Brown v. Osmundson

38 F.4th 545

Dana BROWN, Plaintiff-Appellant,

v.Kurt OSMUNDSON, Terry Edwards, and Britany Beard (Miller), Defendants-Appellees.

No. 21-1647

United States Court of Appeals, Seventh Circuit.

Argued June 2, 2022

Decided June 27, 2022

Patrick G. Simonaitis, Attorney, Winston & Strawn LLP, Chicago, IL, for Plaintiff-Appellant.

Julie Ann Teuscher, Patrick Michael Creagh, Attorneys, Cassiday Schade LLP, Chicago, IL, for Defendants-Appellees.

Before Easterbrook, St. Eve, and Jackson-Akiwumi, Circuit Judges.

St. Eve, Circuit Judge.

Dana Brown, a prisoner in the Illinois River Correctional Center, started to feel some abdominal pain. A few days later, he told the prison's nurse practitioner about his symptoms, who prescribed some pain medicine. Brown then returned to his cell, but the pain became more severe. Brown was taken to the prison's infirmary, where the prison's nurses and doctor treated him over three-and-a-half days. Despite the treatment, the symptoms worsened, and Brown needed to be transported to a hospital. There, he was diagnosed with appendicitis, which required surgery to remove his appendix.

Brown sued three of the officials who cared for him in the prison's hospital, alleging violations of his Eighth Amendment rights. The district court granted summary judgment for the defendants. We affirm. The prison medical staff did not act with the necessary deliberate indifference, a high bar under current precedent, toward Brown's serious medical condition.

I. Background

While working in the prison's bakery on February 20, 2017, Brown began experiencing abdominal pain, which he attributed to a preexisting hernia. The next day though, the pain had worsened. He could not bend down to take bread out of the oven, needing to rely on his coworker to cover his work. By the end of his shift, Brown was sweating profusely, was unable to leave his bed, and had to use a jug in his cell to urinate. Despite the pain, Brown decided to wait to consult medical personnel for two days, when he went to see Nurse Practitioner Britany Miller for an appointment he previously scheduled before his abdominal pain began.

At the appointment, Brown reported "back pain [at] nine out of ten on the pain scale with groin discomfort." N.P. Miller believed that Brown had a problem with his right hernia. She prescribed some Ibuprofen, a hernia belt, and a "no work" permit for three days. Brown returned to his cell and did not leave his bed for two days; during this time, he eventually stopped drinking and eating altogether. On the night of February 25, Brown asked for help, and the guards took him to the medical wing.

Nurse Terry Edwards saw Brown upon his arrival. Brown could not stand, was clutching his abdomen, complained of constant stabbing pain, which was a "ten out of ten," and had an elevated blood pressure. His abdomen was "swollen and tender to the touch." Nurse Edwards called Dr. Kurt Osmundson, who ordered that Brown be given an injection of pain medication, which did little to dull the pain, and placed him on 23-hour observation. The next day, a non-defendant nurse saw Brown, who still suffered from abdominal pain, and called Dr. Osmundson to report his condition. Dr. Osmundson formally admitted Brown to the infirmary and ordered a urinalysis, vital checks, and Motrin three times a day. On February 27, two days after Brown entered the prison's medical wing, Dr. Osmundson examined Brown in-person and detected positive bowel sounds. He ordered an x-ray, regular vital checks, a painkiller, diet and activities as tolerated, an Accu-Chek, a blood count, a metabolic panel, and another urinalysis.¹

Brown's pain subsided briefly later that day, but by the evening, it had returned. Brown called for a nurse as he continued to vomit throughout the night in increasingly worrisome colors, such as "bright yellow with ... brown colored flecks," and his blood pressure started to spike. At midnight, one nurse observed that Brown's abdomen appeared hard to the touch. Early the next morning, on February 28, Nurse Edwards called Dr. Osmundson to report these symptoms. Six hours later, Dr. Osmundson saw Brown, who was in considerable pain but whose blood and urine tests returned essentially to normal; he also did not have a fever, chills, or abdominal guarding. An x-ray was taken in the late afternoon. Shortly thereafter, when Brown's abdomen became distended and firm, Dr. Osmundson ordered that he be transferred to the emergency room. The staff there diagnosed him with appendicitis and a perforated appendix. Brown was then rushed into emergency laparotomy surgery, which was successful.

Brown brought suit under 42 U.S.C. § 1983 against Dr. Osmundson, Nurse Edwards, and N.P. Miller,² alleging violations of his Eighth Amendment rights. He argued that had the prison staff caught his appendicitis before his appendix ruptured, it could have been treated with a simpler laparoscopy, which requires only minor incisions, instead of a laparotomy, which necessitates cutting open the abdomen to access the appendix. The defendants moved for summary judgment. In deposition testimony, Dr. Bernard, an emergency-room physician at Graham Hospital, opined that Brown's symptoms were general and not specific to any abdominal issue. He explained, without contradiction, that appendicitis can be difficult to diagnose. The "classic case" of appendicitis—distended abdomen, fever, nausea, vomiting, and an elevated white blood cell count—occurs infrequently. The district court granted summary judgment for the defendants. This timely appeal follows.

II. Discussion

Brown contends that the defendants violated the Eighth Amendment's Cruel and Unusual Punishment Clause by depriving him of necessary medical care. See U.S. Const. amend. VIII. We review a grant of summary judgment de novo, drawing all reasonable inferences in favor of the nonmovant. Driveline Sys., LLC v. Arctic Cat, Inc. , 936 F.3d 576, 579 (7th Cir. 2019). "Summary judgment is appropriate when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law." United States ex rel. Proctor v. Safeway, Inc. , 30 F.4th 649, 658 (7th Cir. 2022). A genuine issue of material fact exists only if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones ...." Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman , 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) ); see also Petties v. Carter , 836 F.3d 722, 727 (7th Cir. 2016) (en banc). Because depriving a prisoner of medical care serves no valid penological purpose, "deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment." Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia , 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ). To succeed on a deprivation-of-medical-care claim, a plaintiff must show that "(1) he had an objectively serious medical need (2) to which [the defendants] were deliberately indifferent." Dean v. Wexford Health Sources, Inc. , 18 F.4th 214, 241 (7th Cir. 2021). Brown can easily satisfy the first inquiry. Appendicitis is an "objectively serious medical condition" that, left untreated, leads to a perforated (or ruptured) appendix, requiring invasive surgery to avoid serious injury and death. Brown has not, however, presented sufficient evidence to permit a trier of fact to find that the defendants were "deliberately indifferent" toward his medical needs.

Deliberate indifference requires a look into the subjective state of the defendants' mind. Wilson v. Adams , 901 F.3d 816, 820 (7th Cir. 2018) (quoting Petties , 836 F.3d at 728 ). A prison official acts with deliberate indifference only when he "actually [knows] of and disregard[s] a substantial risk of harm." Dean , 18 F.4th at 241 (quoting Petties , 836 F.3d at 728 ). "This is a high bar ‘because it requires a showing [of] something approaching a total unconcern for the prisoner's welfare in the face of serious risks.’ " Rasho v. Jeffreys , 22 F.4th 703, 710 (7th Cir. 2022) (quoting Rosario v. Brawn , 670 F.3d 816, 821 (7th Cir. 2012) ). "[M]ere negligence" or even civil "objective recklessness" simply "is not enough." Petties , 836 F.3d at 728 ; see also Farmer , 511 U.S. at 836–38, 114 S.Ct. 1970. An "official's failure to alleviate a significant risk that he should have perceived but did not ... cannot ... be condemned as the infliction of punishment." Farmer , 511 U.S. at 838, 114 S.Ct. 1970. Moreover, medical malpractice "does not become a constitutional violation merely because the victim is a prisoner." Estelle , 429 U.S. at 106, 97 S.Ct. 285 ; see also McGee v. Adams , 721 F.3d 474, 481 (7th Cir. 2013) ("Deliberate indifference is not medical malpractice.").

A plaintiff must provide evidence, either direct or circumstantial, to prove deliberate indifference. Petties , 836 F.3d at 728. Direct evidence, we have observed, is rarely forthcoming. Id. Prison officials do not typically proclaim that they violated the Constitution by ignoring a known risk. Instead, "[m]ost cases turn on circumstantial evidence." Id. Several circumstances can permit a jury to reasonably infer deliberate indifference, such as denial of medical treatment altogether, Id. at 729, delay of medical care, Dobbey v. Mitchell-Lawshea , 806 F.3d 938, 940 (7th Cir. 2015), continued ineffective treatment, Conley v. Birch , 796 F.3d 742, 747 (7th Cir. 2015), "a substantial departure from accepted professional judgment, practice, or standards," Estate of Cole by Pardue v. Fromm , 94 F.3d 254, 261–62 (7th Cir. 1996), ignoring an obvious risk, Norfleet...