Michael Moffett v. Shane Garland ( 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NONPRECEDENTIAL DISPOSITION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 June 18, 2021*
Decided August 3, 2021
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-2376
MICHAEL M. MOFFETT, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v. No. 18-C-1873
SHANE GARLAND and SUSAN William C. Griesbach,
PETERS, Judge.
Defendants-Appellees.
ORDER
Michael Moffett, a Wisconsin prisoner with sleep apnea, sued medical staff for
refusing to consider sinus surgery instead of a continuous positive airway pressure
(CPAP) machine. The district court entered summary judgment for the defendants,
concluding that Moffett failed to exhaust his administrative remedies with respect to
* We have agreed to decide this 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. See FED. R. APP. P. 34(a)(2)(C).
No. 20-2376 Page 2
one defendant and that no reasonable jury could find that the other acted with
deliberate indifference. We affirm, though on slightly different grounds.
Because Moffett appeals the entry of summary judgment, we recount the factual
record in the light most favorable to him. See Giles v. Tobeck, 895 F.3d 510, 512 (7th Cir.
2018). Moffett was diagnosed with obstructive sleep apnea in January 2017. The sleep
specialist who diagnosed him recommended CPAP therapy as the “gold standard”
treatment; other options included oral appliances and upper airway surgery, but the
specialist explained that the efficacy of those treatments was unpredictable. Susan
Peters, a nurse practitioner at the Green Bay Correctional Institution, issued a CPAP
machine to Moffett a few months later.
Over the next year, Moffett struggled to comply with regulations that required
use of the CPAP machine during at least 70% of his sleeping hours, and as a result his
prescription was discontinued several times. Moffett told his health care providers that
he suffered from sinus congestion, which made breathing difficult while using the
machine. Peters prescribed numerous forms of treatment for the congestion, including
multiple allergy medicines, nasal sprays, and a Neti pot.
Because he was struggling to use the CPAP machine, Moffett asked Peters about
sinus surgery, but she said that it was too expensive, so the prison would not provide it.
Sometime later, Moffett was speaking with a nurse, Shane Garland, about his challenges
with using the CPAP machine, and Garland speculated about whether surgery was
needed. Moffett was surprised and told Garland about Peters’s comment about the
expense. Garland expressed disappointment that Peters would say such a thing and
explained that the facility provided all necessary surgery. Garland said he would ask
Peters about her remark, but Moffett never found out if he did. (Peters and Garland
deny that these conversations occurred, but we assume that they did.)
Moffett sued several medical staff members and other Green Bay employees
under 42 U.S.C. § 1983, claiming that they had violated his Eighth Amendment right to
adequate medical care. The district court screened his complaint, see 28 U.S.C. § 1915A,
and allowed him to proceed on claims against Garland and Peters for discontinuing his
CPAP machine, Peters for refusing to consider sinus surgery based on cost, and Jean
Lutsey, a health services manager, for responding inadequately to his inmate complaint.
(Lutsey recently passed away, and Moffett declined to proceed against her estate, so we
say no more about her.)
No. 20-2376 Page 3
After discovery, Garland and Peters moved for summary judgment, and the
district court granted their motion. It first concluded that Moffett had failed to exhaust
his administrative remedies for the claim against Garland. As for Peters, the court
determined, as relevant here, that she acted within her medical judgment when she
declined to pursue surgery: She opined that surgery was unnecessary because Moffett
did not have a traumatic injury, deviated septum, polyps, or any other condition that
surgery could address.
On appeal, Moffett does not challenge the entry of summary judgment on his
claims based on the discontinuation of the CPAP machine, focusing instead on his
contention that the defendants unlawfully prevented him from receiving sinus surgery.
To withstand summary judgment on his Eighth Amendment claim, Moffett needed
evidence that he had an objectively serious medical condition and that the defendants
were aware of and unreasonably disregarded an excessive risk to his health. See Farmer
v. Brennan, 511 U.S. 825, 837, 846 (1994). The defendants concede that Moffett’s sleep
apnea was serious, so we focus on whether they acted with a “sufficiently culpable state
of mind.” See Lewis v. McLean, 864 F.3d 556, 563 (7th Cir. 2017).
Moffett first argues that a reasonable jury could find that Peters showed
deliberate indifference by refusing to consider sinus surgery because of the cost, but the
evidence does not support his claim. The cost of treatment can be a relevant factor in
our assessment of deliberate indifference, such as when medical providers deny access
to care that is inexpensive and commonplace. See, e.g. Berry v. Peterman, 604 F.3d 435,
441 (7th Cir. 2010); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006). Here,
however, the record shows that Peters prescribed a CPAP machine—the “gold
standard” treatment for sleep apnea—gave him repeated instructions on how to use it
properly and multiple opportunities to do so, and provided numerous treatments for
his sinus congestion so he could use the machine comfortably. This record of responsive
treatment is inconsistent with a deliberately indifferent state of mind. See, e.g., Walker v.
Wexford Health Sources, Inc., 940 F.3d 954, 965–66 (7th Cir. 2019).
Moffett’s belief that Peters should have considered referring him for surgery
does not raise a question of fact about her state of mind. Peters explained that, in her
medical judgment, surgery was not appropriate, and mere disagreement with a medical
professional’s chosen course of treatment cannot establish a constitutional violation.
See Cesal v. Moats, 851 F.3d 714, 722 (7th Cir. 2017). Nor does the Eighth Amendment
give prisoners the right to demand specific medical treatment. See Walker, 940 F.3d
at 965. Moffett needed evidence that any “minimally competent professional” would
No. 20-2376 Page 4
have treated his sleep apnea with surgery, but the specialist who diagnosed his
condition recommended the very treatment Peters prescribed—CPAP therapy—and
cautioned that the effectiveness of surgery was unpredictable. Lockett v. Bonson, 937 F.3d
1016, 1023 (7th Cir. 2019). Without any evidence that surgery was necessary or that the
treatment Moffett received was inappropriate, Peters’s remark that surgery would be
too expensive is irrelevant. See McGowan v. Hulick, 612 F.3d 636, 641 (7th Cir. 2010).
Next, Moffett argues that the district court improperly granted Garland’s motion
for summary judgment based on a failure to exhaust his administrative remedies. We
agree that the district court was too hasty in entering summary judgment for Garland
on that ground. The federal Prison Litigation Reform Act requires that inmates exhaust
available administrative remedies before turning to the courts. See 42 U.S.C. § 1997e(a).
But state law controls what content grievances must contain. See Jones v. Bock, 549 U.S.
199, 218 (2007); Riccardo v. Rausch, 375 F.3d 521, 523 (7th Cir. 2004). The applicable
Wisconsin regulations, see Wis. Admin. Code DOC § 310.07, do not require that
grievances identify the perpetrator of an alleged problem, so Moffett’s grievance
needed only to “provide[] notice to the prison of the nature of the wrong for which
redress [was] sought.” Schillinger v. Kiley, 954 F.3d 990, 995 (7th Cir. 2020) (internal
quotation marks and citation omitted). Here, Moffett complained that he was receiving
inadequate care for his sleep apnea, that his CPAP machine had been discontinued, and
that Peters told him the facility could not afford surgery. Those allegations were
sufficient to notify the prison of the nature of his concerns. (Garland argues that
Moffett’s failure to target him specifically was a “fatal defect.” But he relies on Roberts v.
Neal, 745 F.3d 232, 235 (7th Cir. 2014), in which we applied Illinois regulations that,
unlike Wisconsin’s, require inmates to identify the subject of their complaint. See ILL.
ADMIN. CODE tit. 20, § 504.810(c).)
Nevertheless, we need not remand for the district court to consider the merits of
Moffett’s claims against Garland. We can affirm on any basis supported by the record,
see St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003, 1008 (7th Cir.
2019). Garland remained in the case throughout discovery, so the record is fully
developed as to his role. And no reasonable jury could find that Garland was
deliberately indifferent to Moffett’s medical needs. Moffett blames Garland for failing to
recommend surgery to Peters and for neglecting to investigate or report Peters’s
comment that the facility would not approve sinus surgery because of the cost. But his
claims against Garland fail for the same reason as those against Peters: Without any
evidence that surgery was necessary, no reasonable jury could infer deliberate
indifference from Garland’s failure to recommend it (if Garland was even empowered
No. 20-2376 Page 5
to do so). See Cesal, 851 F.3d at 722. Further, Garland was a medical provider, not
Peters’s supervisor or a grievance examiner, and Moffett supplies no basis on which a
jury could find that Garland was obligated to take action on Moffett’s report that
another provider commented that surgery was cost-prohibitive (such as by
investigating Peters or reporting the comment.) See Burks v. Raemisch, 555 F.3d 592, 595
(7th Cir. 2009) (“[N]o prisoner is entitled to insist that one employee do another's job”).
AFFIRMED