# 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 indiffere nce to his pain. He argues that officials violated his Eighth Amendment rights becaus e they denied his request to see a doctor immediately, and instead scheduled him fo r an appointment several weeks later. The district court entered summary judgment for the defendants, and we affirm.

* We have agreed to decide the case wi thout oral argument because the briefs and record adequately present the facts and le gal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 18-1695 Page 2

Susan Peters, a nurse practitioner at Green Bay Correctional Institution, diagnosed Cherry with hypertension and orde red him to visit the health services unit twice per week for two weeks to monitor his bl ood pressure. Cherry maintains, and we accept for purposes of this decision, th at at one such chec k September 29, 2016, he complained to Peters and a nurse about his “excruciating” testicular pain, but they refused his request to see a doctor immediatel y. 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 followi ng day. Although Cherry attests that he told Alsteen that his pain was “excruciatin g,” 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-urge nt 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, th e 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 herni a. She noted that Cherry “appeared to be in no acute distress,” and that he again deni ed “swelling, redness [or] ... lesions.” She counseled Cherry on the importance of “con servative 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 ultrasou nd confirmed Dr. Allen’s diagnosis, but Cherry’s hernia was “without obstruction or gangrene.” Health services officers continued to monitor Cherry’s symptoms, pre scribing painkillers and replacing the belt when he requested it, though Cherry compla ined 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 n eeds 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 judgme nt for the defendants, and we review that decision de novo, viewing the facts and draw ing all reasonable inferences in Cherry’s

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

On appeal, Cherry maintains that pr ison medical staff were deliberately indifferent to his medical needs by delaying his doctor appointm ent for the four weeks between September 29 and October 26. He argue s 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 hi s 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 defendan ts 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 lif e-threatening can support Eighth Amendment claims.”). Whether a delay is tolerable “depen ds 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 servic es employees that he was experiencing “excruciating pain,” the record reveals that Peters, Alsteen, and Dassow did not disregard Cherry’s condition. To the cont rary, they treated him, told him how to request an appointment, and scheduled hi m for one with Alsteen the day after heNo. 18-1695 Page 4

submitted his request. Alsteen examined Cherry, concluded that his pain was not urgent, and scheduled him for a doctor appo intment to take place three weeks later. Given the thoroughness of Alsteen’s examin ation 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 ha ve 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 interven tion postponed successful treatment).

Cherry’s claims also fail against the re maining defendants. Lutsey did not know of Cherry’s request until after Cherry submitted his grievance and was already scheduled for a doctor appointment. The ward en, 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