Jeremy Lowrey v. Andrew Tilden ( 2020 )

NONPRECEDENTIAL DISPOSITION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 March 19, 2020*
Decided March 19, 2020
Before
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-1365
JEREMY LOWREY, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 1:16-cv-1170
ANDREW TILDEN and WEXFORD Jonathan E. Hawley,
HEALTH SOURCES, INC., Magistrate Judge.
Defendants-Appellees.
ORDER
Jeremy Lowrey, a prisoner at Pontiac Correctional Facility, says that after he
suffered stomach pain (which he thought was related to a medical implant), a prison
doctor treated his symptoms but refused to send him to an outside specialist. Believing
that this refusal violated the Eighth Amendment, he sued the doctor, the doctor's
employer (Wexford Health Sources), and others under 42 U.S.C. § 1983. The district
court denied Lowrey’s requests for counsel and granted the defendants’ motions for
* 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. 19-1365 Page 2
summary judgment. Because the record, construed in Lowrey’s favor, shows no
deliberate indifference, and because the court reasonably ruled that counsel was not
needed, we affirm.
Years before he went to prison in 2010, Lowrey had a “lap band” surgically
implanted to help manage his weight. This silicone device (a “laparoscopic adjustable
gastric band”) encircles part of the stomach to treat obesity by decreasing eating.
See https://medical-dictionary.thefreedictionary.com/laparoscopic+gastric+banding (last
visited March 3, 2020).
Five years after entering prison, Lowrey began complaining of problems relating
to that implant, including pain and indigestion. In response, Dr. Andrew Tilden, the
prison doctor, prescribed a drug for indigestion and ibuprofen for pain management.
When Lowrey complained of heartburn the next month, Dr. Tilden added a
prescription for an antacid. Lowrey still was not feeling well a month later, so Dr.
Tilden ordered an x-ray to see whether Lowrey’s lap band was out of place; the x-ray
revealed no issues. Two months later, Lowrey requested an exam by an outside
specialist. Based on the medical evidence at that point, Dr. Tilden denied the request.
When Lowrey again complained of heartburn three months later, Dr. Tilden gave him a
six-month prescription for a different drug (Pepcid, to reduce stomach acid). After this
prescription, Lowrey did not complain of stomach problems again for almost a year.
During this period free from any reported stomach issues, Lowrey sued Dr.
Tilden, prison administrators, and Wexford Health Sources for violating the Eighth
Amendment by denying his request for an outside specialist. The district court (through
a magistrate judge who presided by consent) dismissed all defendants except Dr.
Tilden, Wexford, and the prison warden. (The warden eventually obtained summary
judgment based on Lowrey’s failure to exhaust administrative remedies—a ruling that
Lowrey does not challenge.) The court also denied Lowrey’s request for counsel,
without prejudice. It explained that if Lowrey chose to renew his motion, he would
need to provide information about his education, work history, litigation history, and
his efforts to obtain counsel. Lowrey later renewed his request and included a list of 12
lawyers he had contacted. The district court acknowledged these efforts but ruled that
recruiting counsel was unwarranted. It reasoned that Lowrey (who has a GED, attended
three semesters of college, and drafted his filings unaided) had communicated well
with the court, and the litigation was not too complex relative to his abilities.
No. 19-1365 Page 3
Meanwhile, as the litigation was ongoing, Lowrey raised new complaints to
prison medical personnel about his stomach issues, including abdominal discomfort,
nausea, and vomiting. In response, Dr. Tilden prescribed anti-nausea medication and
scheduled Lowrey to see a specialist. Soon after, a gastroenterologist concluded that
Lowrey’s lap band should be removed, and a few months later Lowrey underwent
successful removal surgery.
The district court later entered summary judgment for Dr. Tilden and Wexford,
concluding that the record did not permit an inference that Dr. Tilden was deliberately
indifferent to Lowrey’s needs, so neither Dr. Tilden nor Wexford violated the Eighth
Amendment. The court explained that Dr. Tilden had reasonably responded to
Lowrey’s complaints, that the x-ray revealed no issues, that some of the prescribed
medication was effective (as evidenced by Lowrey’s lack of complaint during the year
following that prescription), and that courts accord great deference to doctors’
judgments.
On appeal, Lowrey first argues that the district court abused its discretion when
it denied his motions for counsel. He contends that he needed counsel in order to
litigate his case competently, to obtain an expert, and to stave off summary judgment.
But the district court did not abuse its discretion in denying Lowrey’s requests. Civil
litigants—even indigent ones like Lowrey— are not guaranteed counsel in all cases; a
district court may recruit counsel for a litigant at its discretion when the litigant cannot
secure counsel and the case’s complexity exceeds the litigant’s skills. See Pruitt v. Mote,
503 F.3d 647, 649 (7th Cir. 2007) (en banc). The district court acknowledged that Lowrey
tried to find counsel. But its decision not to recruit counsel for him was reasonable
because his unassisted filings were clear and, with his partial college education, he
could on his own seek an expert and reply to a motion for summary judgment in this
standard deliberate-indifference case.
Next, Lowrey contests the entry of summary judgment for Dr. Tilden. He
contends that the doctor said he sent Lowrey to see a specialist after his first request,
but that Dr. Tilden did not actually do so. This assertion is baseless; Dr. Tilden never
said that he sent Lowrey to a specialist after Lowrey’s first request. What the record
instead shows is that Dr. Tilden reasonably responded to Lowrey’s complaints. The
doctor prescribed two drugs to treat Lowrey’s symptoms of pain and indigestion when
they arose, and, when discomfort returned, Dr. Tilden took the further step of ordering
an x-ray. But when the x-ray revealed no issues with the lap band, Dr. Tilden
permissibly denied Lowrey’s demand to see an outside specialist. See Pyles v. Fahim, 771
No. 19-1365 Page 4
F.3d 403, 411 (7th Cir. 2014) (doctors have discretion to deny a request to see a specialist
when circumstances do not require it). When Lowrey’s symptoms returned a few
months later, Dr. Tilden recognized that the previous drugs were no longer effective
and prescribed new medicine, after which Lowrey’s complaints ceased for a year. When
symptoms arose after a year free from stomach issues, Dr. Tilden again acted
reasonably by referring Lowrey to an outside gastroenterologist to address the new
concerns. Then, on the recommendation of the gastroenterologist, Lowrey underwent
successful surgery to remove the lap band. On this record, no reasonable jury could
conclude that Dr. Tilden deliberately ignored Lowrey’s serious medical needs, so no
violation of the Eighth Amendment occurred. See Estelle v. Gamble, 429 U.S. 97, 104–05
(1976).
Summary judgment was properly entered for Wexford as well: Dr. Tilden
committed no underlying constitutional violation, so Wexford (his employer) cannot be
held liable for damages. See Pyles, 771 F.3d at 412.
We AFFIRM the judgment of the district court.