Zong Lor v. William Kelley , 436 F. App'x 634 ( 2011 )

NONPRECEDENTIAL DISPOSITION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 10, 2011*
Decided August 17, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 11-1652
ZONG LOR, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 09-CV-00666
WILLIAM B. KELLEY, et al., Charles N. Clevert, Jr.,
Defendants-Appellees. Chief Judge.
ORDER
Wisconsin prisoner Zong Lor sued several medical personnel and administrators at
Kettle Moraine Correctional Institution (KMCI) under 42 U.S.C. § 1983, claiming deliberate
indifference to his painful prostate condition. The district court granted summary judgment
for the defendants, and Lor appeals. We affirm.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 11-1652 Page 2
Lor’s claims arise from treatment he received at KMCI between June and December
2009 for prostatitis (inflamation of the prostate gland). We construe the evidence, and draw
all reasonable inferences, in his favor. See, e.g., Minix v. Canarecci, 597 F.3d 824, 830 (7th Cir.
2010). On June 7 Lor submitted a Health Service Request (HSR) to prison physician
Dr. William Kelley, complaining that for one week he had experienced “pressure, pain, and
discomfort in my lower stomach” and “mild pain and pressure in the rectum area, to the
testicles, and bladder.” The next day, June 8, Kelley examined Lor. In an affidavit Lor recalls
experiencing “extreme pain and discomfort” during the examination. Kelley noted from the
examination a “soft” abdomen, but otherwise found “no abnormal peritoneal signs of an
inflammatory process.” Kelley did not perform a anoscopy (a visual examination of the anal
canal with an anoscope); according to his notes, the room in which he examined Lor was not
equipped for an anoscopy, so he scheduled an appointment for that examination in one
month. According to his affidavit, Kelley assured Lor that he did “not find any significant
medical conditions requiring further treatment or assessment at that visit.”
Three days later Lor’s condition worsened. On June 11 he submitted another HSR to
Kelley asking to be seen as soon as possible. He noted that on June 8 he had been examined
“regarding mild pain and pressure in my lower stomach, rectum, testicles, and bladder,”
but the “pain and pressure in my lower stomach is now a burning sensation in the prostate
area and I feel nerve and muscle spasms in the urethra.” A nurse replied that he should
keep track of his pain and that the doctor would see him in one month.
The next day, June 12, Lor experienced what he characterized in his affidavit as
“excruciating” pain and burning in his prostate. After a unit sergeant called for an
emergency medical response, Lor was seen by nurse Laurie Blum, who examined him and
sent him to a hospital emergency room. There an attending doctor performed a rectal
examination; diagnosed Lor with abdominal pain, urinary tract infection, and prostatitis;
and prescribed Doxycycline (an antibiotic) and Vicodin. At a follow-up examination three
days later, Kelley performed rectal and prostate examinations and found no evidence of
tenderness, enlargement, or “bogginess” (soft tissue) in the prostate. Laboratory results
indicated a normal urinalysis and white blood count.
Throughout June and July, Lor submitted six HSRs complaining of ongoing genital
and rectal pain; in response he received two follow-up appointments with Kelley. When
Kelley examined Lor on June 22 he administered a prostate-specific antigen test, prescribed
an additional week of Doxycycline, and noted Lor’s reports of experiencing prostate spasms
and burning sensations to a “lesser degree” than before. The Health Unit Services manager
William McCreedy was present at that examination and noted that Lor’s condition was
“improving.” Kelley examined Lor again on July 3; he noted that Lor reported less pain in
No. 11-1652 Page 3
the prostate but more pain in the urethra, and he wrote a two-week prescription for Bactrim
(an antibiotic). A urinalysis test two weeks later was normal.
When his prostatitis symptoms continued in August, Lor began submitting HSRs to
Kelley and McCreedy asking to see an outside urologist; Lor thought that he might have
nonbacterial prostatitis, for which antibiotics are ineffective. Kelley examined Lor on
August 5, performed a rectal examination, found no enlargement or “bogginess” in Lor’s
prostate, and ordered various laboratory tests, ultrasounds of Lor’s kidneys and bladder,
and a psychological evaluation of Lor’s coping skills. The kidney and bladder ultrasounds
and the laboratory tests all came back normal, and the psychologist reported that Lor “did
appear to be overreacting” to his condition. McCreedy spoke with Lor about his ongoing
prostatitis symptoms on August 26, and the next day Kelley examined him. The score sheet
that Kelley used to evaluate Lor’s prostate symptoms indicated that Lor had “mild”
symptoms. In response to Lor’s concerns about nonbacterial prostatitis, Kelley prepared a
“Prior Authorization for Therapeutic Level of Care” form asking the prison’s Medical
Review Committee to allow Lor to receive a rectal ultrasound of the prostate from an
outside specialist. On September 2 the committee rejected Lor’s request for an outside rectal
ultrasound and instead suggested a six-week trial of Ciprofloxacin (“Cipro,” another
antibiotic) with up to six weeks of additional treatment and alpha blockers (muscle
relaxers). Kelley followed the committee’s suggestion and prescribed Cipro the next day.
Between June and August Lor filed four administrative complaints against Kelley
and McCreedy, complaining about the treatment he received for prostatitis and reiterating
his desire to see a urologist. Prison administrator James LaBelle reviewed Lor’s treatment
history after receiving each complaint and dismissed each one in turn.
Lor continued to experience prostatitis symptoms after the first six-week trial of
Cipro. He submitted an HSR on October 18, explaining that he still felt genital pain but that
the fullness in his rectum had improved. Kelley examined him on October 21 and
prescribed another six-week trial. Lor complained of symptoms when that trial ended in
December, but he was soon transferred out of KMCI.
After exhausting his administrative remedies, Lor filed this § 1983 suit asserting
deliberate indifference against Kelley, McCreedy, nurse Blum, and administrator LaBelle, as
well as the prison warden Michael Dittmann. He claimed that Kelley acted with deliberate
indifference to his prostatitis on June 8 when he did not conduct an anoscopy or provide
pain medication. He also claimed that Kelley and McCreedy were deliberately indifferent to
his ongoing genital and rectal pain when they refused his requests to see an outside
specialist after he complained that the antibiotics were ineffective. He claimed that Blum
deliberately refused his requests for treatment, that Dittmann deliberately ignored Kelley’s
No. 11-1652 Page 4
inadequate treatment, and that LaBelle wrongfully dismissed his administrative complaints
without an investigation.
The district court granted summary judgment for the defendants, concluding that
Kelley was not deliberately indifferent to Lor’s conditions because “Lor’s symptoms were
not as severe on June 8 as they were on June 12“ and no reasonable jury could conclude that
Kelley treated Lor with deliberate indifference during the overall course of treatment. The
court noted that Kelley examined Lor at least seven times between June and October,
ordered tests and prescribed medication, provided “increased treatment modes” in
response to Lor’s ongoing complaints, and asked the Medical Review Committee to
approve a rectal ultrasound. The court also concluded that McCreedy and Dittmann were
not liable because they did not personally treat Lor, that Blum was not deliberately
indifferent because on June 12 she treated Lor and then promptly sent him to the hospital,
and that LaBelle did not act with deliberate indifference by not investigating Lor’s
complaints because he was entitled to defer to the judgment of medical professionals.
On appeal Lor pursues his claims only against Kelley and McCreedy, and he
delineates two separate periods when both men were deliberately indifferent. First he
spotlights June 8, when Kelley neither prescribed medication nor secured an examination
room for an anoscopy. He next focuses on the subsequent course of treatment, when Kelley
and McCreedy refused his requests to see a urologist and continued to prescribe him a
course of ineffective antibiotics.
Regarding the treatment he received on June 8, Lor cannot establish that Kelley was
deliberately indifferent. To do so, Lor must show not only that his conditions were serious
(which the defendants do not contest), but also that the “prison officials acted with a
sufficiently culpable state of mind.” Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). The
record here, however, does not reflect that Kelley was aware of the severity of Lor’s pain
that day. As the district court noted, Lor’s symptoms increased in severity between June 8
and June 12—the day that he went to the hospital. Lor’s HSR to Kelley on June 7 described
his pain as “mild” and the following day Lor again characterized his condition as “mild,”
according to the HSR he wrote to Kelley on June 11. Lor’s subsequent affidavit (prepared in
January 2011) recalls his pain on June 8 as “extreme,” but the affidavit does not state that he
told Kelley about such pain; at any rate a party may not create an issue of fact at summary
judgment by submitting an affidavit that contradicts his own statements roughly
contemporaneous with the events at issue. See Gates v. Caterpillar, Inc., 513 F.3d 680, 688 n.5
(7th Cir. 2008). Given this evidence, a reasonable jury could not conclude that Kelley knew
that Lor’s pain on June 8 was so severe that denying him pain medication or an anoscopy
posed an excessive risk of serious harm.
No. 11-1652 Page 5
As for Lor’s treatment after June 8, no reasonable juror could conclude that Kelley
was deliberately indifferent to his condition. During this time, Kelley prescribed and
adjusted Lor’s antibiotics (from Doxycycline to Bactrim to Rocephin), performed relevant
examinations and laboratory tests (e.g., rectal and prostate examinations, kidney and
bladder ultrasounds, thyroid tests, lipid panel, urine and blood chemistry, hematology test,
hemoccult test for blood in the stool, and urinalysis), and sought outside advice about a
specialist referral from the Medical Review Committee. Kelley followed the committee’s
advice and prescribed Lor with a six-week trial of Cipro and the recommended additional
six-week trial when Lor’s symptoms continued. Kelley, then, did not “persist in a course of
treatment ‘known to be ineffective,’” Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010)
(quoting Greeno, 414 F.3d at 655). Indeed, the antibiotic treatments conformed to the plan
outlined on the National Institutes of Health webpage, submitted by Lor, that “[c]hronic
prostatitis is treated with a long course (6-12 weeks or longer) of antibiotics.” Prostatitis-
bacterial-chronic, MEDLINE MED. ENCYC.,
http://www.nlm.nih.gov/medlineplus/ency/article/000523.htm (last visited August 10, 2011).
That webpage elsewhere explains that, even when treating nonbacterial prostatitis (which
Lor thought he had), “[m]any patients are treated with long-term antibiotics to make sure
that bacteria are not causing their prostatitis,” Prostatitis-nonbacterial-chronic, supra,
http://www.nlm.nih.gov/medlineplus/ency/article/000524.htm. No juror could infer
deliberate indifference from the course of treatment that Kelley prescribed.
Lor also argues that the district court erred in determining that McCreedy was not
deliberately indifferent, urging that McCreedy, as an administrator who was present during
his examinations, “turned a blind eye” toward Kelley’s “ineffective treatment.” But because
we agree with the district court that Lor has not shown deliberate indifference on Kelley’s
part, McCreedy cannot be liable for any “personal involvement” with Lor’s treatment. See
Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003).
We address two final matters. First, Lor contends that the district court abused its
discretion in denying his discovery motion under Federal Rule of Civil Procedure 36(a)(6),
in which he had requested an order determining the sufficiency of the defendants’
responses to his requests for admissions. The court denied that motion, finding the
responses justified. Lor now asserts that “the court did not address each of Lor’s challenged
responses.” But this argument is irrelevant because Lor has not attempted to show that he
suffered any actual and substantial prejudice from the motion’s denial, as required for
reversal. See Walker v. Mueller Indus., Inc., 408 F.3d 328, 334 (7th Cir. 2005); Balderston v.
Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 319 (7th Cir. 2003).
Lastly Lor argues that the district court abused its discretion by excluding a medical-
expert report he submitted in opposition to summary judgment. This report was written by
No. 11-1652 Page 6
a board-certified emergency physician, who concluded that Lor had been treated below the
“standard of care” when he was not given a rectal examination or urinalysis on June 8 or
June 11. The court did not consider the report because it determined that the report was
“not properly before [it]” at summary judgment. Lor disagrees and insists that the report
was “substantively adequate.” But the court properly excluded the report because it did not
disclose a list of all publications authored by the witness in the previous ten years, see Fed.
R. Civ. P. 26(a)(2)(B)(iv), a list of the witness’s prior testimony from the previous four years,
see id. 26(a)(2)(B)(v), or a statement of the witness’s compensation, see id. 26(a)(2)(B)(vi). Lor
does not justify the report’s deficiencies, see id. 37(c)(1); Gicla v. United States, 572 F.3d 407,
410 (7th Cir. 2009), and the report’s missing information thwarted the defendants’ ability to
prepare effectively to rebut, cross-examine, or offer a competing expert, see Walsh v. Chez,
583 F.3d 990, 994 (7th Cir. 2009). Moreover, the court properly excluded the report because
the expert’s conclusions in the report were inconsequential and irrelevant to Lor’s claims of
deliberate indifference against Kelley. The expert opined only that Kelley’s treatment on
those two days did not meet the “standard of care.” Lor submitted his HSR on June 7.
Kelley examined him on June 8. On June 12, when the pain was more severe, Lor was sent
to a hospital for a thorough exam. The quick medical attention aside, treatment below the
standard of care shows negligence and negligence is not enough to make out a claim of
deliberate indifference, see Walker v. Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002); Williams v.
O'Leary, 55 F.3d 320, 324 (7th Cir. 1995); Steele v. Choi, 82 F.3d 175, 178 (7th Cir. 1996).
AFFIRMED.