Anthony J. Machicote v. Doctor Roethlisberger ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3009
ANTHONY J. MACHICOTE,
Plaintiff-Appellant,
v.
DOCTOR ROETHLISBERGER,
n/k/a Dr. Marie Herweijer, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:18-cv-249 — Barbara B. Crabb, Judge.
____________________
SUBMITTED JULY 23, 2020 * — DECIDED AUGUST 14, 2020
____________________
Before RIPPLE, HAMILTON, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Anthony Machicote is a Wisconsin
inmate who had a surgery that left him in extreme pain
* We have agreed to decide this 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).
2 No. 19-3009
necessitating strong medication at regular intervals. He faced
delays and interruptions in receiving those drugs and experi-
enced significant pain as a result. That led him to invoke 42
U.S.C. § 1983 and file a lawsuit against several physicians, a
health services manager, and a nurse who worked at the New
Lisbon Correctional Institution. The district court entered
summary judgment for all defendants, concluding that Ma-
chicote had not shown that any of them were deliberately in-
different to his suffering. We agree with respect to most of the
defendants and affirm the judgments in their favor. But Ma-
chicote has persuaded us that a factual issue remains as to the
deliberate indifference of the nurse. We therefore vacate the
judgment as to only that defendant and remand for a trial.
I
A
Anthony Machicote underwent surgery to remove dam-
aged bone, tissue, and cartilage in his left ankle after he suf-
fered an injury while playing basketball in the New Lisbon
prison yard. The case at hand concerns his treatment upon re-
turn to the prison, the facts of which we recount in the light
most favorable to him. See Hackett v. City of South Bend, 956
F.3d 504, 507 (7th Cir. 2020).
After the procedure, the surgeon supplied Machicote with
oxycodone and warned that he would be in “extreme pain”
when the medication wore off. He was discharged with in-
structions recommending narcotic-strength painkillers every
six hours. Back at the prison, Dr. Marie Herweijer and Nurse
Kimberly Stecker reviewed Machicote’s discharge instruc-
tions. For her part, Dr. Herweijer ordered Tylenol #3, a
No. 19-3009 3
combination of acetaminophen and codeine, for Machicote to
take as needed every six hours for three days.
Nurse Stecker directed Machicote to take his first dose of
Tylenol #3 at 9:30 p.m. that evening, fewer than six hours after
he received the oxycodone following surgery. He refused at
first, worried that taking the medication so early meant it
would wear off during the night. In doing so, Machicote re-
minded Nurse Stecker not only of Dr. Herweijer’s six-hour
dosage instruction, but also the surgeon’s warnings about the
pain that would ensue once the effects of the oxycodone wore
off. Nurse Stecker reacted by saying she “did not care” and
telling Machicote he would have to “deal with the pain” be-
cause more medication would not be available until the next
morning. Faced with no alternative, Machicote relented and
took the pills.
Machicote’s worry came true, for he found himself awake
at 3:30 a.m. in “excruciating pain.” He attempted to dull the
pain with weaker medication, but it did not help. He passed
the remaining hours of the night awake in agony until Nurse
Stecker returned with more Tylenol #3 at around 6:20 a.m.
The following day, Machicote continued to have trouble
accessing the medication that Dr. Herweijer had ordered for
him. He went to the health services unit at around noon for
his next dose of Tylenol #3, and Nurse Stecker told him to
come back later and stand in the regular medication line. The
prison has medication distribution scheduled for roughly 6
a.m., 12 p.m., 4 p.m., and 8 p.m. daily—a timetable that did
not match the one in Machicote’s prescription. When Ma-
chicote reminded Nurse Stecker of the prescribed dosage
schedule, she retorted, “We will see about that!” but then gave
him the pills he sought.
4 No. 19-3009
About an hour after that exchange, Machicote saw Nurse
Stecker angrily gesturing toward him while arguing with
Candace Warner, the prison’s health services manager. The
nurse then contacted the on-call doctor, Dr. Prapti Kuber, who
revised Machicote’s medication order from every six hours to
four times daily to bring his dosage schedule in line with the
prison’s ordinary distribution hours. Warner told Machicote
about the change, and he protested that it would result in him
experiencing substantial pain overnight for even longer than
before. She told him, “That’s how it will go.”
Machicote met further difficulty in his first attempts to
conform to the new medication schedule. He stood in the
prison’s afternoon medication line only to be rejected by
Nurse Stecker because it was “too early.” He explained to her
that his previous dose would soon wear off and that he was
trying to comply with the new order, but she replied that it
was “[n]ot [her] problem.” A friend of his called the prison
later that day out of concern that Machicote’s pain was not
being managed adequately, but Nurse Stecker rebuffed the
friend’s plea.
For the next three days, Machicote received his medication
during the prison’s regular distribution hours as Dr. Kuber
had ordered, and each night he laid awake in “excruciating
pain.” His friends called the New Lisbon staff to tell them of
his suffering to no avail.
Then Machicote’s medication order ran out completely,
and he began experiencing agonizing ankle pain around the
clock. He filed a health services request, complaining of a fe-
ver, an “extreme burning” pain around his ankle and foot,
and a wet feeling in his bandages. Nurse Stecker changed his
bandages but refused to contact a doctor. Two days later,
No. 19-3009 5
Machicote complained of “unbearable pain” to a shift ser-
geant, who placed an emergency call to health services on his
behalf. It took yet another health services request and a
voicemail from his friend to Warner before Machicote was fi-
nally seen by a nurse the next day. The nurse noted that Ma-
chicote appeared sleepless and distraught and said she would
consult with a doctor.
Five days after Machicote’s initial medication order ex-
pired, supervising physician Dr. Karl Hoffman prescribed
him another painkiller, Tramadol, to take every six hours as
needed for four weeks. Machicote did not receive the medica-
tion for two more days, and his medical records show that the
pain required management for several more weeks.
B
Without the assistance of an attorney, Machicote sued
Dr. Herweijer, Dr. Kuber, Dr. Hoffman, Warner, and Nurse
Stecker under 42 U.S.C. § 1983, claiming that they were delib-
erately indifferent to his post-surgery pain in violation of the
Eighth Amendment. He alleged that the pain medication pre-
scriptions from Dr. Herweijer and Dr. Kuber were inade-
quate; that Nurse Stecker deliberately ignored his pain and
interfered with his treatment; that Warner as the health ser-
vices manager should have reevaluated his medication sched-
ule after he continued to complain; and that Dr. Hoffman—as
a supervising physician who knew about his surgery—should
have monitored his condition and ordered medical staff to fol-
low a better dosing schedule.
The district court denied Machicote’s request that a lawyer
be recruited to represent him, explaining that he first needed
to try to find an attorney on his own. Further, the court
6 No. 19-3009
reasoned, at the pleadings stage he needed only to state “what
happened, when, where and who was involved,” a task that
did not require a lawyer’s help given that Machicote’s filings
were legible and coherent.
The defendants eventually moved for summary judgment,
and they were successful. The district court concluded that
Machicote had not come forward with evidence to show that
any of the defendants who had been personally involved in
his treatment were deliberately indifferent to his suffering.
Having resolved all of the claims, the district court entered
judgment in favor of the defendants.
Machicote, still without a lawyer, now appeals the district
court’s grant of summary judgment and the denial of his re-
quest for recruited counsel.
II
Summary judgment is proper only if the defendants show
that no material facts are in genuine dispute and that they are
entitled to judgment as a matter of law. See FED. R. CIV. P.
56(a). A genuine dispute over a material fact exists if “the ev-
idence is such that a reasonable jury could return a verdict”
for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). We review the district court’s grant of summary
judgment de novo, drawing all reasonable inferences in Ma-
chicote’s favor. See Hackett, 956 F.3d at 507.
Machicote’s claims arise under the Eighth Amendment,
which prohibits deliberate indifference to the serious medical
needs of prisoners. See Estelle v. Gamble, 429 U.S. 97, 104
(1976). The defendants do not dispute that his post-surgery
pain was objectively serious, so the question is whether Ma-
chicote put forth evidence from which a jury could find that
No. 19-3009 7
the defendants actually knew about the pain and recklessly
disregarded or needlessly prolonged it. See id. at 104–06;
Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011).
A
We begin with Machicote’s claim against Nurse Stecker.
The district court concluded that the record contained no sug-
gestion that she knew the severity of Machicote’s pain or that
the actions she took (or did not take) would prolong it. For his
part, Machicote points us to a combination of events that he
contends demonstrate more than a negligent mistake and
would allow a reasonable jury to find deliberate indifference.
We agree with him, persuaded by evidence of three episodes
that could combine to convince a jury.
First, Nurse Stecker knowingly defied Dr. Herweijer’s
medication order. The very first night after Machicote re-
turned from surgery, the doctor directed that he receive Ty-
lenol #3 every six hours as recommended in the hospital’s dis-
charge instructions. Yet Nurse Stecker forced him to take the
pills ahead of schedule, even though he told her about his sur-
geon’s warning that he would suffer extreme pain when the
medication wore off. Machicote’s concern prompted nothing
more than a shoulder shrug—she responded by saying she
“did not care” and that he would have to “deal with the pain.”
Delaying necessary medication for hours of needless suffer-
ing can be sufficient for a jury to infer deliberate indifference.
See Gil v. Reed, 381 F.3d 649, 662 (7th Cir. 2004) (concluding
that facts showing physician’s assistant denied prescribed
medication could permit a jury to infer knowledge of risk of
harm); Walker v. Benjamin, 293 F.3d 1030, 1040–41 (7th Cir.
2002) (denying inmate pain medication as ordered by a doctor
8 No. 19-3009
could support inference that nurse recklessly ignored his
pain).
Second, a jury could reasonably infer that Nurse Stecker
had Machicote’s dosage schedule changed simply because
she did not want to administer the medication every six hours
as Dr. Herweijer had ordered. That inference comes from the
heated exchange Machicote observed Nurse Stecker have
with Warner after he requested his pills outside the prison’s
normal distribution time and the subsequent change to his
medication order. Viewed in the light most favorable to Ma-
chicote, this incident could be seen as Nurse Stecker prolong-
ing his pain (or contributing to that end) with no medical jus-
tification. Administrative convenience can be a permissible
factor in a prison’s treatment decision, but “the Constitution
is violated when [it is] considered to the exclusion of reason-
able medical judgment about inmate health.” Roe v. Elyea,
631 F.3d 843, 863 (7th Cir. 2011) (emphasis omitted).
Third, Nurse Stecker, knowing all she did by that point,
did not consult a doctor when Machicote reported extreme
pain after his original medication order ran out. She knew
doctors had been treating him with narcotic-strength medica-
tion but ignored his complaints of excruciating discomfort
(including a distraught and sleepless appearance noted by an-
other nurse) to decide on her own that his treatment was ad-
equate. Persisting in a course of treatment known to be inef-
fective may support an inference that a medical official reck-
lessly ignored an inmate’s serious medical condition. See Pet-
ties v. Carter, 836 F.3d 722, 729–31 (7th Cir. 2016) (en banc);
see also Williams v. Liefer, 491 F.3d 710, 716 (7th Cir. 2007) (de-
termining that a delay in treatment was actionable where
No. 19-3009 9
medical records showed it unnecessarily prolonged plaintiff’s
pain).
Any one of these incidents on its own might or might not
have been enough to avoid summary judgment, but together
they could support a finding that Nurse Stecker deliberately
and recklessly ignored Machicote’s pain. That is not to say a
jury could not come to the opposite conclusion or credit
Nurse Stecker’s side of the story. Those decisions rest in the
jurors’ hands in the first instance. We hold only that Ma-
chicote is entitled to the opportunity to make his case at a trial.
B
But the district court was right to grant summary judg-
ment to the other defendants.
None of the three doctors involved in Machicote’s care
demonstrated deliberate indifference to his pain. Dr. Her-
weijer based the initial medication order on her reasoned
medical judgment, and though the prescription was for a
mere three days, no evidence suggests that duration was “bla-
tantly inappropriate.” Pyles v. Fahim, 771 F.3d 403, 409
(7th Cir. 2014). Dr. Kuber—the physician who revised the or-
der, seemingly to match the prison’s regular medication dis-
tribution schedule—could very well have been negligent, but
we find nothing in the record to suggest that he knew the
change would cause Machicote serious harm. Machicote
faults Dr. Hoffman for not finding out about the Tramadol de-
lay and prescribing an alternative. Here, too, we lack factual
support suggesting that Dr. Hoffman had reason to anticipate
the delay. See Arnett, 658 F.3d at 758 (concluding that a doctor
was not liable for prison staff’s delay in dispensing prescribed
medication).
10 No. 19-3009
As for Warner, the health services manager, the district
court properly concluded that she did not have knowledge of
Machicote’s treatment or the authority to intervene in it. No
evidence suggests that she was personally involved in his care
beyond fielding Nurse Stecker’s complaints about him. See
Minix v. Canarecci, 597 F.3d 824, 833–34 (7th Cir. 2010) (con-
cluding that medical director was not liable for subordinate’s
failure to monitor inmate’s care where no facts suggested he
was personally involved in it). Machicote’s friends called the
prison to express concerns about his treatment, but the record
provides us no reason to believe Warner was unresponsive to
those calls.
III
Last we arrive at the denial of Machicote’s request for
counsel. We review the decision for an abuse of discretion, see
Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007) (en banc), and
find none. As the district court explained, Machicote had not
made sufficient efforts to find a lawyer on his own, and he
appeared to be competent to litigate the case himself at that
early stage. See id. at 654.
We pause here to make our own observation on the quality
of Machicote’s filings, though it has no bearing on the recruit-
ment-of-counsel issue. He has represented himself ably in this
court—advancing his arguments in clear and precise terms—
and found himself in the somewhat infrequent position of
having succeeded in obtaining a reversal without the assis-
tance of a lawyer. That is no small feat given the obstacles that
pro se litigants face, particularly those filing from prison. We
say this only to commend Machicote, not to suggest that he
would not greatly benefit from an attorney’s aid at trial. He
No. 19-3009 11
remains free to renew his request for recruited counsel on re-
mand.
For these reasons, we AFFIRM in part, REVERSE in part,
and REMAND for further proceedings.