Greeno, Donald v. Daley, George ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4119
DONALD F. GREENO,
Plaintiff-Appellant,
v.
GEORGE DALEY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Western District of Wisconsin.
No. 00 C 0364—John C. Shabaz, Judge.
____________
ARGUED NOVEMBER 1, 2004—DECIDED JULY 1, 2005
____________
Before CUDAHY, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. This is the second time we have
considered Wisconsin inmate1 Donald Greeno’s Eighth
Amendment claim against numerous Wisconsin Department
of Corrections’ employees. Greeno’s claim is premised on the
prison employees’ failure to adequately respond to his
vomiting and severe heartburn, symptoms that appeared in
1
Although Greeno was incarcerated within the Wisconsin
Department of Corrections at all times relevant to this appeal, a
recent search of the Department’s web site reveals that he has
been released and is currently “out of custody.”
2 No. 01-4119
late 1994 and became progressively worse until he was
treated in 1997 for an esophageal ulcer. The district court
first dismissed Greeno’s complaint for failure to state a
claim. See 28 U.S.C. § 1915A(b)(1). We reversed and re-
manded in part, holding that Greeno’s complaint stated a
claim for deliberate indifference to an objectively severe
medical condition. See Greeno v. Litscher, No. 00-3140, 2001
WL 721026 (June 25, 2001) (unpublished order). On re-
mand, the district court granted summary judgment to a
number of defendants and again dismissed Greeno’s claims
against the remaining defendants. The district court also
denied Greeno’s motion requesting the assistance of counsel.
Greeno appeals, and we again affirm in part and vacate and
remand in part.
I.
Because Greeno appeals from the grant of summary
judgment, we construe the facts in the light most favorable
to him. Greeno first began complaining of severe heartburn
in December 1994, while incarcerated at Racine
Correctional Institution. From January until July 1995,
Greeno’s symptoms persisted and intensified, despite his
attempts to manage his illness by taking antacids and
avoiding spicy foods as directed by Racine doctors. During
this time Greeno’s intestinal distress caused him to vomit
occasionally.
In July 1995, Greeno was transferred to Fox Lake
Correctional Institution, where he continued to complain
about severe heartburn accompanied by vomiting. In August
Greeno saw the prison doctor, Jose Lloren, and explained
that his family had a history of peptic ulcer disease.
Dr. Lloren prescribed Maalox to Greeno and noted in his
chart the need to rule out the existence of a chronic peptic
ulcer (“R/O PUD chronic?”) or gastro-esophageal reflux dis-
ease (“R/O GER Dis?”). Despite these notations, no tests
No. 01-4119 3
were performed, and Greeno did not visit a specialist. In-
stead, he took the Maalox prescribed by Dr. Lloren, but it
did little for his pain. Consequently, Dr. Lloren saw Greeno
again in September and October. At those visits Dr. Lloren
again documented the possibility that Greeno was suffering
from gastro-esophageal reflux disease (“GERD?”) or a peptic
ulcer (“pos PUD?”), and he prescribed Tagamet in addition
to Maalox.
From October 1995 through April 1996, Greeno continued
throwing up and experiencing severe heartburn. He told Dr.
Lloren that the Tagamet and Maalox were ineffective, but
Dr. Lloren informed him that nothing more could be done
for him. In April Greeno fell and injured his back, and Dr.
Lloren prescribed ibuprofen and Tylenol for the pain.
Greeno put in multiple health service requests for different
medication because the ibuprofen and Tylenol exacerbated
his esophageal condition. In response, Dr. Lloren promised
to send different pain medication, but he never did. When
Greeno submitted an inmate complaint and another health
services request form, he was simply told to keep taking the
ibuprofen. Greeno also repeatedly requested a bland diet,
but was told that such diets were reserved for diabetics. He
was instructed to eat bread and potatoes and learn to live
with his condition.
In May and June 1996, Greeno tried several additional
avenues to get a bland diet or some other form of relief for
his continued heartburn and vomiting. In a letter to Sharon
Zunker, director of the Bureau of Health Services, Greeno
described his condition and his repeated attempts to obtain
a bland diet. Zunker told Greeno that she had referred the
matter to the Bureau of Health Services sector chief, but
Greeno never received a response from him. After seeing
that spicy food would be served the entire week of June 10,
Greeno submitted yet another health services request for a
bland diet, but that request too was denied.
4 No. 01-4119
On June 19, 1996, Greeno was transferred to Jackson
Correctional Institution, where his medical problems con-
tinued. In August Greeno requested an appointment with
the Jackson physician, Dr. Rizalino Yray. Dr. Yray did not
see Greeno until mid-September. In the meantime Greeno
appealed to Judith Nordahl, a nurse at Jackson, for more
Maalox. Noting that Greeno’s Maalox usage exceeded the
normal dosage, nurse Nordahl denied his request. Greeno
thus had nothing to combat his pain and vomiting at the
beginning of September. In mid-September Greeno’s vomit
was bitter, yellow, and tinged with blood. He met with
Dr. Yray, who performed a rectal exam to test for blood but
did not change Greeno’s treatment.
Greeno’s suffering thus continued. In response to continu-
ing pain in his back, nurse Nordahl gave him more
ibuprofen, which she warned him to take with “CAUTION”
and immediately report any bleeding. Just as before, the
ibuprofen aggravated his esophageal condition. Although
Greeno submitted two requests at the end of September
for different pain medication, he received no response. In
October, November, and December Greeno sent multiple
letters to Health Services and Dr. Yray reiterating that ant-
acid was not providing him relief and requesting additional
testing or a referral to a specialist to uncover the cause of
his heartburn and vomiting. Greeno told Dr. Yray that he
had been diagnosed with an ulcer while at Fox Lake, but
that no tests had ever been performed to verify or rule out
the diagnosis.
In December Greeno wrote Sharon Bergstad, the nurse
manager of the Health Services Unit, three different letters
describing his ongoing pain, vomiting, and inability to
receive effective treatment or additional testing. Nurse
Bergstad responded by giving Greeno more Maalox.
Despite the arrival of a replacement doctor for Dr. Yray
in January 1997, Greeno’s situation did not improve.
No. 01-4119 5
Dr. Nerissa Avestruz, who replaced Dr. Yray, attempted to
refer Greeno to a specialist, but George Daley, the medical
director for the Department of Corrections Bureau of Health
Services, denied the request. Around that same time Greeno
met with nurse Bergstad, who reiterated to him that he
needed to “accept and live [with] his condition.” Greeno then
submitted an inmate complaint (one of many) and wrote
letters to nurse Bergstad, Dr. Avestruz, and Dr. Yray,
threatening legal action on account of his inability to see a
specialist or receive effective treatment. The defendants
responded by placing Greeno on a liquid diet and holding
him for observation from January 14 to 17. At the end of
the three days, nurse Nordahl warned Greeno that if he did
not cease filing complaints and hassling Health Services
staff he would be “locked up” again, but for a longer period
of time.
During the remainder of January, Greeno continued to
seek different treatment. He made yet another request for
a bland diet, wrote Zunker about his excessive Maalox us-
age, and had his cell mate and several corrections officers
verify that he was throwing up on a regular basis. He also
wrote to Dr. Daley and asked him why he had rejected
Dr. Avestruz’s attempt to refer him to a specialist.
Things began looking up in February, when Greeno was
transferred to Dodge Correctional Institution, where he
stayed for two weeks of medical observation. During that
time Greeno was given a bland diet and Prilosec (an ulcer
medication), a combination that finally resolved his heart-
burn and vomiting.
However, when he returned to Jackson the old pattern of
neglect continued. Greeno remained on the Prilosec until it
ran out at the end of February. At that time, the vomiting
and burning returned. When Greeno asked for further
testing and more Prilosec, he was told that the Prilosec had
been a temporary measure. Instead, he was given Pepto-
6 No. 01-4119
Bismol. For the next two months Greeno went to great
lengths to bring attention to his condition. He sent a
number of letters to nurse Bergstad requesting further
testing and explaining that he was vomiting blood. He at-
tached statements to his letters from correctional officers
confirming that they had seen him throwing up. Greeno
wrote Dr. Avestruz requesting an endoscopy, and he also
wrote Dr. Daley, inquiring why he refused to prescribe
Prilosec when it had provided him with relief. Finally,
Greeno wrote a letter to a doctor at Dodge Correctional
Institution requesting that he tell the Jackson doctors to
order him an endoscopy. Despite (or perhaps because of)
these requests, Greeno’s medical record contains the follow-
ing entry made March 12, 1997: “per Dr. Daley’s orders—
no PT, no pain medication, no gastroscopy” (emphasis in
original). During this time Greeno’s symptoms continued to
become more pronounced, and he vomited blood on multiple
occasions.
At the end of April, Greeno saw a gastrointestinal spe-
cialist, who performed an endoscopy and diagnosed Greeno
with a distal ulcer in his esophagus.2 The doctor prescribed
Prilosec for the ulcer, and Greeno’s symptoms resolved. Al-
though Greeno has since had difficulty obtaining Prilosec
from prison officials on isolated occasions, he has for the
most part been able to effectively treat the ulcer with
Prilosec. However, the copious amounts of Maalox and
Mylanta Greeno ingested from 1995 to 1997 have taken
their toll. Greeno now suffers from severe and chronic con-
stipation. In 1998 he was diagnosed with a redundant
sigmoid colon and a sluggish bowel. These conditions cause
Greeno a great deal of pain and prevent him from moving
his bowels without the assistance of suppositories.
2
The diagnosis in the record refers to “distal ulcers.” Because it
makes little difference at this stage whether Greeno had one or
multiple ulcers, we follow the parties’ lead and refer to a single
ulcer.
No. 01-4119 7
In June 2000 Greeno filed suit in the district court under
42 U.S.C. § 1983, alleging, as relevant here, that numerous
Wisconsin Department of Corrections’ medical personnel
had exhibited deliberate indifference to his serious medical
needs, in violation of the Eighth Amendment. Greeno also
alleged deliberate indifference on the part of the employees
who had processed his inmate complaints relating to his
medical care. The district court screened and dismissed
Greeno’s complaint under 28 U.S.C. § 1915A(b)(1), which
requires district courts to dismiss before service a prisoner’s
complaint that fails to state a claim for relief. The district
court reasoned that since Greeno had received treatment for
both the ulcer and the chronic constipation, he could not
demonstrate that the defendants were deliberately in-
different to his serious medical needs.
We reversed in part, holding that Greeno’s descriptions of
severe heartburn and vomiting of blood for over two years
signaled a medical need that even a lay person would recog-
nize as serious. Greeno, 2001 WL 721026, at *4. Although we
affirmed the dismissal of Greeno’s complaint against
several individuals who had no personal involvement in the
alleged mistreatment, we concluded that Greeno had stated
a claim for violations of the Eighth Amendment against Dr.
Lloren, Dr. Yray, Dr. Avestruz, Dr. Daley, nurse Nordahl,
nurse Bergstad, and Zunker (director of the Bureau of
Health Services). We also held that Greeno had stated a
claim against the following administrative employees who
had handled his inmate complaints: former Department of
Corrections’ secretary Michael Sullivan, Charles Miller,
William Ridgely, and Lyn Jenkins.
On remand, Greeno attempted to serve the defendants
with process, but was unable to obtain addresses for
Sullivan, Ridgely, Jenkins, nurse Bergstad, and
Drs. Lloren, Yray, and Avestruz. After a discovery request
for their addresses went unanswered, Greeno moved to com-
pel a response. At the same time, the defendants moved for
8 No. 01-4119
dismissal or summary judgment, arguing that Greeno had
failed to exhaust his administrative remedies or demon-
strate a material issue of fact over whether the defendants
had violated the Eighth Amendment. The district court
rejected the defendants’ exhaustion argument, but nonethe-
less granted summary judgment in favor of the served
defendants (Nordahl, Zunker, Daley, and Miller). In the
same order, the district court dismissed Greeno’s complaint
against the unserved defendants for failure to state a claim.
Finally, the district court reaffirmed its earlier denial of a
motion Greeno had filed requesting the assistance of
counsel.
II.
On appeal, we granted Greeno’s renewed request for the
appointment of counsel after determining that the appoint-
ment of counsel and oral argument would materially ad-
vance the issues presented on appeal.
We begin with the defendants’ contention, rejected by
the district court, that Greeno failed to exhaust his admin-
istrative remedies as required by 42 U.S.C. § 1997e(a).
Section 1997e(a) provides that “[n]o action shall be brought
with respect to prison conditions . . . until such administra-
tive remedies as are available are exhausted.” The defen-
dants argue that Greeno has failed to exhaust because he
did not appeal every single complaint that he filed through
the highest level of review, the Department of Corrections
Secretary. They cite no authority, however, for the proposi-
tion that every single inmate complaint must be appealed
through the final level. Greeno appealed at least seven of
his inmate complaints to the Department of Corrections
Secretary. In those complaints Greeno discusses his severe
heartburn, his inability to receive a bland diet or effective
medication, and the refusal of prison officials to refer him
to a specialist for further testing. Thus, Greeno fully
No. 01-4119 9
exhausted his prison remedies with respect to complaints
that alerted prison officials to the nature of his problem and
gave them an opportunity to resolve it. See McCoy v.
Gilbert, 270 F.3d 503, 512 (7th Cir. 2001). In short, Greeno
took all steps prescribed by the prison grievance system,
thus satisfying the exhaustion requirement. See Ford v.
Johnson, 362 F.3d 395, 397 (7th Cir. 2004).
We now turn to the district court’s grant of summary
judgment in favor of the served defendants, nurse Nordahl,
Zunker, Dr. Daley, and Charles Miller. Summary judgment
is appropriate where the evidence demonstrates that “there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We review the district court’s decision
de novo, Russell v. Harms, 397 F.3d 458, 462 (7th Cir.
2005), construing all facts and drawing all reasonable
inferences in favor of the non-moving party, Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 255 (1986).
Greeno has abandoned his Eighth Amendment claim
premised on his chronic constipation, and presses only his
claim stemming from the defendants’ handling of what was
ultimately diagnosed as an esophageal ulcer. Greeno argues
that by failing to order further testing or provide him with
effective treatment for over two years, the medical staff
caused him unnecessary suffering in violation of the Eighth
Amendment. Greeno also argues that Miller (as well as the
other unserved complaint examiners) violated the Eighth
Amendment by failing to adequately address Greeno’s
formal inmate complaints regarding his condition.
Prison officials violate the Eighth Amendment’s pro-
scription against cruel and unusual punishment when they
display “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A
claim of deliberate indifference to a serious medical need
contains both an objective and a subjective component.
To satisfy the objective component, a prisoner must dem-
10 No. 01-4119
onstrate that his medical condition is “objectively, suffi-
ciently serious.” Farmer v. Brennan, 511 U.S. 825, 834
(1994) (internal quotations omitted); see also Walker v.
Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). A serious
medical condition is one that has been diagnosed by a phy-
sician as mandating treatment or one that is so obvious that
even a lay person would perceive the need for a doctor’s
attention. See Foelker v. Outagamie County, 394 F.3d 510,
512-13 (7th Cir. 2005). To satisfy the subjective component,
a prisoner must demonstrate that prison officials acted with
a “ ‘sufficiently culpable state of mind.’ ” Farmer, 511 U.S.
at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)).
The officials must know of and disregard an excessive risk
to inmate health; indeed they must “both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists” and “must also draw the infer-
ence.” Farmer, 511 U.S. at 837. This is not to say that a
prisoner must establish that officials intended or desired
the harm that transpired. Walker, 293 F.3d at 1037. Instead,
it is enough to show that the defendants knew of a substan-
tial risk of harm to the inmate and disregarded the risk. Id.Additionally, “a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that
the risk was obvious.” Farmer, 511 U.S. at 842.
The defendants do not dispute, nor could they, that
Greeno suffered from an objectively serious medical condi-
tion. As we observed the first time Greeno appealed, a lay
person would recognize the need for a doctor’s care to treat
severe heartburn and frequent vomiting. Greeno, 2001
WL 721026, at *4; see also Estate of Rosenberg by Rosenberg
v. Crandell, 56 F.3d 35, 36-37 (8th Cir. 1995) (inability to
keep food down, ultimately diagnosed as adenocarcinoma of
the esophagus and stomach, is a serious medical need);
Massey v. Hutto, 545 F.2d 45, 46-47 (8th Cir. 1976) (ulcers
constitute serious medical need).
No. 01-4119 11
The dispute on appeal, then, turns on the subjective
component. Greeno maintains that a factfinder could infer
deliberate indifference from the defendants’ ongoing refusal
to investigate his condition or provide him with effective
treatment despite his continued pain and suffering. The
defendants respond that since Greeno received ongoing
medical attention from 1995 until the ulcer was discovered
in April 1997, his claim is really nothing more than a dis-
agreement with a prescribed course of treatment. They also
contend that Greeno lacked “objective” evidence of an ulcer
until the April 1997 endoscopy, and so cannot prove that
the treatment he received prior to that time was inap-
propriate.
Although it is true that neither medical malpractice nor
a mere disagreement with a doctor’s medical judgment
amounts to deliberate indifference, see Estelle, 429 U.S. at
106 (“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”); Estate
of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir.
1996) (medical providers’ differing opinions as to best treat-
ment for prisoner do not amount to deliberate indifference),
to prevail on an Eighth Amendment claim “a prisoner is not
required to show that he was literally ignored.” Sherrod v.
Lingle, 223 F.3d 605, 611 (7th Cir. 2000). The district court
missed this critical distinction, concluding that Greeno’s
claim failed because “his complaints were not ignored.”
Likewise, the defendants’ contention that Greeno’s claim
fails because he received some treatment overlooks the
possibility that the treatment Greeno did receive was “so
blatantly inappropriate as to evidence intentional mistreat-
ment likely to seriously aggravate” his condition. Snipes v.
DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (internal quota-
tions omitted). We think a factfinder could infer as much
from the medical defendants’ obdurate refusal to alter
Greeno’s course of treatment despite his repeated reports
that the medication was not working and his condition was
getting worse.
12 No. 01-4119
We start with nurse Nordahl, who began seeing Greeno
shortly after he was transferred to Jackson in June 1996.
By this time Greeno’s condition had deteriorated to the
point that he was vomiting on a regular basis and consum-
ing large quantities of Maalox in an attempt to combat his
heartburn, nausea, and vomiting. Remember that despite
Greeno’s increasingly severe symptoms, in August 1996
nurse Nordahl denied Greeno’s request for more Maalox on
the grounds that Greeno was taking more than a normal
dosage. Consequently, Greeno had nothing to relieve his
pain for several days, a fact he brought to nurse Nordahl’s
attention in a Health Services Request dated September 16.
In response she sent Greeno more ibuprofen (for his back),
a drug that individuals with ulcers are advised to avoid.3
She told him that he had “nothing else available” to him, so
he should report any bleeding and take the ibuprofen with
food and “CAUTION.” Then at the conclusion of Greeno’s
three-day medical observation in January 1997, Nordahl
warned him that if he continued to file inmate complaints
and “hassle” the Health Services Unit staff about his
condition he would be “locked up” longer the next time.
Although nurse Nordahl may have a legitimate explanation
for her behavior, her decision to withhold Maalox and give
Greeno a medication known to aggravate his esophageal
condition, taken together with her threat that Greeno would
be “locked up” if he continued to complain, could support
the conclusion that she was deliberately indifferent to
Greeno’s serious medical needs. See Gil v. Reed, 381 F.3d
649, 661-63 (7th Cir. 2004).
3
The American Gastroenterological Association web site explains
that ibuprofen has been identified as a potential cause of ulcers.
That site also warns individuals with peptic ulcers that they
should not take ibuprofen. See The American Gastroenterological
Association, Peptic Ulcer Disease, available at http://
www.gastro.org/clinicalRes/brochures/pud.html.
No. 01-4119 13
Although the question is closer, we also think a jury could
conclude that Zunker was deliberately indifferent to
Greeno’s deteriorating medical condition. Like the other
medical defendants, Zunker failed to respond to Greeno’s
persistent requests for a bland diet or acknowledge his re-
peated contentions that the Maalox was not giving him any
relief. As the director of the Bureau of Health Services,
Zunker received copies of the inmate complaints that
Greeno was filing on a regular basis. These complaints
detailed Greeno’s severe pain and his repeated requests to
be seen by a specialist to confirm or rule out the existence
of an ulcer. Greeno also wrote Zunker in May 1996 explain-
ing that nothing was being done for him despite his inabil-
ity to find food that would not irritate his stomach or cause
him to vomit. And in January 1997 Greeno informed her
that he was using five or six bottles of Maalox weekly and
still vomiting and experiencing unrelenting heartburn.
Instead of responding, Zunker turned Greeno’s letters over
to other prison staff, who Greeno claims did nothing to
assist him. The possibility that Zunker and nurse Nordahl
did not do more for Greeno because they thought he was
malingering and did not really have a severe medical need
is an issue for the jury. See Walker, 293 F.3d at 1040.
Likewise, a jury could find deliberate indifference from
Dr. Daley’s refusal over a two-year period to refer Greeno to
a specialist or authorize an endoscopy. The defendants
claim the delay was justifiable because Greeno had no “ob-
jective” evidence of a serious medical need until April 1997.
At that time, the argument goes, Dr. Daley approved the
endoscopy, which revealed the ulcer “and led to immediate
successful treatment.” First of all, there is no requirement
that a prisoner provide “objective” evidence of his pain and
suffering—self-reporting is often the only indicator a doctor
has of a patient’s condition. See Cooper v. Casey, 97 F.3d
914, 916-17 (7th Cir. 1996) (“[T]he fact that a condition does
not produce “objective” symptoms does not entitle the
14 No. 01-4119
medical staff to ignore it. . . . [S]ubjective, nonverifiable
complaints are in some cases the only symptoms of a
serious medical condition.”). Moreover, the defendants fail
to acknowledge that Greeno spent two years trying to obtain
“objective” evidence, but was prevented from doing so by Dr.
Daley and the other medical providers. The possibility of an
ulcer was first noted in Greeno’s chart in August 1995. For
the next year-and-a-half the defendants doggedly persisted
in a course of treatment known to be ineffective, behavior
that we have recognized as a violation of the Eight Amend-
ment. See Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir.
1990) (per curiam) (prisoner could prevail on Eighth
Amendment claim with evidence that defendants “gave him
a certain kind of treatment knowing that it was ineffec-
tive”).
In addition to denying Dr. Avestruz’s January 1997 re-
quest that Greeno be referred to a specialist, Dr. Daley then
issued an emphatic ban on treatment for Greeno.
Dr. Daley’s March 1997 directive that Greeno was to receive
“no pain medications” and “no gastroscopy” (emphasis in
original) reinforces Greeno’s theory that the repeated
refusal to uncover or effectively treat his condition was a
“gratuitous cruelty.” See Ralston v. McGovern, 167 F.3d
1160, 1162 (7th Cir. 1999). The fact that the endoscopy,
when finally performed, did lead to successful treatment
makes it all the more obvious that Dr. Daley and the other
medical staff should have responded earlier to Greeno’s
requests for further testing. See Spruill v. Gillis, 372 F.3d
218, 235 (3d Cir. 2004) (Eighth Amendment violated when
authorities expose inmates to “ ‘undue suffering’ ” by deny-
ing reasonable requests for medical treatment); White
v. Napoleon, 897 F.2d 103, 108 (3d Cir. 1990) (Eighth
Amendment claim stated with allegations of multiple in-
stances when prison doctor “insisted on continuing courses
of treatment that the doctor knew were painful [or] ineffec-
tive”).
No. 01-4119 15
Of the served defendants, that leaves Charles Miller,
the “corrections complaint appeals examiner” who handled
Greeno’s appeals from at least seven of his inmate com-
plaints. Greeno contends that Miller was deliberately indif-
ferent to his medical needs because he failed to investigate
the complaints or remedy the medical defendants’ failure to
provide appropriate treatment. Our review of the record,
however, reveals that Miller reviewed Greeno’s complaints
and verified with the medical officials that Greeno was
receiving treatment. We do not think Miller’s failure to take
further action once he had referred the matter to the
medical providers can be viewed as deliberate indifference.
As the Third Circuit put the matter in Spruill,
If a prisoner is under the care of medical experts . . . a
non-medical prison official will generally be justified in
believing that the prisoner is in capable hands. This fol-
lows naturally from the division of labor within a pris-
on. Inmate health and safety is promoted by dividing
responsibility for various aspects of inmate life among
guards, administrators, physicians, and so on. Holding
a non-medical prison official liable in a case where a
prisoner was under a physician’s care would strain this
division of labor.
372 F.3d at 236.
We think these observations apt here, and decline to
extend responsibility for Greeno’s medical care to Miller.
Perhaps it would be a different matter if Miller had ignored
Greeno’s complaints entirely, but we can see no deliberate
indifference given that he investigated the complaints and
referred them to the medical providers who could be
expected to address Greeno’s concerns. See Hernandez v.
Keane, 341 F.3d 137, 148 (2d Cir. 2003) (no deliberate
indifference on part of grievance reviewer who delegated
responsibility for investigating inmate’s complaints about
his medical needs to other prison staff); Durmer v.
16 No. 01-4119
O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (non-medical
professionals not deliberately indifferent for failing to
respond to inmate’s complaints when prisoner is ostensibly
under care of medical experts).
We turn now to the unserved defendants. We asked ap-
pointed counsel to brief the issue of whether the district
court erred in dismissing Greeno’s claims against the un-
served defendants for failure to state a claim in light of our
previous ruling that Greeno had stated a claim against
those defendants. Not surprisingly, counsel responded that
yes, the district court erred. We agree.
Our June 25, 2001 order reversing and remanding
Greeno’s case for the first time holds in no uncertain terms
that Greeno’s complaint stated an Eighth Amendment claim
against Ridgely, Sullivan, Jenkins, Avestruz, Lloren, Yray,
and Bergstad. See Greeno, 2001 WL 721026, at *4. We are
thus hard-pressed to understand the district court’s decision
to dismiss Greeno’s claims against the seven unserved
defendants “for failure to state a claim for relief under
federal law.” Our decision that Greeno had stated a claim
against those defendants was the law of the case, and ab-
sent exceptional circumstances not present here the district
court was bound to follow it. See Law v. Medco Research,
Inc., 113 F.3d 781, 783 (7th Cir. 1997); see also Reiser v.
Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir.
2004) (“In a hierarchical system, decisions of a superior
court are authoritative on inferior courts. [D]istrict judges
must follow the decisions of this court whether or not they
agree.”).
Despite this error, we can affirm the judgment as to
Ridgely, Jenkins, Sullivan, and Dr. Avestruz because it is
clear from the evidence in the record that they would be en-
No. 01-4119 17
titled to summary judgment.4 Ridgely, Jenkins, and
Sullivan are all non-medical, administrative employees who
handled Greeno’s inmate complaints. Ridgely and Jenkins
are “complaint examiners” who process an inmate’s initial
complaint and conduct any necessary investigation into the
inmate’s claims. Sullivan was the Department of Correc-
tions Secretary at the time, and handled Greeno’s appeals
from his inmate complaints. As for Ridgely, Greeno concedes
that he was properly dismissed because he dealt only with
complaints related to Greeno’s constipation claim, which he
voluntarily dismissed.
Of the non-medical defendants, that leaves inmate com-
plaint examiner Lyn Jenkins and former Department of
Corrections’ Secretary Michael Sullivan. Greeno’s claim
against them fails for much the same reason as his claim
against Miller fails. As for Jenkins, the record reveals that
he responded to Greeno’s complaints by speaking to the
appropriate members of the Health Services Unit, who
assured him that Greeno’s concerns were being addressed.
For example, when Greeno demanded in March 1997 that
Dr. Daley be required to send him to a specialist, Jenkins’s
notes reveal that he contacted “Oxbow Staff, HSU Staff and
Clinical Staff regarding the history and progress” of
Greeno’s situation. Jenkins’s investigation prompted a
multi-disciplinary meeting with the various departments
involved in Greeno’s treatment. This type of response can-
not be equated with deliberate indifference. Jenkins inves-
tigated Greeno’s complaints and relied on the assurances of
the medical staff that Greeno was receiving treatment.
4
We note that there has already been discovery in this case, and
Greeno’s counsel on appeal does not identify additional evidence
that Greeno might obtain to assist him in staving off summary
judgment. In fact, counsel lumps the served and unserved
defendants together in arguing that the evidence permits Greeno
to withstand summary judgment.
18 No. 01-4119
Although the medical staff may be liable because that treat-
ment was often woefully inadequate, Jenkins’s failure to
realize the potential gravity of the situation does not
amount to deliberate indifference. See Spruill, 372 F.3d at
236; Hernandez, 341 F.3d at 148. Summary judgment would
have likewise been appropriate in favor of Sullivan, whose
role was limited to handling several appeals from decisions
of the complaint examiners. Nothing in the record indicates
that Sullivan shirked his duty in any way or failed to
appropriately handle the claims.
We also think it apparent from the record that
Dr. Avestruz was not deliberately indifferent to Greeno’s
needs. Within days of replacing Dr. Yray in January 1997,
Dr. Avestruz requested that Greeno be allowed to see a spe-
cialist, but Dr. Daley, recall, denied her request. In early
April 1997 she tried to prescribe Prilosec for Greeno after
he returned from Dodge, where he had used Prilosec and
received relief from his symptoms. But that attempt too was
blocked by Dr. Daley. Dr. Avestruz also instructed the
Health Services staff to give Greeno Tylenol instead of
ibuprofen, which aggravated his esophageal condition.
These facts demonstrate that although Dr. Avestruz’s ef-
forts to treat Greeno may have been thwarted by other
staff, no reasonable factfinder could conclude that she was
deliberately indifferent to Greeno’s serious medical needs.
In sum, the evidence in the record reveals that Greeno
could not sustain an Eighth Amendment claim against
Ridgely, Jenkins, Sullivan, and Dr. Avestruz. We thus af-
firm their dismissal, but on different grounds than those
given by the district court. See Stanciel v. Gramley, 267
F.3d 575, 579-80 (7th Cir. 2001) (court’s error in dismissing
for improper service certain defendants who had been
served was harmless where allegations against dismissed
defendants mirrored allegations against defendants that
jury found not liable); see also Ciarpaglini v. Saini, 352 F.3d
328, 331 (7th Cir. 2003) (recognizing our authority to affirm
dismissal on any ground supported by the record).
No. 01-4119 19
We cannot, however, say the same for the remaining un-
served medical defendants, Dr. Lloren, Dr. Yray, and
Bergstad, the nurse manager of the Bureau of Health
Services. These three defendants were well aware of
Greeno’s condition, and all three repeatedly refused to
prescribe a bland diet for Greeno or explore other options
when it was clear that the Maalox was not providing him
relief. Greeno should thus be given a chance to serve them
with process and present his case against them.
That leaves the district court’s denial of Greeno’s motion
for the appointment of counsel, see 28 U.S.C. § 1915(e)(1),
which we review for an abuse of discretion, Weiss v. Cooley,
230 F.3d 1027, 1034 (7th Cir. 2000). Greeno first moved for
the appointment of counsel in June 2000, before the court
dismissed his case under § 1915A. The district court did not
rule on Greeno’s motion until August 2001, shortly after we
reversed and remanded Greeno’s case. In analyzing
Greeno’s request, the court considered the following factors
listed in Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir.
1981): the plaintiff’s likelihood of success, the nature of the
factual issues, the complexity of the legal issues, and the
plaintiff’s ability to represent himself. The court concluded
that Greeno’s case was “both factually simple and legally
straightforward” and that his pleadings demonstrated his
ability to represent himself. Greeno later filed two more
motions asking the district court to reconsider its denial of
his request for counsel, but the district court denied both
motions.
We see several problems with the district court’s analysis.
First, the district court’s reliance on the factors in Maclin
was misplaced. In Farmer v. Haas we discarded Maclin’s
multifactor test in favor of the following more straightfor-
ward inquiry: “given the difficulty of the case, did the
plaintiff appear to be competent to try it himself and, if not,
would the presence of counsel have made a difference in the
outcome?” 990 F.2d 319, 322 (7th Cir. 1993). Using this
20 No. 01-4119
inquiry as a guide, we conclude that the district court
abused its discretion by denying Greeno’s request for
counsel.
As an initial matter, we respectfully disagree with the
district court’s assessment of Greeno’s case as “factually
simple and legally straightforward.” As Greeno points out,
his medical records, letters, health services requests, and
inmate complaints span over two years. His case is also
legally more complicated than a typical failure-to-treat
claim because it requires an assessment of the adequacy of
the treatment that Greeno did receive, a question that will
likely require expert testimony. See Swofford v. Mandrell,
969 F.2d 547, 552 (7th Cir. 1992) (pointing out that “dif-
ficult and subtle question” of state of mind required for
deliberate indifference is too complex for pro se plaintiff to
understand and present to jury). We also agree with Greeno
that his inability to serve seven of the defendants with pro-
cess despite repeated attempts is illustrative of his inability
to try the case by himself. Finally, as Greeno’s success on
appeal illustrates, the assistance of counsel would likely
have made a difference in Greeno’s ability to withstand
summary judgment. In sum, when considering Greeno’s
motion using the inquiry laid out in Farmer, we conclude
that the court abused its discretion by denying Greeno’s
motion for appointed counsel.
III.
For the foregoing reasons, we reverse the district court’s
denial of Greeno’s motion for the appointment of counsel.
We vacate the district court’s grant of summary judgment
in favor of George Daley, Sharon Zunker, and Judith
Nordahl, and affirm the judgment in favor of Charles
Miller. We also affirm the district court’s dismissal of
Greeno’s claim against Nerissa Avestruz, William Ridgely,
Lyn Jenkins, and Michael Sullivan, but on grounds other
No. 01-4119 21
than those stated by the district court. Finally, we vacate
the dismissal of Greeno’s claims against Jose Lloren,
Rizalino Yray, and Sharon Bergstad and remand so that
Greeno may serve them with process. Circuit Rule 36 shall
apply on remand.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-1-05