Submitted August 18, 2016
from the United States District Court for the Western
District of Wisconsin. No. 13 C 56 - William M. Conley, Chief
Posner, Easterbrook, and Sykes, Circuit Judges.
POSNER, Circuit Judge.
Rivera, a federal inmate, suffers from numbness and pain as a
result of second-degree burns on his left leg, foot, and
ankle. His suit accuses a physician named Ravi Gupta, and a
prison health services administrator named Cesar Lopez, of
deliberate indifference to his need for substantial medical
treatment, thereby violating his Eighth Amendment rights. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The
district court entered summary judgment for the defendants,
precipitating this appeal. (Rivera had also brought a claim
under the Federal Torts Claims Act, but the district court
rightly dismissed it on the authority of United States v.
Demko, 385 U.S. 149 (1966), which holds that the Inmate
Accident Compensation Act, 18 U.S.C. § 4126(c)(4),
precludes FTC A claims for prisoners injured while working.)
prison kitchen in which Rivera was working in May 2011 when
the accident occurred had a history of large kettle pots'
boiling over and spilling water on the floor. One of these
pots, containing dirty water, butter, and shortening, had
been boiling over for more an hour when Rivera slipped on the
wet floor underneath the pot, scalding his leg. A nurse
diagnosed him with second-degree burns on his left lower leg
and ankle, removed the dead skin around the wound, dressed
the burn, and prescribed a narcotic pain medication, a
wheelchair (because the burn was making it difficult for him
to walk), and a lower bunk, and told him not to engage in
strenuous physical activity.
several weeks Rivera returned to the healthcare unit daily so
that medical staff could monitor the burn for infection and
clean and dress the wound. In these visits he continued to
complain that pain and numbness in his left leg, ankle, and
foot were making walking difficult for him. A physician
assistant told him that his symptoms probably were a normal
part of the healing process and suggested that he return to
the health care unit in six months if he was still
experiencing numbness and difficulty walking. When he
returned six months later and complained that he was indeed
still experiencing pain and numbness he was told that the
symptoms probably were permanent but that he could see Dr.
Gupta, the director of the prison's clinic, if he wanted
a physician's opinion.
met with Gupta, told him that the numbness and pain in his
leg, ankle, and foot had not abated, and said he wanted
treatment from a burn specialist and that his family would
pay for the treatment. According to Rivera, Gupta refused to
examine him, look up his records, or authorize any treatment,
instead admonishing him that he wouldn't have scalded
himself had he not been in prison, that "only God"
could help him now, and that if he complained about numbness
and pain in his leg again, Gupta would write a disciplinary
report. Gupta disputes Rivera's account but at the
summary-judgment stage of the case we are obliged to accept
Rivera's version. See Tradesman Int'l, Inc. v.
Black, 724 F.3d 1004, 1009 (7th Cir. 2013). Conflicting
factual assertions, both plausible, can be resolved only by a
supports his deliberate-indifference claim with excerpts from
medical websites which suggest that severe burns can cause
nerve damage, that damaged nerves can progressively worsen if
untreated, and that nerve-pain medications and physical
therapy can reduce the nerve damages from chronic, persistent
pain and numbness. The validity of this medical information
is not contested.
Lopez-the prison's health-services administrator who is
the other defendant-Rivera claims to have complained to him
early on about the inadequate medical treatment that he was
receiving, and Lopez never followed up. But Lopez is not a
medical professional, and the medical staff was aware of
Rivera's condition and had as we know told him to wait
six months to allow the burn further time to heal, before he
sought additional treatment. The grant of summary judgment
for Lopez thus was proper. See, e.g., McGee v.
Adams, 721 F.3d 474, 483 (7th Cir. 2013).
with regard to Dr. Gupta. The district judge granted summary
judgment in his favor without considering the website
excerpts, and noted that despite the "odd exchange"
between Rivera and Gupta, Rivera had produced no expert
evidence that Gupta had been deliberately indifferent to
Rivera's numbness and pain. The judge also denied
Rivera's request for counsel. While acknowledging that
"counsel could have assisted Rivera in responding to
defendants' motion for summary judgment in several
respects, perhaps most critically in possibly securing expert
testimony, " the judge said that no amount of expert
testimony would "alter [his] determination that
defendants' decision to refuse [Rivera's] request for
a referral" to a burn specialist was not "blatantly
inappropriate." This was an odd thing to say, given that
Rivera's condition was at root a burn problem. Nor did
the judge explain the basis for his unalterable
argues that the numbness and pain in Rivera's leg and
foot were not serious. But Rivera submitted evidence from
which a jury could reasonably find that they were. He claims
that for nine months he suffered from pain and numbness that
made walking difficult, and he had presented as we noted
earlier uncontested evidence from reputable medical websites
indicating that severe burns such as he'd experienced can
damage nerves and cause progressively worsening pain or
numbness (or both) and that medication and physical therapy
can relieve those conditions.
Gupta refused to examine Rivera or provide any medical
treatment for his pain and numbness, thereby deliberately
ignoring a serious medical condition, as in the comparable
cases of Gonzalez v. Feinerman, 663 F.3d 311, 314-15
(7th Cir. 2011); Hayes v. Snyder, 546 F.3d 516,
524-25 (7th Cir. 2008); and Brock v. Wright, 315
F.3d 158, 166-68(2d Cir. 2003). Apropos to this case is our
statement in Miller v. Campanella, 794 F.3d 878, 880
(7th Cir. 2015), quoting Williams v. O'Leary, 55
F.3d 320, 324 (7th Cir. 1995), that "a prison officer is
deliberately indifferent if he 'knows of and disregards
an excessive risk to inmate health.'"
responds that there was no medical treatment that could have
relieved Rivera's numbness or pain, because his condition
was a "normal" part of the healing process and his
"neurovascular exam" was normal. But Gupta is not a
neurologist or a specialist in the treatment of burn injuries
and did not explain the medical basis for his contention that
pain and numbness nine months after a burn were normal. Nor
is the relevance of "normality" apparent. It is
"normal" to experience pain after a fall or other
accident, but also "normal" to treat it.
Peritonitis is a "normal" consequence of a
bacterial or fungal infection in the abdomen, but requires
prompt medical attention as left untreated it can lead to
severe, potentially life-threatening infection. A refusal to
treat peritonitis on the ground of "normality"
would certainly amount to deliberate indifference rather than
just to medical malpractice, and likewise a refusal to treat
a painful and protracted burn injury on the same ground.
statements that Rivera claims Gupta made during their one
meeting could well incline a reasonable jury to doubt
Gupta's good faith in refusing to treat Rivera or allow
him to seek treatment from a burn specialist, because Rivera
could receive help only from "God." And very
improperly he threatened Rivera with discipline if he
continued to complain of numbness and pain. A reasonable jury
might well infer that personal hostility, divorced from
medical judgment, had motivated Gupta's ...