Jimmy Miller v. Michael Lemke , 711 F. App'x 354 ( 2018 )

NONPRECEDENTIAL DISPOSITION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 February 14, 2018*
Decided February 15, 2018
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-3252
JIMMY DALE MILLER, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern District
of Illinois, Eastern Division.
v. No. 14cv3325
MICHAEL LEMKE, et al., Robert W. Gettleman,
Defendants-Appellees. Judge.
ORDER
Jimmy Dale Miller, an Illinois prisoner who was housed at Stateville Correctional
Center, filed a complaint alleging that prison officials did not adequately treat his
diabetes. The district court recruited counsel for him. Counsel amended and limited the
complaint to four defendants (the warden, two doctors, and their employer). The
operative complaint asserts that, as a result of some delays in treating Miller’s diabetes
after he was diagnosed, the defendants violated the Eighth Amendment. The district
* 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. 16-3252 Page 2
court dismissed the complaint for failure to state a claim. Because Miller has not alleged
that the delays produced any harm, he has not stated a claim that prison officials were
deliberately indifferent to him. Thus we affirm the judgment.
In reviewing the legal sufficiency of his claim, we accept all factual allegations
from his last complaint as true and draw all reasonable inferences in favor of Miller.
Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015). In February 2013, a medical technician
checked Miller’s blood-sugar level. The result was 381 mg/dL, which the technician told
Miller was far too high. The next day he saw a doctor, Dr. Obaisi, one of the defendants.
Dr. Obaisi rechecked Miller’s blood-sugar and noted it as “HIGH” and above
600 mg/dL. He told a nurse to administer a shot of insulin and teach Miller how to inject
himself with insulin daily. The doctor diagnosed Miller with diabetes and promised to
see him in five days to check his urine, blood, and further examine him. But he never
did, and four other appointments were also cancelled: two appointments at the diabetes
clinic were cancelled in late March, and two again in early April, because no provider
was available until late April. And in early May, technicians briefly delayed completing
his lab work while the prison was on lockdown over three days.
Miller contends on appeal that the four cancelled appointments and three-day
delay in lab work violated the Eighth Amendment. A claim for deliberate indifference
requires Miller to allege, as he has, an objectively serious medical condition. See Perez
v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). We may assume that diabetes is a serious
medical condition. See Ortiz v. City of Chicago, 656 F.3d 523, 527 (7th Cir. 2011).
Untreated, diabetes can lead to a fatal coma, id., or long-term complications like kidney
disease and stroke. See Complications, AMERICAN DIABETES ASSOCIATION http://diabetes
.org/living-with-diabetes/complications/ (last visited Jan. 29, 2018).
Miller’s claim of deliberate indifference fails on the second element. He has not
adequately alleged that the four cancelled appointments and three-day delay in lab
work recklessly endangered him. Perez, 792 F.3d at 776–77. Miller does not allege what,
if any, harm came as a result of these minor delays, much less that the defendants knew
that any harm would ensue. Without those or similar allegations, he has not stated a
claim against the defendants. See Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013)
(explaining that delay in treatment, rather than underlying injury, must cause “some
degree of harm”); Williams v. Liefer, 491 F.3d 710, 714–15 (7th Cir. 2007) (same). And
nothing suggests that Miller was not receiving the insulin that the nurse showed him
how to administer. Ordinarily a district court should grant a pro se litigant an
opportunity to fill in these omissions in an amended complaint. See Barry Aviation Inc. v.
No. 16-3252 Page 3
Land O’Lakes Municipal Airport Com’n, 377 F.3d 682, 687 (7th Cir. 2004). But Miller was
not pro se in the district court. And the court had already granted his counsel two
opportunities to amend. Further amendments are not required.
Miller next asks us to remand this case so that the district court may “reinstate”
his original complaint, which he believes stated a different claim. He asserts on appeal,
as he did in his initial complaint, that for 10 months before his diagnosis in February
2013, dozens of officials, mainly corrections officers and nurses, ignored his requests
that they check whether he has diabetes. He told them that he has a family history of the
disease and has symptoms that he believed reflected possible diabetes. These symptoms
included fatigue, sugar cravings, weakness, body aches, excessive thirst, and frequent
urination. A document appended to his brief—the result of his grievance about this
delay—reflects that the prison disputes his allegations:
Miller was seen as early as May 2, 2012 regarding [possible diabetes]. At
this time labs drawn were returned as normal. On July 12, 2012, labs again
were drawn. On August 28, 2012, labs were drawn and this time reflected
Miller as a borderline diabetic. Records reflect, not until February 2013 did
Miller request to be seen again for this issue, where he was then diagnosed
as a diabetic. (emphasis in original)
Miller is not entitled to have allegations from the original complaint about the
10-month delay reinstated. First, the ordinary rule is that a later complaint takes
precedence over an earlier complaint; the earlier allegations are abandoned. Beal v.
Beller, 847 F.3d 897, 901 (7th Cir. 2017); Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 890
(7th Cir. 2016) cert. denied, 137 S. Ct. 1328 (2017). Second, although we can consider on
appeal allegations in his brief that are consistent with the operative complaint, see Flying
J Inc. v. City of New Haven, 549 F.3d 538, 542 n.1 (7th Cir. 2008), Miller’s appellate
allegations are not consistent with that counsel-drafted complaint. His allegations on
appeal, for the most part, target defendants different from those in the operative
complaint and during a different time frame. The only two defendants in both the
original and operative complaints are the warden and Dr. Obaisi. And as to them,
Miller does not contend in his appellate brief that before February they knew about his
family history and symptoms but ignored him. Therefore Miller may not reallege his
previously abandoned allegations.
Finally Miller contends that his recruited attorney ineffectively represented him
by, among other things, amending his initial complaint. But a contention in a civil case
No. 16-3252 Page 4
that a plaintiff received ineffective assistance of counsel is not a ground for reversal.
See Diggs v. Ghosh, 850 F.3d 905, 911 (7th Cir. 2017); Pendell v. City of Peoria, 799 F.3d 916,
918 (7th Cir. 2015).
AFFIRMED