United States Court of Appeals 

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 30, 2015*

Decided April 8, 2015

Before

DIANE P. WOOD, Chief Judge

RICHARD D. CUDAHY, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 13‐3877

ERIC L. TOLONEN,

Plaintiff‐Appellant,

v.

RICHARD HEIDORN, et al.,

Defendants‐Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 12‐cv‐782‐bbc

Barbara B. Crabb,

Judge.

O R D E R

Eric Tolonen, now 32, has suffered from cystic acne since entering the Wisconsin

prison system at age 20. In this lawsuit under 42 U.S.C. § 1983, Tolonen principally

claimed that the defendants—two treating doctors and two healthcare

administrators—had shown deliberate indifference to his acne by refusing to authorize a

                                                 

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.

34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 13‐3877    Page 2

consultation with a dermatologist. The district court granted summary judgment for the

defendants, and Tolonen appeals. We affirm the judgment.

Department of Corrections medical staff, including defendant physicians

Richard Heidorn and Kenneth Adler, had treated Tolonen’s skin conditions (he also has

seborrheic dermatitis, though acne is the focus of his suit) more than 40 times from 2003

through 2013. Doctors tried more than two dozen oral or topical medications, including

isotretinoin (first marketed as Accutane); antibiotics in the sulfa, tetracycline, macrolide,

and cephalosporin families; benzoyl peroxide; and antiseptic soaps. These medication

choices tracked the prevailing guidelines of the American Academy of Dermatology for

treating acne. See John S. Strauss, M.D., et al., Guidelines of care for acne vulgaris

management, 56(4) J. AM. ACAD. DERMATOLOGY 651 (2007), available at

https://www.aad.org/education/clinical‐guidelines (new guidelines forthcoming in

May 2015). Dr. Adler even cultured Tolonen’s acne to identify the best antibiotic. But

Tolonen believed all of these treatments were ineffective, and the defendants declined

his several requests to see a dermatologist.

At summary judgment the defendants argued that Tolonen simply had disagreed

with their treatment choices and, anyway, he did not have a serious medical need. The

defendants submitted affidavits from Drs. Heidorn and Adler, along with Tolonen’s

medical records. Heidorn explained that acne is incurable, is difficult to treat, and often

is managed through trial and error. Drugs sometimes take weeks to become effective, he

continued, and skin may appear to be worse before getting better. Even with

improvement, Heidorn said, flare‐ups are common. The doctor added that he had not

sent Tolonen to a dermatologist because, despite the plaintiff’s flare‐ups, his condition

wasn’t worsening and other treatments remained untried. Moreover, Heidorn noted,

Tolonen in early 2005 had become “absolutely obsessed” with his acne and then in late

2006 had unilaterally stopped using all prescribed topical remedies. Dr. Adler recounted

a similar experience. Tolonen’s acne had not been worsening, Adler said, but Tolonen

did experience numerous flare‐ups, possibly because he failed to take medications as

prescribed. Tolonen’s medical records, Adler said, document frequent noncompliance

with medications from 2008 on.

Tolonen twice obtained more time for discovery before filing his opposition to the

defendants’ motion for summary judgment. When he did respond he offered only his

personal opinion that Drs. Heidorn and Adler had used him as a “lab rat” to experiment

with different, but ineffective, drugs instead of sending him to a dermatologist. And, he

asserted, Heidorn should have taken a culture sooner than he did. Tolonen admitted,
No. 13‐3877    Page 3

though, that he had not taken his prescribed medications as directed and, in fact, had

discontinued them entirely because he deemed them ineffective.

Weeks later, while the matter was under advisement before the district court,

Tolonen moved for a continuance, citing former Federal Rule of Civil Procedure 56(f)

(now Rule 56(d)). Tolonen explained that he had been focused on opposing the

defendants’ motion for summary judgment and now wanted to conduct more discovery,

in particular by serving the defendants with interrogatories asking if he suffers from a

serious medical need and whether they were continuing to pursue ineffective treatment.

The district court denied that motion, reasoning that Tolonon’s questions not only were

untimely but were answered by the defendants’ motion for summary judgment.

In the same order, the district court granted summary judgment for the

defendants. The court assumed that Tolonen’s acne is a serious medical need but

concluded that a jury could not reasonably find that the defendants had been

deliberately indifferent to that condition. It is undisputed, the court explained, “that trial

and error is often the only way to find effective acne medications,” that Tolonen’s

medical records document years of persistent efforts to identify the best mix of

medications for him, that some of those medications had probably failed because of

Tolonen’s refusal to cooperate, and that other options still remained. In contrast, the

court added, Tolonen had not submitted expert medical testimony supporting his

accusations that the defendants had prescribed ineffective medications and failed to

follow the appropriate standard of care.

Tolonen’s appellate challenge to the grant of summary judgment lacks merit. As

far as we can tell, he insists that the defendants must have been deliberately indifferent

because his acne has not cleared entirely. This will not do. What’s missing is evidence

calling into question the defendants’ treatment choices; Tolonen’s belief that he did not

receive adequate care amounts to no more than a refusal to accept the professional

judgment of his treating physicians. See Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.

2010); Johnson v. Doughty, 433 F.3d 1001, 1012–13 (7th Cir. 2006). Pro se litigants are not

exempt from procedural rules, Members v. Paige, 140 F.3d 699, 702–03 (7th Cir. 1998);

Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994), and Tolonen’s conjecture about how best

to treat acne could not establish material issues of fact requiring a trial. See Winsley v.

Cook Cnty., 563 F.3d 598, 605 (7th Cir. 2009); Karazanos v. Navistar Intʹl Transp. Corp., 948

F.2d 332, 337–38 (7th Cir. 1991). As the district court correctly noted, Tolonen’s lay

opinion is not evidence that the defendants’ treatment decisions were such a “substantial

departure from accepted professional judgment, practice, or standards as to demonstrate
No. 13‐3877    Page 4

that the person responsible did not base the decision on such a judgment.” Estate of Cole

v. Fromm, 94 F.3d 254, 261–62 (7th Cir. 1996); see Johnson, 433 F.3d at 1022–23.

Tolonen insists, however, that the district court should have withheld ruling on

the defendants’ motion for summary judgment until he could serve interrogatories

asking the defendants if he has a serious medical need and whether they had persisted

with ineffective treatment. But the time for discovery was past, and, regardless, the

defendants already had submitted affidavit testimony that Tolonen’s acne and

dermatitis are not “serious medical needs” and that the treatment he received followed

the accepted standard of care. An opposing party’s hope that more discovery will entice

an adverse witness to “contradict an earlier statement or volunteer an admission” is not

a valid reason for seeking to stall decision on a pending motion for summary judgment.

United States v. On Leong Chinese Merchs. Ass’n Bldg., 918 F.2d 1289, 1294 (7th Cir. 1990);

see Davis v. G.N. Mortg. Corp., 396 F.3d 869, 885–86 (7th Cir. 2005).

Finally, Tolonen contends that the district court erred in refusing to recruit

counsel. This lawsuit, he says, is complex, and a lawyer would have had a better chance

at securing an expert to testify on his behalf. A district court may enlist counsel to assist a

plaintiff with complex litigation, see Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014),

but the district court reasonably concluded that Tolonen had filed well‐written

submissions and appeared competent to present his case without the assistance of an

attorney, see Olson v. Morgan, 750 F.3d 708, 712 (7th Cir. 2014). And to the extent that

Tolonen argues that he needed an attorney to assist him in securing an expert witness, as

best we can tell, he never told the district court that he had tried but failed to secure an

expert on his own. Even now Tolonen does not show that he made a substantial effort to

secure an expert; he merely asserts, without any support in the record, that he wrote to

several dermatologists who never responded to him. Accordingly, we cannot conclude

that the district court abused its discretion.

AFFIRMED.