# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted June 30 , 2020 *

Decided June 30, 20 20

Before

No. 1 9

- 2677

JAMES E. GILMAN
, Plaintiff

- Appellant
,

v

.

CORIZON HEALTH
, INC.
, et al.
, Defendant s

- Appellee s

. 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 indifferen ce 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. F ED

. R. A PP

. 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, Circuit Judge NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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. 32.1No. 19

- 2677 Page 2

I

Gilman has arthritis in both knees

. Beginning in 2010, d octors at Wabash Valley Correctional Facility g ave 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

rece i ved 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 to ld him that Gilman needed surg ery 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 knee s in 2015. Gilman was still receiving steroid injections for his right knee . He r eport ed in April “ that the cortisone injection worked and relieved his symptoms.” Although he was now receiving his injections every three months, o n ce , in 2015 , Gilman wait ed 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 manage d the prison’s healthcare, hired more staff

. Dr. Byr d states that he delayed the injections because he was checking Gilman’s claim t hat he was supposed to have surgery on his right knee and s teroids would “slow the healing proces s” from surgery

. It is undisputed that nothing in Gilman’s w ritten 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 reques t pending more information about Gilman’s response to other treatment

. Dr. Byrd th en continued conservative treatment, prescrib i ng knee brace s , physical therapy, and a cane to assist Gilman with walking. Gilman’s pain increased
, though, leading to grievances , this law suit, 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 th is suit , t wo experts reviewed Gilman’s medical records and opined that Gilman had received re asonable medical care from Dr. Byrd, Corizon, and other medical staff

. The first expert , Dr. William Kleckner, whom the defendants retained,
state d that the defendants reasonably employed conservative measures in treating Gilman’s arthritis in his right kn ee

. The second, whom the district court retained at Gilman’s request for an independent expert
, See F ED

. R. E VID

. 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 go ing 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 th at conservative therapy sho uld be employed exhaustively when osteoarthritis is diagnosed at a young age.

When Dr. Pickerill wrote t his, 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 k new 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 consultatio n for Mr. Gilman. ” T he co urt 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 contest s the entry of summary judgment, principally arguing that Dr. Byrd and Corizon recklessly delayed his access to proper care for his right knee by prioritiz ing administrative convenie nce 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, 72 7 (7th Cir. 2016) (en banc)

. To survive summary judgment on his Eighth Amend ment claim s , 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)

.

T he 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 report ed to him in April that the conservative treatment of “ the cortiso ne 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 righ t kne e in 2016

. Based on these events, Dr. Byrd’s overall

care was reasonable.

Gilman offers three responses, but n one justifies a trial. First, Gilman asserts that the orthopedic surgeon orally told him in 2013 that he needed surgery on both knees. But e ven if the surgeon said this to Gilman, Dr. Bo yd reasonably rel ied 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 record s , we will assume that he saw this note . E ven 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 th at knee
, and Dr. Byrd enhanced the injections with other measures , and eventually surgery, when the pain returned

. Third
, Gilman complains that he o nce had to wait six months for an injection

. Because Gilman disputes Dr. Byrd’s explanation ( h e 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 arg ues, 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 Lo bby, 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 th at they actually knew of a ny substantial risk of harm to Gilman. Petties , 836 F.3d at 728

. So summary judgment in their favor was proper.

Finally
, s ummary judgment for Corizon also was proper

. To succeed on his Eight h 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

. Serv s. , 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 f or an MRI . B ut Gilman has offered no evidence of a n unreasonable policy or custom regarding MRIs

. To the co ntrary , 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 Cor izon knew that without additional staff he would miss this one injection , let alone how the missed injection might harm him. Se e Petties , 836 F.3d at 727

– 28. Furthermore
, in 2016 Corizon authorized an orthopedic surgeon to reexamine Gilman and replace his right knee. Th us , the claim of corporate d eliberate indifference fails

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

AFFIRMED