliberate
indifference about the treatment for his kidney stones and the periods when he went
without his pain medication. But those allegations, the court found, had not been exhausted
through the prison grievance process. Accordingly, the court dismissed the suit.
On appeal Montañez first challenges the district court’s understanding of the
allegations about his prostatitis and the pain in his hip and leg. Those conditions, we
assume, are sufficiently serious to support a claim for deliberate indifference. But we share
the district court’s view that Montañez’s complaint and its many attachments recount
nothing more than dissatisfaction with the course of treatment, which does not rise to the
level of a violation of the Eighth Amendment. See Mingus v. Butler,
591 F.3d 474, 481 (6th
Cir. 2010); Gee v. Pacheco,
627 F.3d 1178, 1192 (10th Cir. 2010); Norfleet v. Webster,
439 F.3d
392, 396 (7th Cir. 2006); Johnson v. Doughty,
433 F.3d 1001, 1012‐13 (7th Cir. 2006). In his
complaint Montañez details the care he received and his disagreements with decisions
made by the defendants, but he does not allege that he was refused medical care. In the
correspondence attached to his complaint, he does say several times that Dr. Feinerman was
ignoring him, but those accusations directed to prison administrators were obviously
groundless in light of the course of treatment detailed in his complaint and attachments.
See Ciarpaglini v. Saini,
352 F.3d 328, 331 (7th Cir. 2003) (concluding that complaint, which
recounted that plaintiff had been seen by prison doctors ten times in three months, at best
No. 11‐1535 Page 4
alleged “disagreement with medical professionals” but not deliberate indifference); Dunigan
v. Winnebago Co.,
165 F.3d 587, 591‐92 (7th Cir. 1999) (rejecting claim for deliberate
indifference where prison staff was “responsive” to plaintiff’s medical needs); Gutierrez v.
Peters,
111 F.3d 1364, 1374 (7th Cir. 1997) (concluding that plaintiff’s claim of deliberate
indifference failed where he “repeatedly received treatment”). By Montañez’s own account,
between February 2009 and April 2010 he was seen for his prostatitis and leg pain by
Dr. Feinerman, Dr. Fahim, a Dr. Fuentes, nurse practitioners, and a urologist. (He also
mentions being seen by two other physicians but does not specify who or when.) Montañez
received an ultrasound, x‐rays, and (except for a few disruptions in treatment) medications.
He was entitled to adequate, not limitless, treatment. See Johnson,
433 F.3d at 1013. And
though his condition may have changed or worsened, each time Montañez asked for
medical care he got it. He often disagreed with the treatment he received, but his allegations
do not state a claim for deliberate indifference.
Montañez also takes issue with the district court’s analysis of his allegations about
his kidney stones and delays in receiving pain medication. Those allegations, the court
concluded, could support a claim for deliberate indifference but were not exhausted
through the prison grievance process. As to the medication, Montañez sought to hold
Dr. Fahim responsible for the several days in May 2010 when he went without Ultram. He
also mentioned, in his complaint, the several‐week delay in receiving Ultram in August
2009. But these allegations, even when viewed in the light most favorable to Montañez, fail
to present a legally sufficient claim that is “plausible on its face.” See Ashcroft v. Iqbal,
129
S. Ct. 1937, 1949 (2009). Though “specific facts are not necessary,” Erickson v. Pardus,
551
U.S. 89, 93 (2007), a plaintiff must provide enough detail to “present a story that holds
together,” Swanson v. Citibank, N.A.,
614 F.3d 400, 404 (7th Cir. 2010). Montañez does not
claim that any of the defendants were deliberately indifferent to his need for pain
medication. In fact, his complaint alleges, inconsistently, both that in May 2010 his Ultram
prescription expired and that the medication was “interrupted and stopped by Dr. Fahim.”
And, the complaint continues, the “mistake” of stopping his Ultram was corrected after he
filed an emergency grievance. Whether it was a mistake, see Spann v. Roper,
453 F.3d 1007,
1008 (8th Cir. 2006); Zentmyer v. Kendall Cnty, Ill.,
220 F.3d 805, 812 (7th Cir. 2000), or a
decision by Dr. Fahim to stop or change the medication, see Jackson v. Kotter,
541 F.3d 688,
697‐98 (7th Cir. 2008), is unimportant; neither possibility would state a claim of deliberate
indifference. And we know nothing about any defendant’s involvement in the August 2009
delay. Therefore, Montañez fails to state a claim regarding delays in receiving medication;
we need not reach the exhaustion question.
As for his kidney stones, we agree with the district court that this aspect of
Montañez’s complaint was sufficient to state an Eighth Amendment claim for deliberate
indifference. His complaint identifies a serious medical need, see Duckworth v. Ahmad, 532
No. 11‐1535 Page
5
F.3d 675, 679 (7th Cir. 2008), and alleges that the defendants have known about it but have
not provided any treatment, see Board v. Farnham,
394 F.3d 469, 478 (7th Cir. 2005). The
more specific allegations that Montañez makes in the attachments to his complaint bolster
his claim. See Erickson,
551 U.S. at 94. The district court reasoned, however, that Montañez
had not done all that was necessary to exhaust these allegations through the grievance
process. But exhaustion is an affirmative defense, so Montañez was not required to set out
in his complaint that he pursued all of the prison’s internal grievance procedures. See Jones
v. Bock,
549 U.S. 199, 216 (2007); Pavey v. Conley,
544 F.3d 739, 740‐41 (7th Cir. 2008). Though
Montañez mentioned the administrative grievances and submitted extensive
documentation, dismissal on this ground is not appropriate unless the existence of the
affirmative defense is “so plain from the face of the complaint” that the suit could be
regarded as frivolous. See Turley v. Gaetz,
625 F.3d 1005, 1013 (7th Cir. 2010); see also Arroyo
v. Starks,
589 F.3d 1091, 1096‐97 (10th Cir. 2009); Carbe v. Lappin,
492 F.3d 325, 328 (5th Cir.
2007).
The district court reasoned that Montañez had failed to exhaust because nowhere in
his attachments is there evidence that he took an administrative appeal after submitting an
initial grievance. On appeal, Montañez concedes that he did not appeal any grievance. But
that is because, he says, the grievance process was made “unavailable” to him by virtue of
the fact that prison administrators did not respond to his grievances. Attached to his
complaint are copies of two grievances, one from August 2009 and the other from October
2009, both complaining about the absence of treatment for his kidney stones. Montañez tells
us that neither grievance was ever answered, and if that is true, then he would not have
been able to continue the exhaustion process; the process would have been unavailable.
See Brengettcy v. Horton,
423 F.3d 674, 682 (7th Cir. 2005); Lewis v. Washington,
300 F.3d 829,
833 (7th Cir. 2002); Foulk v. Charrier,
262 F.3d 687, 698 (8th Cir. 2001); Powe v. Ennis,
177 F.3d
393, 394 (5th Cir. 1999). For purposes here we must assume that, as he says, Montañez
submitted the two grievances but could not pursue the process further because of
administrative inaction. It was premature, then, for the district court to dismiss his claim as
it relates to these allegations.
Accordingly, the dismissal of Montañez’s claim of deliberate indifference is VACATED
to the extent that it relates to his allegations of untreated kidney stones, and the case is
REMANDED for further consideration of that aspect of his claim. In all other respects the
judgment is AFFIRMED.
