United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted February 6, 2019*

Decided February 11, 2019 

Before 

DANIEL A. MANION, Circuit Judge 

ILANA DIAMOND ROVNER, Circuit Judge 

MICHAEL B. BRENNAN, Circuit Judge

No. 18-1695 

EUGENE L. CHERRY, 

Plaintiff-Appellant, 

v. 

SCOTT ECKSTEIN, et al., 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Eastern District of 

Wisconsin. 

No. 16-CV-1606 

William C. Griesbach, 

Chief Judge. 

O R D E R 

Eugene Cherry, a Wisconsin inmate suffering from a testicular hernia, sued 

prison officials for their deliberate indifference to his pain. He argues that officials 

violated his Eighth Amendment rights because they denied his request to see a doctor 

immediately, and instead scheduled him for an appointment several weeks later. The 

district court entered summary judgment for the defendants, and we affirm. 

 

*

 We have agreed to decide the 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). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 18-1695 Page 2 

Susan Peters, a nurse practitioner at Green Bay Correctional Institution, 

diagnosed Cherry with hypertension and ordered him to visit the health services unit 

twice per week for two weeks to monitor his blood pressure. Cherry maintains, and we 

accept for purposes of this decision, that at one such check September 29, 2016, he 

complained to Peters and a nurse about his “excruciating” testicular pain, but they 

refused his request to see a doctor immediately. Instead they told him to “take Tylenol” 

and submit a written request for a doctor’s appointment. 

On October 5, Cherry submitted a Health Services Request for an appointment 

with a doctor to discuss “cold medicine and a pain in [his] right testicle.” Mary Alsteen, 

a nurse clinician, examined Cherry the following day. Although Cherry attests that he 

told Alsteen that his pain was “excruciating,” Alsteen avers that he “walked with no 

distress” and that he reported his pain to be a zero out of ten during the appointment 

(he claimed that the pain struck three or four times per day). Treatment notes, 

moreover, reflect that Cherry denied urinary problems, testicle swelling, redness, or 

lumps. Alsteen scheduled him for a non-urgent doctor appointment. About three weeks 

later, at a checkup with nurse Dan Dassow, Cherry again complained of testicle pain 

and demanded unsuccessfully to see a doctor “immediately.” 

Meanwhile, a prison complaint examiner dismissed a grievance Cherry had 

submitted after health services providers denied his September 29 request to see a 

doctor. After interviewing Jean Lutsey, the health services manager, the examiner 

determined that the providers who treated Cherry had responded appropriately. Per 

prison policy, each appointment’s length is scheduled based on the service, so there was 

no time for a doctor to examine Cherry when he visited the health services unit for 

blood-pressure checks. And Cherry had been scheduled for a doctor appointment after 

he submitted a request form that complied with prison policy. 

On October 26, 2016, Dr. Lisa Allen examined Cherry and diagnosed him with an 

“intermittently symptomatic” inguinal hernia. She noted that Cherry “appeared to be in 

no acute distress,” and that he again denied “swelling, redness [or] ... lesions.” She 

counseled Cherry on the importance of “conservative measures prior to any invasive 

procedures” and prescribed a scrotal support belt, which health services officers 

provided. Dr. Allen further recommended an ultrasound within two months; Peters 

scheduled one for December 8. The ultrasound confirmed Dr. Allen’s diagnosis, but 

Cherry’s hernia was “without obstruction or gangrene.” Health services officers 

continued to monitor Cherry’s symptoms, prescribing painkillers and replacing the belt 

when he requested it, though Cherry complained it did little to relieve his symptoms. 
No. 18-1695 Page 3 

Dr. Allen, moreover, had warned Cherry of the signs that surgery or another 

intervention was warranted, but Cherry reported none. 

 Cherry sued Peters, Dassow, Alsteen, Lutsey, and the prison warden for 

deliberate indifference to his serious medical needs based on their failure to send him to 

a doctor immediately after he reported his pain at his appointment on September 29. 

The district judge entered summary judgment for the defendants, and we review that 

decision de novo, viewing the facts and drawing all reasonable inferences in Cherry’s 

favor. Daugherty v. Page, 906 F.3d 606, 609 (7th Cir. 2018).

 On appeal, Cherry maintains that prison medical staff were deliberately 

indifferent to his medical needs by delaying his doctor appointment for the four weeks 

between September 29 and October 26. He argues he raised a genuine issue of material 

fact because his affidavit—in which he swears that he repeatedly reported excruciating 

pain yet was denied immediate doctor visits—squarely contradicts defendants’ 

accounts of those visits. We agree with the district judge that any factual dispute is 

immaterial, however, because, even accepting his version of the facts, a reasonable jury 

could not find in Cherry’s favor. 

To survive summary judgment on his deliberate indifference claim, Cherry 

needed to present evidence showing (1) his medical need was objectively serious, and 

(2) prison officials consciously disregarded his need. See Farmer v. Brennan, 511 U.S. 825, 

834 (1994); Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). Here, Cherry’s claim is 

premised on allegations that the defendants unreasonably delayed treatment. Even 

without a corresponding exacerbation of an underlying condition, “deliberate 

indifference to prolonged, unnecessary pain can itself be the basis for an Eighth 

Amendment claim.” Smith v. Knox Cty. Jail, 666 F.3d 1037, 1039–40 (7th Cir. 2012);

see also Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir. 1997) (“[D]elays in treating 

painful medical conditions that are not life-threatening can support Eighth Amendment 

claims.”). Whether a delay is tolerable “depends on the seriousness of the condition and 

the ease of providing treatment.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). 

Cherry has failed to meet his burden of providing sufficient evidence from which 

a reasonable jury could conclude that the defendants unnecessarily prolonged his pain 

by unreasonably delaying treatment. Even assuming that his need was objectively 

serious and that he told health services employees that he was experiencing 

“excruciating pain,” the record reveals that Peters, Alsteen, and Dassow did not 

disregard Cherry’s condition. To the contrary, they treated him, told him how to 

request an appointment, and scheduled him for one with Alsteen the day after he 
No. 18-1695 Page 4 

submitted his request. Alsteen examined Cherry, concluded that his pain was not 

urgent, and scheduled him for a doctor appointment to take place three weeks later. 

Given the thoroughness of Alsteen’s examination and Cherry’s lack of symptoms, we 

cannot say that the decision to schedule a non-urgent doctor appointment constituted 

deliberate indifference. See Gutierrez, 111 F.3d at 1374 (delaying appointment based on 

recent evaluation of patient’s condition was reasonable). And Dr. Allen’s conservative 

treatment—prescribing only symptomatic relief and an ultrasound within two 

months—suggests that the outcome would not have differed even if an earlier doctor’s 

appointment had been scheduled. The delay, therefore, could not have caused Cherry 

to unnecessarily suffer pain that could have been mitigated by an earlier appointment. 

Cf. Greeno v. Daley, 414 F.3d 645, 651, 655 (7th Cir. 2005) (finding deliberate indifference 

where delaying patient-requested intervention postponed successful treatment). 

Cherry’s claims also fail against the remaining defendants. Lutsey did not know 

of Cherry’s request until after Cherry submitted his grievance and was already 

scheduled for a doctor appointment. The warden, moreover, was not notified until after 

Cherry filed his lawsuit. A defendant cannot be liable under § 1983 without direct 

involvement in the allegedly unconstitutional acts. See Farmer, 511 U.S. at 837–38; Arnett 

v. Webster, 658 F.3d 742, 755–56 (7th Cir. 2011). 

AFFIRMED