Daniel Troya v. Williams Wilson ( 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NONPRECEDENTIAL DISPOSITION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 20, 2020
Before
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-1352
DANIEL A. TROYA, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Terre Haute Division.
v. No. 2:17-cv-00162-JRS-DLP
WILLIAMS E. WILSON, et al., James R. Sweeney, II,
Defendants-Appellees. Judge.
ORDER
Daniel Troya, a federal inmate in Indiana, had surgery to remove hemorrhoids.
Contending that the prison’s medical staff deliberately ignored his medical needs in the
wake of surgery, Troya filed this Bivens action. See Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Because no reasonable juror could find
that the defendants recklessly ignored Troya’s post-surgical needs, we affirm the
judgment.
* 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. 19-1352 Page 2
Troya had a successful hemorrhoidectomy. Afterward, his surgeon prescribed a
painkiller and a stool softener, though he advised Troya that he could use an over-the-
counter stool softener. He told Troya that “[s]ome pain and swelling,” constipation, and
“a small amount of rectal bleeding” are “normal” after surgery. He instructed Troya to
consume “full liquids today,” to “increase to soft diet tomorrow [and] regular diet in
one week,” and to “drink plenty of fluids to keep the bowels soft.” The surgeon also
urged Troya to contact the hospital in two days if he had not had a bowel movement.
When Troya returned to prison, a nurse evaluated him. As the surgeon wanted,
she ordered from the prison’s pharmacy the painkiller and stool softener. And like the
surgeon, she told Troya to drink plenty of fluids and eat soft foods. Troya received the
painkiller (for which constipation is a likely side-effect) but not the stool softener, which
took a few days to arrive. He received his regular diet from the prison.
Troya next met with a physician assistant. Three days after the surgery, he told
her that the pain and bleeding were resolving, but he had not received the stool softener
or had a bowel movement. The assistant told Troya that “someone” dropped the ball on
delivering the prescribed stool softener that the nurse had ordered. She reminded him
that he could buy an over-the-counter softener, which the surgeon deemed acceptable,
at the commissary. He did so later that day. She also placed a second order with the
pharmacy for the prescribed softener and ordered a laxative. Like the surgeon, who had
advised Troya to wait two days after beginning his post-surgical treatment before
contacting the hospital for next steps, the assistant told Troya to take the drugs and call
her in two days. When the assistant learned, after those two days, that Troya still had
no bowel movement, she ordered two doses of magnesium citrate, a strong laxative.
The second dose would be administered only if necessary three hours after the first.
Troya received his laxative that evening from nurses. The first dose did not move
his bowels, though he reported pain, cramping, and disorientation. He received the
second dose on schedule. That night Troya became ill. Prison staff found him in the fetal
position surrounded by vomit and blood; he also had some blood near his rectum and
an elevated pulse and blood pressure. Medical staff rushed Troya to a hospital. There he
received another powerful laxative, intravenous fluids, and a liquid diet to treat him for
“moderate constipation.” He remained there for three days.
Troya decided to sue. He alleged that the two prison nurses, the physician
assistant, prison administrators, and a “John Doe” nurse violated the Eighth
Amendment by ignoring his surgeon’s advice. See Carlson v. Green, 446 U.S. 14 (1980)
No. 19-1352 Page 3
(recognizing Eighth Amendment claims in Bivens action). The district court screened the
complaint, see 28 U.S.C. § 1915A, and dismissed the John Doe defendant, reasoning that
under Wudtke v. Davel, 128 F.3d 1057, 1060 (7th Cir. 1997), a plaintiff cannot proceed
against an unknown defendant. During discovery, Troya moved four times for
recruited counsel. The court denied the motions, ruling that Troya was competent to
proceed pro se, given the nature of his claims, his GED and general health, and his
“very well-written and reasoned” filings (prepared with a fellow inmate’s help). The
court said that it would reconsider recruiting counsel “at trial or at other points in the
case” if Troya’s self-representation became difficult. It later entered summary judgment
for all defendants, ruling that no reasonable jury could find that Troya’s constipation
was a serious medical condition and, in any case, no defendant was indifferent to it.
On appeal, Troya contends that he had a serious need for post-surgical care that
the defendants ignored. Even a layperson, he argues, would know to follow the
surgeon’s orders to get him a stool softener and soft-food diet immediately; the failure
to do so led to the emergency-room visit and three days at the hospital.
To survive summary judgment on his deliberate indifference claims, Troya
needed to supply evidence that would permit a jury to find that he had an objectively
serious medical condition that the defendants deliberately ignored. Farmer v. Brennan,
511 U.S. 825, 834 (1994); Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016). We review
de novo the district court’s conclusion that he failed to do so. See Petties, 836 F.3d at 727.
We may assume, as Troya argues, that the district court too narrowly construed
his medical condition as simply constipation, rather than post-surgery recovery. An
inmate’s medical condition is serious when a physician prescribes treatment to avert
“unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976);
Lewis v. McLean, 864 F.3d 556, 563 (7th Cir. 2017). We will assume as a factual matter
that this covers Troya’s situation. To recover, his surgeon advised Troya to take a
painkiller, use a stool softener, eat soft foods, drink liquids, and then call for help later,
if needed, to reduce the pain, rectal bleeding, and constipation that normally follow any
hemorrhoidectomy.
But we agree with the district court that no reasonable juror could conclude that
the defendants deliberately ignored the surgeon’s advice for recovery. We begin with
the nurse who saw Troya upon his return from surgery. On Troya’s first day back in
prison, this nurse followed the surgeon’s advice and ordered the prescriptions for the
painkiller and stool softener. True, the pharmacy did not deliver the stool softener until
No. 19-1352 Page 4
a few days later, but no evidence shows that the nurse caused that delay. See Miller v.
Harbaugh, 698 F.3d 956, 962 (7th Cir. 2012) (prison officials not liable under Eighth
Amendment if “remedial step was not within their power”). The nurse also followed
the surgeon’s advice about Troya’s diet; she advised Troya to drink liquids and eat soft
foods. Troya does not contend that his regular diet lacks soft foods, so the nurse did not
ignore the doctor’s order to make soft foods available.
Next, Troya contends that a jury could find that the two nurses deliberately
ignored his needs by giving him magnesium citrate after he had been constipated for
five days. We disagree. The nurses permissibly followed orders from the physician
assistant to treat prolonged constipation. The assistant told them to administer the drug
in two doses, with the second dose only if, as happened, the first did not induce a bowel
movement. And they did so. Furthermore, no one told the nurses to stop the treatment
if, as Troya reported, he had pain and cramping from the initial dose. Nurses who
follow medical orders that, as here, are not obviously wrong have complied with the
Eighth Amendment. See Holloway v. Del. Cty. Sheriff, 700 F.3d 1063, 1075 (7th Cir. 2012).
We now turn to the physician assistant who, Troya argues, recklessly ignored his
surgeon’s advice; we conclude that no jury could reach that finding. When the assistant
met with Troya two days after his surgery and learned that he had not received a stool
softener or had a bowel movement, she reasonably implemented the surgeon’s protocol.
She reordered the prescription, reminded Troya that he could use the softeners from the
commissary, and thus enabled him to get the treatment that the surgeon wanted him to
have for two days before taking next steps. When she learned after those two days that
Troya’s status was unchanged, she again took reasonable steps: she prescribed a strong
laxative—treatment later validated by the hospital, whose care Troya does not
denigrate. Thus, the physician assistant did not recklessly ignore Troya’s needs.
See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006) (To infer deliberate indifference,
a treatment decision “must be so far afield of accepted professional standards as to raise
the inference that it was not actually based on a medical judgment.”).
Next, we address Troya’s claim against the prison administrators. Troya offered
no evidence that they even knew about his condition or were personally involved in his
care, so they cannot be liable. See Estate of Miller v. Marberry, 847 F.3d 425, 428 (7th Cir.
2017). And as managers of caregivers, they are likewise not personally responsible for
Troya’s care. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
No. 19-1352 Page 5
Two final issues remain, the first of which is Troya’s contention that the district
court erred in denying his requests for counsel. He argues that the court mistakenly
found that he was competent to represent himself even though a fellow inmate had
prepared his filings and he needed an attorney to obtain a medical expert. We review
the decision to deny counsel for abuse of discretion, Pruitt v. Mote, 503 F.3d 647, 658
(7th Cir. 2007) (en banc), and no abuse occurred here. The district court applied the
correct legal standard when it concluded that Troya could represent himself given his
GED, health, and competent filings. The court knew that Troya had the help of a fellow
inmate, and it assured him that it would reconsider recruiting counsel if circumstances
changed. We recognize that counsel can help a prisoner secure an expert, but Troya’s
case was not prejudiced by the lack of an expert. His claim turns on his contention that
the defendants ignored his surgeon’s advice. As we have explained, the defendants did
not recklessly disregard that advice: the nurses ordered the required drugs immediately
(even though Troya could have obtained a stool softener himself); and as the surgeon
wanted, the physician assistant waited for two days after Troya began taking those
drugs before responding to his constipation. We thus have no reason to believe that
recruited counsel would have changed the outcome of the case. See id. at 659.
Finally, Troya challenges the dismissal of the John Doe defendant. He argues that
the court should have permitted him to proceed against the unnamed nurse. But the
court dismissed the claim without prejudice, and when Troya later learned the nurse’s
name, he could have moved to amend his complaint to add the defendant. Thus, the
court’s decision was permissible. See Donald v. Cook Cty. Sheriff’s Dep’t, 95 F.3d 548, 556
(7th Cir. 1996) (court may “dismiss[] the complaint without prejudice” if defendant’s
identity is initially unknown).
The judgment of the district court is therefore AFFIRMED.