Daniel Proctor v. Kul Sood, et al
Filing
Filed opinion of the court PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6854075-1] [6854075] [16-1942]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1942
DANIEL PROCTOR,
Plaintiff‐Appellant,
v.
KUL SOOD, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 14‐1228 — Sue E. Myerscough, Judge.
____________________
SUBMITTED JULY 5, 2017 — DECIDED JULY 13, 2017
____________________
Before POSNER, KANNE, and SYKES, Circuit Judges.
PER CURIAM. Daniel Proctor, an Illinois prisoner who was
confined for seven years at Hill Correctional Center, suffers
from chronic abdominal pain and spasms in his colon. He
sued a number of medical providers working at Hill for
Wexford Health Sources—the contractor providing
healthcare to Illinois prisoners—as well as several correc‐
tions officials, claiming that they violated the Eighth
Amendment by not ordering a colonoscopy and endoscopy
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to diagnose his persistent abdominal pain. The district court
granted summary judgment for the defendants. We affirm
that decision.
The pertinent facts are not in dispute, except where not‐
ed, and we recount them in the light most favorable to Proc‐
tor, as the opponent of summary judgment. See Dewitt v.
Corizon, Inc., 760 F.3d 654, 655–56 (7th Cir. 2014). Proctor—
who is now 55—was confined at Hill from 2007 until 2014,
and during this time all of his medical care was provided by
Wexford employees working at the prison. He had been ex‐
periencing daily pain in his lower abdomen and occasional
colon spasms since 1999, when he was confined at a different
prison. The abdominal discomfort limited his participation
in daily activities, including running and lifting weights, and
his spasms were so sharp that they woke him at night. Ab‐
dominal and upper and lower gastrointestinal X‐rays taken
in 2000 had shown nothing remarkable. The discomfort in‐
tensified beginning in 2007, progressively worsening to con‐
stant, mild pain, day and night. The colon spasms also inten‐
sified to the point of flaring for about fifteen minutes every
other day and causing excruciating pain.
Proctor first sought and began receiving ongoing medical
care for his abdominal and colon pain in 2006. He initially
took Metamucil, a fiber supplement, to treat the rectal pres‐
sure from his colon spasms. After Proctor arrived at Hill, a
nurse practitioner, Pamela Bloomfield, ordered more X‐rays
and an ultrasound of his abdomen, but the results were un‐
remarkable. Bloomfield then ordered further tests to deter‐
mine if a bacterial infection might be causing the abdominal
discomfort. Those tests also returned negative results. Proc‐
tor started a regimen of Bentyl, an antispasmodic drug, to
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treat his abdominal pain and spasms. Shortly thereafter, in
2008, Proctor made a one‐time visit to Dr. Richard Shute,
who diagnosed possible irritable bowel syndrome (common‐
ly called IBS) and a spastic colon.
At a routine examination in 2009, Proctor told Amy John,
a physician assistant, that he was having abdominal tender‐
ness but getting some relief with the Bentyl. John’s physical
exam showed nothing, but nevertheless she ordered a bat‐
tery of blood tests. The results were normal. John examined
Proctor again a few months later because he still was com‐
plaining of cramping and abdomen pain. As before, she
found nothing noteworthy. She advised Proctor to avoid
dairy products that worsened his symptoms, and she or‐
dered a dozen tests for inflammation, thyroid function, pan‐
creatic function, digestive and bacterial infections, parasites,
and antibodies related to celiac disease. All of these tests re‐
turned normal results. John switched Proctor from Bentyl to
Levsin, another antispasmodic medication that provided
additional relief. When Proctor reported increased spasms,
John temporarily raised his Levsin dosage. Proctor last visit‐
ed John in July 2011.
Over time Proctor became increasingly insistent that he
should see a gastroenterologist for a colonoscopy and en‐
doscopy. Proctor complained of intense colon pain to Dr. Kul
Sood in 2011. Dr. Sood reviewed Proctor’s medical history
and performed a physical exam. He concluded that Proctor
could be suffering from IBS or from diverticulitis (an infec‐
tion of small pouches that develop on the intestines), and he
prescribed a course of antibiotics to treat the possible infec‐
tion. Dr. Sood also renewed the Levsin prescription. He gave
the same probable diagnoses when he saw Proctor again in
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late 2012. He ordered another battery of tests, switched Proc‐
tor back to Bentyl (the Levsin had caused adverse side ef‐
fects), and added an antigas medication. Once again the tests
results were normal. Dr. Sood advised Proctor to avoid eat‐
ing rice, milk, beans, and gluten if possible.
In May 2013, Proctor reported to Bloomfield, the nurse
practitioner, that he was suffering from ongoing abdominal
pain, alternating constipation and multiple bowel move‐
ments each day, and excessive gas. He also told Bloomfield
that he was experiencing bloating and cramping, but not
bloody or mucousy diarrhea, nausea, or vomiting. Bloom‐
field continued the Bentyl, added a prescription medication
to treat cramping and muscle pain, and prescribed a stool
softener and a laxative to treat his bowel symptoms. Bloom‐
field monitored Proctor’s condition during frequent visits
throughout 2013 and 2014. Proctor had kept a journal de‐
scribing his daily abdominal pain, which he consistently rat‐
ed as a 1 out of 10 except for periods of excruciating pain
due to his colon spasms. At one of his visits, Proctor insisted
that his journal entries be added to his medical file, but
Bloomfield declined. Like Dr. Sood, previously, she recom‐
mended dietary changes, including eating fewer beans and
soy products and drinking more water. Dr. Sood also saw
Proctor multiple times in 2014 and prescribed fiber supple‐
ments to address his irregular bowel movements. But he too
declined to add Proctor’s journal entries to the medical file.
Proctor filed numerous grievances, complaining that
these Wexford employees had not eliminated his persistent
pain or even definitely diagnosed its source. He insisted on
having more diagnostic tests, including a colonoscopy, and
said he could not abide the dietary advice to avoid beans,
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soy, and milk because the prison’s meal plan would not ac‐
commodate him. All of these grievances were denied on the
recommendation of Lois Lindorff, a Department of Correc‐
tions employee serving as the administrator of Hill’s
healthcare unit, who advised Proctor to research the appro‐
priate diet to manage his symptoms and to address his con‐
cerns with the healthcare providers. Lindorff stated that only
a doctor could request additional testing. Hill’s warden and
the director of the Illinois Department of Corrections ap‐
proved the denials.
Proctor sent a copy of one grievance to Dr. Louis Shicker,
the medical director for the Department of Corrections, ask‐
ing for a referral to an outside specialist. After reviewing
Proctor’s medical file, Dr. Shicker replied that medical staff
were monitoring his condition and advised Proctor to make
better dietary choices at the prison commissary. Proctor also
sent a copy to Wexford Health Sources, which replied that he
should follow the grievance procedure at Hill.
Proctor filed suit under 42 U.S.C. § 1983 in June 2014. He
claimed that nurse practitioner Bloomfield, physician assis‐
tant John, Dr. Shute, Dr. Sood, and Wexford (the “Wexford
defendants”) acted with deliberate indifference by not order‐
ing a colonoscopy or endoscopy and not diagnosing his con‐
dition with certainty. He contended that Wexford had a poli‐
cy of denying referrals to outside specialists in order to save
costs. Proctor also claimed deliberate indifference by
healthcare administrator Lindorff, medical director Dr.
Shicker, the warden, and the director of the Department of
Corrections (the state defendants) because they processed
his grievances yet never sent him to an outside specialist.
Proctor asked the district court to recruit a lawyer to assist
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him. The district court denied that motion without prejudice,
reasoning that Proctor had some litigation experience and
could testify about his symptoms. See Pruitt v. Mote, 503 F.3d
647, 654–55 (7th Cir. 2007).
After that, in October 2014, Proctor was transferred to Big
Muddy River Correctional Center, where he was approved
to receive a colonoscopy and other tests. The colonoscopy, a
CT scan of his abdomen and pelvic region, and an ultra‐
sound of his kidney revealed minimal diverticula (the small
pouches on the intestines), a lesion on the left kidney, and
hernias in his groin and nave. Proctor viewed the results as
abnormal and indicating a condition other than IBS, but his
physician at Big Muddy River concluded that the tests had
shown him to have a healthy colon. The diverticula were
asymptomatic, the doctor opined, and clinically insignifi‐
cant. Moreover, the doctor added, the hernias were not lo‐
cated in the lower abdomen where Proctor was experiencing
pain, and the kidney lesion did not show any significant
problem.
Following discovery all of the defendants moved for
summary judgment. Dr. Shicker pointed out that he had re‐
viewed the medical file and concluded that Proctor was re‐
ceiving appropriate care. Lindorff said she had no authority
to refer Proctor to an outside specialist. And the warden and
director disclaimed personal knowledge of Proctor’s medical
issues and insisted they had relied on medical personnel at
Hill to make treatment decisions.
The four Wexford defendants submitted affidavits insist‐
ing that Proctor had been accurately diagnosed with IBS and
appropriately treated. Dr. Sood averred that a definitive test
isn’t available for IBS, which is characterized by gastrointes‐
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tinal complaints. In fact, he said, diagnostic tests might not
show anything unusual despite symptoms like abdominal
pain, disruption of bowel movements, gas, and bloating. The
cause of IBS is unknown, Dr. Sood explained, so the condi‐
tion is treated symptomatically with antispasmodic drugs
like Bentyl and Levsin and with other medications to allevi‐
ate diarrhea and constipation. He ruled out alternatives like
Crohn’s disease and colitis because Proctor had never expe‐
rienced bloody or mucousy diarrhea, his test results had
been normal, and, in Dr. Sood’s opinion, he had not gotten
significantly worse during the previous fifteen years. Dr.
Shute likewise opined that Proctor’s complaints and history
were consistent with IBS, as did nurse practitioner Bloom‐
field and physician assistant John.
Proctor responded to the Wexford defendants with medi‐
cal literature that, in his view, establishes that a colonoscopy
is essential to diagnose IBS and rule out Crohn’s disease, co‐
litis, and stomach cancer. One of those submissions, an entry
from the Merck Manual, simply explains that physical exam‐
inations and tests on patients with IBS often produce normal
results and, thus, other procedures—including colonosco‐
pies—“sometimes” are used to rule out other causes. Anoth‐
er of Proctor’s submissions, from the National Institutes of
Health, recommends, but does not mandate, colonoscopies
and endoscopies for persons over 40 who experience ab‐
dominal pain and colon spasms. Proctor did not address the
state defendants’ contentions. After submitting his response,
Proctor renewed his request for assistance in obtaining
counsel.
The district court again declined to recruit counsel, rea‐
soning that Proctor appeared capable of litigating the case
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himself because he had described his medical condition ade‐
quately and marshaled relevant facts and case law in sup‐
port of his Eighth Amendment claim. The court then granted
summary judgment for the defendants on the ground that,
while Proctor’s condition is objectively serious, he lacked ev‐
idence from which a jury could conclude that the defendants
had been deliberately indifferent in declining to order fur‐
ther diagnostic testing. Proctor had told the healthcare pro‐
viders that various prescriptions helped alleviate his symp‐
toms, and in his daily journal entries he had documented on‐
ly mild pain. The court noted that Proctor had not described
symptoms consistent with Crohn’s disease (e.g., bloody
stool) or stomach cancer (e.g., nausea, vomiting, and unin‐
tentional weight loss), thus undermining the contention that
a colonoscopy should have been done sooner to rule out
other conditions. The Constitution does not confer a right to
see a specialist or undergo a colonoscopy, the court said,
and, in any event, Proctor had received a colonoscopy after
his transfer to Big Muddy River and the results were normal.
A reasonable jury could not find that the healthcare provid‐
ers were deliberately indifferent, the court concluded, and
thus neither could Wexford be liable under § 1983. As for the
state defendants, the court added, they were entitled to rely
on the medical judgment of the healthcare professionals.
On appeal Proctor argues that he raised genuine disputes
of material fact about the severity and diagnosis of his condi‐
tion. The district court erroneously relied on his daily obser‐
vations of mild abdominal pain, he says, because those jour‐
nals were incomplete—he had stopped logging his pain after
Bloomfield and Dr. Sood refused to include the journals in
his medical record. The severity of his pain warranted fur‐
ther tests, Proctor says, and the defendants’ choice to pro‐
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vide “less efficacious” treatment amounted to deliberate in‐
difference to his pain. Furthermore, Proctor contends, the
results of the colonoscopy and CT scan demonstrate that IBS
may be an incorrect diagnosis because the tests show mini‐
mal diverticula, two hernias, and a kidney lesion. He sug‐
gests a panoply of conditions he might be suffering from.
We agree with the district court that a jury could not rea‐
sonably find that the defendants were deliberately indiffer‐
ent to Proctor’s medical condition. See Petties v. Carter, 836
F.3d 722, 727 (7th Cir. 2016) (en banc), cert. denied, 137 S. Ct.
1578 (2017). Proctor’s abdominal pain and colon spasms
were investigated thoroughly, and that investigation sub‐
stantiated only a diagnosis of IBS. Over the course of treating
him, the medical professionals routinely performed physical
exams and ordered X‐rays, an ultrasound, bloodwork, stool
cultures, and other tests, but the results were consistently
normal. See Duckworth v. Ahmad, 532 F.3d 675, 681–82 (7th
Cir. 2008) (concluding that doctor was not subjectively indif‐
ferent to risk of cancer when inmate showed no evidence
doctor thought cancer was possible, doctor performed ad‐
vanced testing, and inmate had no symptoms indicative of
cancer). The decision whether further diagnostic testing—
like a colonoscopy—was necessary is “a classic example of a
matter for medical judgment.” Estelle v. Gamble, 429 U.S. 97,
107 (1976); see Harper v. Santos, 847 F.3d 923, 928 (7th
Cir. 2017). That the colonoscopy, once administered, showed
a healthy colon reinforces our conclusion that Proctor’s disa‐
greement with the course of treatment does not give rise to a
constitutional claim. See Johnson v. Doughty, 433 F.3d 1001,
1013 (7th Cir. 2006); see also McGowan v. Hulick, 612 F.3d 636,
640 (7th Cir. 2010) (explaining that treatment delays which
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exacerbate serious medical condition may constitute deliber‐
ate indifference).
Less efficacious treatment—chosen without the exercise
of professional judgment—can constitute deliberate indiffer‐
ence, see Petties, 836 F.3d at 730, but Proctor failed to present
evidence that his treatment departed from accepted medical
judgment, practice, or standards. See Pyles v. Fahim, 771 F.3d
403, 411 (7th Cir. 2014); Holloway v. Delaware Cty. Sheriff,
700 F.3d 1063, 1073 (7th Cir. 2012). In fact, Proctor’s medical
literature was consistent with the doctors’ attestations that
IBS is diagnosed by excluding other causes and that test re‐
sults are usually normal. Proctor was treated with antispas‐
modic drugs, antibiotics, a stool softener, fiber, and medica‐
tions to relieve his cramping, all of which were adjusted in
response to his complaints. See Greeno v. Daley, 414 F.3d 645,
654 (7th Cir. 2005) (noting that refusal to alter course of
treatment despite worsening condition may establish delib‐
erate indifference). No reasonable juror could conclude that
the defendants’ actions were “such a substantial departure
from accepted professional judgment, practice, or standards,
as to demonstrate that [they] … did not base the decision[s]
on such a judgment.” Burton v. Downey, 805 F.3d 776, 785
(7th Cir. 2015) (quoting Jackson v. Kotter, 541 F.3d 688, 697
(7th Cir. 2008)).
As for the state defendants, Proctor argues that they were
not entitled to summary judgment because they failed to
address his complaints of daily pain. Because no reasonable
jury could find that the Wexford defendants violated Proc‐
tor’s constitutional rights, the state defendants cannot be lia‐
ble for relying on the medical providers’ exercise of judg‐
ment. See Johnson, 433 F.3d at 1010 (holding that grievance
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counselor did not act with deliberate indifference when he
ensured medical staff were monitoring and addressing situa‐
tion and deferred to medical professionals’ opinion); see also
Hayes v. Snyder, 546 F.3d 516, 527 (7th Cir. 2008).
Proctor finally contends that the district court should not
have denied his requests for counsel. But Proctor has given
us no reason to conclude that recruited counsel would have
affected this case’s outcome. See Tidwell v. Hicks, 791 F.3d 704,
709 (7th Cir. 2015).
Accordingly, the judgment of the district court is
AFFIRMED.
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