United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 30, 2020*

Decided June 30, 2020

Before

No. 19-2677

JAMES E. GILMAN,

Plaintiff-Appellant,

v.

CORIZON HEALTH, INC., et al.,

Defendants-Appellees.

Appeal from the United States District 

Court for the Southern District of Indiana, 

Terre Haute Division.

No. 2:16-cv-00194

James R. Sweeney II,

Judge.

O R D E R

James Gilman, an Indiana inmate, appeals the entry of summary judgment 

against him on claims that prison health officials violated the Eighth Amendment 

through their deliberate indifference to his arthritis. We affirm because no reasonable 

jury could conclude that any defendant recklessly ignored Gilman’s need for treatment. 

* We have agreed to decide this case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

AMY C. BARRETT, Circuit Judge

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 19-2677 Page 2

I

Gilman has arthritis in both knees. Beginning in 2010, doctors at Wabash Valley 

Correctional Facility gave him steroid injections every other month. In 2012, one doctor 

noted that, even though Gilman has had osteoarthritis “since 2001” and began receiving 

injections in 2010, such “[c]onservative measures have failed.” This doctor therefore 

recommended that an orthopedic surgeon perform an evaluation, which Gilman 

received in 2013. The surgeon diagnosed degenerative joint disease in both knees and 

wrote that he recommended surgery for only the left knee because the right knee was 

“slightly better” than the left. According to Gilman, the surgeon orally told him that

Gilman needed surgery on both knees and asked him to choose one. Gilman chose his 

left knee because it was in worse condition. The next month Gilman had a left-knee 

replacement.

Dr. Samuel Byrd began treating Gilman’s knees in 2015. Gilman was still 

receiving steroid injections for his right knee. He reported in April “that the cortisone 

injection worked and relieved his symptoms.” Although he was now receiving his 

injections every three months, once, in 2015, Gilman waited six months for an injection. 

The reason is disputed. Gilman attributes the delay to the fact that Dr. Byrd was the 

only doctor at the prison, and Gilman could not receive injections until Corizon Health, 

Inc., which managed the prison’s healthcare, hired more staff. Dr. Byrd states that he 

delayed the injections because he was checking Gilman’s claim that he was supposed to 

have surgery on his right knee and steroids would “slow the healing process” from 

surgery. It is undisputed that nothing in Gilman’s written medical record states that the 

orthopedic surgeon wanted Gilman’s right knee replaced.

After Dr. Byrd determined that the surgeon did not recommend surgery, he went 

forward with scheduling the regular injections and pursued other treatment. He sought 

an MRI of Gilman’s knees. Corizon denied the request pending more information about 

Gilman’s response to other treatment. Dr. Byrd then continued conservative treatment, 

prescribing knee braces, physical therapy, and a cane to assist Gilman with walking. 

Gilman’s pain increased, though, leading to grievances, this lawsuit, and more 

treatment. A few months after Gilman sued, the orthopedic surgeon again examined 

him, noted that the latest conservative measures had failed, and saw that the bones in 

Gilman’s right knee were rubbing together. The next month, Gilman’s right knee was 

replaced.
No. 19-2677 Page 3

During this suit, two experts reviewed Gilman’s medical records and opined that 

Gilman had received reasonable medical care from Dr. Byrd, Corizon, and other

medical staff. The first expert, Dr. William Kleckner, whom the defendants retained, 

stated that the defendants reasonably employed conservative measures in treating 

Gilman’s arthritis in his right knee. The second, whom the district court retained at 

Gilman’s request for an independent expert, See FED. R. EVID. 706, was Dr. Casey 

Pickerill. Dr. Pickerill agreed with Dr. Kleckner that, once Gilman began complaining 

about right knee pain in 2013, it was proper to use conservative treatment first: 

An understood dictum in the practice of medicine is to attempt 

conservative, less invasive diagnostic and/or therapeutic maneuvers first, 

before going on to more invasive modalities, when indicated. There are 

times, of course, when the acuity of the situation warrants deviation from 

this protocol if delay caused by a prolonged multistep algorithm could 

compromise the outcome (like appendectomy in the case of appendicitis.) 

On the other hand, chronic disease states such as degenerative joint disease, 

like in Mr. James Gilman’s case, usually are better approached in a 

step-wise fashion. The standard of care actually demands that conservative 

therapy should be employed exhaustively when osteoarthritis is diagnosed 

at a young age.

When Dr. Pickerill wrote this, he had not seen the note from 2012 stating that Gilman 

had complained of arthritis “since 2001” (not 2013, as Dr. Pickerill thought) and the 

“conservative measures” used as of 2012 had “failed.”

The defendants moved for summary judgment, which the district court entered.

Regarding Dr. Byrd, the court saw “no evidence to support a conclusion that Dr. Byrd 

persisted in a course of treatment he knew was not working.” Rather, “Dr. Byrd 

consistently provided cortisone injections when Mr. Gilman requested them and 

prescribed other pain medications. When Dr. Byrd thought it might be time to consider 

knee surgery, he requested an orthopedic consultation for Mr. Gilman.” The court 

similarly found no evidence that the other medical staff Gilman sued had ignored his 

health. Finally, the court explained that Corizon did not violate the Eighth Amendment 

because the treatment Gilman received was “within the standard of care.”
No. 19-2677 Page 4

II

On appeal Gilman contests the entry of summary judgment, principally arguing

that Dr. Byrd and Corizon recklessly delayed his access to proper care for his right knee 

by prioritizing administrative convenience over his medical needs. We review the entry 

of summary judgment de novo, construing the record and drawing all inferences in 

Gilman’s favor. Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016) (en banc). To survive 

summary judgment on his Eighth Amendment claims, Gilman must present evidence 

that the defendants actually knew of, but deliberately disregarded, a substantial risk of 

medical harm. Id. at 727–28; see also Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The record does not contain evidence from which a jury could reasonably find

that Dr. Byrd was deliberately indifferent to Gilman’s right-knee condition. Around the 

time Dr. Byrd became involved in 2015, Gilman reported to him in April that the

conservative treatment of “the cortisone injection worked and relieved his symptoms”

in his knee. Also, it was reasonable for Dr. Boyd to rely on Gilman’s written medical 

record, which stated that in 2013 the orthopedic surgeon recommended only a left-knee 

replacement. Finally, between 2015 and 2016, Dr. Byrd prescribed added treatment to 

help with Gilman’s right-knee pain, including a knee brace, physical therapy, and a 

cane. When these treatments did not work, he sent Gilman back to the orthopedic 

surgeon, who replaced the right knee in 2016. Based on these events, Dr. Byrd’s overall 

care was reasonable.

Gilman offers three responses, but none justifies a trial. First, Gilman asserts that 

the orthopedic surgeon orally told him in 2013 that he needed surgery on both knees. 

But even if the surgeon said this to Gilman, Dr. Boyd reasonably relied on the written 

medical record, which, as we just observed, stated that the surgeon recommended only 

a left-knee replacement. Second, Gilman cites the medical note from 2012 stating that

the “conservative treatment” of injections had at that time “failed” to resolve the 

arthritis pain. Because Dr. Byrd reviewed Gilman’s records, we will assume that he saw 

this note. Even so, his maintenance of steroid injections on the right knee was not 

reckless. By the time Dr. Byrd began treating Gilman, Gilman was reporting relief with 

injections on that knee, and Dr. Byrd enhanced the injections with other measures, and 

eventually surgery, when the pain returned. Third, Gilman complains that he once had 

to wait six months for an injection. Because Gilman disputes Dr. Byrd’s explanation (he 

was checking whether Gilman needed surgery), we will ignore it. But Gilman’s 

explanation—that Corizon needed to hire more staff to deliver the injection—is not 

evidence of Dr. Byrd’s recklessness. (We return to the claim against Corizon later.)
No. 19-2677 Page 5

Gilman also criticizes in two respects the district court’s reliance on Dr. Pickerill’s 

report, which concluded that Gilman’s care was reasonable. He argues, first, that the 

report focused on “common” osteoarthritis and his condition had advanced past that 

stage; and second, Dr. Pickerill did not have access to the note from 2012 about the 

failure of “conservative treatment.” But even if we ignore Dr. Pickerill’s report entirely, 

that leaves Dr. Kleckner’s unrebutted report, which offered a similar opinion. It

concluded that after Gilman’s surgery on the left knee, the progressive forms of 

conservative treatment on the right knee (steroid injections, knee brace, physical 

therapy, and cane) was reasonable. To create a triable issue, Gilman had to adduce 

“affirmative evidence” that contradicted this report, not merely criticize another report

with a similar opinion. See Anderson v. Liberty Lobby, 477 U.S. 242, 256–57 (1986). 

Next, Gilman takes issue with the district court’s decision regarding the other 

individual defendants—another doctor, two nurses and a medical assistant. But Gilman 

provides no evidence that they actually knew of any substantial risk of harm to Gilman.

Petties, 836 F.3d at 728. So summary judgment in their favor was proper.

Finally, summary judgment for Corizon also was proper. To succeed on his 

Eighth Amendment claim against the company, Gilman needs to show that it had a 

policy or custom that caused a constitutional violation. Monell v. New York City Dep’t of 

Soc. Servs., 436 U.S. 658, 694–95 (1978); Glisson v. Indiana Dep’t of Corr., 849 F.3d 372, 378–

79 (7th Cir. 2017) (en banc) (“[A] private corporation that has contracted to provide 

essential government services is subject to at least the same rules that apply to public 

entities.”). Gilman raises two arguments. First, he observes that in 2015 Corizon denied 

Dr. Byrd’s request for an MRI. But Gilman has offered no evidence of an unreasonable 

policy or custom regarding MRIs. To the contrary, it is uncontested that when Corizon

denied the MRI request, it reasonably asked Dr. Byrd to provide more information 

about Gilman’s treatment. Second, he argues that insufficient staffing from Corizon in 

2015 led him to miss one steroid injection. But Gilman has offered no evidence that 

Corizon knew that without additional staff he would miss this one injection, let alone 

how the missed injection might harm him. See Petties, 836 F.3d at 727–28. Furthermore, 

in 2016 Corizon authorized an orthopedic surgeon to reexamine Gilman and replace his

right knee. Thus, the claim of corporate deliberate indifference fails.

We have considered Gilman’s other arguments, and none has merit.

AFFIRMED