Jerome Walker v. Correctional Officer Leibert ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 20, 2021*
Decided April 22, 2021
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-3487
JEROME WALKER, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 20-cv-699-bbc
CORRECTIONAL OFFICER LEIBERT, Barbara B. Crabb,
et al., Judge.
Defendants-Appellees.
ORDER
Jerome Walker, an inmate at the Wisconsin Secure Program Facility in Boscobel,
filed suit under 42 U.S.C. § 1983 alleging that prison guards and nurses unlawfully
delayed treatment for his breathing trouble. The district court dismissed the case at
* The appellees were not served with process and are not participating in this
appeal. Because the appellant’s brief and the record adequately present the facts and
legal arguments, and oral argument would not significantly aid the court, the appeal is
submitted on the appellant's brief and the record. FED. R. APP. P. 34(a)(2)(C).
No. 20-3487 Page 2
screening. Because Walker’s complaint does not plausibly allege that any defendant
acted with deliberate indifference towards his medical needs, we affirm.
According to Walker’s complaint, the allegations of which we take as true at the
pleading stage, Schillinger v. Kiley, 954 F.3d 990, 994 (7th Cir. 2020), he has asthma, and
one evening he experienced “head spinning, tightness of chest and shortness of breath.”
His prescribed inhaler provided no relief, so Walker called for assistance. Correctional
officer Leibert (whose first name does not appear in the record) responded and, upon
hearing about Walker’s condition, said, “quit your bitching and man up.” She reported
to her supervisor that Walker was breathing abnormally but did not seem to be having
an emergency. Another guard then checked on Walker and reported the same. The
supervisor relayed the information to the health services unit, and a nurse asked that
Walker submit a medical request form.
About 90 minutes after Walker’s first call for assistance, a different nurse came to
his cell to distribute his daily medication. Walker told her that he was having trouble
breathing and that his inhaler did not help. She informed him that he must submit a
medical request form with a co-payment. Walker told her that the rules did not require
him to pay before being seen. Within 10 minutes, Walker was escorted to the medical
unit without having submitted a request or co-pay. The nurse who had visited his cell
administered a breathing treatment, and Walker’s breathing improved.
Walker brought this action against the correctional officers and nurses, asserting
that they withheld necessary medical care in violation of the Eighth Amendment. The
district court dismissed the case at screening, see 28 U.S.C. § 1915A, concluding that,
although Walker has a serious medical condition, he was treated in a reasonable
amount of time with no defendant exhibiting indifference to his calls for help. We
review the dismissal de novo. Schillinger, 954 F.3d at 994.
To state an Eighth Amendment claim, Walker had to plausibly allege that the
defendants were deliberately indifferent to his objectively serious medical condition.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Peterson v. Wexford Health Sources,
Inc., 986 F.3d 746, 751 (7th Cir. 2021). We assume that an asthmatic having trouble
breathing, with no relief from prescribed medication, is sufficiently serious. Board v.
Farnham, 394 F.3d 469, 484 (7th Cir. 2005).
Walker first argues that he sufficiently alleged deliberate indifference by the
correctional officers because their characterization of his condition as a non-emergency
led to a delay in being seen by a nurse. Walker also takes issue with Leibert telling him
No. 20-3487 Page 3
to “man up.” That gratuitous statement aside, however, Leibert told her supervisor that
Walker was not breathing normally. Another guard confirmed Leibert’s assessment,
and their supervisor communicated this to a nurse who decided that Walker should
submit a treatment request. Despite conveying their non-medical opinion that Walker
“did not appear to be having an emergency,” the officers also gave the nurse the
objective facts. After relaying Walker’s complaints, the officers were permitted to defer
to the nurse’s medical judgment. See Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010).
Walker next argues that the nurse who took the officers’ phone call should have
provided immediate treatment instead of telling him to fill out a request form. He
emphasizes that even a short delay in treatment can give rise to a deliberate indifference
claim if it exacerbates a condition or unnecessarily prolongs an inmate’s pain. McGowan
v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). But here, the only “delay” occurred after
three people (two guards and the first nurse) assessed that Walker was not having a
crisis; he was not gratuitously made to suffer. See generally Arnett v. Webster, 658 F.3d
742, 754 (7th Cir. 2011) (dismissal vacated where complaints of pain were ignored for
ten months); Edwards v. Snyder, 478 F.3d 827, 831–32 (7th Cir. 2007) (reversing dismissal
where treatment of compound fracture was delayed two days so as not to disturb
doctor’s holiday plans). And, though Walker was in discomfort, nothing in his
complaint suggests that he was in the kind of distress that required immediate action.
Under these circumstances, the nurse’s request that Walker follow standard procedures
does not plausibly allege deliberate indifference.
Walker also argues that the nurse who came to his cell should have provided
treatment immediately. But she assessed Walker in person as she performed her
rounds, and nothing in the complaint renders it plausible that she did anything other
than exercise her professional judgment in deciding he could wait for a short time.
See Lewis v. McLean, 941 F.3d 886, 894 (7th Cir. 2019). In particular, Walker admits that
he was easily treated with no lasting ill effects. And although this nurse also told
Walker to submit a medical request, she nonetheless treated him minutes later without
one. Walker contends that the nurse must have realized it was a mistake not to treat
him sooner, but nothing supports this negative inference. Even if the nurse could have
acted sooner, Walker does not allege care so “woefully inadequate” as to suggest a
“reckless disregard” for Walker’s medical needs. See Eagan v. Dempsey, 987 F.3d 667, 695
(7th Cir. 2021) (quoting Hudson v. McHugh, 148 F.3d 859, 863 (7th Cir. 1998)).
Finally, even assuming that any defendant took too long to respond to a severe
asthma attack, to the extent Walker seeks damages based on the risk of what could have
No. 20-3487 Page 4
happened to him as a result, that risk is not actionable under § 1983 without actual
injury. See Lord v. Beahm, 952 F.3d 902, 905 (7th Cir. 2020). None is alleged.
AFFIRMED