Craig Cesal v. P. Molina, et al


Filed opinion of the court by Chief Judge Wood. AFFIRMED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge, dissenting and Ilana Diamond Rovner, Circuit Judge. [6827069-1] [6827069] [15-2562]

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Case: 15-2562 Document: 45 Filed: 03/20/2017 Pages: 22 In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 2562 CRAIG J. CESAL, Plaintiff Appellant, v. SCOTT MOATS, Defendant Appellee. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 1:12 cv 01524 SLD — Sara Darrow, Judge. ____________________ ARGUED NOVEMBER 8, 2016 — DECIDED MARCH 20, 2017 ____________________ Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges. WOOD, Chief Judge. While lifting a heavy door at his prison job at the Pekin Correctional Institution on March 21, 2008, Craig J. Cesal heard a “snap” in his back and felt pain in his leg and hip. He promptly sought treatment from the prison’s medical sta , but he was dissatis ed with their response. He alleges that he received only a three year long medical runa Case: 15-2562 Document: 45 Filed: 03/20/2017 2 Pages: 22 No. 15 2562 round during which his pain was ignored. Worse, he says, Pe kin’s Clinical Director, Dr. Sco Moats, canceled Cesal’s insu lin prescription in retaliation for Cesal’s ling of a complaint about the inadequate care for his back. Without the prescrip tion, Cesal—an insulin dependent diabetic—was unable to control his blood sugar and consequently su ered additional unnecessary pain and physical harm. He led a second com plaint with the prison about the insulin deprivation. Cesal ultimately sued Dr. Moats and Dr. Andreas Molina, another Pekin physician, alleging that they exhibited deliber ate indi erence in the care they gave him. At the screening phase, see 28 U.S.C. § 1915A, the district court identi ed two claims in Cesal’s pro se complaint: an Eighth Amendment de liberate indi erence claim regarding his back treatment, and a First Amendment retaliation claim related to the withhold ing of insulin. The district court granted summary judgment for the defendants on both issues, reasoning that the statute of limitations on his complaints had run and that, in any event, there was no question of material fact that would jus tify allowing his case to move forward. Cesal appeals only the judgment in favor of Dr. Moats, and so we largely disregard Dr. Molina’s role in these events. Although Cesal’s allegations are troublesome, we conclude in the end that the district court’s judgment must be a rmed. I Because this is an appeal from the grant of summary judg ment, our review is de novo. Conley v. Birch, 796 F.3d 742, 746 (7th Cir. 2015). At this stage of the litigation, we assume that the facts alleged by Cesal are true, and we draw all reasonable inferences in his favor. Dixon v. Cnty. of Cook, 819 F.3d 343, 346 (7th Cir. 2015). Summary judgment is appropriate when there Case: 15-2562 No. 15 2562 Document: 45 Filed: 03/20/2017 Pages: 22 3 are no genuine disputes of material fact and the movant is en titled to judgment as a ma er of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catre , 477 U.S. 317, 322 (1986). Between March 21, 2006, and March 28, 2011, Cesal was serving a life sentence at the Pekin Federal Correctional Insti tution, which is run by the Bureau of Prisons (BOP). There, he worked as a welder—a physically demanding job that re quired him to move 320 pound doors. He was lifting one such door on Friday, March 21, 2008, when he heard a “snap” in his back and felt sharp pain in his left hip and knee. He im mediately sought care at the medical unit, but was told that the facility was closing and instead to report to sick call on Monday, March 24. He did so, meeting with a nurse that day. By then, Cesal had been given a wheelchair and was tempo rarily excused from his job. Dr. Moats gave him a verbal order for Motrin (the active ingredient of which is ibuprofen) but was not otherwise involved in his treatment that day. Cesal was next seen by a physician assistant on March 27. Cesal reiterated his report of pain and numbness in his leg and hip. Although he still was using the wheelchair, the phy sician assistant noted that Cesal had “no di culties ge ing up to sit on exam table” and that Cesal displayed normal gait and posture. During the exam, the physician assistant re viewed x rays of Cesal’s back. These x rays had been taken on March 12, 2008—before Cesal’s lifting accident—in response to his earlier reports of hip pain and numbness in his knee and thigh. The physician assistant prescribed Cesal ibuprofen for another ten days. Dr. Molina saw Cesal at a follow up appointment on March 31, when Cesal reported having moderate low back pain and some numbness in his leg. Four days later, on Case: 15-2562 4 Document: 45 Filed: 03/20/2017 Pages: 22 No. 15 2562 April 3, the medical sta took an x ray of Cesal’s lumbar spine, which is the area between the rib cage and pelvis. That x ray showed that Cesal had degenerative joint disease and disc disease, a diagnosis which previously had shown up in a di erent x ray. Otherwise it revealed no problems. The very next day Cesal led an informal complaint—the rst step in the administrative grievance process—about the treatment he was receiving for his back. In this complaint, Cesal reported that he had “acute pain in my hip and knee, also numbness along the front of my thigh” and that he could not “stand or walk for a worthwhile duration.” He said that he “ha[d] been to Medical Dept. repeatedly, but examination or care have been denied.” Cesal asked for a medical evalua tion and appropriate treatment. His complaint was rejected. On May 6, 2008, Cesal ap pealed this denial to the Warden—the proper next step for an inmate who is unsatis ed by the response to an informal com plaint. Cesal alleged that he had been evaluated only super cially and never seen by a doctor for acute pain in his left hip and knee and numbness in his left thigh. He did not allege back pain. The Warden rejected Cesal’s appeal on June 9, 2008, noting that Cesal’s medical records indicated that he was re ceiving appropriate care. The Warden’s denial also noted that medical o cials were awaiting the results of a June 4, 2008, MRI of Cesal’s lumbar spine. This scan had been requested on April 15, and was ap proved sometime in the interim. By June 16, 2008, the results were in. The MRI revealed a few problems—mild stenosis (narrowing of the spinal canal) in one spot, and disc degener ation with mild bulging elsewhere without major stenosis. Case: 15-2562 No. 15 2562 Document: 45 Filed: 03/20/2017 Pages: 22 5 But this diagnosis did not assuage Cesal’s concerns. He ap pealed the denial of his grievance on June 25, 2008, moving up another rung on BOP’s grievance ladder. Two days after Cesal led that appeal, on June 27, Dr. Moats saw him in the prison’s chronic care clinic for what Cesal describes as a “non routine visit.” As Cesal tells it, Dr. Moats had learned of Cesal’s grievance for the treatment of his back issue and was angry. Dr. Moats told Cesal that he would “show him” what providing no medical care looked like, and then abruptly terminated Cesal’s prescription for in sulin for no medical reason. Cesal is an insulin dependent Type II diabetic; he had been taking sliding scale insulin. Without insulin, Cesal was left to manage his blood sugar through diet, exercise, and metformin, a prescription drug that Dr. Moats did not cancel, which is commonly used for type II diabetes to control high blood sugar. Metformin, WEBMD, h p:// 11285 7061/metformin oral/metformin oral/details (last visited March 20, 2017). “Metformin works by helping to restore your body’s proper response to the insulin you naturally produce. It also decreases the amount of sugar that your liver makes and that your stomach/intestines absorb.” Id. Cesal skipped meals or went for runs when his blood sugar level got too high. But despite these e orts, Cesal’s blood sugar soared. As a result, he felt dizzy and saw stars, and his toenails fell o . Cesal’s back pain also continued to bother him. Dr. Moats requested a consultation for a “back specialist” for Cesal on October 6, 2008; his request was approved about a month later. In the meantime, Cesal appealed his back pain griev ance in accordance with BOP rules; he exhausted this process on November 25, 2008, when his last appeal was denied. He Case: 15-2562 6 Document: 45 Filed: 03/20/2017 Pages: 22 No. 15 2562 nally saw the specialist on March 31, 2009, some ve months after the visit had been approved. Cesal told the consulting neurologist that his pain was moderate, but he also reported that he usually jogged two or three miles a day. The neurolo gist recommended no major changes to Cesal’s current “con servative” treatment plan and indicated that he did not be lieve that surgery or steroid injections would help. On December 23, 2008, after nearly six months without his sliding scale insulin, Cesal led a second administrative grievance concerning his diabetes treatment. He speci cally requested the restoration of his insulin prescription. Again, his grievance and related appeals were denied at each level of the BOP administrative process. The denial dated January 21, 2009, noted that Pekin’s clinical director (presumably Dr. Moats) had discussed with Cesal a di erent diabetes manage ment program that was “tailored to prevent hyperglycemia, not to treat it after it occurs.” A subsequent denial from March 6, 2009, noted that Cesal still had oral medication for his dia betes and concluded that “sound clinical judgment is being demonstrated” in Cesal’s treatment. Cesal exhausted the prison grievance process for this claim on May 26, 2009, when his nal appeal was denied. Medical records show that Cesal had several visits with Dr. Moats in 2009 and 2010, but Dr. Moats did not re prescribe him insulin until October 29, 2010. On that date, Dr. Moats prescribed Cesal ve units of insulin—half the dosage he had been receiving in June 2008, when his prescription had been cancelled. In the months following the insulin renewal, Dr. Moats stepped up Cesal’s dosage incrementally. By February 22, 2011, Cesal was back on the same ten unit dosage he had received in June 2008. Case: 15-2562 No. 15 2562 Document: 45 Filed: 03/20/2017 Pages: 22 7 On March 28, 2011, Cesal was transferred from Pekin to the Federal Correctional Institution in Greenville, Illinois. His back pain worsened, and so he sought treatment there. An Oc tober 9, 2012 x ray of Cesal’s middle back revealed an old, par tial fracture of a vertebra. Cesal a ributes this injury to his March 2008 lifting accident, although his medical records show this was just his guess—no medical professional ever concluded as much. Cesal led a suit against Drs. Moats and Molina on De cember 20, 2012,1 invoking the doctrine of Bivens v. Six Un known Named Agents, 403 U.S. 388 (1971); he amended his complaint three months later. (His suit included other claims against di erent Pekin o cials; because they are not relevant to this appeal, we do not discuss them.) His amended com plaint alleged, in relevant part, that Drs. Moats and Molina refused to provide care for his fractured vertebra and that they terminated his insulin prescription after he complained about their lack of care for his back. At screening, see 28 U.S.C. § 1915A, the district court pared down his pro se complaint to two counts: an Eighth Amendment claim of deliberate indif ference to the back injury, and a First Amendment retaliation claim for withholding the insulin prescription. The district court granted summary judgment for both de fendants on March 24, 2015, reasoning that Cesal led his law suit after the two year statute of limitations had run—a de fense that the defendants promptly raised in that court. It 1 Some of the documents show the filing date as December 17, 2012, and others indicate that it was December 20, 2012. The difference, we assume, is attributable to the mailbox rule. We use December 20, 2012, because it is the date that appears in the district court’s docket, and the three day difference is immaterial for present purposes. Case: 15-2562 Document: 45 Filed: 03/20/2017 8 Pages: 22 No. 15 2562 added that even if Cesal’s lawsuit was timely, summary judg ment was also appropriate because Cesal’s evidence showed that at most the defendants were negligent in misdiagnosing his back injury, and there was no evidence supporting his re taliation argument. II Cesal appeals the judgment in favor of Dr. Moats (only) on the two theories the district court identi ed. He also asserts that the court, on screening, improperly failed to recognize that he had alleged a deliberate indi erence claim regarding his insulin prescription. A We begin with Cesal’s challenge to the district court’s screening of his pro se complaint because that a ects the scope of the case that is before us. Cesal argues that the district court erred in the initial screening of his complaint, see 28 U.S.C. § 1915A, when it failed to recognize that he pleaded an Eighth Amendment deliberate indi erence claim regarding his insu lin cancellation, in addition to the retaliation claim. We review a dismissal under § 1915A de novo, using the standard that ap plies to ordinary Rule 12(b)(6) dismissals. Booker El v. Super intendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012). We construe pro se complaints liberally, holding them to a less stringent standard than pleadings drafted by lawyers. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). Cesal’s amended complaint alleged, in relevant part: When Cesal complained, through the Ad ministrative Remedy Procedure, about the lack of care, the requisite policy makers would nei Case: 15-2562 Document: 45 Filed: 03/20/2017 No. 15 2562 Pages: 22 9 ther grant nor deny Cesal’s request for treat ment. Angry regarding the complaint against them, Moats and Molina terminated Cesal’s in sulin prescription even though Cesal is an insu lin dependent diabetic. … Cesal continues to endure middle back pain, pain in his hip area, and numbness in his left leg from the spinal injury. His feet are swollen and numb, his vision blurred, and he experiences kidney pain from the lack of adequate diabetes therapy. Moats and Molina violated Cesal’s Eighth Amendment right to be free from cruel and unusual punishment when Defendants knew their actions would both in ict pain and cause permanent physical harm. Cesal’s First Amendment rights were impinged by the delib erate retaliation and lack of due process regard ing his loss. Prison o cials violate the Eighth Amendment’s prohibi tion against cruel and unusual punishment when they act with deliberate indi erence to the serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). To state a claim for deliberate indi erence for de cient medical care, the plainti “must allege an objectively serious medical con dition and an o cial’s deliberate indi erence to that condi tion.” Perez, 792 F.3d at 776. Objectively serious medical needs are those that have ei ther been diagnosed by a physician and demand treatment, or are “so obvious that even a lay person would easily recog nize the necessity for a doctor’s a ention.” King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012). For present purposes, Dr. Case: 15-2562 10 Document: 45 Filed: 03/20/2017 Pages: 22 No. 15 2562 Moats concedes that Cesal’s allegations of kidney pain, vision blurriness, and numbness meet this standard. The complaint also alleges that Dr. Moats had a su ciently culpable state of mind. See Farmer v. Brennan, 511 U.S. 825, 834, 839–40 (1994). The subjective component requires the plainti to allege that the o cial actually knew of, but disre garded, a substantial risk to the inmate’s health. Id. at 836–38; Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A failure to act in the face of an obvious risk of which the o cial should have known is insu cient to make out a claim. Farmer, 511 U.S. at 836–38. Cesal’s allegation clears that bar because he al leges that Dr. Moats knew that terminating Cesal’s insulin would cause him pain, but that he took that step anyway. Dr. Moats argues that Cesal has failed to state a claim un der the Eighth Amendment, but this argument misconstrues Cesal’s allegation as one of subjective inadequacy. Dr. Moats is correct that the Eighth Amendment does not reach disputes concerning the exercise of a professional’s medical judgment, such as disagreement over whether one course of treatment is preferable to another. Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996); see Estelle, 429 U.S. at 107. But Cesal has alleged more than this. His complaint accused Dr. Moats of abusing his position as Cesal’s care provider by adjusting his treat ment plan with the knowledge that doing so would result in unnecessary pain. This allegation, if true, constitutes deliber ate indi erence for purposes of the Eighth Amendment. Having concluded that Cesal properly alleged a deliber ate indi erence claim for the insulin withholding, we move to the question whether Dr. Moats was entitled to summary judgment on all three theories. Case: 15-2562 Document: 45 Filed: 03/20/2017 No. 15 2562 Pages: 22 11 B We begin with Cesal’s back pain. The district court granted summary judgment for Dr. Moats on this part of the case for two reasons: rst, because the statute of limitations had run; and second, because Cesal failed to present facts that would have permi ed a jury to nd in his favor. We may af rm based on any properly preserved ground. Hester v. Ind. State Dep’t of Health, 726 F.3d 942, 946 (7th Cir. 2013). 1 We begin with the statute of limitations. Cesal argues that the district court miscalculated the date by which he needed to le his Bivens action against Dr. Moats because it failed to appreciate the ongoing nature of his injury. He is correct. The statute of limitations for Bivens claims against federal o cers is the same as for § 1983 actions against state o cers: both periods are borrowed from the state in which the alleged injury occurred. King v. One Unknown Fed. Corr. O cer, 201 F.3d 910, 913 (7th Cir. 2000). In this case, Cesal’s injury took place in Illinois, which has a two year statute of limitations. 735 ILCS 5/13 202. Although Cesal injured his back on March 21, 2008, he could not bring suit until he exhausted the prison grievance process. 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524 (2002) (noting that federal prisoners suing under Bivens, like state prisoners suing under § 1983, must exhaust inmate grievance procedures before they can le their suit). The district court concluded that the limitations period was tolled while Cesal pursued the grievance. See Walker v. Sheahan, 526 F.3d 973, 978 (7th Cir. 2008) (limitations period for a § 1983 action is tolled while the prisoner com pletes the administrative grievance process). And so, by the Case: 15-2562 Document: 45 Filed: 03/20/2017 12 Pages: 22 No. 15 2562 district court’s calculation, Cesal needed to le his claim by November 25, 2010, two years after his back grievance was nally denied. But this calculation does not take into account the ongoing nature of Cesal’s injury. When a plainti alleges that inaction is leading to an ongoing harm, he can “reach back to its be ginning even if that beginning lies outside the statutory limi tations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant’s unlawful conduct.” Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001). In these cases, “it would be unreason able to require or even permit [the prisoner] to sue separately over every incident of the defendant’s unlawful conduct.” Id. The statute of limitations thus “starts to run (that is, the cause of action accrues) from the date of the last incidence of that violation, not the rst.” Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013); see also id. at 654 (Easterbrook, J., concurring). Cesal was not required to sue until after the unlawful con duct ended. But Cesal says it never ended while he was at Pe kin; he alleges that Dr. Moats’s deliberate indi erence ended only on March 28, 2011, when Cesal was transferred to Green ville and thus out of Dr. Moats’s care. We conclude that sum mary judgment on statute of limitations grounds for Cesal’s back claim was not appropriate. 2 Next is the question whether Cesal presented enough to raise a genuine issue of material fact, again with respect to his back injury. Cesal contends that a reasonable jury could nd that Dr. Moats was deliberately indi erent to his back injury from the facts he was able to collect. A prison o cial acts with Case: 15-2562 No. 15 2562 Document: 45 Filed: 03/20/2017 Pages: 22 13 deliberate indi erence when he knows of and disregards an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837. The plainti must show that the defendant acted or failed to act in a way that disregarded an excessive risk of harm to the inmate; he does not need to show that the defendant in tended or desired to cause harm. Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). Intentional delays in medical care may constitute deliberate indi erence, even if the inmate’s medical condition is non life threatening. Arne v. Webster, 658 F.3d 742, 753 (7th Cir. 2011). A doctor’s choice of “easier and less e cacious treatment” for an objectively serious med ical condition also may be su cient. Estelle, 429 U.S. at 104 & n. 10. But “mere disagreement with a doctor’s medical judg ment” is not enough to support an Eighth Amendment viola tion. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010). Our review of the undisputed facts in the record convinces us that no reasonable trier of fact could nd that Dr. Moats was deliberately indi erent to Cesal’s back pain. Although no doctor examined Cesal on the afternoon of the accident, he was excused from his job and was given a wheelchair after he reported that his pain was ge ing worse. Cesal saw a nurse on Monday, March 24, and he then saw a physician assistant on March 27. He also received medication for his pain. In other words, he was under active treatment; no one was ig noring him. See Perez, 792 F.3d at 777 (“Prison o cials must provide inmates with medical care that is adequate in light of the severity of the condition and professional norms.”). Importantly, there is no indication that Dr. Moats was per sonally involved in Cesal’s early care. Dr. Moats could not have acted with the subjective intent that a deliberate indi er ence claim requires if he was not aware of a risk of a harm to Case: 15-2562 14 Document: 45 Filed: 03/20/2017 Pages: 22 No. 15 2562 Cesal. See Farmer, 511 U.S. at 838–39. While Cesal alleges that Dr. Moats refused to see him in the days immediately follow ing his March 21, 2008 accident, no evidence substantiates that allegation, nor is there any reason in this record to think that starting with the physician assistant and nurse was not a reasonable step. Cesal acknowledges that Dr. Moats never treated him before June 27, 2008, the day the doctor termi nated Cesal’s insulin prescription. In any event, a prison o cial’s refusal to indulge an inmate’s request to see a speci c sta member, when the prisoner is receiving care from other members of the medical sta , is not deliberate indi erence. Cesal continued to receive appropriate care in the months that followed his accident. This care included an x ray of his back, taken just two weeks after his lifting accident, and an MRI of his lumbar spine on June 16, 2008. Dr. Moats also suc cessfully arranged for an outside consult. Cesal writes o these measures because they did not target his middle back, where his fractured vertebra was located, but he ignores the fact that he failed for many months to identify his middle back as the source of his pain. Initially Cesal complained only of pain in his left hip, knee, and thigh. His initial prison griev ance said nothing about back pain. Cesal also denied having any back pain in a September 17, 2008 appeal of his grievance in which he questioned the reason for the MRI. As he con cedes in his brief to this court, Dr. Moats may not have been aware of any middle back pain until November 29, 2009, the date on which Dr. Moats’s exam notes re ect that Cesal had reported middle back pain. Although Cesal’s leg and hip pain may have stemmed from a spinal injury, Cesal’s inability to provide any relevant details precludes a fact nder from con cluding that Dr. Moats was deliberately indi erent. Dr. Moats Case: 15-2562 Document: 45 Filed: 03/20/2017 No. 15 2562 Pages: 22 15 could not have disregarded Cesal’s middle back injury if he was not aware of it. To be sure, the rendering of some medical care does not necessarily disprove deliberate indi erence; the treatment rendered may be so blatantly inappropriate that it can sup port an inference of intentional mistreatment. See Pe ies v. Carter, 836 F.3d 722, 731 (7th Cir. 2016) (en banc); Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007). Continuing an inef fective treatment plan also may evidence deliberate indi er ence. See Berry, 604 F.3d at 441–42. But no trier of fact could nd that Dr. Moats’s treatment of Cesal was blatantly inap propriate. The consulting neurologist recommended that the Pekin sta continue Cesal’s “conservative” treatment; he be lieved that more extreme measures, such as steroids or sur gery, would be ine ective. Cesal also told the consulting phy sician that he was jogging two or three miles a day, despite his report of moderate pain. That is a marked improvement from the days after Cesal’s accident, when he needed a wheel chair. The fact that Dr. Moats “never diagnosed Mr. Cesal’s bro ken spine,” as Cesal argues, does not push this over the line. Deliberate indi erence requires more than evidence of negli gence or medical malpractice. See Estelle, 429 U.S. at 106; McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013). Cesal’s dis satisfaction with Dr. Moats’s medical judgment and care is in su cient to survive summary judgment. See Whiting v. Wex ford Health Sources, Inc., 839 F.3d 658, 662–63 (7th Cir. 2016). C That brings us to Dr. Moats’s withholding of insulin, which forms the basis for both Cesal’s retaliation theory and Case: 15-2562 16 Document: 45 Filed: 03/20/2017 Pages: 22 No. 15 2562 his deliberate indi erence theory. With respect to the former, the district court assumed that the withholding of insulin de scribed a violation that existed as long as the medication was withheld. (This was not a single injury that accrued when Cesal rst lost his insulin; each new day brought with it new injury, and a new violation.) Accordingly, the court con cluded that the limitations period began to run on October 29, 2010, the day when Dr. Moats restored the prescription, though at the reduced, ve unit, level. Cesal led his suit on December 20, 2012, well more than two years after that date, and this was too late in the court’s view. If October 29, 2010, is the correct starting point, Cesal cannot prevail. Dr. Moats did not waive his right to rely on the statute of limitations, and we are aware of no rule of law that would entitle us to strip him of that defense on our own. Cesal has not argued otherwise, either in the district court or in this court. Instead, he contends that his insulin problem was not solved until Feb ruary 22, 2011, when Dr. Moats nally restored Cesal’s insulin prescription to ten units—the same amount he had been pre scribed back in 2008. Because we must take Cesal’s allegation as true at the sum mary judgment stage, we disregard Dr. Moats’s explanation of the cancellation as his a empt to manage Cesal’s blood sugar using a di erent, proactive method. Indeed, we are troubled by Dr. Moats’s cancellation of Cesal’s insulin and his failure to prescribe any insulin—whether sliding scale, or oth erwise—for nearly 2 ½ years. We conclude, however, that for purposes of both retaliation and deliberate indi erence, the critical date is October 29, 2010, when Dr. Moats put Cesal back on the reduced insulin dose. Case: 15-2562 No. 15 2562 Document: 45 Filed: 03/20/2017 Pages: 22 17 Cesal’s argument assumes, without any basis, that there is a xed, “correct” dosage of sliding scale insulin for his diabe tes. There is no evidence that this is true, either generally or for Cesal himself. All he has managed to do is to register dis agreement with Dr. Moats’s medical judgment. That is insuf cient to prove deliberate indi erence, Berry, 604 F.3d at 441, or any retaliatory motive. If Cesal had given us some reason to think that Dr. Moats knew that the ve unit dosage would be ine ective, we would have a di erent case. The Eighth Amendment protects against a physician’s persistence with a course of treatment that he knows will be ine ective, id. at 441, as well as a treat ment decision that is “so far a eld of accepted professional standards” that a jury could nd it was not the product of medical judgment. Duckworth v. Ahmed, 532 F.3d 675, 679 (7th Cir. 2008). But Cesal has not pointed to any evidence that would permit a fact nder to conclude that Dr. Moats knew that ve units would be inadequate in controlling Cesal’s blood sugar or that the prescription was wildly out of line with professional standards. Indeed, Cesal’s medical records from Greenville support the opposite inference: o cials there repeatedly adjusted Cesal’s insulin prescription, and at one point lowered it to ve units. Cesal’s contention that the ve unit prescription was in su cient cannot extend the length of the violation. He needed to le suit within two years of October 29, 2010—the day Dr. Moats again prescribed him insulin. Either as of that date or very shortly afterwards, he knew that he was dissatis ed with the new dose. It is not too much to ask that he le suit within two years of the date when his insulin was partially restored, and after ling, ask the district court to appoint the kind of Case: 15-2562 Document: 45 Filed: 03/20/2017 18 Pages: 22 No. 15 2562 medical expert our dissenting colleague thinks should have been recruited. But Cesal did not le until December 20, 2012, more than two years after the restoration. This was almost two months too late. Summary judgment in favor of Dr. Moats was thus proper for both the deliberate indi erence and the retaliation claims based on the insulin deprivation. III This case illustrates yet again the important di erence be tween ordinary, or even aggravated, medical malpractice, and an Eighth Amendment violation. Our task is not to resolve whether Cesal’s care—especially the cancellation of his insu lin—was appropriate. We must instead apply both the stat utes of limitations that apply to Bivens claims such as this one and the underlying constitutional standards. Doing so, we see no error in the district court’s judgment, and so we AFFIRM. Case: 15-2562 No. 15 2562 Document: 45 Filed: 03/20/2017 Pages: 22 19 POSNER, Circuit Judge, dissenting. This case is indistin guishable from Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), which reversed a grant of summary judgment for the de fendants in a state prisoner’s suit for deliberate indifference to his medical needs and remanded for a closer look, with a strong exhortation to the district judge to recruit a lawyer for Rowe and, if necessary by invoking Rule 706 of the Federal Rules of Evidence, an expert witness for him as well. Lack ing these aids, Rowe had been incapable of proving that the prison medical staff, mainly his treating physician, had gravely endangered his health by failing, seemingly out of spite, to provide him with the medicine that he needed for treatment of his potentially fatal gastroesophageal reflux disease. This case involves a similar claim of misconduct by prison medical staff, specifically (as in Rowe) the plaintiff’s treating physician, Dr. Scott Moats. To quote from the majority opinion (with minor altera tions for clarity): “As Cesal tells it, Dr. Moats had learned of Cesal’s filing of a grievance concerning Moats’s treatment of Cesal’s back injury, and the grievance had made Moats angry with Cesal. Telling Cesal he’d ‘show him’ what providing no medical care looked like, Moats terminated Cesal’s prescription for insulin—seemingly for no medical reason. “Cesal is an insulin dependent Type II diabetic who had been taking sliding scale insulin [whereby the size of the in sulin dose is based on the patient’s blood sugar level just be fore his meal; the higher the level, the more insulin the pa tient takes]. Without insulin Cesal was left to try to manage his blood sugar level through diet, exercise, and the diabe Case: 15-2562 20 Document: 45 Filed: 03/20/2017 Pages: 22 No. 15 2562 tes management drug metformin, which Moats had not can celed. Cesal skipped meals or went for runs when his blood sugar level got too high. But despite these efforts and the metformin, his blood sugar soared. As a result he felt dizzy and saw stars and his toenails fell off. … “On December 23, 2008, after nearly six months without insulin, Cesal filed a second administrative grievance con cerning his diabetes treatment, specifically requesting the restoration of his sliding scale insulin prescription. Again his grievance and related appeals were denied at each level of the BOP [Bureau of Prisons] administrative process. A denial dated January 21, 2009, noted that the clinical director (Dr. Moats) of the prison [Pekin Correctional Institution] had dis cussed with Cesal a different diabetes management pro gram, one ‘tailored to prevent hyperglycemia [high blood sugar—a hallmark sign of diabetes], not to treat it after it oc curs.’” This meant that rather than following a sliding scale insulin regime, in which Cesal would check his blood sugar before meals and take insulin if his blood sugar had risen to a high level, he would once or twice each day at the same time or times take a long lasting form of insulin that would prevent his blood sugar level from rising throughout the day. But were prison officials—Moats in particular—really putting Cesal on that program, given the sudden cancella tion of his old prescription, the delay in writing him a new one, and his allegation that Moats was retaliating against him? Although a subsequent denial of his grievance, on March 6, 2009, noted that he was taking oral medications (but not insulin) for his diabetes, and concluded that “sound clinical judgment is being demonstrated” in his treatment, Case: 15-2562 No. 15 2562 Document: 45 Filed: 03/20/2017 Pages: 22 21 how can we be confident that Moats was demonstrating “sound clinical judgment”? The doctor’s anger, the sudden withdrawal of all insulin, and the long delay before its resto ration, make this case sound a lot like Rowe v. Gibson. Even the judges in the majority in this case acknowledge being “troubled by Dr. Moats’s cancellation of Cesal’s insu lin and his failure to prescribe any insulin—whether sliding scale, or otherwise—for nearly 2½ years.” Yet the majority retract their concern, dismissively, with the remark that “Cesal’s argument assumes, without any basis, that there is a fixed, ‘correct’ dosage of sliding scale insulin for his diabe tes. There is no evidence, however, that this is true, either generally or for Cesal himself. All he has managed to do is to register disagreement with Dr. Moats’s medical judgment. That is insufficient to prove deliberate indifference.” But what does the majority expect of Cesal, a prisoner who had no lawyer and no witnesses, let alone an expert witness? What more could he do than “register disagree ment”? The majority opinion attaches decisive significance to the two year statute of limitations applicable to the case, which according to the opinion expired before Cesal filed his suit. The purpose of statutes of limitations is to protect defend ants from being sued after the evidence on which their de fense would depend has disappeared, and there is no indica tion that the government would be prejudiced in this case by our waiving the statute of limitations. Cesal argues plausibly that Dr. Moats’ deliberately indifferent treatment of his dia betes continued until February 22, 2011, the date on which Moats restored the full insulin prescription—and that was a date within the statute of limitations. Although Moats had Case: 15-2562 22 Document: 45 Filed: 03/20/2017 Pages: 22 No. 15 2562 prescribed insulin for Cesal—albeit a reduced dose—on Oc tober 29, 2010 (almost two years after Cesal had filed his grievance complaining about the cancellation of his insulin), Cesal argues that Moats must have known that the reduced dose was inadequate, because Cesal’s blood sugar levels had become severely elevated, probably as a result of Moats’ having withheld insulin from Cesal for that long period. The argument for waiving the statute of limitations is strengthened by the fact that Cesal was unrepresented in the district court. For all we know, he’s never heard of statutes of limitations. He has made a plausible case of deliberate in difference by Dr. Moats to an acute medical need. I would reverse the judgment in favor of the defendant and remand the case for an evidentiary hearing, with a strong suggestion that the district judge recruit a lawyer for Cesal and, pursu ant to Rule 706 of the Federal Rules of Evidence, appoint a neutral expert witness—a specialist in diabetes and its treatment—as well.

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