Zachary Johnson v. Bessie Dominguez

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 23, 2021
• Docket: 19-1727
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 19-1727 ZACHARY JOHNSON, Plaintiff-Appellant, v.

BESSIE DOMINGUEZ, et al., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:14-cv-10280 — Matthew F. Kennelly, Judge. ____________________

ARGUED APRIL 21, 2021 — DECIDED JULY 23, 2021 ____________________

Before FLAUM, SCUDDER, and KIRSCH, Circuit Judges. KIRSCH, Circuit Judge. Zachary Johnson, an inmate at Dixon Correctional Center in Illinois, sued four medical pro- fessionals under 42 U.S.C. § 1983 alleging that they were de- liberately indifferent to his serious medical needs because none of them referred Johnson for surgery to repair his hernia. The district court granted summary judgment in defendants’ favor, concluding that the record failed to support that de- fendants acted with deliberate indifference. Although the 2 No. 19-1727

record showed that Johnson complained, intermittently, of hernia pain to Dixon medical staff over a period of several years, Johnson’s hernia was at times undetectable on exami- nation, and even when detected, it was always small and re- ducible. Additionally, defendants prescribed Johnson over- the-counter pain medication and abdominal binders to man- age his symptoms. On appeal, Johnson insists that a jury ques- tion remains as to whether defendants’ treatment was consti- tutionally deficient. But because the record lacks evidence to support that defendants’ non-surgical treatment amounted to deliberate indifference, we affirm. I Zachary Johnson has been incarcerated at Dixon Correc- tional Center since 2011. Johnson first noticed his hernia prior to his incarceration in 2009 while helping a friend move. At that time, Johnson noticed a bulge in his stomach after feeling something, but he “left it at that” without seeking treatment. Johnson also has Type 1 Diabetes—a condition that was diag- nosed prior to his incarceration. Between June 2011 and June 2016, medical professionals at Dixon evaluated Johnson more than ninety times. These visits included treatment of other conditions unrelated to his her- nia, including management of his often-uncontrolled diabe- tes. Johnson first complained about his hernia on June 20, 2011, to nurse Virginia Mavis. Johnson requested hernia sur- gery, reporting that his hernia had been present for five years. Nurse Mavis then referred Johnson to Dr. Imhotep Carter for evaluation. On August 9, 2011, Johnson returned to sick call and nurse Jenny Brower treated him. At that appointment, Johnson inquired about the status of a physician appointment to evaluate his hernia, and nurse Brower told him an No. 19-1727 3

appointment would be made for August 17, 2011. Johnson did not attend that appointment. He returned to nurse sick call on September 20, 2011, advising that he missed his hernia ap- pointment because he was on a court writ and requested it be rescheduled. On October 5, 2011, Johnson saw defendant Dr. Bessie Dominguez for assessment of his hernia. Dr. Dominguez rec- orded Johnson’s complaint of a right-side hernia, which John- son said he had for two or three years. Dr. Dominguez testi- fied that given Johnson’s report of a hernia, she would have examined Johnson standing up and lying down; if she could not feel a hernia, she would then ask Johnson to strain or cough. During her examination, Dr. Dominguez found no presence of a hernia or abdominal bulge and determined that no treatment was required. Dr. Dominguez later treated John- son six times for other medical issues between December 22, 2011, and April 10, 2012. Johnson did not complain about his hernia at any point during these visits. Johnson next reported pain from a “lower abdominal her- nia” on May 4, 2012, to a nurse at the Dixon healthcare unit. The nurse recorded a hernia, explaining that it was easily re- ducible1 on exam, though noting that Johnson reported that it pops out while exercising. The nurse diagnosed Johnson with a bulge in the upper right quadrant of his abdomen and or- dered a physician evaluation. Per that order, Dr. Dominguez again evaluated Johnson on May 8, 2012. Dr. Dominguez rec- orded that Johnson reported an upper quadrant abdominal hernia with tenderness and a bulge. But after examining

1An “easily reducible hernia” is one that “returns to its resting or natural position easily.” R. 123 at 16. 4 No. 19-1727

Johnson while standing up and lying down, Dr. Dominguez could not feel a hernia. Dr. Dominguez then requested that defendant physician assistant Ava Valdez perform a separate exam, and physician assistant Valdez found questionable weakness on the left side of Johnson’s abdominal wall. Dr. Dominguez diagnosed Johnson with a questionable left side abdominal hernia and prescribed an abdominal binder. At this time, Dr. Dominguez additionally noted that Johnson’s diabetes was uncontrolled, and that Johnson was not report- ing for his blood sugar checks twice a day. On May 14, 2012, at Dr. Dominguez’s request, defendant Dr. Arthur Funk assessed Johnson for a hernia. Johnson re- ported to Dr. Funk that he had abdominal pain with exertion for one year. Johnson also stated that he had an ultrasound at Cook County Jail, before his incarceration at Dixon, that showed a hernia. On physical examination, Dr. Funk could not find a hernia. He recorded that Johnson’s abdomen was flat and soft, and that he detected no bulge. Dr. Funk initially approved Dr. Dominguez’s request for an ultrasound, but that request was denied by defendants’ employer for insuffi- cient information. Dr. Funk requested and received infor- mation about Johnson’s medical records from Cook County, including a CAT scan of Johnson’s abdomen. The scan did not show a hernia. Although possible that a hernia would not show up on a CAT scan, Dr. Funk determined that no further imaging was necessary and advised Johnson to return to the healthcare unit if his pain worsened or if a bulge became vis- ible. Johnson next received evaluation for his hernia in October 2012 after he was referred by a nurse in the Dixon healthcare unit to physician assistant Valdez. Physician assistant Valdez No. 19-1727 5

examined Johnson’s abdomen, and explained that, while she was unsure, she may have felt a small bulge. She diagnosed a questionable small ventral hernia and ordered an abdominal binder. Defendant nurse practitioner Susan Tuell began treating Johnson in August 2013 for diabetes management, and she subsequently treated Johnson for other medical issues in No- vember and December of 2013. Nurse practitioner Tuell did not treat Johnson’s hernia until April 2014 after Johnson re- ported that he lost his abdominal binder in segregation. When examining Johnson, she could not locate a hernia when John- son was lying down, but she felt a two-to-three-centimeter bulge to the right of Johnson’s bellybutton when Johnson stood that was tender with palpation. Nurse practitioner Tuell diagnosed Johnson with a right abdominal wall hernia that was small and stable. She ordered a replacement abdominal binder and 400 milligrams of Motrin for Johnson to take two or three times a day as needed. Nurse practitioner Tuell also told Johnson to avoid lifting heavy weights, particularly when not wearing his abdominal binder. Johnson saw nurse practitioner Tuell twice more for treatment of blood sugar is- sues and hypoglycemia in June 2014, but Johnson did not seek hernia treatment during these appointments. Johnson next complained about hernia pain to nurse Christine Peppers on July 4, 2014. Nurse Peppers noted that Johnson was not wearing his abdominal binder and that John- son reported that he was lifting weights. Nurse Peppers talked to Johnson about hernia reduction and using his ab- dominal binder, and she instructed Johnson to follow up if he experienced increased symptoms. Johnson followed up with nurse Cynthia Whitmer on August 19, 2014, complaining of 6 No. 19-1727

intermittent abdominal pain. Nurse Whitmer evaluated John- son, noting that Johnson had a small right upper quadrant hernia that protruded slightly, though was reducible. John- son’s hernia was tender with palpation, and Johnson reported that his Motrin was only sometimes effective. Johnson ad- vised he wore his abdominal binder at the gym, on the yard, and when sleeping. Nurse Whitmer instructed Johnson to avoid heavy lifting and to continue taking Motrin, and she scheduled Johnson for follow up with nurse practitioner Tuell. Nurse practitioner Tuell saw Johnson on September 4, 2014. Johnson explained that he wore his abdominal binder but continued to lift weights up to 185 to 200 pounds, leading her to determine that he was noncompliant with medical or- ders. After examining Johnson’s hernia, she determined that it had not changed in size or condition since her prior exam. Nurse practitioner Tuell told Johnson to avoid weightlifting more than ten to twenty pounds, while instructing Johnson to continue taking ibuprofen and wearing his abdominal binder. Johnson later saw nurse practitioner Tuell several times in November and December of 2014 for issues relating to his di- abetes, but she did not treat Johnson’s hernia during these vis- its. For his part, Johnson asked defendants, and other Dixon medical staff, for surgery to repair his hernia starting at the time of his initial complaint in June 2011. Johnson reported that he subsequently asked each defendant for hernia surgery at various medical appointments in which defendants evalu- ated his hernia. Each defendant refused to refer him for sur- gery. Specifically, Johnson said that defendants told him that he would not receive surgery unless his hernia became No. 19-1727 7

strangulated or incarcerated.2 He also asserted that the over- the-counter pain medication and abdominal binder pre- scribed by defendants helped at times, but overall, it was not effective in managing his pain. Even with the abdominal binder and medication, Johnson reported that his hernia caused him pain while sleeping and walking. By the time of his deposition, Johnson rated his pain as a seven to eight on a ten-point scale, and sometimes as high as a twelve to fifteen. Johnson sued Dr. Dominguez, Dr. Funk, physician assis- tant Valdez, and nurse practitioner Tuell under 42 U.S.C. § 1983, alleging that they were deliberately indifferent to his medical needs by not referring him for hernia surgery and en- gaging in a course of treatment known to be ineffective in vi- olation of the Eighth Amendment. After Johnson and defend- ants were deposed, the district court granted Johnson’s mo- tion to appoint an expert witness and appointed Dr. Mark T. Toyama. Dr. Toyama reviewed Johnson’s medical records and con- cluded that Johnson had an umbilical hernia. In his expert let- ter, Dr. Toyama opined that the standard of care in treating a “medically fit” individual with an umbilical hernia is surgical repair. But when an umbilical hernia is not strangulated or incarcerated, Dr. Toyama noted that surgery is not urgent and usually scheduled as an elective procedure. Dr. Toyama ex- plained that “elective repair would have been indicated when

2 A strangulated hernia is a hernia in which the contents of the hernia itself

have become compromised to a point that they have died. An incarcerated hernia is a hernia that is not reducible, which means you cannot push it in and out. See R. 127 at 6. 8 No. 19-1727

[Johnson] was medically fit and cleared for operation,” which would include addressing Johnson’s uncontrolled diabetes. In his deposition, Dr. Toyama reiterated that Johnson’s medical records showed no evidence that Johnson’s hernia was strangulated or acutely incarcerated to require urgent surgery. Dr. Toyama also testified that Johson’s medical rec- ords established that his hernia never changed significantly in size, that he continued to be physically active despite his her- nia, and that he had difficulty controlling his diabetes. Dr. To- yama noted that Johnson’s diabetes did “not necessarily” pre- clude surgical repair, but that delaying surgery could allow more time for a hernia complication to develop. When asked whether he had any criticisms of defendants’ treatment, Dr. Toyama answered, “No.” Defendants moved for summary judgment, arguing that Johnson lacked evidence of a serious medical condition—that is, a hernia—because defendants never found objective med- ical evidence showing that Johnson had a hernia. Even if John- son did have a hernia, defendants additionally contended that his hernia was not an objectively serious medical condition.3 Separately, defendants argued that no evidence supported Johnson’s claim that defendants acted deliberately indifferent to his medical condition by not referring him for hernia sur- gery. The district court granted summary judgment in favor of defendants. In a thorough and carefully reasoned order, the district court first concluded there was a triable fact question

3 On appeal, defendants do not renew their argument that Johnson lacked

medical evidence of a hernia, nor their contention that Johnson’s hernia was not an objectively serious medical condition. No. 19-1727 9

concerning whether Johnson suffered from an objectively se- rious condition (i.e., a hernia or its resulting pain). Notwith- standing, the district court also held that defendants were not deliberately indifferent to Johnson’s medical condition be- cause no defendant consciously disregarded it. Johnson now appeals. II We review a district court’s grant of summary judgment de novo, construing all facts and drawing all reasonable infer- ences in the light most favorable to the non-moving party. See Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute of material fact is genuine “if the evidence is such that a reasonable jury could return a ver- dict for the nonmoving party.” Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly, “[t]he mere existence of a scin- tilla of evidence in support of the non-moving party’s position will be insufficient.” Johnson v. Doughty, 433 F.3d 1001, 1009– 10 (7th Cir. 2006) (quotation and alteration omitted). The Eighth Amendment’s prohibition against cruel and unusual punishment imposes a duty on the states, through the Fourteenth Amendment, “to provide adequate medical care to incarcerated individuals.” Boyce v. Moore, 314 F.3d 884, 889 (7th Cir. 2002) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). “Prison officials can be liable for violating the Eighth Amendment when they display deliberate indifference to- wards an objectively serious medical need.” Thomas v. Black- ard, 2 F.4th 716, 2021 WL 2644224, at *4 (7th Cir. 2021). Thus, 10 No. 19-1727

to prevail on a deliberate indifference claim, a plaintiff must show “(1) an objectively serious medical condition to which (2) a state official was deliberately, that is subjectively, indif- ferent.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016) (quotation omitted). We assume without reaching that Johnson established a triable fact issue on the first prong of his deliberate indiffer- ence claim—whether Johnson’s hernia, or its resulting pain, is an objectively serious medical condition. Cf. Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 521 (7th Cir. 2019) (noting that our cases have recognized that a hernia can be an objec- tively serious medical condition, and that in some cases, the chronic pain from a hernia may present a separate objectively serious medical condition). This appeal instead turns on whether defendants were deliberately indifferent to that con- dition. We agree with the district court that the record lacks evidence to support defendants’ deliberate indifference with respect to Johnson’s hernia and its resulting pain. Deliberate indifference is a subjective standard, requiring that a defendant both “know [] of and disregard[] an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see Whiting, 839 F.3d at 662. Though establish- ing deliberate indifference requires more than negligence, the plaintiff need not show purposeful conduct. Duckworth v. Ah- mad, 532 F.3d 675, 679 (7th Cir. 2008). Stated differently, a plaintiff must establish that an “official knows of and disre- gards an excessive risk to inmate health or safety” or that “the official is both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he draws the inference.’” Id. (alterations omitted) (quoting Farmer, 511 U.S. at 837). No. 19-1727 11

In the inadequate medical care context, deliberate indiffer- ence does not equate to “medical malpractice; the Eighth Amendment does not codify common law torts.” Duckworth, 532 F.3d at 679; see also Johnson, 433 F.3d at 1013 (“[I]t is im- portant to emphasize that medical malpractice, negligence, or even gross negligence does not equate to deliberate indiffer- ence.”). And we must give medical professionals “a great deal of deference in their treatment decisions.” Wilson, 932 F.3d at 519. Accordingly, “[a] constitutional violation exists only if no minimally competent professional would have so responded under those circumstances.” Id. (quotation omitted). When a plaintiff’s claim focuses on a medical professional’s treatment decision, “the decision must be so far afield of accepted pro- fessional standards as to raise the inference that it was not ac- tually based on a medical judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). With these principles in mind, we cannot conclude that defendants were deliberately indifferent in treating Johnson’s hernia. Johnson resists this conclusion, pressing three over- lapping arguments that he believes show that a jury question remains concerning whether defendants were deliberately in- different when treating his hernia: (1) defendants adminis- tered blatantly inappropriate medical care, (2) defendants failed to exercise their professional judgment and (3) defend- ants unnecessarily delayed medical treatment. These argu- ments find no support in this record. To the contrary, the record shows that each defendant re- sponded to Johnson’s complaints and exercised their medical judgment in evaluating his hernia and reported pain. At the outset, Dr. Dominguez examined Johnson for a hernia but could not identify one. Even so, in response to Johnson’s 12 No. 19-1727

medical complaints, she prescribed an abdominal binder. So did physician assistant Valdez who also had difficulty locat- ing Johnson’s hernia on examination. In addition, Dr. Dominguez referred Johnson to Dr. Funk for further evalua- tion. Dr. Funk too could not feel a hernia when he examined Johnson in 2012, and he reviewed the results of Johnson’s prior medical imaging, which did not show a hernia. We recognize that Johnson’s complaints increased over time and he was ultimately diagnosed definitively with a her- nia by Dixon medical staff, including by nurse practitioner Tuell in April 2014. But he received treatment for his hernia— just not the surgery that he desired. When Johnson reported intermittent hernia pain during medical visits, nurse practi- tioner Tuell prescribed over-the-counter pain medication to treat it and instructed Johnson on precautions to take to min- imize his symptoms. And when Johnson continued to com- plain of pain, it was often accompanied by his admission that he continued to lift between 150 to 200 pounds without wear- ing his abdominal binder. Moreover, it is unrefuted that John- son’s hernia never changed in size and was never strangu- lated or incarcerated to require urgent surgery. The record, viewed in the light most favorable to Johnson, establishes that each defendant exercised their professional judgment in re- sponding to Johnson’s hernia. Johnson’s ultimate disagree- ment with defendants’ course of treatment provides no basis to support defendants’ deliberate indifference. Johnson, 433 F.3d at 1013 (“mere dissatisfaction or disagreement with a doctor’s course of treatment is generally insufficient” to estab- lish deliberate indifference). Beyond Johnson’s own disagreement with defendants’ treatment, he argues that Dr. Toyama’s expert opinion No. 19-1727 13

supports that defendants medical care was blatantly inappro- priate and lacked professional judgment. Dr. Toyama opined that the standard of care in treating an umbilical hernia in a medically fit individual is surgical repair, and that for John- son, surgery would have been indicated when he was medi- cally fit and cleared for an operation. Yet, in his opinion “med- ically fit” included obtaining control over Johnson’s diabetes, and the record established that this was not the case. Further, when asked whether he had any criticisms of defendants’ treatment, Dr. Toyama unequivocally answered, “No.” Dr. Toyama’s opinion does not support that defendants acted negligently, let alone that defendants acted with deliberate in- difference. Although we have recognized that a departure from professional standards that is “so inadequate that it demonstrated an absence of professional judgment” could support deliberate indifference, Collignon v. Milwaukee Cty., 163 F.3d 982, 989 (7th Cir. 1998), Dr. Toyama’s opinion falls far short of raising such inference. Further, Johnson’s contention that defendants’ unneces- sarily delayed medical treatment also finds no support in the record. We have recognized that “a significant delay in effec- tive medical treatment … may support a claim of deliberate indifference, especially where the result is prolonged and un- necessary pain.” Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010). But here, defendants did not “delay” referring Johnson for surgery—they determined a surgery referral was not ap- propriate. This determination, as discussed above, was not “blatantly inappropriate” or made in the absence of profes- sional judgment. Johnson also invokes our recognition that a medical professional’s decision to proceed with an “easier” treatment course known to be ineffective can evidence delib- erate indifference. Johnson 433 F.3d at 1013. Yet the evidence 14 No. 19-1727

here does not bear out this assertion. To be sure, Johnson com- plained of hernia pain intermittently over the course of sev- eral years to Dixon medical staff. While defendants continued with non-surgical treatment, they repeatedly instructed John- son to follow up if his hernia changed in size or his symptoms worsened. And, as discussed above, it is unrefuted that John- son’s hernia did not change significantly in size and remained reducible. While at the time of his deposition Johnson re- ported his hernia pain to be as high as a twelve to fifteen on a ten-point scale, he failed to connect this evidence to defend- ants’ treatment during the relevant time period. The evidence simply does not show that defendants persisted in treatment that they knew to be ineffective. Lastly, Johnson’s contention that defendants operated pursuant to a policy of refusing all non-emergent hernia sur- geries regardless of their impairment was not developed be- fore the district court. As a result, this argument is waived, and we do not consider it here. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (arguments that are not raised or developed before the district court are waived).

AFFIRMED