James Owens v. Stephen Duncan ( 2019 )


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  •                         NONPRECEDENTIAL DISPOSITION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 September 17, 2019*
    Decided September 18, 2019
    Before
    FRANK H. EASTERBROOK, Circuit Judge
    ILANA DIAMOND ROVNER, Circuit Judge
    AMY C. BARRETT, Circuit Judge
    No. 17-3504
    JAMES OWENS,                                     Appeal from the United States District
    Plaintiff-Appellant,                        Court for the Southern District
    of Illinois.
    v.                                        No. 15-cv-1143-MJR-SCW
    STEPHEN DUNCAN, et al.,                          Michael J. Reagan,
    Defendants-Appellees.                       Judge.
    ORDER
    James Owens, an Illinois inmate who suffered from bone spurs in his jaw, sued a
    prison dentist, grievance administrators, and four unnamed prison staff members,
    alleging that they were deliberately indifferent to his jaw pain in violation of the Eighth
    Amendment, and that the dentist retaliated against him for filing grievances about his
    treatment. At screening, the district court dismissed Owens’s claims against the
    * We have agreed to decide the case without oral argument because the briefs and
    record adequately present the facts and legal arguments, and oral argument would not
    significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
    No. 17-3504                                                                      Page 2
    unnamed staff members, as well as the retaliation claim. It later entered summary
    judgment for the remaining defendants on the deliberate-indifference claims. We
    affirm.
    Owens visited Dr. Mark Litherland, the prison dentist, in March 2015 because of
    a sore jaw. Owens had ongoing dental issues and had previously had a tooth extracted.
    Dr. Litherland suspected either an infection or bone spurs (spontaneous bone growths
    that sometimes follow extraction) caused Owens’s pain and prescribed an antibiotic and
    ibuprofen (alongside Owens’s ongoing daily prescription for naproxen sodium). At a
    follow-up visit two weeks later, Dr. Litherland located and removed the bone spur.
    Owens complained again of jaw pain in June, but according to Owens, prison
    staff members did not promptly respond to his complaints. Owens filed a grievance
    stating that over a two-week period, one staff member did not call him to see a nurse on
    the same day that he submitted a sick-call request, and another canceled a sick-call
    appointment. A third staff member denied Owens’s request for pain medication the day
    after he filed the grievance. He was also informed that he could not see Dr. Litherland
    for a week because he was out of the office.
    Dr. Litherland examined Owens four days after he filed his grievance. The
    dentist found and removed a second bone spur and informed prison administrators
    that Owens had received treatment. The administrators dismissed the grievance based
    on this report.
    A few days later, Owens complained of pain to medical staff so they sent him to
    Dr. Litherland. The dentist anesthetized the area, made an incision in Owens’s gum,
    and trimmed the edge of Owens’s jaw bone to “make future bone spurs less likely and
    promote healing of the excavation site.” He did not suture the incision because he
    believed it was “small enough to heal on its own.” Dr. Litherland then prescribed an
    antibiotic and ibuprofen and scheduled a follow-up visit for a week later. Before the
    visit, Owens requested more pain medication, but a nurse did not provide it. At the
    visit, the dentist noted that Owens’s incision was healing and made another follow-up
    appointment. During that visit, Dr. Litherland prescribed more ibuprofen and gave
    Owens salt packets to rinse out his mouth. Owens’s jaw fully healed within a month
    after the procedure.
    Nevertheless, Owens filed a second, “emergency” grievance with the prison
    warden in August 2015. He repeated the allegations from his first grievance, added that
    another nurse had denied him pain medication, and complained that Dr. Litherland
    No. 17-3504                                                                            Page 3
    should have stitched up the incision. Owens conceded that the cut already had healed
    and that Dr. Litherland gave him pain medication—just not immediately upon Owens’s
    request. The warden determined that this grievance was not an emergency.
    Owens then sued Dr. Litherland and several prison officials for deliberately
    disregarding his pain. He alleged that (1) Dr. Litherland treated him improperly, denied
    medication, and retaliated against him for filing grievances; (2) four unnamed prison
    staff members prolonged his pain by denying his requests for care; and (3) grievance
    administrators refused to intervene. At screening, the district court dismissed Owens’s
    “bare-bones” deliberate-indifference claims against the unnamed prison staff because
    he had not alleged that any staff member “was aware of the level of harm [he] was
    experiencing.” The court also dismissed the retaliation claim against Dr. Litherland—
    based on Owens’s allegation that, out of anger over the June 2015 grievance, the dentist
    “d[u]g around” in his mouth with a dental probe and cut his gums without stitching up
    the incision, causing unnecessary pain. The court concluded that this could not amount
    to retaliation because it had not actually deterred Owens from filing more grievances.
    After the dismissal, Owens filed a motion to recruit counsel, but the court never ruled
    on it. Ultimately, the court entered summary judgment for the defendants on the
    remaining claims, concluding that Dr. Litherland had exercised his medical judgment in
    treating Owens and that the grievance administrators had properly relied on that
    judgment.
    On appeal, Owens first argues that a jury could reasonably find that
    Dr. Litherland and the prison administrators deliberately ignored his pain. To survive
    summary judgment, Owens needed to show that (1) his medical need was objectively
    serious, and (2) the defendants consciously disregarded his need for treatment.
    See Farmer v. Brennan, 
    511 U.S. 825
    , 834 (1994); Petties v. Carter, 
    836 F.3d 722
    , 728 (7th Cir.
    2016) (en banc). “[D]eliberate indifference to prolonged, unnecessary pain can itself be
    the basis for an Eighth Amendment claim.” Smith v. Knox Cty. Jail, 
    666 F.3d 1037
    , 1040
    (7th Cir. 2012).
    We agree with the district court that no jury could find that Dr. Litherland or the
    prison staff deliberately ignored Owens’s pain. Dr. Litherland responded to Owens’s
    complaints by searching for and removing bone spurs, prescribing antibiotics and
    analgesics, and scheduling several follow-up visits (at which he again prescribed pain
    medicine). The only conceivable delay in Owens’s care was for the period in June he
    cited in his first grievance, when two unnamed staff members allegedly denied him
    additional pain medication and Dr. Litherland was out of the office. But these facts
    No. 17-3504                                                                              Page 4
    provide no evidence of deliberate indifference—a subjective state of mind akin to
    criminal recklessness. See 
    Farmer, 511 U.S. at 839
    –40; see also Wilson v. Adams, 
    901 F.3d 816
    , 821–22 (7th Cir. 2018) (affirming grant of summary judgment on claim of deliberate
    indifference where “totality” of care showed proper attention to inmate’s pain).
    Moreover, Dr. Litherland’s decision to leave the incision to heal on its own was rooted
    in his medical judgment. Exercises of medical judgment—even when they prove wrong
    (which Dr. Litherland’s did not)—are inconsistent with a deliberately indifferent state of
    mind. See 
    Petties, 836 F.3d at 729
    . As for the grievance administrators, Owens lacks
    evidence that they did anything more than rely on Dr. Litherland’s professional
    judgment, which they were entitled to do. See Rasho v. Elyea, 
    856 F.3d 469
    , 478–79
    (7th Cir. 2017).
    Owens also challenges the district court’s dismissal of his other claims at
    screening. First, he contends that the district court erred in dismissing his claims against
    the four unnamed prison staff members who allegedly denied him care or medication
    through the “sick call” process at various times. The district court deemed these claims
    “bare bones,” and we agree that Owens’s sparse allegations do not amount to a
    plausible claim that these defendants knew of and disregarded a serious medical risk.
    See Johnson v. City of Shelby, 
    574 U.S. 10
    (2014) (“A plaintiff . . . must plead facts sufficient
    to show that her claim has substantive plausibility.”). Each staff member had a single
    interaction with Owens: two failed to summon him for sick call even though he had
    registered, and two did not give him pain medication when he requested it. These
    limited interactions do not give rise to a plausible claim that they knew Owens had a
    serious condition yet acted with indifference. Cf. Perez v. Fenoglio, 
    792 F.3d 768
    , 780
    (7th Cir. 2015) (prisoner stated deliberate-indifference claim where he alleged
    “knowledge of his severe injury” and failure “to provide adequate medical treatment”);
    see also Gutierrez v. Peters, 
    111 F.3d 1364
    , 1375 (7th Cir. 1997) (“isolated instances of
    neglect … cannot support a finding of deliberate indifference”).
    Regarding the retaliation claim, we again agree with the district court’s
    dismissal, if not its reasoning. Owens alleged that, upon learning that he filed a
    grievance over his inability to obtain medication in Dr. Litherland’s absence, the dentist
    became angry and “d[u]g around” with a dental probe and slit his gums, causing him
    unnecessary pain. Alleging that a medical provider vengefully inflicted unnecessary
    pain in response to activity protected by the First Amendment sufficiently states a
    retaliation claim. See 
    Perez, 792 F.3d at 783
    ; Bridges v. Gilbert, 
    557 F.3d 541
    , 546 (7th Cir.
    2009). And filing a grievance is a protected activity. See 
    Perez, 792 F.3d at 783
    . Whether a
    deprivation would “actually deter a person of ordinary firmness” is not a question to
    No. 17-3504                                                                          Page 5
    “address at the pleading stage,” 
    Bridges, 557 F.3d at 552
    , so we disagree with the district
    court that Owens’s claim failed because he was not deterred from filing grievances.
    But, again, Owens’s allegations are not plausible. His complaint reveals that the
    “dig[ging]” and the incision were done under anesthesia as part of a procedure to treat
    his pain. Owens faults Dr. Litherland’s decision to let the incision heal naturally instead
    of stitching it, but Owens’s disagreement with this treatment decision is insufficient to
    support any inference of an improper motive. See Greeno v. Daley, 
    414 F.3d 645
    , 653
    (7th Cir. 2005). Even if the retaliation claim should have passed screening, the record
    developed on Owens’s related claims assures us that the procedure, and the subsequent
    care for the wound, were well within the bounds of permissible medical judgment and
    not the wanton infliction of pain.
    Finally, Owens argues that the district court erred in failing to address his
    motion to recruit counsel who could have helped him retain a medical expert. A judge’s
    failure to rule on a motion to recruit counsel is an abuse of discretion. See Childress
    v. Walker, 
    787 F.3d 433
    , 443 (7th Cir. 2015). But here, the error was harmless because it
    did not prejudice Owens. See Wallace v. Tilley, 
    41 F.3d 296
    , 303 (7th Cir. 1994) (citing
    Brown-Bey v. United States, 
    720 F.2d 467
    , 471 (7th Cir. 1983)); see also 
    Childress, 787 F.3d at 443
    (relying on Brown-Bey). The absence of medical testimony is not what doomed
    Owens’s deliberate-indifference claims—rather, the defendants’ evidence showed them
    to be meritless. Even if the court had recruited counsel, a medical expert’s analysis of
    this record—showing frequent, responsive care and pain management—could amount
    only to a differing opinion about the best course of treatment, which cannot support a
    finding of deliberate indifference. See 
    Greeno, 414 F.3d at 653
    .
    AFFIRMED