# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 24, 2021 *

Decided May 27, 2021

Before

DAVID F. HAMILTON, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

No. 20

‐ 2688

EUGENE L. CHERRY,

Plaintiff

‐ Appellant

,

v

.

MARY ALSTEEN, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Eastern District of

Wisconsin.

No. 1:18

‐ cv

‐ 01602

‐ WCG

William C. Griesbach,

J udge

.

O R D E R

Eugene Cherry, a Wisconsin prisoner, sued prison guards and medical providers

for allegedly violating his Eighth Amendment rights after a hernia surgery because he

was prescribed a pain reliever for only three days, and he missed a dose. The district

court entered summary judgment for the defendants. No reasonable jury could find that

the defendants displayed deliberate indifference to Cherry’s pain, and so we affirm.

* 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. See 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 NONPRECEDENTIAL DISPOSITION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. 20

‐ 2688 Page 2

In August 2018, Cherry had laparoscopic surgery to repair a testicular hernia.

The surgery involved three small incisions. The surgeon told him that he would likely

be in pain for seven days but did not prescribe any pain medicine. Back at the Green

Bay Correctional Institution, Dr. Cynthia Koren prescribed hydrocodone

‐ acetaminophen, a narc otic pain reliever (generic for Vicodin) to be taken as needed up

to four times per day, for three days. Per prison policy Cherry’s medicine would be

delivered to his housing unit each day at 6:00 a.m., 11:00 a.m., 3:30 p.m., and 8:45 p.m.

The day after his surgery, Cherry missed his 3:30 p.m. dose of pain medicine.

Hydrocodone is a staff

‐ controlled medication that inmates cannot keep in their cells;

they must come out of their cells at the scheduled times to receive their pills fro m the

delivery cart. Unit staff keep a list of inmates scheduled to receive medication and are

supposed to open their cell doors at the appropriate time. But Cherry’s door did not

open that afternoon, and so he did not receive his medicine from Christina Serrano, the

nurse who was distributing medication. Because Cherry’s prescription was “as

needed,” she assumed his absence meant he did not need the medication.

Cherry spoke to Officer Andrew Terrell from his cell shortly after the 3:30

medication pass, telling him that he was in pain and needed his medicine. Terrell

responded rudely, saying something like, “you get no meds now.” Cherry believed that

Terrell, who was regularly assigned to Cherry’s housing unit, assumed that he was

lying because he was not normally on the list for medicine. About 45 minutes later,

Cherry again told Terrell that he was in “extreme pain” and needed his medicine.

Terrell responded in a “snotty” tone that the nurse had left the unit, and he had no

medications available. According to Terrell, who admittedly had a hazy memory of the

events, he informed health services that Cherry was requesting medication and was

told it was not currently available.

Cherry also asked Sergeant Phil Przybylinski about his medicine: Three times

between 5:30 and 7:00 p.m., as he was walking to and from dinner and the showers,

Cherry told Przybylinski that he was in “extreme pain” and asked him to call the health

services unit. Przybylinski said he would, but he later told Cherry that he had not called

because he was “dealing with othe r things.” After their last exchange, Przybylinski

yelled at Cherry to return to his cell. (Przybylinski did not remember their interactions.)

Cherry was in “excruciating pain” for the five and a half hours between his

missed afternoon dose and his 9:00 p.m. dose, which he received without incident.No. 20

‐ 2688 Page 3

Cherry had a full bottle of Tylenol, issued before his surgery for back pain, in his cell.

He did not take any after the missed dose of hydrocodone because he believed it was

for his back and was not appropriate for his post

‐ surgery pain.

Over the next week, Cherry filed an inmate complaint and two health services

requests about the missed dose and about the expiration of his prescription after just

three days despite ongoing pain. Jean Lutsey, a nurse and the manager of the health

services unit, told a complaint examiner that Cherry’s prescription was reasonable for

the type of surgery he had. Mary Alsteen, another nurse, responded to a health services

request by explaining that Dr. Koren had prescribed only three days of hydrocodone,

but Cherry could take Tylenol and would be seen by a nurse at sick call the next day.

Dr. Koren saw Cherry at two follow

‐ up appointments about two weeks after his

surgery and, despite his requests and reports of continued pain, she declined to

prescribe more hydrocodone. Dr. Koren examined Cherry and determined that

extending the prescription was not necessary—his incision sites were healing well, his

groin was not tender, he reported only moderate pain, and he was walking normally.

Concerned about the addictive nature of hydrocodone and its potential side effect of

constipation (which a nurse in the surgeon’s office said Cherry must avoid), Dr. Koren

concluded that Tylenol, a scrotal support, and ice were appropriate treatments. Cherry’s

pain subsided within another week or so.

Cherry sued Dr. Koren, health services manager Lutsey, 1 nurses Alsteen and

Serrano, and correctional officers Terrell and Przybylinski, alleging that they violated

his Eighth Amendment rights by denying him adequate medical treatment for his post

‐

surgery pain. See 42 U.S.C. § 1983. He cited the responses to his health services requests,

the short prescription, and the missed dose of hydrocodone, which left him in

“excruciating pain” for several hours.

Eventually, Cherry and all defendants moved for summary judgment, and the

district court granted the defendants’ motions. The court reasoned that Dr. Koren had

acted within her medical judgment and that Lutsey and Alsteen permissibly relied on it.

Further, Cherry lacked evidence that it was Serrano’s responsibility to take any action

when Cherry did not show up to take an “as needed” medication. As for Terrell and

Przybylinski, the court concluded that no reasonable jury could find that they were

1 Lutsey recently passed away, and Cherry proceeds against her estate

represented by Karen Deshler. See F ED

. R. A PP

. P. 43(a)(1).No. 20

‐ 2688 Page 4

deliberately indifferent because Cherry did not exhibit any outward signs of a medical

emergency requiring them to “drop everything” to respond. Moreover, the delay

caused by the missed dose of medicine was not any longer than Cherry had to go

between doses each night, and he could have used the Tylenol in his cell to lessen his

pain.

On appeal, Cherry generally challenges the entry of summary judg ment for the

defendants on his deliberate indifference claims. Cherry needed evidence that he had an

objectively serious medical condition and that the defendants were aware of and

disregarded an excessive risk to his health. See Farmer v. Brennan

, 511 U.S. 825, 834, 837

(1994). We agree with the district court that Cherry’s “extreme pain” after surg ery was

serious, so we focus on whether the defendants acted with a “sufficiently culpable state

of mind.” See Lewis v. McLean

, 864 F.3d 556, 563 (7th Cir. 2017) (quotation omitted).

Cherry’s belief that Dr. Koren should have extended his hydrocodone

prescription does not raise a question of fact about her state of mind because the record

shows that she applied her medical judgment. “[M]ere disagreement with a doctor’s

medical judgment” cannot establish an Eighth Amendment violation. Cesal v. Moats

,

851 F.3d 714, 722 (7th Cir. 2017). Dr. Koren explained the decision not to extend the

hydrocodone prescription, and Cherry failed to introduce evidence showing that “no

minimally competent professional” would have prescribed hydrocodone for just three

days after a minor laparoscopic surgery. Lockett v. Bonson

, 937 F.3d 1016, 1023 (7th Cir.

2019). Although Dr. Koren did not reassess Cherry until two weeks after surg ery, there

is no evidence that she was aware of his complaints before then; in fact, Cherry faults

Lutsey and Alsteen for not consulting her. When Dr. Koren did learn that Ch erry was

still reporting moderate pain, she responded by examining him, finding he was healing

and walking normally and determining that Tylenol, ice, and a scrotal support were

appropriate treatments for his pain, particularly given hydrocodone’s potential side

effects. All of this is consistent with the application of medical judgment, not deliberate

indifference.

Because no reasonable jury could find that Dr. Koren showed deliberate

indifference, Cherry’s claims against Lutsey and Alsteen also fail. Their only

involvement was responding to Cherry’s written complaints. They were entitled to rely

on Dr. Koren’s prescription for a three

‐ day course of hydrocodone unless they had

reason to believe that this treatment decision was not based on Dr. Koren’s medical

judgment, and Cherry lacks evidence of such a reason. See Rasho v. Elyea

, 856 F.3d 469,

478–79 (7th Cir. 2017). And although Cherry asserts that Lutsey “ignored” hisNo. 20

‐ 2688 Page 5

complaint, prison records show that she responded within a day, though not with the

answer Cherry wanted. See Scott v. Harris

, 550 U.S. 372, 380 (2007) (assertion that is

“blatantly contradicted by the record” should not be credited at summary judgment).

Cherry’s claims against Serrano, Terrell, and Przybylinski about the missed

hydrocodone dose fare no better. A single missed dose of medication resulting in

“hours of needless suffering” may support an Eighth Am endment claim if the

defendants deliberately or recklessly delayed providing it. Gil v. Reed

, 381 F.3d 649, 660–

62 (7th Cir. 2004). Here, however, the record, construed in Cherry’s favor, lacks

evidence from which a jury could conclude that Serrano, Terrell, or Przybylinski acted

with the requisite ill intent.

First, Serrano, when she was delivering medicine to the housing unit, was not

obligated to go cell

‐ to

‐ cell inquiring why any inmate did not pick up “as needed”

medication. Even if there were such a duty, as Cherry asserts without evidence, there is

nothin g to suggest that not following up was anything beyond negligence, which does

not violate the Constitution. See Petties v. Carter

, 836 F.3d 722, 728 (7th Cir. 2016) (en

banc).

The same goe s for Cherry’s allegations about Terrell: Terrell did not know why

Cherry was not let out of his cell at the appointed time, and Cherry has no evidence that

it was anything but a mistake. In Cherry’s own telling, Terrell ignored him because he

incorrectly believed Cherry was not scheduled to receive medicati on. As for the claim

that neither Terrell nor Przybylinski obtained hydrocodone for him after he missed the

delivery, Cherry was not exhibiting signs of a medical emergency (he was walking and

conversing normally), and only a few hours remained until the next dose. This is far

from ignoring a prisoner’s reports of severe back pain for 90 minutes, while the prisoner

was incapacitated and sobbing. Cf. Lewis

, 864 F.3d at 563–64. The remarks to which

Cherry took offense—Terrell’s comment that the nurse had left the unit and

Przybylinski’s that he had been too busy to call health services—do not suggest that

they were mocking him or otherwise disregarding his pain, but merely that they were

updating him with relevant factual information. Without some evidence of a culpable

state of mind, the delay alone does not create a question of fact about deliberate

indifference. See Burton v. Downey

, 805 F.3d 776, 785 (7th Cir. 2015) (holding two

‐ day

delay in dispensing pain medication without evidence of bad intent was not deliberate

indifference).No. 20

‐ 2688 Page 6

Moreover, Cherry did not provide evidence that the inaction of Serrano, Terrell,

or Przybylinski caused his injury (the extra hours of pain). See Thomas v. Martija

, 991

F.3d 763, 770–71 (7th Cir. 2021). In cases based on delays in treatment, the plaintiff must

introduce medical evidence that the delay cause d some harm such as “unnecessarily

prolong[ing] pain.” Id. at 771 (quotation omitted); see Williams v. Liefer

, 491 F.3d 710,

714–15 (7th Cir. 2007). Cherry has not refuted the evidence that he could have taken

Tylenol until his next dose of hydrocodone. His mistaken belief that Tylenol would not

be appropriate for his post

‐ surgery pain is not Serrano’s, Terrell’s, or Przybylinski’s

fault. Furthermore, Cherry confirmed that no medical professional told him that

Tylenol was inappropriate, and Dr. Koren stated that Tyl enol can be used for such pain.

AFFIRMED