Ira Harris v. Ian Wallace

United States Court of Appeals
For the Eighth Circuit
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No. 21-1546
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Ira B. Harris
lllllllllllllllllllllPlaintiff - Appellant
v.
Gary Kempker
lllllllllllllllllllllDefendant
Ian Wallace, Warden, SECC
lllllllllllllllllllllDefendant - Appellee
Corizon Medical Services, Inc.
lllllllllllllllllllllDefendant
George Lombardi, Director, Missouri Department of Corrections; Troy Steele,
Warden, Potosi Correctional Center
lllllllllllllllllllllDefendants - Appellees
Dr. Unknown Nakra; Linda Little, Nurse, Potosi Correctional Center; Dr.
Unknown McKinley, Doctor at Potosi Correctional Center; Dr. Unknown Gavin,
Psychiatrist, Southeast Correctional Center; Brandi Puden, Health Services
Administrator; Norma Helbring, Nursing Director, SECC; Robin Allen, Nursing
Director, SECC; Heather Reese, Chief Psychologist, SECC; Suzy Unknown,
CNA, SECC; Heather Conrad, Nurse, SECC; Lisa Unknown, Nurse, SECC; Dr.
Unknown Hill, Doctor, SECC; Ryan Unknown; Megan Unknown, Nurse, SECC
lllllllllllllllllll
llDefendants
David Null
lllllllllllllllllllllDefendant - Appellee
Unknown Thurston, Corrections Officer, SECC; Missouri Department of
Corrections; Missouri Department of Mental Health
lllllllllllllllllllllDefendants
Anne L. Precythe
lllllllllllllllllllllDefendant - Appellee
Keith Schafer
lllllllllllllllllllllDefendant
Corizon, LLC; Brandi Juden; Cynthia Reese; M.D. John Eppolito; Nina Hill;
William McKinney; Mark Stringer
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: September 24, 2021
Filed: September 29, 2021
[Unpublished]
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Before LOKEN, BENTON, and KOBES, Circuit Judges.
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PER CURIAM.
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Ira Harris appeals the district court’s1 adverse grant of summary judgment in
his 42 U.S.C. § 1983 action. Upon de novo review, see Roberts v. Kopel, 917 F.3d
1039, 1041 (8th Cir. 2019) (standard of review), we affirm. We agree that appellees
Reese and Corizon were not deliberately indifferent with respect to Harris’s
psychiatric treatment, see Shipp v. Murphy, 9 F.4th 694, 704 (8th Cir. 2021) (nurse
had no duty to go beyond her scope of practice to prescribe item, and thus no
reasonable jury could find that her care was deliberately indifferent); Hildreth v.
Butler, 960 F.3d 420, 430 (7th Cir. 2020) (health care entity not liable for isolated
instances of delayed prescription refills); and that appellees McKinney, Eppolito, and
Hill provided treatment for his abscess that was no more than negligent, see Estelle
v. Gamble, 429 U.S. 97, 107 (1976) (decision not to order X-ray or similar measures
is malpractice at most); Allard v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015)
(inmate’s expert testimony that physician should have accurately diagnosed condition
showed only negligent malpractice); Hartsfield v. Colburn, 491 F.3d 394, 398 (8th
Cir. 2007) (whether physician should have acted sooner in scheduling follow-up visit
was at most question of negligence). We also find that appellees Reese, Juden,
Wallace, and Steele were not deliberately indifferent by failing to intervene in
Harris’s treatment, as that treatment was not constitutionally infirm. See Morris v.
Cradduck, 954 F.3d 1055, 1060 (8th Cir. 2020) (where inmate did not establish that
nurse was deliberately indifferent to his serious medical needs, sheriff did not violate
inmate’s rights by ignoring his complaints about nurse). As Harris does not argue his
claims against appellees Null, Precythe, Lombardi, or Stringer on appeal, those claims
are waived. See Waters v. Madson, 921 F.3d 725, 744 (8th Cir. 2019).
The judgment is affirmed. See 8th Cir. R. 47B. We deny Harris’s pending
motions.
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1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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