In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-3009

ANTHONY J. MACHICOTE,

Plaintiff-Appellant,

v.

DOCTOR ROETHLISBERGER,

n/k/a Dr. Marie Herweijer, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:18-cv-249 — Barbara B. Crabb, Judge.

____________________

SUBMITTED JULY 23, 2020* — DECIDED AUGUST 14, 2020

____________________

Before RIPPLE, HAMILTON, and SCUDDER, Circuit Judges.

SCUDDER, Circuit Judge. Anthony Machicote is a Wisconsin 

inmate who had a surgery that left him in extreme pain 

* 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. FED. R. APP. P.

34(a)(2)(C).
2 No. 19-3009

necessitating strong medication at regular intervals. He faced 

delays and interruptions in receiving those drugs and experienced significant pain as a result. That led him to invoke 42 

U.S.C. § 1983 and file a lawsuit against several physicians, a 

health services manager, and a nurse who worked at the New 

Lisbon Correctional Institution. The district court entered 

summary judgment for all defendants, concluding that Machicote had not shown that any of them were deliberately indifferent to his suffering. We agree with respect to most of the 

defendants and affirm the judgments in their favor. But Machicote has persuaded us that a factual issue remains as to the 

deliberate indifference of the nurse. We therefore vacate the 

judgment as to only that defendant and remand for a trial. 

I

A

Anthony Machicote underwent surgery to remove damaged bone, tissue, and cartilage in his left ankle after he suffered an injury while playing basketball in the New Lisbon 

prison yard. The case at hand concerns his treatment upon return to the prison, the facts of which we recount in the light 

most favorable to him. See Hackett v. City of South Bend, 956 

F.3d 504, 507 (7th Cir. 2020). 

After the procedure, the surgeon supplied Machicote with 

oxycodone and warned that he would be in “extreme pain” 

when the medication wore off. He was discharged with instructions recommending narcotic-strength painkillers every 

six hours. Back at the prison, Dr. Marie Herweijer and Nurse 

Kimberly Stecker reviewed Machicote’s discharge instructions. For her part, Dr. Herweijer ordered Tylenol #3, a 
No. 19-3009 3

combination of acetaminophen and codeine, for Machicote to 

take as needed every six hours for three days. 

Nurse Stecker directed Machicote to take his first dose of 

Tylenol #3 at 9:30 p.m. that evening, fewer than six hours after 

he received the oxycodone following surgery. He refused at 

first, worried that taking the medication so early meant it 

would wear off during the night. In doing so, Machicote reminded Nurse Stecker not only of Dr. Herweijer’s six-hour 

dosage instruction, but also the surgeon’s warnings about the 

pain that would ensue once the effects of the oxycodone wore 

off. Nurse Stecker reacted by saying she “did not care” and 

telling Machicote he would have to “deal with the pain” because more medication would not be available until the next 

morning. Faced with no alternative, Machicote relented and 

took the pills. 

Machicote’s worry came true, for he found himself awake 

at 3:30 a.m. in “excruciating pain.” He attempted to dull the 

pain with weaker medication, but it did not help. He passed 

the remaining hours of the night awake in agony until Nurse 

Stecker returned with more Tylenol #3 at around 6:20 a.m. 

The following day, Machicote continued to have trouble 

accessing the medication that Dr. Herweijer had ordered for 

him. He went to the health services unit at around noon for 

his next dose of Tylenol #3, and Nurse Stecker told him to 

come back later and stand in the regular medication line. The 

prison has medication distribution scheduled for roughly 6 

a.m., 12 p.m., 4 p.m., and 8 p.m. daily—a timetable that did 

not match the one in Machicote’s prescription. When Machicote reminded Nurse Stecker of the prescribed dosage 

schedule, she retorted, “We will see about that!” but then gave 

him the pills he sought. 
4 No. 19-3009

About an hour after that exchange, Machicote saw Nurse 

Stecker angrily gesturing toward him while arguing with 

Candace Warner, the prison’s health services manager. The 

nurse then contacted the on-call doctor, Dr. Prapti Kuber, who 

revised Machicote’s medication order from every six hours to 

four times daily to bring his dosage schedule in line with the 

prison’s ordinary distribution hours. Warner told Machicote 

about the change, and he protested that it would result in him 

experiencing substantial pain overnight for even longer than 

before. She told him, “That’s how it will go.”

Machicote met further difficulty in his first attempts to 

conform to the new medication schedule. He stood in the 

prison’s afternoon medication line only to be rejected by 

Nurse Stecker because it was “too early.” He explained to her 

that his previous dose would soon wear off and that he was 

trying to comply with the new order, but she replied that it 

was “[n]ot [her] problem.” A friend of his called the prison 

later that day out of concern that Machicote’s pain was not 

being managed adequately, but Nurse Stecker rebuffed the 

friend’s plea. 

For the next three days, Machicote received his medication 

during the prison’s regular distribution hours as Dr. Kuber 

had ordered, and each night he laid awake in “excruciating 

pain.” His friends called the New Lisbon staff to tell them of 

his suffering to no avail.

Then Machicote’s medication order ran out completely, 

and he began experiencing agonizing ankle pain around the 

clock. He filed a health services request, complaining of a fever, an “extreme burning” pain around his ankle and foot, 

and a wet feeling in his bandages. Nurse Stecker changed his 

bandages but refused to contact a doctor. Two days later, 
No. 19-3009 5

Machicote complained of “unbearable pain” to a shift sergeant, who placed an emergency call to health services on his 

behalf. It took yet another health services request and a 

voicemail from his friend to Warner before Machicote was finally seen by a nurse the next day. The nurse noted that Machicote appeared sleepless and distraught and said she would 

consult with a doctor. 

Five days after Machicote’s initial medication order expired, supervising physician Dr. Karl Hoffman prescribed 

him another painkiller, Tramadol, to take every six hours as 

needed for four weeks. Machicote did not receive the medication for two more days, and his medical records show that the 

pain required management for several more weeks.

B

Without the assistance of an attorney, Machicote sued 

Dr. Herweijer, Dr. Kuber, Dr. Hoffman, Warner, and Nurse 

Stecker under 42 U.S.C. § 1983, claiming that they were deliberately indifferent to his post-surgery pain in violation of the 

Eighth Amendment. He alleged that the pain medication prescriptions from Dr. Herweijer and Dr. Kuber were inadequate; that Nurse Stecker deliberately ignored his pain and 

interfered with his treatment; that Warner as the health services manager should have reevaluated his medication schedule after he continued to complain; and that Dr. Hoffman—as 

a supervising physician who knew about his surgery—should 

have monitored his condition and ordered medical staff to follow a better dosing schedule. 

The district court denied Machicote’s request that a lawyer 

be recruited to represent him, explaining that he first needed 

to try to find an attorney on his own. Further, the court 
6 No. 19-3009

reasoned, at the pleadings stage he needed only to state “what 

happened, when, where and who was involved,” a task that 

did not require a lawyer’s help given that Machicote’s filings 

were legible and coherent. 

The defendants eventually moved for summary judgment, 

and they were successful. The district court concluded that 

Machicote had not come forward with evidence to show that 

any of the defendants who had been personally involved in 

his treatment were deliberately indifferent to his suffering. 

Having resolved all of the claims, the district court entered 

judgment in favor of the defendants. 

Machicote, still without a lawyer, now appeals the district 

court’s grant of summary judgment and the denial of his request for recruited counsel.

II

Summary judgment is proper only if the defendants show 

that no material facts are in genuine dispute and that they are 

entitled to judgment as a matter of law. See FED. R. CIV. P.

56(a). A genuine dispute over a material fact exists if “the evidence is such that a reasonable jury could return a verdict” 

for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). We review the district court’s grant of summary 

judgment de novo, drawing all reasonable inferences in Machicote’s favor. See Hackett, 956 F.3d at 507. 

Machicote’s claims arise under the Eighth Amendment, 

which prohibits deliberate indifference to the serious medical 

needs of prisoners. See Estelle v. Gamble, 429 U.S. 97, 104 

(1976). The defendants do not dispute that his post-surgery 

pain was objectively serious, so the question is whether Machicote put forth evidence from which a jury could find that 
No. 19-3009 7

the defendants actually knew about the pain and recklessly 

disregarded or needlessly prolonged it. See id. at 104–06; 

Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011).

A

We begin with Machicote’s claim against Nurse Stecker. 

The district court concluded that the record contained no suggestion that she knew the severity of Machicote’s pain or that 

the actions she took (or did not take) would prolong it. For his 

part, Machicote points us to a combination of events that he 

contends demonstrate more than a negligent mistake and 

would allow a reasonable jury to find deliberate indifference. 

We agree with him, persuaded by evidence of three episodes 

that could combine to convince a jury. 

First, Nurse Stecker knowingly defied Dr. Herweijer’s 

medication order. The very first night after Machicote returned from surgery, the doctor directed that he receive Tylenol #3 every six hours as recommended in the hospital’s discharge instructions. Yet Nurse Stecker forced him to take the 

pills ahead of schedule, even though he told her about his surgeon’s warning that he would suffer extreme pain when the 

medication wore off. Machicote’s concern prompted nothing 

more than a shoulder shrug—she responded by saying she 

“did not care” and that he would have to “deal with the pain.” 

Delaying necessary medication for hours of needless suffering can be sufficient for a jury to infer deliberate indifference. 

See Gil v. Reed, 381 F.3d 649, 662 (7th Cir. 2004) (concluding 

that facts showing physician’s assistant denied prescribed 

medication could permit a jury to infer knowledge of risk of 

harm); Walker v. Benjamin, 293 F.3d 1030, 1040–41 (7th Cir. 

2002) (denying inmate pain medication as ordered by a doctor 
8 No. 19-3009

could support inference that nurse recklessly ignored his 

pain). 

Second, a jury could reasonably infer that Nurse Stecker 

had Machicote’s dosage schedule changed simply because 

she did not want to administer the medication every six hours 

as Dr. Herweijer had ordered. That inference comes from the 

heated exchange Machicote observed Nurse Stecker have 

with Warner after he requested his pills outside the prison’s 

normal distribution time and the subsequent change to his 

medication order. Viewed in the light most favorable to Machicote, this incident could be seen as Nurse Stecker prolonging his pain (or contributing to that end) with no medical justification. Administrative convenience can be a permissible 

factor in a prison’s treatment decision, but “the Constitution 

is violated when [it is] considered to the exclusion of reasonable medical judgment about inmate health.” Roe v. Elyea, 

631 F.3d 843, 863 (7th Cir. 2011) (emphasis omitted).

Third, Nurse Stecker, knowing all she did by that point, 

did not consult a doctor when Machicote reported extreme 

pain after his original medication order ran out. She knew 

doctors had been treating him with narcotic-strength medication but ignored his complaints of excruciating discomfort 

(including a distraught and sleepless appearance noted by another nurse) to decide on her own that his treatment was adequate. Persisting in a course of treatment known to be ineffective may support an inference that a medical official recklessly ignored an inmate’s serious medical condition. See Petties v. Carter, 836 F.3d 722, 729–31 (7th Cir. 2016) (en banc); 

see also Williams v. Liefer, 491 F.3d 710, 716 (7th Cir. 2007) (determining that a delay in treatment was actionable where 
No. 19-3009 9

medical records showed it unnecessarily prolonged plaintiff’s 

pain).

Any one of these incidents on its own might or might not 

have been enough to avoid summary judgment, but together 

they could support a finding that Nurse Stecker deliberately 

and recklessly ignored Machicote’s pain. That is not to say a 

jury could not come to the opposite conclusion or credit 

Nurse Stecker’s side of the story. Those decisions rest in the 

jurors’ hands in the first instance. We hold only that Machicote is entitled to the opportunity to make his case at a trial. 

B

But the district court was right to grant summary judgment to the other defendants. 

None of the three doctors involved in Machicote’s care 

demonstrated deliberate indifference to his pain. Dr. Herweijer based the initial medication order on her reasoned 

medical judgment, and though the prescription was for a 

mere three days, no evidence suggests that duration was “blatantly inappropriate.” Pyles v. Fahim, 771 F.3d 403, 409 

(7th Cir. 2014). Dr. Kuber—the physician who revised the order, seemingly to match the prison’s regular medication distribution schedule—could very well have been negligent, but 

we find nothing in the record to suggest that he knew the 

change would cause Machicote serious harm. Machicote 

faults Dr. Hoffman for not finding out about the Tramadol delay and prescribing an alternative. Here, too, we lack factual 

support suggesting that Dr. Hoffman had reason to anticipate 

the delay. See Arnett, 658 F.3d at 758 (concluding that a doctor 

was not liable for prison staff’s delay in dispensing prescribed 

medication).
10 No. 19-3009

As for Warner, the health services manager, the district 

court properly concluded that she did not have knowledge of 

Machicote’s treatment or the authority to intervene in it. No 

evidence suggests that she was personally involved in his care 

beyond fielding Nurse Stecker’s complaints about him. See

Minix v. Canarecci, 597 F.3d 824, 833–34 (7th Cir. 2010) (concluding that medical director was not liable for subordinate’s 

failure to monitor inmate’s care where no facts suggested he 

was personally involved in it). Machicote’s friends called the 

prison to express concerns about his treatment, but the record 

provides us no reason to believe Warner was unresponsive to 

those calls.

III

Last we arrive at the denial of Machicote’s request for 

counsel. We review the decision for an abuse of discretion, see 

Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007) (en banc), and 

find none. As the district court explained, Machicote had not 

made sufficient efforts to find a lawyer on his own, and he 

appeared to be competent to litigate the case himself at that 

early stage. See id. at 654. 

We pause here to make our own observation on the quality 

of Machicote’s filings, though it has no bearing on the recruitment-of-counsel issue. He has represented himself ably in this 

court—advancing his arguments in clear and precise terms—

and found himself in the somewhat infrequent position of 

having succeeded in obtaining a reversal without the assistance of a lawyer. That is no small feat given the obstacles that 

pro se litigants face, particularly those filing from prison. We 

say this only to commend Machicote, not to suggest that he 

would not greatly benefit from an attorney’s aid at trial. He 
No. 19-3009 11

remains free to renew his request for recruited counsel on remand.

For these reasons, we AFFIRM in part, REVERSE in part, 

and REMAND for further proceedings.