### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 3310

A RRON M URPHY

, Plaintiff

‐ Appellant

,

v.

W EXFORD H EALTH S OURCES I NC

. and D R

. V IPIN S HAH

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 18

‐ CV

‐ 01077

‐ JPG

‐ MAB

— J. Phil Gilbert

, Judge

.

____________________

A RGUED J UNE 9, 2020

— D ECIDED J UNE 18, 2020

____________________

Before K ANNE

, S YKES

, and B RENNAN

, Circuit Judges

.

P ER C URIAM

. Arron Murphy, a former Illinois prisoner, ap

‐ peals the district court’s entry of summary judgment in favor

of the defendants in his suit asserting their deliberate indiffer

‐

ence to his dental infection. Murphy’s infection—which

swelled on his face to the size of a softball—ultimately re

‐ quired multiple surgeries. Relying on expert testimony,2 No. 19

‐ 3310

Murphy argues that fact questions exist concerning the prison

doctor’s choice of medicine and subsequent delay in sending

him to a hospital. The district court correctly concluded that

the record reflects not deliberate indifference but at most a

medical disagreement over the course of treatment, so we af

‐

firm the judgment.

I. B ACKGROUND

Because this case was decided at summary judgment, the

following facts are set forth in the light most favorable to Mur

‐ phy. See Petties v. Carter

, 836 F.3d 722, 727 (7th Cir. 2016) (en

banc).

A. Dental Infection and Medical Treatment

On May 4, 2016, a dentist extracted one of Murphy’s teeth,

a molar in his upper

‐ left jaw.

Two days later, a Friday, Murphy went to the prison’s

healthcare unit, complaining that his left cheek had swollen

significantly. Derek Rice, a prison nurse who examined Mur

‐ phy, described the swelling as “softball

‐ size[d]” and sus

‐ pected an infection. (Doc. 44–7 at 1; Doc. 44–6 at 15:12–16:4.)

Rice spoke in person with Dr. Shah about the evaluation. 1 Dr.

Shah prescribed penicillin, one gram by mouth twice a day

for five days, because it is “one of the most commonly chosen

drugs by M.D.s for dental infection[s].” (Doc. 44–6 at 13:15–

23; Doc. 44–1 at 20:23–21:18.) Treatment records reflect that

Murphy received penicillin that morning. Murphy contends

that he received only one dose of the medicine, but a notation

in the record alongside a reference to the lone disbursement

1 Neither Dr. Shah nor Nurse Rice recalled these events. They based

their testimony on review of the medical records.No. 19

‐ 3310 3

says “#10 doses.” (Doc. 46–1 at 2.) Dr. Shah, who did not ex

‐

amine Murphy that day, did not recall whether Rice told him

of the extent of Murphy’s swelling.

The next day, Saturday, May 7, Murphy had to make sev

‐

eral trips to the healthcare unit. At 1:00 a.m., Murphy com

‐ plained that he was having difficulty swallowing. The nurse

told him that, at that hour, she was “definitely not calling the

doctor,” but he should ice his jaw and neck and come back

later in the morning. (Doc. 46–4 at 34:8–13; Doc. 44–7 at 3.)

Murphy returned at 9:00 a.m., noting that his tongue felt

swollen; however, he was unable to open his mouth wide

enough for the nurse to see it. Thinking his condition was an

allergic reaction, the nurse gave him Benadryl. The nurse was

unable by phone to reach Dr. Shah (who did not work at the

prison on weekends) and told Murphy to return at 2:00 p.m.

to be reassessed—but to return “ASAP” if he had any short

‐

ness of breath. (Doc. 44–7 at 6–7; Doc. 44–1 at 7:7–10.) Shortly

after, the nurse spoke with Dr. Shah and told him that Mur

‐ phy’s swelling was worse than the day before. Dr. Shah was

not concerned that the antibiotic was not working because

penicillin takes several days to work. Dr. Shah did, however,

prescribe a steroid by injection because, in his experience, the

steroid “has always helped the bacteria to subside more along

with the antibiotic.” (Doc. 44–7 at 7; Doc. 44–1 at 36:13–38:5.)

Two days later, a Monday, Dr. Shah examined Murphy for

the first time, and noted that, in addition to the swelling, he

was having difficulty closing his mouth and swallowing. Dr.

Shah placed Murphy under a 23

‐ hour 2 “infirmary

2 The “23

‐ hour” figure appears to be the relevant duration of the

prison healthcare unit’s standard order for determining treatment plans.4 No. 19

‐ 3310

observation,” with his vital signs to be checked every four

hours, to see if the treatment was helping, and he ordered an

‐

other steroid injection. (Doc. 44–1 at 38:24–40:16.) But Dr.

Shah didn’t believe Murphy’s condition had worsened be

‐

cause he did not have a high temperature (which would sig

‐

nal infection) or respiratory difficulty (which would suggest

spread of infection). Over the course of the day, Murphy’s

swelling persisted, and his temperature fluctuated between

98.5 and 99.8 degrees.

Dr. Shah saw Murphy again the next morning, May 10,

and noted continued swelling. At the site of the tooth extrac

‐

tion, the doctor noticed grayish discoloration, which indi

‐

cated infection, and so he admitted Murphy to the infirmary

out of concern that the infection was not healing. He gave

Murphy an injection of a different antibiotic, thinking that it

may work faster than penicillin, and another steroid injection.

Later in the day, Murphy reported having chills; his temper

‐

ature had spiked to 105 degrees. Dr. Shah prescribed Tylenol

and ibuprofen, which helped reduce Murphy’s temperature

that night.

Just before noon on May 11, after two check

‐ ups that

morning, the nurse noticed faint whistling when Murphy

breathed. The nurse notified Dr. Shah, who wasn’t working

at the prison that day, and the doctor ordered that Murphy be

sent to a local hospital’s emergency room.

After a CT scan showed signs of an infection and the clos

‐ ing of Murphy’s airway, emergency

‐ room staff transferred

him to another hospital. There, Dr. Jonathan Bailey, an oral

and maxillofacial surgeon, diagnosed him with Ludwig’s an

‐ gina—a disease that involves infections of nearly all the ana

‐

tomic spaces in the neck and requires urgent surgicalNo. 19

‐ 3310 5

treatment. That day, Dr. Bailey operated on Murphy, draining

the involved spaces of fluid.

Later that week, Murphy underwent two more surgeries

to clean the incisions and drain the spaces again. He returned

to the prison on May 31.

B. District Court Proceedings

Murphy then sued Dr. Shah for deliberate indifference.

(This appeal does not concern Murphy’s claims against

Dr. Shah’s employer, Wexford Health Sources, Inc., or his

state

‐ law claims against both defendants, so we say nothing

further about those claims.)

Dr. Shah moved for summary judgment, arguing that

Murphy raised only a disagreement with his treatment, which

is insufficient to show that Dr. Shah actually knew of and dis

‐ regarded a substantial risk of harm. Dr. Shah enlisted the sup

‐

port of two experts, a dentist and an oral and maxillofacial

surgeon, who both opined that Dr. Shah’s treatment of Mur

‐ phy was within the standard of care and did not show that

Dr. Shah disregarded his medical condition.

Murphy countered that genuine issues of material fact re

‐ garding Dr. Shah’s treatment precluded summary judgment.

In addition to questions about the use of penicillin and ster

‐

oids, Murphy argued that Dr. Shah recklessly disregarded the

serious risk to his health by refusing to send him to the hospi

‐

tal before May 11. Murphy relied on his expert, Dr. Robert

Citronberg, a physician certified in infectious medicine, who

opined that Dr. Shah “ignored the obvious risk of progression

[to] the severe infection that [Murphy] ultimately suffered.”

(Doc. 46 at 17, quoting Doc. 46–3 at 3.)6 No. 19

‐ 3310

Largely adopting the report and recommendation of a

magistrate judge, the district judge granted Dr. Shah’s mo

‐

tion, finding that the case amounted to only a disagreement

over the proper course of treatment. The district judge

acknowledged Dr. Citronberg’s disagreement with Dr. Shah’s

choice of treatment, but highlighted Dr. Citronberg’s testi

‐

mony that Dr. Shah provided “what he thought was the right

treatment” and did not “wholly disregard” Murphy’s condi

‐

tion. (Murphy’s Br. App. at 19, quoting Doc. 44

‐ 2 at 10:1–11.)

Nor was there any genuine dispute, the judge added, that Dr.

Shah had acted within the bounds of professional judgment

by choosing to wait until May 11 (five days after Murphy first

went to the prison clinic) to send Murphy to the hospital. Not

‐ ing that penicillin often takes several days to take effect, the

judge concluded that no reasonable factfinder could deter

‐

mine that Dr. Shah was “persisting in a course of treatment

that was known to be ineffective.” (Murphy’s Br. App. at 23.)

II. A NALYSIS

On appeal Murphy first argues that, contrary to the dis

‐

trict judge’s determination, a reasonable jury could find that

Dr. Shah was aware of his condition, recklessly disregarded

its progression, and improperly delayed sending him to the

hospital. He points to the testimony of his expert, Dr. Citron

‐ berg, and his treating surgeon, Dr. Bailey—expert testimony

that, he believes, the district court wrongly “discount[ed]” in

favor of its own view of the record. (Murphy’s Br. at 23.)

Deliberate indifference requires a two

‐ fold showing. First,

the plaintiff must suffer from an “objectively serious medical

condition.” Petties

, 836 F.3d at 727–28 (citing Farmer v. Bren

‐

nan

, 511 U.S. 825, 834 (1994)). The parties agree that Murphy’s

dental infection meets this requirement. But second, theNo. 19

‐ 3310 7

plaintiff must provide evidence that the defendant “ actually

knew of and disregarded a substantial risk of harm.” Petties

,

836 F.3d at 728.

The assessment here presents a close question. On the one

hand, Dr. Citronberg’s report does contain statements that, in

isolation, may call into question whether the risk of severe in

‐

fection posed to Murphy was so obvious that a reasonable

jury could infer that Dr. Shah was aware of the risk and dis

‐ regarded it. See Petties

, 835 F.3d at 729. For instance, Dr. Cit

‐ ronberg opined that Dr. Shah “ignored the obvious risk of

progression to the severe infection that [Murphy] ultimately

suffered.” (Doc. 46–3 at 3.) This progression, he said, was “ap

‐ parent” from the softball

‐ sized swelling to Murphy’s cheek

that persisted despite treatment, and the presence of new

swelling that had developed in his mouth and to his jaw. (Doc

46–3 at 2–3.) And this progression, he added, required a trans

‐

fer to a higher level of care, which Dr. Shah did not order until

days later.

But portions of Dr. Citronberg’s sworn testimony require

understanding these statements about shortcomings in Dr.

Shah’s medical care as a difference in medical opinion about

the proper course of treatment. As the district court noted,

Dr. Citronberg testified that, while he disagreed with Dr.

Shah’s course of treatment, Dr. Shah provided “what he

thought was the right treatment.” (emphasis ours). (Murphy’s

Br. App. at 19, quoting Doc. 44–2 at 10:1–4.) And Dr. Citron

‐ berg agreed that Murphy’s condition remained “generally the

same” during the five days from his arrival at the prison

healthcare unit on May 6 until he showed his first signs of a

high fever on May 10. (Doc. 44–2 at 52:1–53:15.)8 No. 19

‐ 3310

Murphy responds that the district court took Dr. Citron

‐ berg’s testimony out of context and that a factfinder still could

find deliberate indifference. He spotlights Dr. Citronberg’s

statement that his condition between May 6 and May 10 “was

always severe enough to require transfer to a hospital.” (Mur

‐ phy’s Reply Br. at 9.) But this statement does not relate to Dr.

Shah’s subjective awareness of a substantial risk, let alone the

risk of progression to a severe infection. The statement reflects

merely a difference of opinion over when Murphy should

have been sent to a hospital, a scenario that is insufficient to

support deliberate indifference. See Petties

, 836 F.3d at 729

(“[E]vidence that some medical professionals would have cho

‐

sen a different course of treatment is insufficient to make out

a constitutional claim.”); see also Steele v. Choi

, 82 F.3d 175, 179

(7th Cir. 1996).

Murphy also argues that deliberate indifference can be in

‐

ferred from the testimony of his treating surgeon, Dr. Bailey,

who said that when a patient shows signs of trismus (reduced

opening of the jaws) and infection, “[y]ou need to get imaging

to find out what’s going on.” (Murphy’s Br. at 23, 25–26; Doc.

44–5 at 75:22–76:4.) But a failure to seek a particular diagnostic

technique, like imaging, “is a classic example of a matter for

medical judgment,” amounting to, “[a]t most,” medical mal

‐ practice, Estelle v. Gamble

, 429 U.S. 97, 107 (1976), which “just

isn’t enough,” Steele

, 82 F.3d at 179. What’s more, Dr. Bailey’s

testimony says nothing about Dr. Shah’s actual knowledge of

a need to order such imaging.

Relatedly, Murphy argues that deliberate indifference

could be inferred from Dr. Shah’s failure to alter the antibiotic

treatment upon learning that he was not taking his oral peni

‐

cillin. In support, Murphy references his increased swellingNo. 19

‐ 3310 9

and inability to open his mouth as of May 7, and entries in a

prison medical record (to which Dr. Shah likely had access)

that, he says, show he received only the first of five prescribed

doses.

But there is no evidence that Dr. Shah knew that Murphy

was not taking the medicine. The doctor testified that he was

not concerned with Murphy’s symptoms on May 7 because

penicillin, which had been started only the previous day,

takes 4–5 days to heal an infection. But Dr. Shah also did more

than stick with the same penicillin treatment; on May 10 he

gave Murphy an injection of a different antibiotic because it

“works faster.” (Doc. 44–1 at 50:13–18.) And even if Murphy’s

prison medical record reflects that he received only one dose

of penicillin, 3 it is unreasonable to infer, without more, that

the particular record was both in the chart Dr. Shah reviewed

and that he saw it.

Finally, Murphy turns his attention to Dr. Shah’s steroid

treatment, which, Murphy says, showed a “complete aban

‐

donment of medical judgment”—as opined by Dr. Citron

‐ berg. Norfleet v. Webster

, 439 F.3d 392, 396 (7th Cir. 2006). But

Dr. Citronberg’s written opinions and oral testimony do not

go so far; his statements suggest only that Dr. Shah’s steroid

treatment can be regarded as negligent. As he wrote in his

3 Such an assumption probably would be misplaced (even though the

magistrate judge agreed with Murphy on this point). Nurse Rice testified

that for an oral penicillin prescription (as opposed to injection), he typi

‐ cally would issue all doses of the medication to the inmate to keep in his

cell and take as directed. That testimony is consistent with Murphy’s

prison medical record, which bears a set of initials alongside an entry for

May 6 at 8:00 a.m. with a notation “#10 doses” ( i.e.

, 2 pills per day for 5

days). (Doc. 46–1 at 2.)10 No. 19

‐ 3310

report, the use of steroids outside of an appropriate hospital

setting and without appropriate antibiotics was a “deviation

from the standard of care.” (Doc. 46–3 at 3.) His oral testimony

was similar: Steroid treatment in this situation was “inappro

‐ priate,” though he acknowledged that certain antibiotics and

steroids are a “known treatment” for oral infections in “cer

‐

tain situations.” (Doc. 44–2 at 40:4–13; 41:5–42:1.) The matter

of steroid treatment, then, merely highlights a difference in

medical opinion over the course of treatment—a standard

that suggests negligence rather than deliberate indifference.

See Petties

, 836 F.3d at 729.

III. C ONCLUSION

Because the evidence would not support a finding of de

‐

liberate indifference, we AFFIRM the judgment.