John Dahlk v. Michelle Woomer , 592 F. App'x 523 ( 2015 )

NONPRECEDENTIAL DISPOSITION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 February 17, 2015 *
Decided February 18, 2015
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-1943
JOHN G. DAHLK, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 12-C-556
MICHELLE WOOMER, et al., Rudolph T. Randa,
Defendants-Appellees. Judge.
ORDER
John Dahlk, a Wisconsin inmate, appeals from the grant of summary judgment
against him in this suit under 42 U.S.C. § 1983 asserting that employees at the Oshkosh
Correctional Institution were deliberately indifferent to his leg wound, which
eventually became infected with E. coli. The district court concluded that none of the
defendants had been deliberately indifferent. We affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-1943 Page 2
In mid-2011, Dahlk requested medical attention for an open wound on his upper
right inner thigh. At the infirmary the next day, Michelle Woomer, a nurse, examined
Dahlk and noted that he had a “closed, non-draining area” on his “groin fold” that had
existed for “years,” and there was no blood, redness, or sign of infection. Dahlk asked
Woomer for bandages, saying that the wound had been bleeding and oozing
periodically, but Woomer instructed Dahlk to notify staff if it began draining or
appearing infected. Another nurse, Stephanie Friedman, also examined the wound and
agreed with Woomer that no bandages were needed at that time.
Medical staff regularly monitored and treated Dahlk over the next several
months. About three weeks after his initial visit, Dahlk returned to the infirmary
complaining of a “burning pain” at the wound site, which was then draining clear fluid.
A nurse gave Dahlk bandages and scheduled him for biweekly checkups. Two weeks
and three assessments later, the wound had green drainage, and a nurse arranged for
Dahlk to see a doctor. Dr. Patrick Murphy examined Dahlk and ordered a culture of the
wound to test for an infection. Those lab results came back a few days later and showed
the presence of E. coli. Murphy believed that the presence of E. coli did not necessarily
confirm an infection, so he “flagged” Dahlk’s chart for assessment by his primary care
physician, Dr. Mary Sauvey. Eighteen days later she reviewed Dahlk’s chart and lab
results and prescribed an aggressive course of antibiotics, despite being aware from his
chart that he had a penicillin allergy. As a result of the antibiotics, Dahlk experienced
severe abdominal pain, cramping, and diarrhea. His wound healed three months later.
Between June 2011 and June 2012, Dahlk periodically complained to prison staff
about what he believed to be inadequate medical care for his leg wound. He wrote
successive letters to the warden, Judy Smith, but she responded that she would not
address his complaints until he completed the prison’s grievance process. So Dahlk also
filed seven grievances, including one complaining about Timothy Pierce, an inmate
complaint examiner who told Dahlk he would not help him because another examiner
handled all medical complaints.
Dahlk then sued Woomer, Friedman, Murphy, Sauvey, Smith, and Pierce for
being deliberately indifferent to his serious medical condition. He also alleged that
Warden Smith violated the First Amendment by failing to prevent retaliation when he
was not allowed to go to the infirmary for two of his scheduled wound assessments
after he filed his grievances. At screening, see 28 U.S.C. § 1915A, the district court
dismissed Dahlk’s First Amendment claim but allowed him to proceed on all other
claims.
No. 14-1943 Page 3
The district court ultimately granted summary judgment for the prison officials. 1
The court assumed that Dahlk’s leg wound was a serious medical condition but
determined that no reasonable jury could conclude that the defendants had acted with
deliberate indifference. First, the court found that Pierce’s job responsibilities did not
include handling medical complaints, so he could not be deliberately indifferent for
diverting Dahlk’s request to another examiner. Regarding Woomer and Friedman, the
court found that the two nurses were not deliberately indifferent because they used
their professional judgment to determine that Dahlk’s wound was closed and not
infected, and that he did not need any bandages or treatment. The court next
acknowledged that “it sound[ed] bad” for Murphy not to treat Dahlk’s E. coli, but
concluded—given Murphy’s questions about whether the presence of E. coli necessarily
reflected infection—that no reasonable jury could find deliberate indifference in his
decision to flag the chart and await review of the lab results by Dahlk’s treating
physician. Finally, regarding Sauvey, the court concluded that she had exercised her
professional judgment in prescribing the antibiotic and that Dahlk presented no
evidence to suggest that Sauvey’s reasoning was flawed.
On appeal Dahlk insists that issues of material fact preclude summary judgment
in favor of the defendants on his claim of deliberate indifference. For example, Dahlk
asserts, without reference to evidence in the record, that there were disputes about his
wound conditions on his second visit to the infirmary and whether Murphy actually
“flagged” his chart. But Dahlk misapprehends the standard he must meet to stave off
summary judgment. To avoid summary judgment, he had to produce evidence from
which a reasonable jury could find not only that he suffered from an objectively serious
medical condition, but also that the medical staff knew about but consciously
disregarded that condition, and that he was harmed as a result. See Farmer v. Brennan,
511 U.S. 825, 834, 837 (1994); Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014); Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Given the undisputed material facts in the
record about the care he received during this episode (29 infirmary visits over
5 months), we agree that no reasonable jury could find that any of the defendants
consciously disregarded a serious medical condition. We have considered Dahlk’s
remaining contentions but none warrants further comment.
1
Dahlk conceded at summary judgment that he had not exhausted his
administrative remedies against Smith, and thus the district court dismissed the claim
against her without prejudice. Dahlk does not challenge this on appeal.
No. 14-1943 Page 4
Finally, Dahlk has filed a self-styled “Petition for Writ of Mandamus,” in which
he asks us to strike the appellees’ brief and enter a default judgment in his favor
because the appellees misrepresented the date on their certificate of service regarding
when they mailed him their brief. We deny his request. After the appellees’ counsel
acknowledged the error, we invited Dahlk to file a new reply brief. He declined the
invitation, and he has failed to identify any actual harm that he suffered as a result of
the misrepresentation.
AFFIRMED.