Tyrone Burns v. Dr. Fenoglio, et al
Filing
Filed Nonprecedential Disposition PER CURIAM. The judgment is AFFIRMED, except that as to the 1983 claim against Dr. Fenoglio and the state-law negligence claim against all defendants, the judgment is VACATED, and the case is REMANDED for further proceedings. Frank H. Easterbrook, Chief Judge; Joel M. Flaum, Circuit Judge and Diane S. Sykes, Circuit Judge. [6490460-1] [6490460] [12-3728]
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
Pages: 5
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 30, 2013*
Decided June 3, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐3728
TYRONE BURNS,
Plaintiff‐Appellant,
v.
JAMES FENOGLIO, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 11‐1104‐GPM
G. Patrick Murphy,
Judge.
O R D E R
Tyrone Burns, an inmate at the Lawrence Correctional Center in Illinois, appeals
from the dismissal of his civil‐rights suit at screening. See 28 U.S.C. § 1915A. He principally
contends that Dr. James Fenoglio delayed for eight months treatment to relieve a painful
tumor in his right hip. Taking his factual allegations as true for purposes of this appeal,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), we conclude that Burns states an Eighth
*
The defendants 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 the case is appropriate for summary disposition. See FED. R. APP. P. 34(a)(2)(C).
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Amendment claim against Dr. Fenoglio. Accordingly, we vacate in part the judgment of the
district court and remand for further proceedings.
In May 2010, while Burns was incarcerated at Stateville Correctional Center, a prison
doctor diagnosed a mass on his right hip as a tumor and said that it had to be removed
surgically. Burns did not have the surgery while he was at Stateville, and in November 2010
he was transferred to Lawrence. (Burns has filed a separate lawsuit against medical
providers and administrators at Stateville claiming deliberate indifference to his need for
surgery; that suit is currently pending in the Northern District of Illinois. See Burns v. Ill.
Dep’t of Corrs. Emps., No. 11 C 7267 (N.D. Ill. filed Oct. 13, 2011).) After the transfer Burns
repeatedly asked to see a doctor about removing the tumor. Finally, three months after the
transfer, he saw Dr. Fenoglio, who told him “not to worry about it” because the tumor “may
go away.” Dr. Fenoglio gave him ibuprofen for the pain. In Burns’s brief to this court, he
adds that during this first visit, he asked Dr. Fenoglio to review his medical records from
Stateville and schedule the surgery that was previously recommended to remove his tumor,
but the doctor ignored his request. Over the next few months, Burns submitted additional
sick‐call requests complaining of pain in his right hip and requesting pain medication
stronger than ibuprofen. Eventually Dr. Fenoglio sent Burns to Carle Hospital in May 2011,
five months after first examining him. A radiologist found several nodules on Burns’s right
hip, including a cyst. He drained fluid from the cyst, performed a biopsy on one of several
solid nodules (which showed no malignant cells), and recommended surgery to remove the
tumor.
Earlier that month Burns had submitted a grievance complaining about both the
delay in his surgery and the denial of effective medication for his unrelieved, severe pain.
The warden accepted the grievance officer’s recommendation to reject Burns’s complaint,
and on appeal the Administrative Review Board upheld that decision with the explanation
that Burns was scheduled to see an oncologist and thus his “medical needs are being
addressed.” The Board said nothing about his unresolved pain. That same week, at the end
of June, Burns was sent to another hospital for a physical evaluation of the tumor; the
examining physician expressed concern about a possible sarcoma and told Dr. Fenoglio that
Burns should be sent back to Carle Hospital “for further care.” Burns had a consultation
with an oncologist at Saint Louis University Hospital in July, and in August—eight months
after his first visit with Dr. Fenoglio—the surgeons at that hospital removed the tumor from
his right hip.
Burns sued Dr. Fenoglio and several prison administrators under 42 U.S.C. § 1983
and Illinois law. He makes three claims. First, he contends that Dr. Fenoglio was
deliberately indifferent to his serious medical need by delaying his surgery until August
2011. Because of the delay, Burns asserts, he was in severe pain for eight months. Burns also
blames the delay on the director of the Illinois Department of Corrections, the former
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warden at Lawrence and the deputy warden who succeeded him, the health‐care
administrator at the facility, and the grievance officer who recommended against granting
relief. He says that the warden, deputy warden, and health‐care administrator should have
responded to his grievance by taking disciplinary action against Dr. Fenoglio when he did
not schedule the surgery. Second, Burns claims that the grievance officer and the warden
violated his right to due process by not conducting a hearing on his grievance. Third, Burns
claims under Illinois law that all of the defendants were negligent.
The district court dismissed the Eighth Amendment claim against Dr. Fenoglio on
the belief that Burns simply was challenging the effectiveness of the medical treatment that
he eventually received. The court’s order did not address the effect of the delayed surgery
or mention Burns’s allegation that he experienced severe pain while waiting for it to be
scheduled, long after his transfer to Lawrence. The district court also dismissed the Eighth
Amendment claim against the remaining defendants because Burns did not allege that they
were personally involved in treating his tumor. Finally, the court dismissed Burns’s due‐
process claim against the grievance officer and warden because there is no substantive due‐
process right to a grievance procedure. After dismissing the constitutional claims, the court
relinquished supplemental jurisdiction over the state‐law negligence claim.
On appeal Burns argues that his claims should have survived screening or,
alternatively, that he should have been given an opportunity to amend his complaint. We
review de novo a dismissal under § 1915A for failure to state a claim. Westefer v. Snyder,
422 F.3d 570, 574 (7th Cir. 2005).
We agree with Burns that his complaint states an Eighth Amendment claim against
Dr. Fenoglio. 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); Grieveson v.
Anderson, 538 F.3d 763, 775 (7th Cir. 2008); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
The district court read the complaint as alleging no more than a disagreement with
Dr. Fenoglio’s treatment, but Burns alleges that he endured significant pain due to an
unjustified delay in scheduling his surgery. Delaying medical treatment may constitute
deliberate indifference, depending on the seriousness of the condition and the ease of
providing treatment. See Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012);
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). “Even a few days’ delay in addressing
a severely painful but readily treatable condition suffices to state a claim of deliberate
indifference.” Smith, 666 F.3d at 1040. Burns did not have the surgery to remove his hip
tumor until eight months after Dr. Fenoglio first examined him, even though the prison
doctor at Stateville had recommended surgery. And during those eight months, Burns
alleges, he was experiencing severe pain, which Dr. Fenoglio knew about but did not
address with effective pain medication. These allegations of delayed surgery and unabated
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pain, if proven and not accompanied by an adequate explanation for the treatment
decisions, may establish deliberate indifference. See Gonzalez v. Feinerman, 663 F.3d 311, 314
(7th Cir. 2011) (factfinder could reasonably infer deliberate indifference from doctors’
refusal to authorize hernia surgery for two years); McGowan, 612 F.3d at 641 (plaintiff who
alleged he was forced to wait three months to see oral surgeon for botched tooth extraction
stated a deliberate‐indifference claim); Grieveson, 538 F.3d at 778–80 (7th Cir. 2008) (guards
could be liable for day‐and‐a‐half delay of treatment for painful broken nose); Edwards v.
Snyder, 478 F.3d 827, 831–32 (7th Cir. 2007) (plaintiff who dislocated his finger and was
denied treatment for two days stated a deliberate‐indifference claim). Perhaps the prison’s
medical records will substantiate the district court’s view that this is essentially a dispute
about the effectiveness of Dr. Fenoglio’s treatment, which might justify summary judgment,
see, e.g., Holloway v. Del. Cnty. Sheriff, 700 F.3d 1063, 1074 (7th Cir. 2012), but that
determination can’t be made at screening.
However, the district court properly dismissed the claims against the remaining
defendants. Section 1983 makes public employees liable “for their own misdeeds but not for
anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009); see George v. Smith, 507
F.3d 605, 609 (7th Cir. 2007). Burns faults the director of the Department of Corrections, the
warden, and the deputy warden for not overruling Dr. Fenoglio’s decision to delay the
surgery. But top‐level administrators are entitled to delegate to others the responsibility for
specific prison functions, including providing medical care. See Burks, 555 F.3d at 595. And
Burns does not allege that the health‐care administrator was personally involved in the
decision to delay his surgery: He states generally that “all of the defendants have had
personal knowledge” about his medical condition but does not assert that the administrator
ever consulted with Dr. Fenoglio or Burns himself about his case.
The district court also properly dismissed Burns’s due‐process claim against the
grievance officer and the warden. Prison grievance procedures “do not give rise to a liberty
interest protected by the Due Process Clause,” Grieveson, 538 F.3d at 772 (7th Cir. 2008), and
so Burns’s allegation that the defendants did not provide him with a hearing on his
grievance states no claim, see Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
After dismissing Burns’s federal claims, the district court declined to exercise
supplemental jurisdiction over the state‐law negligence claim against all defendants.
Because we are vacating the judgment on the constitutional claim against Dr. Fenoglio, and
the state‐law negligence claim covers the same set of operative facts, we reinstate the state‐
law claim as to all defendants. See Edwards, 478 F.3d at 832 (observing that when an Eighth
Amendment claim is reinstated against a defendant, and the district court had relinquished
supplemental jurisdiction over a state‐law negligence claim against all defendants, the court
should reinstate the negligence claim against all defendants if it relates to same set of
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operative facts as the federal claim); Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d
969, 975 (7th Cir. 2002); Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir. 1998).
The judgment is AFFIRMED, except that as to the § 1983 claim against Dr. Fenoglio
and the state‐law negligence claim against all defendants, the judgment is VACATED, and
the case is REMANDED for further proceedings.
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