Diaz v. Godinez

693 F. App'x 440
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 15, 2017
DocketNo. 16-2639
StatusPublished
Cited by14 cases

This text of 693 F. App'x 440 (Diaz v. Godinez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diaz v. Godinez, 693 F. App'x 440 (7th Cir. 2017).

Opinion

ORDER

Pedro Diaz appeals from the grant of summary judgment for the defendants in this suit under 42 U.S.C. § 1983 claiming deliberate indifference to his chronic back pain. Diaz went without pain medication for four months after being transferred to Pontiac Correctional Center because employees there refused to honor his pre[442]*442scription for ibuprofen, confiscated his supply of the drug, and ignored his requests for a sick-call appointment to obtain a new prescription. We conclude that Diaz presented sufficient evidence for a jury to find in his favor as to a medical technician responsible for scheduling appointments, but otherwise affirm the judgment.

Diaz has a documented history of chronic back pain due to mild degenerative changes in the spine (commonly known as osteoarthritis). In May 2011, shortly before he was transferred to Pontiac, a doctor at Menard Correctional Center issued Diaz a one-year prescription for ibuprofen. Diaz arrived at Menard carrying a week’s supply on his person, and he had enough ibuprofen for two more months in his property box. After ten days at Pontiac, Diaz received his property box and discovered that his ibuprofen was missing.

Diaz immediately began writing requests to the infirmary staff asking for his medication. A few days later, a Correctional Medical Technician, Kristi Eshleman, came to his cell and said he wouldn’t be getting his ibuprofen. In response, Diaz filed an emergency grievance explaining that he had been prescribed ibuprofen before leaving Menard, that a medical technician had told him he would not be receiving the medication he brought with him, and that his old prescription would not be honored. Diaz’s grievance also conveyed that he had not been examined at Pontiac and was suffering pain and discomfort. His counselor, Jeff Eilts, forwarded that grievance to the infirmary staff two weeks later. The warden at that time, Randy Pfister, marked the grievance as not an emergency. Two more weeks passed before the healthcare administrator, Teresa Arroyo, issued a memorandum to Diaz explaining that his medical chart had been reviewed, that prescriptions issued at other prisons are not automatically honored when inmates transfer to Pontiac, and that Diaz must “put in for Sick Call” to get his ibuprofen prescription renewed. Arroyo instructed Diaz to direct his medical concerns to “the cell house CMT who will evaluate him for treatment or refer him if appropriate.” Alternatively, Arroyo wrote, Diaz could “send a yellow ‘Medical Request’ slip” to the infirmary. A carbon copy of this memorandum was sent to the Medical Director, Dr. Andrew Tilden.

Yet according to Diaz’s version of events, which we must credit in reviewing the adverse ruling at summary judgment, Rasho v. Elyea, 850 F.3d 318, 324 (7th Cir. 2017), he had requested ibuprofen from CMT Eshleman continuously from the moment he first learned that his supply from Menard would not be returned. Diaz finally was scheduled for sick call in November 2011—more than four months after arriving at Pontiac. To obtain that appointment, Diaz had remitted a mandatory $5 co-pay to Eshleman and left with a limited supply of ibuprofen. Then in March 2012, after that supply was exhausted, Diaz tendered another $5 co-pay to CMT Eshle-man listing three distinct ailments (back pain, heartburn, and ringing in his ears). But she refused to schedule another appointment because, she told Diaz, he must submit a co-pay for each ailment. Eshle-man had not made a similar demand when Diaz listed multiple ailments before his November appointment, so Diaz submitted another grievance. Arroyo, the healthcare administrator, responded that “in this instance” Diaz would be allowed to pay just $5 to cover an appointment for multiple health issues. At that appointment in May 2012, he again was prescribed ibuprofen. Later that month he transferred to another prison.

When Diaz brought suit, he included as defendants the director of the Department of Corrections, Warden Pfister, Counselor [443]*443Eilts, and several “Doe” placeholders. After several months of discovery, Diaz sought to amend his complaint to add additional defendants and to substitute CMT Eshleman and healthcare administrator Arroyo for existing placeholders. The district court declined to allow more defendants but did approve the substitution of Eshleman (and others). Oddly, though, rather than substitute Arroyo for a Doe defendant, the court named Medical Director Tilden (a Wexford Health Sources employee). Months later, when Diaz wanted to identify the Doe defendants accused of confiscating his ibuprofen while inventorying his property box at intake, the court refused, reasoning that the request had been too long after the suit was filed and that Diaz would have discovered the names sooner except that he had misstated the date of the seizure in his disclosure request.

Diaz’s theory is that his chronic back pain is a serious medical need that defendants knew of and disregarded. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Perez v. Fenoglio, 792 F.3d 768, 776-77 (7th Cir. 2015). At summary judgment, the district court did not analyze whether Diaz’s back pain is a serious medical need because, the court reasoned, Diaz lacks evidence that any defendant consciously deprived him of pain medication. The court reasoned that the DOC director, Pontiac’s warden, Counselor Eilts, and other administrators did not personally participate in the alleged deprivation “merely by participating in the grievance process.” The court similarly reasoned that Dr. Tilden could not be liable, citing his undisputed affidavit that he never met Diaz and does not review inmate grievances and thus would not have been subjectively aware of the medication issue. The court also accepted the assertion of the DOC defendants that Diaz had not followed the appropriate procedure to obtain the ibuprofen he wanted after being told that his prescription from Menard would not be honored at Pontiac.

On appeal, the DOC defendants do not clearly contest that Diaz suffers from a serious medical condition. The Wexford defendant, Dr. Tilden, renews his contention that back pain treatable with an over-the-counter pain reliever is not an objectively serious medical need, but we reject that argument. As we have explained repeatedly, turning a blind eye to a prisoner’s complaints of readily treatable pain can constitute an Eighth Amendment violation, even if the condition is not life-threatening and the failure to treat does not exacerbate the condition. See Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). We even have acknowledged that chronic arthritis pain is a serious medical need, Norfleet v. Webster, 439 F.3d 392, 394-95 (7th Cir. 2006), as are other conditions that cause serious or chronic pain, see Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015) (severe heartburn from gastroesophageal reflux disease); Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007) (dislocated finger); O’Malley v. Litscher,

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Bluebook (online)
693 F. App'x 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diaz-v-godinez-ca7-2017.