Ralph Mlaska v. Paul Talbot, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge and John Daniel Tinder, Circuit Judge. [6591174-1] [6591174] [13-1695]

Case: 13-1695 NONPRECEDENTIAL DISPOSITION
Document: 96
Filed: 07/18/2014
To be cited only in accordance with
Fed. R. App. P. 32.1

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United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 17, 2014*
Decided July 18, 2014
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13-1695
RALPH MLASKA,
Plaintiff-Appellant,
v.
PAUL TALBOT, et al.,
Defendants-Appellees.

Appeal from the United States District
Court for the Central District of Illinois.
No. 11-cv-2084
Sara Darrow,
Judge.
ORDER

Illinois prisoner Ralph Mlaska appeals the grant of summary judgment to three
prison medical officials and one non-prison urologist in this suit under 42 U.S.C. § 1983
asserting deliberate indifference to his penile and testicular pain. 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).

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In early 2011 Mlaska sued a large number of defendants over the treatment he
had received at the Danville Correctional Center during the previous year for his genital
pain. He also asserted that Paul Talbot, one of the doctors at Danville, violated his right
to privacy by allowing a female prison guard to be present during examinations in
order to embarrass him, and to inhibit him from articulating complaints about his
genitals.
Judge McCuskey screened Mlaska’s complaint under 28 U.S.C. § 1915A, and
allowed Mlaska to proceed on his deliberate-indifference claim against three doctors
and a nurse: Talbot; Arthur Funk, a doctor and administrator with a correctional health
care company; April Walblay, a nurse at Danville; and Richard Wolf, a urologist at a
private clinic who accepted referrals from the prison. Judge McCuskey, however,
dismissed Mlaska’s privacy claim, concluding on the basis of Johnson v. Phelan, 69 F.3d
144 (7th Cir. 1995), that he did not sufficiently allege being subjected to the unnecessary
or wanton infliction of pain.
Mlaska promptly moved the court to recruit counsel, stating that his case would
involve the marshaling of medical evidence and that he, as a prisoner, was unlikely to
be able to do that effectively without an advocate. Judge McCuskey denied the motion,
explaining that he wanted to wait to make sure that the issues raised in the case were
“substantial and meritorious.” Mlaska then requested that an independent expert be
appointed to assess the medical evidence in the record, and Judge McCuskey denied
that motion as well, stating that Mlaska had no right to an independent expert in a civil
case. Eleven days later Mlaska again asked for an expert, and the judge summarily
denied this request.
Discovery ensued, and the following facts (gleaned from a record spanning 4262
pages), presented in the light most favorable to Mlaska, were introduced. See Williams v.
City of Chicago, 733 F.3d 749, 752 (7th Cir. 2013). Mlaska, upon being transferred to
Danville in April 2010, was seen by Talbot on sixteen occasions between April 2010 and
the end of 2011. Mlaska repeatedly sought treatment for pain in his penis and testicles.
In health care requests and consultations with prison medical officials, Mlaska described
his pain variously as dull, sharp, throbbing, stabbing, burning, and radiating through
his testicles into his abdomen. The pain became unbearable, he asserted, if he sat or
stood in one position for too long, and walking was so painful that he had taken to
staying in his bed. Scarring on his penis, he added, restricted blood flow and made
obtaining an erection both difficult and painful. In response to Mlaska’s persistent
complaints of pain, Talbot regularly examined Mlaska but at no time found any

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abnormalities. No abnormalities had been found either during examinations that
Mlaska underwent at his previous facility, including one exam conducted by an outside
urologist, though one doctor there had recommended a penile angiogram or penile
ultrasound to further explore Mlaska’s condition.
On one visit to the infirmary in July 2010, Mlaska was seen by Nurse April
Walblay for intense pain and swollen testicles. According to Mlaska, his blood pressure
was higher than normal during that visit, but Walblay refused to note that on his chart,
put his complaints into his medical file, or schedule him to see a doctor.
A month later Arthur Funk, the Regional Medical Director for Wexford Health
Sources, Inc., examined Mlaska at the request of the Medical Director of the Illinois
Department of Corrections. On the first examination, Funk found no anomalies but, in
light of Mlaska’s complaints of severe pain, offered to recommend that Mlaska see an
outside urologist should his condition not improve. At the second examination two
weeks later, Funk reported that a urinalysis and a pelvic x-ray had turned out normal,
but he agreed to allow Mlaska to see the outside specialist.
Several weeks later Mlaska was seen by Richard Wolf, a urologist at the Carle
Clinic in Urbana, who reported that Mlaska’s penile exam was normal, suggested that a
Doppler flow study might be helpful, and opined that Mlaska’s problem likely was
neurological rather than physical. Based on Wolf’s report and conversations with Funk,
Talbot concluded that there was no medical reason to order a Doppler flow study.
Talbot’s continued physical examinations revealed no abnormalities and Talbot
continued to order counseling and prescribe ibuprofen for Mlaska’s pain.
As the litigation progressed, the case was reassigned to Judge Darrow, after
which Mlaska promptly renewed his motion for recruitment of counsel. Mlaska also
asked her to reconsider all of his previously rejected motions, including his request for
an expert. Judge Darrow denied his motions; she observed that Mlaska had proven
himself sufficiently competent to articulate his claims and litigate them, and she saw no
reason to question the soundness of Judge McCuskey’s earlier rulings.
Six months later Judge Darrow granted summary judgment to Wolf, concluding
that Mlaska had not shown that the care provided by Wolf—during his single
examination—departed sufficiently from accepted medical standards to constitute an
Eighth Amendment violation.

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One week later, Mlaska again sought counsel, but Judge Darrow summarily
denied his request “for the reasons previously stated by the court.” Four months later
Mlaska again sought counsel or an expert. His request for counsel was denied without
explanation, though the judge stated that Mlaska could renew his motion if the case
proceeded to trial. She denied his request for an expert because Mlaska already had
been examined by two specialists whose findings were included in the record.
The district court eventually granted summary judgment to the defendants,
concluding that Mlaska failed to show that any of them was deliberately indifferent to
his complaints of pain. The court stated that both Talbot and Funk “repeatedly
examined the plaintiff, offered him medication and sent him to two outside specialists,
but nothing revealed a physical cause for his symptoms.” Mlaska’s legal claims, the
court concluded, were nothing more than dissatisfaction or disagreement with the
treatment he received. As for Mlaska’s claim against Nurse Walblay, the court
concluded that he produced no evidence supporting his claim that he suffered from a
serious medical condition when he saw her in July 2010, or that her purported delay in
arranging for treatment or testing had, or could have had, any effect on his condition.
On appeal Mlaska first challenges the district court’s conclusion that his claims
simply reflect a dispute about the proper course of treatment. Mlaska points out that his
doctors recommended potential tests (a Doppler flow study of his penis, a penile
ultrasound, and a penile angiogram) in order to further understand his complaints, but
none was performed. Mlaska argues that the defendants’ failure to follow through on
any of these recommendations gives rise to an inference that the defendants recognized
the seriousness of his condition, but willfully refused to investigate it or treat it.
The record does not support Mlaska’s argument. Although a defendant’s failure
to follow through on the orders of another doctor may give rise to an inference of
deliberate indifference, see, e.g., Gil v. Reed, 381 F.3d 649, 663–64 (7th Cir. 2004), Mlaska
has not produce sufficient evidence to support such an inference here. The defendants
disagreed with the recommendations of a doctor at Mlaska’s former facility (who is not
a specialist), but disagreement about a course of treatment does not sustain a claim of
deliberate indifference. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006); Garvin v.
Armstrong, 236 F.3d 896, 898 (7th Cir. 2001). Wolf was a specialist, but he presented his
recommendation (i.e., to administer a Doppler flow study) merely as a potential option,
not a necessary course of action, so this case is not one where treating doctor’s willfully
failed to follow through on a specialist’s orders.

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Ultimately, then, Mlaska’s quarrel is with the defendants’ judgment about how
to treat his pain. But a disagreement with a medical professional’s exercise of judgment
is generally insufficient to establish deliberate indifference. See Edwards v. Snyder, 478
F.3d 827, 831 (7th Cir. 2007); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006). And
Mlaska has produced nothing from which a jury could infer that the defendants’ chosen
course of treatment departed so far from the standards of the medical profession that
they were deliberately indifferent to his pain. See Jackson v. Kotter, 541 F.3d 688, 697–98
(7th Cir. 2008); Duckworth v. Ahmad, 532 F.3d 675, 680 (7th Cir. 2008). Talbot examined
the plaintiff almost monthly, regularly prescribed medication to treat his pain, and even
suggested counseling for suspected neurological problems. So long as Talbot’s
diagnosis was consistent with Mlaska’s symptoms, and Talbot thought he was
appropriately treating them (and the record does not suggest otherwise), he was not
deliberately indifferent. Cf. Walker v. Peters, 233 F.3d 494, 499–501 (7th Cir. 2000). As for
Funk, he did perform tests on Mlaska—just not the particular tests Mlaska
desired—and referred Mlaska to a specialist; those actions reflect concern for Mlaska’s
symptoms, not indifference to them. And Wolf examined Mlaska only on a single
occasion, so any disagreement with Wolf is about his findings and prescribed course of
treatment, but, as we have said, that is insufficient to show deliberate indifference.
Mlaska also challenges the district court’s dismissal of his privacy claim at
screening. He maintains that he sufficiently stated a claim for the violation of his
privacy rights by alleging that Talbot forced him to expose his genitals and discuss his
medical complaints before female guards for the purpose of embarrassing him and
inhibiting any expression of his condition. But prisoners have no general right not to be
seen naked by guards of the opposite sex. See, e.g., Johnson, 69 F.3d at 146 (opposite-sex
guards entitled to observe every detail of prison life); Oliver v. Scott, 276 F.3d 736, 746
(5th Cir. 2002) (opposite-sex surveillance of bathrooms and showers constitutional);
Timm v. Gunter, 917 F.2d 1093, 1101 (8th Cir. 1990) (opposite-sex pat searches
permissible under Fourth Amendment).
Mlaska last argues that the district court erred by refusing to recruit counsel or
appoint an independent expert. But regarding his requests for counsel, Judge Darrow
did not abuse her discretion in finding that Mlaska was competent to navigate the
litigation process and could adequately articulate his claims. See Bracey v. Grondin, 712
F.3d 1012, 1016–17 (7th Cir. 2013); Pruitt v. Mote, 503 F.3d 647, 658–59 (7th Cir. 2007) (en
banc). Likewise, regarding his request for appointment of an expert, Judge Darrow did
not abuse her discretion by concluding that she did not need the benefit of additional

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expert testimony to supplement the findings of two specialists that were already in the
record. See Fed. R. Evid. 702.
We have considered Mlaska’s remaining arguments, but they warrant no further
discussion.
AFFIRMED.