United States Court of Appeals 

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 21, 2015*

Decided April 22, 2015

Before

WILLIAM J. BAUER, Circuit Judge

DIANE S. SYKES, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 14‐3270

        Appeal from the

ABEL LUCIO,

Plaintiff‐Appellant,

v.

VENERIO M. SANTOS, et al.,

Defendants‐Appellees.

United States District Court for the

Southern District of Illinois.

No. 11‐cv‐00979‐MJR‐SCW

Michael J. Reagan,

Chief Judge.

O R D E R

In this action under 42 U.S.C. § 1983 and state law, Illinois prisoner Abel Lucio

complains about medical care he received from a prison physician. The district court

granted summary judgment for the physician, and Lucio appeals. We affirm the

judgment.    

                                                 

* 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NONPRECEDENTIAL DISPOSITION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. 14‐3270    Page 2

We recount the facts in the light most favorable to Lucio, as the party opposing

summary judgment. See Armato v. Grounds, 766 F.3d 713, 719 (7th Cir. 2014). A few days

after his transfer to Centralia Correctional Center, Lucio was attacked by two inmates

who suspected him of previously working as an informant for prison guards. They

wrestled Lucio to the ground, pulled down his pants and underwear, and poked his

anus with a hard object while threatening to kill his sister. The next day one of those

inmates saw Lucio talking to a guard and started poking him. Lucio responded by

hitting the attacker in the face with his Bible. The two men were separated and a guard

took Lucio to the infirmary.   

A nurse examined Lucio, and then the guard took him to see prison physician

Venerio Santos, an employee of Wexford Health Sources. According to Lucio’s

complaint, he told Dr. Santos that he had not been raped the day before by the two

inmates and did not want a rectal exam, but the doctor performed the exam anyway.

Lucio was then taken to segregation, where other guards passing by his cell laughed at

him, Lucio thought, because he had been sexually assaulted. The next day Lucio tried to

kill himself by taking 29 acetaminophen pills. He was briefly hospitalized but, after

returning to the prison, assured infirmary staff that he had no other medical problems.   

Because of the suicide attempt, Dr. Santos restricted Lucio’s access to his monthly

allotment of acetaminophen and told Lucio that the medication would be issued as

needed. At the time Lucio was sleeping on a hard bunk with no sheets or blankets, and

after a few days, he began complaining to nurses that an old shoulder injury had flared

up and become painful. He also announced that he was going on a hunger strike. A few

days later he complained about his shoulder pain to Dr. Santos, but the physician

declined to dispense painkillers because Lucio was on a hunger strike. (Dr. Santos

averred that he visited with Lucio and Lucio declined treatment, but we take as true

Lucio’s version of events.) Lucio saw Dr. Santos again a few days after ending his

hunger strike, and this time the doctor prescribed Ibuprofen for Lucio’s shoulder. But no

one filled that prescription before Lucio was transferred to another prison three days

later.   

In his complaint Lucio claimed that Dr. Santos had been deliberately indifferent

to his shoulder pain by withholding pain medication and had violated Illinois law by

performing the rectal exam without consent. Lucio also raised claims against two prison

guards, but he has abandoned those claims on appeal, so we need not discuss them

further.   
No. 14‐3270    Page 3

In granting summary judgment for Dr. Santos, the district judge first reasoned

that Lucio could not prevail on his claim of deliberate indifference because, the judge

said, Lucio had not presented evidence that his shoulder pain was objectively serious or

that the doctor acted improperly. The judge explained that Dr. Santos had a legitimate

medical reason for initially withholding acetaminophen (Lucio’s hunger strike would

have made taking painkillers harmful) and could not be responsible for other staff who

neglected to fill the prescription he issued after Lucio had resumed eating. The judge

declined to exercise supplemental jurisdiction over Lucio’s state‐law claim about the

rectal exam.

On appeal Lucio first argues that Dr. Santos’s decision to withhold pain

medication while he was on his hunger strike went beyond the bounds of professional

judgment. He further insists that Dr. Santos, who had seen him only a few times, was

deliberately indifferent because, in Lucio’s opinion, the doctor must have known about

his complaints of pain to the nursing staff and should have known that the prescription

he eventually issued did not get filled. Lucio takes issue, too, with the district court’s

conclusion that his shoulder pain did not constitute a serious medical need. We bypass

this last question, however, because we agree with the district court that no inference of

deliberate indifference is raised by Lucio’s evidence.   

To survive summary judgment on his theory that the doctor unconstitutionally

denied him acetaminophen during his hunger strike, Lucio needed to present evidence

that “no minimally competent” doctor would have made the same decision. See Sain v.

Wood, 512 F.3d 886, 894–95 (7th Cir. 2008). Federal courts will not second‐guess a prison

physician’s treatment decision unless that choice was so “significant a departure from

accepted professional standards or practices” that it’s questionable whether the

physician actually exercised professional judgment. See Pyles v. Fahim, 771 F.3d 403, 409

(7th Cir. 2014). Dr. Santos refused to prescribe acetaminophen while Lucio wasn’t eating,

and Lucio presented no evidence from which a jury reasonably could infer that the

doctor had failed to exercise medically sound judgment. (We note that the literature is

inconclusive regarding the extent to which acetaminophen, unlike other over‐the‐ 

counter painkillers, can be taken on an empty stomach. Compare National Consumers

League and U.S. Food and Drug Administration, Avoid Food‐Drug Interactions,

http://www.fda.gov/downloads/Drugs/ResourcesForYou/Consumers/BuyingUsing

MedicineSafely/EnsuringSafeUseofMedicine/GeneralUseofMedicine/UCM229033.pdf,

at 6–7 (no restrictions on taking on empty stomach), with DRUGS.COM, Acetaminophen,

http://www.drugs.com/cdi/acetaminophen.html (last visited April 22, 2015) (take with
No. 14‐3270    Page 4

food to avoid stomach upset). And in this case Lucio’s hunger strike further complicated

the doctor’s decision.)

   

As for the three days that Lucio went without painkillers after he abandoned his

hunger strike, Lucio needed evidence that Dr. Santos was aware of, but did nothing to

correct, the failure of other medical staff to fill the prescription for Ibuprofen or

otherwise address Lucio’s shoulder pain. See Arnett v. Webster, 658 F.3d 742, 755 (7th Cir.

2011); Hayes v. Snyder, 546 F.3d 516, 523 (7th Cir. 2008). Lucio’s unsubstantiated

allegations of knowledge were not a substitute for evidence. See Klebanowski v. Sheahan,

540 F.3d 633, 637 (7th Cir. 2008).   

   

Lucio next argues that the district court erred by declining jurisdiction over his

state‐law claim. But he does not point to any extraordinary circumstance that would call

that decision into question, and thus we have no basis to conclude that the court abused

its discretion by declining to exercise supplemental jurisdiction after dismissing all of

Lucio’s federal claims. See 28 U.S.C. § 1367(c)(3); Capeheart v. Terrell, 695 F.3d 681, 686 (7th

Cir. 2012).

Finally, Lucio argues that it was an abuse of discretion to deny his multiple

requests for counsel. But the magistrate judge who handled those requests thoroughly

explained his reasoning. The judge evaluated not only whether Lucio had done an

adequate job gathering evidence, making his arguments, and understanding the

governing laws, but also stated that the request for counsel would be reconsidered at

each new stage of the litigation. In this relatively straightforward case, the judge acted

within his discretion. See Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc).

Accordingly, we AFFIRM the judgment of the district court.