NONPRECEDENTIAL DISPOSITION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 November 30, 2011*
Decided December 2, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐1737
LEON IRBY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 08‐C‐0258
MARY GORSKE and BELINDA SCHRUBBE, Charles N. Clevert, Jr.,
Defendants‐Appellees. Chief Judge.
O R D E R
Leon Irby, a Wisconsin inmate, filed suit under 42 U.S.C. § 1983 claiming that prison
nurses Mary Gorske and Belinda Schrubbe violated the Eighth Amendment by deliberately
ignoring his medical needs. The district court granted the defendants’ motion for summary
judgment. We affirm that decision.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(c).
No. 11‐1737 Page 2
Irby was diagnosed with osteoarthritis in 1998 while in prison. Since that time he has
taken analgesics for pain, particularly acetaminophen. In May 2007 he was transferred to
the Waupun Correctional Institution, where the two defendants are employed. He brought
with him a supply of Tylenol in 325 mg. tablets, a dosage of acetaminophen that can be
dispensed without a prescription. See PHYSICIAN’S DESK REFERENCE 1912 (65th ed. 2011).
When that supply was exhausted, Irby wrote Gorske, a nurse practitioner, requesting a
refill; she wrote back that he would have to be seen by prison medical staff before receiving
additional medication. Instead of scheduling an appointment, Irby requested a refill from
Schrubbe, Gorske’s supervisor. When Schrubbe did not respond, Irby submitted a grievance
asking for help in obtaining the refill. A complaint examiner denied this grievance with the
explanation that Irby had sufficient funds to purchase acetaminophen from the prison
canteen.
In his complaint Irby claimed that Gorske and Schrubbe violated the Eighth
Amendment by refusing to supply him with acetaminophen. The defendants moved for
summary judgment shortly before the deadline imposed by the court. But this first motion
was denied because counsel had failed to attach copies of exhibits cited in the defendants’
affidavits, and a second motion was denied because counsel had failed to comply fully with
a local rule designed to enforce the notice requirement of Timms v. Frank, 953 F.2d 281 (7th
Cir. 1992). See E.D. WIS. CIV. L. R. 56(a)(1)(B). Counsel filed a compliant motion on the third
try, although by this time the deadline had passed. The district court, after rejecting Irby’s
contention that the renewed motion should be denied as untimely, granted summary
judgment for the defendants. The district court principally concluded that the defendants
could not have been deliberately indifferent to Irby’s condition because the pain reliever he
needed could be purchased from the prison canteen without a prescription.
On appeal Irby first argues that the district court should have denied the defendants’
untimely motion for summary judgment. We review for abuse of discretion a court’s
decision to accept an untimely motion, see Aldridge v. Forest River, Inc., 635 F.3d 870, 875 (7th
Cir. 2011); Ciciora v. CCAA, Inc., 581 F.3d 480, 482 (7th Cir. 2009), and Irby fails to provide
any argument that meets this standard. Although he accuses the district court of failing to
explain its ruling, the court in fact accepted the defendants’ third motion because the
previous denials had been without prejudice, and counsel had acted promptly to correct the
procedural shortcomings. Those reasons are satisfactory.
Irby next contends that the district court granted summary judgment despite the
existence of a genuine issue of material fact. As best we can tell, Irby reads the district
court’s order as saying that his free supply of Tylenol was cut off because acetaminophen
can be “toxic” with long‐term use, and yet he was then told to buy his own supply of this
“toxic” medication, rather than receiving a safe alternative. This “dispute” arises, however,
from a simple factual mistake by the district court. Before Irby was transferred to Waupun,
No. 11‐1737 Page 3
he had been given ibuprofen for a few months, but a decision was made to discontinue that
drug, not acetaminophen, because of health risks associated with long‐term use. Irby
presented no evidence that he was still taking ibuprofen when he arrived at Waupun, nor
has he ever asserted in this litigation that the defendants should have, but refused, to
dispense ibuprofen. It is evident from the record that the district court misspoke in
recounting that Gorske had cited a safety concern in deciding not to continue supplying
Irby with free Tylenol. The nurses have not said that acetaminophen is unsafe. And Irby
must believe that the drug is safe; he filed suit because his supply was cut off. Since the
parties agree on this point, there is no dispute of material fact.
Irby devotes the remainder of his brief to identifying purportedly inconsistent
statements made by Gorske that he believes preclude summary judgment. But the supposed
discrepancies he identifies are irrelevant: Irby’s ability to buy acetaminophen from the
prison canteen is undisputed and dispositive. As the district court properly concluded, no
jury reasonably could find that refusing to provide Irby medicine that he is capable of
buying himself violates the Eighth Amendment. See Flanory v. Bonn, 604 F.3d 249, 256 (6th
Cir. 2010); Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418–19 (3d Cir. 2000); Roberson
v. Bradshaw, 198 F.3d 645, 647 (8th Cir. 1999); Shapley v. Nevada Bd. of State Prison Comm’rs,
766 F.2d 404, 408 (9th Cir. 1985). Therefore, granting the motion for summary judgment was
proper. See Montgomery v. American Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010).
AFFIRMED.
