Nathaniel Harper v. Venerio Santos, et al
Filed opinion of the court PER CURIAM. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Michael S. Kanne, Circuit Judge and David F. Hamilton, Circuit Judge. [6818610-1]  [15-1903]
United States Court of Appeals
For the Seventh Circuit
VENERIO M. SANTOS and TERRI DEAN,
Appeal from the United States District Court for the
Southern District of Illinois.
No. 12‐CV‐1188 — Nancy J. Rosenstengel, Judge.
ARGUED NOVEMBER 16, 2016 — DECIDED FEBRUARY 13, 2017
Before EASTERBROOK, KANNE, and HAMILTON, Circuit
PER CURIAM. Nathaniel Harper, an Illinois prisoner, sued
a prison doctor, Venerio Santos, and nurse, Terri Dean, for
deliberate indifference towards his pain following nine ab‐
dominal surgeries, the management of his diet, and inatten‐
tion to a possible renal cell tumor. See 42 U.S.C. § 1983. The
district court granted summary judgment for the defendants,
concluding that Harper had not produced evidence from
which a jury could find that either defendant ignored a sub‐
stantial risk of harm. We affirm.
Harper, a prisoner at the Centralia Correctional Center,
was seen by a nurse at the health center on December 3,
2010, for complaints of nausea and vomiting. Harper asserts
that Nurse Dean examined him, but the defendants contend
that he was examined by another nurse. The nurse deter‐
mined that Harper was constipated and sent him back to his
cell with instructions to drink clear liquids and return if
The parties also disagree over events the following day,
when Harper returned with complaints that he still had
stomach pains and was vomiting. Harper asserts that Nurse
Dean evaluated him, laughed at his plight, and told him that
there was no way to relieve his constipation. He says that he
returned to the health center twice more that day, only to be
sent back to his cell each time and told that the nurses could
not help him. The defendants, however, maintain that two
nurses saw Harper at 9:00 a.m. and that Dr. Santos ordered
him admitted for observation. They assert that Harper was
seen and evaluated by nurses three more times that day.
Dr. Santos examined Harper on December 5 and ordered
an x‐ray of his abdomen. The x‐ray indicated a “GI gas pat‐
tern most consistent with” an intestinal blockage, so the doc‐
tor arranged for Harper to be transferred to St. Mary’s Good
Samaritan Hospital to rule out a small‐bowel obstruction.
Harper was admitted to St. Mary’s that same day and lat‐
er operated upon for a bowel obstruction. He remained there
for 38 days due to post‐surgical complications, including in‐
flammation of a membrane lining the abdominal wall,
pneumonia, an infection from a catheter, a fistula, an infec‐
tion at a surgical site, dehydration, and anemia. Altogether
he underwent nine surgeries at the hospital and, by the time
he left, he was equipped with a temporary colostomy bag.
Following Harper’s discharge, the doctors at St. Mary’s
recommended a course of treatment. They advised him that
he could have a regular diet, but that he should drink plenty
of fluids. For pain relief, they recommended, among other
things, that he take 650 mg of Tylenol and Vicodin 500 mg/5
mg every six hours as needed. In addition, the doctors ad‐
vised Harper to get an ultrasound every three months to
monitor a mass on his kidney that had shown up on an x‐
ray; in their discharge summary, however, the doctors noted
that decisions about monitoring would be left to his “prima‐
ry care physician.”
When Harper returned to Centralia in January 2011, Dr.
Santos discontinued Harper’s Vicodin prescription but re‐
sponded to his subsequent complaints of pain by upping his
Tylenol dosage to two 500 mg tablets every 6 hours, as need‐
ed. This dosage was reduced the following month to 650 mg
of Tylenol every 6 hours.
Besides the pain, Harper had difficulty eating. Dr. Santos
started Harper on a pureed diet, but Harper began vomiting
multiple times a day. Dr. Santos prescribed Harper to con‐
sume between meals one can of Fibersource, a nutritional
supplement, to which he initially responded well; he was
able to eat a salami sandwich, apple slices, and carrots. But
Harper soon reported that he could not tolerate solid food,
so his diet was changed to include protein shakes. This led to
hunger pangs, and Harper often complained that he was
“starving” or that he did not feel well following his meals.
Harper requested double portions of food from Nurse Dean,
and Dr. Santos authorized him to receive double‐meal trays.
When symptoms continued, Harper asked Dr. Santos to or‐
der an egg‐based diet because he could tolerate them, but
Dr. Santos refused. Over time, Harper expressed fears that
he was “fading away” and didn’t think he was “going to
make it.” The nurses noted that Harper looked “thin” and
“frail,” but by January 30, he again was tolerating food well
and had stopped complaining of nausea or vomiting.
Harper also had minor run‐ins with Nurse Dean about
his care. He states that she removed an extra pillow that he
was using to elevate his leg and relieve his foot pain. Harper
once refused to give the pillow to her, so she filed a discipli‐
nary report with the prison. On another instance, Harper
said that she refused his request to empty his colostomy bag.
To monitor the mass on his kidney, Harper had an ultra‐
sound at St. Mary’s in April 2011, and after that Dr. Santos
monitored it with sporadic blood and urine tests that were
negative. According to Harper, Dr. Santos once told him that
he would not treat him because he “only” had a kidney cyst
and on another occasion in 2012, Dr. Santos screamed, “Nev‐
er,” when Harper asked him for the date of a follow‐up ul‐
Dissatisfied with his medical care during his 88‐day stay
at the health center, Harper filed grievances with the prison.
While the appeals of his grievances were pending, Harper—
noting imminent deadlines for the statute of limitations on
his claims—filed this suit in November 2012. The defendants
eventually moved for summary judgment, arguing that
Harper’s claims against Dr. Santos and Nurse Dean amount‐
ed to mere disagreements over his preferred course of treat‐
ment, and that Harper could not show that the actions of ei‐
ther defendant rose to the level of deliberate indifference.
The court determined that Dr. Santos and Nurse Dean
were not deliberately indifferent to Harper’s serious medical
conditions, and granted them summary judgment. Harper,
the court observed, had not shown that the increased dose of
Tylenol ordered by Dr. Santos was ineffective or that Vicodin
was such a superior treatment option that Dr. Santos’s failure
to prescribe it amounted to deliberate indifference. Nor had
he shown that Dr. Santos denied him adequate nutrition; as
the court stated, he was accommodated with protein drinks,
meal‐replacement drinks, and supplemented meals. Harper
may have preferred eggs, the court noted, but he was not en‐
titled to dictate his diet. As for the mass on his kidney, the
court explained that Harper was not entitled to specific
treatments, especially since he presented no evidence show‐
ing that monitoring his condition through blood and urine
tests substantially departed from accepted medical practice
or that an ultrasound was a superior treatment option. With
respect to Nurse Dean, the court found that she was not de‐
liberately indifferent to Harper’s presurgical needs, given
that he was examined and treated each time that he ap‐
peared at the health center. She may not have acted as com‐
passionately as he would have liked, the court concluded,
but he did not establish that she acted with deliberate indif‐
Prison officials are liable under the Eighth Amendment
for cruel and unusual punishment if they are deliberately
indifferent to a prisoner’s serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). The parties agree that Harper
suffered from a serious medical condition, so the only ques‐
tion is whether Dr. Santos and Nurse Dean “acted with a
‘sufficiently culpable state of mind’ in failing to provide ade‐
quate care or treatment for that condition.” Dixon v. Cnty. of
Cook, 819 F.3d 343, 349 (7th Cir. 2016) (quoting Greeno v. Da‐
ley, 414 F.3d 645, 653 (7th Cir. 2005)).
On appeal Harper first argues that the district court erred
when it concluded that Dr. Santos was not deliberately indif‐
ferent to his medical needs by discontinuing his Vicodin pre‐
scription. Harper contends that a genuine issue of material
fact exists as to Dr. Santos’s state of mind because he disre‐
garded Harper’s Vicodin prescription from the hospital.
The district court correctly granted summary judgment
to Dr. Santos on this claim. Failing to follow instructions re‐
ceived from outside experts can amount to deliberate indif‐
ference, Gil v. Reed, 381 F.3d 649, 661–64 (7th Cir. 2004), but
the medical records here reflect that Dr. Santos attempted to
manage Harper’s pain. After the surgeries, Dr. Santos con‐
tinued to monitor Harper, visiting him on 31 out of 88 days
that Harper stayed at the health center. Dr. Santos continued
to see Harper two to three times per week until April, and
this constant, ongoing assessment of his condition cannot
create an inference of deliberate indifference. See McGee v.
Adams, 721 F.3d 474, 482 (7th Cir. 2013). Harper also provid‐
ed no evidence that the Tylenol did not alleviate his pain or
that Dr. Santos intended to cause him pain. See Holloway v.
Del. Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012). Harper
asserts that he sought more medication to relieve his pain,
but the health center’s medical records reflect that he regu‐
larly was given Tylenol and did not complain of pain.
Harper next argues that the district court erred when it
granted summary judgment on his claim that Dr. Santos act‐
ed with deliberate indifference by depriving him of adequate
nutrition. Harper maintains that he should have been fed
eggs, the only food, he says, that he could tolerate after his
We agree with the district court that Dr. Santos’s active
monitoring of Harper’s dietary needs represents the “antith‐
esis of deliberate indifference.” See McGee, 721 F.3d at 482.
Harper was not entitled to dictate the terms of his care, see
Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011), including
whether his meals consisted mostly of eggs. Dr. Santos also
altered Harper’s diet to meet his nutritional needs by order‐
ing that he take Fibersource supplements to counter the nau‐
sea and vomiting and by ordering double‐meal trays for
Harper once he showed that he could tolerate solid foods.
Harper next contends that the district court incorrectly
determined that Dr. Santos was not deliberately indifferent
to his kidney issue. He points to the discharge summary
from St. Mary’s, which, he argues, instructed him to get an
ultrasound of his kidneys every three months for monitor‐
The district court properly granted summary judgment
for Dr. Santos on this claim because Dr. Santos’s decision to
use blood tests was a matter of medical judgment. Harper
has not shown that blood and urine tests would fail to moni‐
tor his kidney, nor has he demonstrated that the tests sub‐
stantially depart from accepted medical practice. Harper is
not entitled to dictate which tests Dr. Santos can use to moni‐
tor his condition, see Arnett, 658 F.3d at 754, and the decision
whether medical imaging should be used is “a classic exam‐
ple of a matter for medical judgment.” Estelle, 429 U.S. at
107. Counsel’s representations at oral argument and Dr. San‐
tos’s affidavit also establish that Harper has not been harmed
by the lack of ultrasound tests, a fact fatal to his deliberate
indifference claim. See Gayton v. McCoy, 593 F.3d 610, 624–25
(7th Cir. 2010).
As for Harper’s claims against Nurse Dean, he disagrees
with the court’s conclusion that no inference of deliberate
indifference can be drawn from her (1) failure to treat him
when he first appeared at the health clinic with stomach
pain, (2) confiscation of his pillow, and (3) failure to empty
his colostomy container.
We believe that the district court correctly entered sum‐
mary judgment for Nurse Dean because Harper has not es‐
tablished that her efforts were “blatantly inappropriate,”
Arnett, 658 F.3d at 751 (quoting Greeno v. Daley, 414 F.3d 645,
653 (7th Cir. 2005), or that she “recklessly disregarded” his
needs, see Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008).
With regard to his claim that Nurse Dean ignored his pre‐
surgical pain, Harper was evaluated and treated each time
that he appeared at the health center, given a treatment plan,
and told to return if his symptoms persisted. Harper is not
entitled to dictate whether Nurse Dean should have treated
him differently or immediately transferred him to St. Mary’s.
See Arnett, 658 F.3d at 754. His assertion that Nurse Dean
laughed at him also does not establish that she acted with
deliberate indifference. See Townsend v. Cooper, 759 F.3d 678,
684, 688–90 (7th Cir. 2014) (deliberate indifference not estab‐
lished by evidence of incidents where two psychologists
laughed at the plaintiff and told him that he was “making
things up” in response to the plaintiff’s complaints that he
was hearing voices). As for Harper’s other claims—
confiscating a pillow that Harper was not supposed to have
and refusing Harper’s demand to empty his colostomy con‐
tainer do not reflect a deliberate indifference to his medical
needs because her insensitivity does not demonstrate that
she disregarded a substantial risk of harm to Harper. See Roe
v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).
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