Allen, John L. v. Frank, Matthew J. , 246 F. App'x 388 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 29, 2007*
Decided August 30, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 07-1031
JOHN L. ALLEN, Appeal from the United States
Plaintiff-Appellant, District Court for the Eastern District
of Wisconsin
v.
No. 05 C 975
MATTHEW FRANK , et al.,
Defendants-Appellees. William C. Griesbach,
Judge.
ORDER
Wisconsin prisoner John Allen claims in this suit under 42 U.S.C. § 1983 that
the defendants ignored his complaints of testicular pain, which Allen suspects is
caused by cancer. The district court granted summary judgment for the defendants.
We affirm.
The essential facts are undisputed. Allen informed prison staff at his initial
medical screening that eight months earlier he had found blood in his urine. This
*
After an examination of 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).
No. 07-1031 Page 2
problem did not resurface, but in October 2002, a year after he entered the prison,
Allen began persistently complaining of testicular pain on his right side. Over the
next three years, he was seen by prison doctors or nurses for these complaints at
least 17 times, by radiologists at the University of Wisconsin hospital three times,
and by an emergency-room doctor once. Yet three separate ultrasounds and four
blood workups and urinalyses during that period uncovered no evidence of cancer or
other disease. One physician speculated that Allen might be experiencing residual
pain from a vasectomy, but no other basis for his reported pain was detected.
Prison doctors prescribed the antibiotic Ciproflaxen several times, gave Allen a
scrotum support and an extra mattress to make him more comfortable, and referred
him to prison psychologists out of concern that his pain might be psychologically
driven.
As part of the investigation into Allen’s complaints, prison medical staff
ordered a urology consult after the second ultrasound revealed a small cyst,
although on his left side outside his testicles. One radiologist told Allen that most
masses outside the testicles prove benign, but added that, as a radiologist, he could
not draw any conclusion on his own. Allen was then examined by a nurse
practitioner in the urology department of the university hospital. Her findings were
reviewed by a urologist. The examination revealed no conditions or symptoms of
medical significance, and afterward the third ultrasound confirmed that the cyst
had shrunk considerably in size. In the nurse practitioner’s experience, patients
with pain similar to Allen’s had responded well to long-term use of Ciproflaxen, so
she recommended its continued use.
A year after the urology consult, in September 2005, Allen filed his complaint
naming 25 defendants, only five of them prison employees who were directly
involved in his medical care. The other defendants included prison administrators
and every outside medical provider who treated Allen. Allen complained that all of
the defendants were deliberately indifferent to his condition because they delayed
sending him to the urologist and treated him only with Ciproflaxen, which he
deemed ineffective. In granting summary judgment, the district court assumed
with some hesitation that Allen suffered from a serious medical condition, but
concluded that he lacked evidence of deliberate indifference. The court reasoned
that Allen had presented nothing but his personal disagreement with the course of
treatment offered by the prison-staff defendants. As to the outside providers, the
court noted that Allen did not even say what he believes they should have done
differently and that his own evidence demonstrated that they diligently
investigated the source of his reported pain.
To have survived summary judgment on his Eighth Amendment claim, Allen
was required to produce evidence that (1) he suffered from an objectively serious
medical condition, and (2) a defendant who can be liable under § 1983 was
No. 07-1031 Page 3
deliberately indifferent to that condition. See West v. Atkins, 487 U.S. 42, 49 (1988);
Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005). Deliberate indifference “is
more than negligence and approaches intentional wrongdoing.” Johnson v. Snyder,
444 F.3d 579, 585 (7th Cir. 2006). The prisoner must establish that the defendants
knew about but disregarded a substantial risk of harm. Greeno v. Daley, 414 F.3d
645, 653 (7th Cir. 2005).
At the outset we note our uncertainty about whether each of the outside
providers even qualifies as a state actor who can be held liable to Allen under
§ 1983 for violating his civil rights. See West, 487 U.S. at 54-56; Wade v. Byles, 83
F.3d 902, 907 n.6 (7th Cir. 1996); Takle v. Univ. of Wis. Hosp. and Clinic. Auth., 402
F.3d 768 (7th Cir. 2005). But see Lamoreux v. Oreck, 686 N.E.2d 722 (Wis. App.
2004). But the district court did not address the issue except as to one emergency-
room doctor who was dismissed on this ground, so we will address Allen’s
arguments about the care he received from the other defendants.
Allen argues that the defendants (medical and non-medical) were
deliberately indifferent to his condition because they prescribed Ciproflaxen
repeatedly instead of referring him to a specialist when they were nonetheless
unable to diagnose the source of his reported pain. To satisfy the objective
component of such a claim—that prison officials delayed rather than denied medical
assistance—the inmate generally is required to offer “verifying medical evidence”
that the delay caused some degree of harm. See Williams v. Liefer, __ F.3d __, 2007
WL 1932475, *3 (7th Cir. 2007). This Allen did not do. In fact, we are not
convinced that he even could prove an underlying “objectively serious medical
condition” since not even the urologist could discern a problem. But even if we
assume, as did the district court, that Allen could satisfy the objective component,
he could not satisfy the subjective one. A prisoner’s dissatisfaction with a particular
course of treatment does not give rise to an Eighth Amendment claim unless the
medical treatment was “so blatantly inappropriate as to evidence intentional
mistreatment likely to seriously aggravate” the prisoner’s condition. Edwards v.
Snyder, 478 F.3d 827, 831 (7th Cir. 2007); Snipes v. DeTella, 95 F.3d 586, 592 (7th
Cir. 1996). Here the prison medical staff performed countless examinations and
ordered multiple tests but Allen has identified nothing of concern in the results that
should have called for treatment other than the use of Ciproflaxen to combat the
possibility of infection. Only the cyst appeared unusual, and when it surfaced Allen
was promptly referred to the urologist. Allen emphasizes that he reportedly was in
pain, but this alone fails to demonstrate that the need for other, unspecified
treatment was so obvious that deliberate indifference can be inferred. See Johnson
v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006); Steele v. Choi, 82 F.3d 175, 179
(7th Cir. 1996) (citing as examples of serious medical needs requiring immediate
attention that “the leg is broken, so it must be set; the person is not breathing, so
CPR must be administered”). And the non-medical officials cannot be held liable for
No. 07-1031 Page 4
reasonably relying on the medical judgment of professionals. See Greeno, 414 F.3d
at 656; Perkins v. Lawson, 312 F.3d 872, 875-76 (7th Cir. 2002).
Allen finally argues that the district court erred by granting summary
judgment for the radiologists and the nurse practitioner at the university hospital
before he obtained complete discovery from them. In his responses to their motions
for summary judgment, Allen cryptically indicated that it was “difficult” for him to
respond without knowing their precise job descriptions, but otherwise he said
nothing about the progress of discovery. A party in such a situation—even a pro se
litigant—must submit an affidavit explaining why additional discovery is
necessary—a “simple procedure.” Deere & Co. v. Oh. Gear, 462 F.3d 701, 706 (7th
Cir. 2006); see Fed. R. Civ. P. 56(f); DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir.
1993) (requiring pro se litigant to follow Rule 56(f)). Even if we liberally construe
Allen’s submission as such a request, he did not explain why the job descriptions
were necessary to establish deliberate indifference, and we agree with the district
court that they were not.
The judgment is AFFIRMED.