NONPRECEDENTIAL DISPOSITION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 21, 2011*
Decided September 28, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11‐1387
LEE BLANKENSHIP, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 10‐542‐GPM
SALEH OBAISI, KIMBERLY BIRCH, G. Patrick Murphy,
JOHN SHEPHERD, DONALD Judge.
LARSON, DAN FIELD, and JOHN
COX,
Defendants‐Appellees.
O R D E R
Lee Blankenship, an inmate of the Illinois Department of Corrections, claims in this
lawsuit under 42 U.S.C. § 1983 that prison doctors and administrators are violating the
Eighth Amendment by failing to provide adequate care for an arm injury and foot
*
The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).
No. 11‐1387 Page 2
condition. The district court dismissed the suit at screening on the ground that
Blankenship’s complaint fails to state a claim. See 28 U.S.C. § 1915A. We conclude that the
suit should have proceeded as against one of the six defendants, and, accordingly, we
vacate the dismissal in part and remand for further proceedings.
Blankenship’s complaint was dismissed at the pleading stage, so for purposes here
we accept his allegations as true and draw all inferences in his favor. See Smith v. Peters, 631
F.3d 418, 419 (7th Cir. 2011). In October 2006 Blankenship injured his left arm between the
biceps and forearm, causing severe pain. At the time he was housed at Logan Correctional
Center and was being treated by Dr. Saleh Obaisi, who opined that Blankenship was
suffering from tendinitis. Dr. Obaisi prescribed an anti‐inflammatory, which did not
alleviate Blankenship’s pain.
Blankenship continued to experience severe pain when he was transferred to Vienna
Correctional Center in 2007, and he continued to seek medical attention. In July 2008 he saw
Dr. John Shepherd, who initially prescribed an anti‐inflammatory but discontinued the
medication after x‐rays of Blankenship’s arm did not reveal an abnormality. The pain
continued, however, so Dr. Donald Larson, another prison doctor who saw Blankenship
twice in the latter half of 2008, prescribed an exercise regimen. When that course of
treatment proved to be painful and ineffective, Blankenship consulted Dr. Shepherd again
in December 2008. This time Dr. Shepherd sent him to Southern Orthopedic Associates,
where a specialist recommended surgery after detecting a probable bone spur and several
subchondral cysts indicative of osteoarthritis. Doctors delayed the surgery, however,
because Blankenship displayed an abnormal EKG and needed to be evaluated for a
myocardial ischemia. A cardiologist diagnosed an abnormality indicative of a minimal
amount of ischemia but concluded that the risk of a heart attack during surgery was low
enough to proceed. In July 2009 an orthopedic surgeon drained the cysts and removed a
bone spur.
When the surgeon removed the sutures two weeks later, he told Blankenship that a
follow‐up examination would be conducted in six to eight weeks. But when Blankenship
asked the medical director of the prison, Dr. Kimberly Birch, about scheduling that
appointment and arranging physical therapy, she responded ambivalently. No follow‐up
appointment was scheduled, and no physical therapy was authorized. When Blankenship
saw Dr. Birch again, first in December 2009 and then in July 2010, he complained of severe
pain and diminished mobility, but Dr. Birch still refused to schedule a follow‐up
appointment with the orthopedic surgeon. According to Blankenship, Dr. Birch’s
assessment of his arm was that “it moves” and thus “as far as being able to see the
orthopedic doctor again you are not going back there.” Additionally, in November and
December 2009, Blankenship complained to Dr. Birch that several toes on his left foot were
No. 11‐1387 Page 3
numb and purple. Her response, after looking at his toes, was to tell Blankenship that he
should wear different shoes, even though he protested that nothing was wrong with his
shoes. Blankenship still cannot feel the affected toes. When he later filed a grievance against
Dr. Birch, she responded, not by asserting that Blankenship continued to receive adequate
treatment for his medical conditions, but by denying that he ever complained about his arm
after his surgery.
Blankenship sued Drs. Obaisi, Shepherd, Larson, and Birch. He also sued two prison
employees who responded to his grievance against Dr. Birch. The district court dismissed
the complaint in its entirety for failure to state a claim. The court reasoned that
Blankenship’s allegations do not suggest that any of the defendants showed deliberate
indifference to his medical needs. Focusing on the medical care that Blankenship received
for his arm up to the point of having surgery, the court concluded that his “allegations
amount to quibbles with the courses of treatment selected by his physicians.”
On appeal Blankenship contends that he sufficiently pleaded that the defendants
have been deliberately indifferent to his arm pain and the numbness in his toes. As to
Dr. Obaisi, the allegations fall outside the statute of limitations because he treated
Blankenship more than two years before this lawsuit was filed. See Evans v. City of Chi., 434
F.3d 916, 934 (7th Cir. 2006). And with the exception of his allegations against Dr. Birch,
Blankenship’s assertion that he received inadequate care from the defendant physicians
boils down to a disagreement with their exercise of medical judgment. That unwillingness
to accept the professional judgment of the physicians who treated him is not a basis for
claiming deliberate indifference because, in the case of Drs. Shepherd and Larson, the
treatment provided was not “‘so blatantly inappropriate as to evidence intentional
mistreatment likely to seriously to aggravate’ his condition.” See Greeno v. Daley, 414 F.3d
645, 654 (7th Cir. 2005) (quoting Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996));
see also Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010); Jackson v. Kotter, 541 F.3d 688, 698
(7th Cir. 2008); Johnson v. Doughty, 433 F.3d 1001, 1012–13 (7th Cir. 2006). Indeed,
Blankenship concedes that Drs. Shepherd and Larson did not ignore his complaints but
instead prescribed a series of treatment options aimed at alleviating his pain, and ultimately
referred him to a specialist.
Dr. Birch is a different matter. Prison physicians will be liable under the Eighth
Amendment if they intentionally disregard a known, objectively serious medical condition
that poses an excessive risk to an inmate’s health. Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Lee v. Young, 533 F.3d 505, 509–10 (7th Cir. 2008); Greeno, 414 F.3d at 653. A medical
condition need not be life threatening to qualify as “objectively serious”; it is enough “that a
reasonable doctor or patient” would deem the condition “important and worthy of
No. 11‐1387 Page 4
comment or treatment.” Hayes v. Snyder, 546 F.3d 516, 523–24 (7th Cir. 2008) (quotation
marks and citation omitted).
After his surgery Blankenship has continued to experience severe pain that has
immobilized his left arm. Nothing in his complaint or its attachments supports the district
court’s assumption that “medical personnel have done everything they can do” to treat the
underlying cause of that pain, but even if they have, chronic pain is itself a serious medical
condition that must be addressed. See id. at 524; Grieveson v. Anderson, 538 F.3d 763, 779 (7th
Cir. 2008); Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003). And a physician would recognize
that persistently numb and discolored toes are not normal, especially when, as here, the
patient (who would know) has told the doctor that her “diagnosis” of uncomfortable shoes
is mistaken. The seemingly minor symptoms Blankenship alleges are equally consistent
with signs of cyanosis and Raynaud’s Syndrome. See STEDMAN’S MEDICAL DICTIONARY 1911
(28th ed. 2006); MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/003215.htm
(last visited Sept. 9, 2011). And although actual investigation may disclose a presently
nonthreatening condition, a medical issue may be serious if it could lead to further
significant injury. See Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).
So the case against Dr. Birch comes down to whether Blankenship has adequately
alleged the subjective element of his deliberate‐indifference claim. To state a claim,
Blankenship did not need to allege that his medical conditions were literally ignored.
See Roe, 631 F.3d at 857–58; Hayes, 546 F.3d at 523–24; Greeno, 414 F.3d at 653–54. Indeed,
even if he received some level of treatment, Blankenship can succeed on his claim if
Dr. Birch’s response to his complaints was “‘blatantly inappropriate.’” Roe, 631 F.3d at 858
(quoting Greeno, 414 F.3d at 653–54). She did authorize surgery, of course, but Blankenship’s
point—which for now we must accept as true—is that Dr. Birch did nothing more after that
surgery proved ineffective. And, according to what Blankenship says, Dr. Birch never even
investigated the cause of the continuing numbness and discoloration of his toes.
If what Blankenship says is true, a factfinder can infer that Dr. Birch deliberately
ignored his ailments, especially given her glib comment that his arm was fine because “it
moves.” She ignored his surgeon’s instructions that Blankenship return for follow‐up care,
which raises an inference of deliberate indifference. Walker v. Sheahan, 526 F.3d 973, 976, 980
(7th Cir. 2008) (explaining that lack of prompt follow‐up care may evidence deliberate
indifference); Gil v. Reed, 381 F.3d 649, 663–64 (7th Cir. 2004) (defendant disregarded
surgeon’s post‐operative instructions); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999)
(defendant disregarded specialist’s instructions); Murphy v. Walker, 51 F.3d 714, 720 (7th Cir.
1995) (lack of follow‐up care). That follow‐up care might have prevented the surgery from
being unsuccessful in the long run. What’s more, when it became apparent to Dr. Birch that
Blankenship was still experiencing severe pain after his surgery, she provided no treatment
No. 11‐1387 Page 5
at all for the pain or for the underlying conditions. What she did instead is tell the
grievance officer—falsely, we must assume—that Blankenship had never even reported that
he was in pain after his surgery. Blankenship thus presents a plausible account that, if true,
would establish that Dr. Birch demonstrated deliberate indifference to his need for medical
care, and it follows that the district court erred in dismissing the complaint as against this
defendant.
Blankenship also argues that his allegations against the two non‐physician
administrators should have survived the pleading stage, but this argument is meritless.
When reviewing grievances about medical treatment, administrators are permitted to rely
on the judgment of medical personnel. Berry, 604 F.3d at 440; Hayes, 546 F.3d at 526–28.
Blankenship does not allege that these defendants were personally involved in his medical
care. They reviewed his medical records and relied on Dr. Birch’s representations that his
arm injury had been adequately cared for and that a change in footwear would alleviate his
foot numbness. Blankenship asserts that the information supplied by Dr. Birch in response
to his grievance is false, but, even if he can prove this allegation, the two administrators
were entitled to rely on Dr. Birch’s representations. See Hayes, 546 F.3d at 527.
Accordingly, the dismissal of the complaint is VACATED as to Dr. Birch, and the
case is REMANDED for further proceedings as against her. In all other respects the
judgment is AFFIRMED.
