# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 5, 2012 *

Decided January 7, 2013

Before

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 12

‐ 1808

ROBERT CHAMBERS,

Plaintiff

‐ Appellant,

v.

MICHAEL MITCHEFF and

ALFRED TALENS,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Southern District of Indiana,

Terre Haute Division.

No. 2:10

‐ cv

‐ 12

‐ WTL

‐ MJD

William T. Lawrence,

Judge

.

O R D E R

Robert Chambers, an inmate at the Wabash Valley Correctional Facility in Indiana,

claims in this action under 42 U.S.C. § 1983 that two prison doctors were deliberately NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

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

unnecessary. Thus, the appeal is submitted on the briefs and the record. See F ED

. R. A PP

. P.

34(a)(2)(C).No. 12

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### Page 2

indifferent to his complaints of abdominal pain. The district court granted summary

judgment for the defendants, reasoning that the evidence of the care they had provided

Chambers negated any inference of deliberate indifference. We affirm the judgment.

At summary judgment the parties’ statements of undisputed facts, together with

their affidavits and Chambers’s medical records, told the following story: Dr. Alfred Talens

first examined Chambers for complaints of abdominal pain on May 8, 2008. He concluded

that Chambers was constipated and prescribed laxatives and a stool softener. Dr. Talens

also ordered a fecal occult blood test. When Chambers returned to Dr. Talens a few weeks

later and said that the pain had spread to his groin, Dr. Talens also recommended an

increase in fluids and activity level. In June 2008 Chambers informed Dr. Talens that the

laxatives were not helping his pain. Dr. Talens ordered an abdominal x

‐ ray, which

confirmed that Chambers was constipated and showed no sign of intestinal obstructions or

calcifications.

The results of the fecal occult blood test were received the next month and showed

blood in some of Chambers’s stool. On that basis Dr. Talens requested an air contrast

barium enema. (An air contrast barium enema is used to diagnose colon cancer,

diverticulitis, and inflammatory bowel disease. See United States National Library of

Medicine, Medline Plus, http://www.nlm.nih.gov/medlin eplus/ency/article/003817.htm (last

visited Oct. 22, 2012).) Dr. Michael Mitcheff, the Regional Medical Director, denied that

request in favor of conducting additional tests of Chambers’s stools to confirm the need for

an enema. Dr. Talens then ordered a fecal occult blood test each week for the next month,

and all were negative. Yet when Chambers returned to Dr. Talens in August complaining of

left upper abdominal pain and mucous in his stools, Dr. Talens submitted another request

for an air contrast barium enema. Dr. Mitcheff again decided that the procedure would be

premature and recommended performing a digital rectal examination or an anoscope before

resorting to an air contrast barium enema.

Dr. Talens examined Chambers again in September 2008 for intermittent left

abdominal pain. After noting that Chambers’s stools were negative for blood and his anus

appeared normal, Dr. Talens recommended a warm compress, an increase in physical

activity, and more fluids. Later that month Chambers returned with the same complaint of

abdominal pain, which prompted another check for blood in his stools. In October 2008

Chambers reported that his abdominal pain had subsided and his bowel movements had

become more regular, but in January 2009 he complained that the pain had returned and

that he was seeing some blood in his stools. Dr. Talens ordered two more fecal occult blood

tests, both again negative. He repeated his recommendation that Chambers increase his

fluid intake but added that he could not do anything more at that time.No. 12

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### Page 3

Chambers began seeing a different prison doctor in March 2009. That physician

opined that Chambers’s abdominal pain most likely was caused by irritable bowel

syndrome and prescribed a saline laxative. A month later that doctor noted that a physical

examination was negative for hernias. In June the physician—again noting that Chambers

did not have a palpable hernia—requested a CT scan of Chambers’s abdomen and pelvis,

which Dr. Mitcheff approved. The results were unremarkable except for the possibility of a

small amount of free fluid in the pelvis. In September 2009 the physician once again

examined Chambers for hernias, and found none. Chambers continued to complain of

abdominal pain, however, so Dr. Mitcheff now authorized the air contrast barium enema.

The results, which were received in March 2010, did not show any abnormalities. When

Chambers reported scrotal pain in June 2010, Dr. Mitcheff approved a testicular ultrasound,

the results of which were normal.

In August 2010 Dr. Mitcheff approved a request from yet another prison physician

that Chambers have a colonoscopy. Doctors in the endoscopy unit of a private hospital

removed a small, benign polyp from Chambers’s colon and opined that the polyp was not

the cause of his constipation or abdominal pain. Otherwise the colonoscopy was normal. In

October 2010 Chambers had a follow

‐ up appointment with still another prison physician,

Dr. Harry Stoller, who is not a defendant. He observed that Chambers was experiencing

tenderness in the left femoral canal. Dr. Stoller speculated that Chambers might have a

femoral hernia and stated that he would request a surgical consultation. (The record does

not show whether the consult was ever requested.)

Dr. Talens resumed treating Chambers in January 2011. At their first meeting

Chambers informed Dr. Talens that the physician who saw him the previous October had

said he possibly had a hernia. According to Chambers, Dr. Talens replied that he agreed

with his colleague and that Chambers did have a femoral hernia. Dr. Talens denies,

however, that he or any other prison doctor ever diagnosed Chambers with a hernia.

Dr. Talens did order an x

‐ ray of the abdominal cavity, but the results did not show a hernia.

The next month Dr. Talens also ordered another CT scan, the results of which were normal.

Even so, several weeks later Dr. Talens—noting Chambers’s “long history of pain and

discomfort of the left inguinal area” and the lack of explanation for his pain—took the

additional step of requesting a surgical consultation to determine whether Chambers had a

hernia. Dr. Mitcheff received that request and agreed that the consultation was warranted.

A general surgeon at a private hospital then examined Chambers in April 2011 but

concluded that he did not have a hernia. When Chambers next met with Dr. Talens in May

2011, he told the physician that a surgical resident who was present with the general

surgeon had diagnosed a hernia but the general surgeon disagreed. Dr. Talens wrote in his

progress notes that he would request another surgical consultation for a second opinion.

That request is not documented in the evidence at summary judgment, but Chambers doesNo. 12

‐ 1808 

### Page 4

not contend that Dr. Talens failed to follow through before he retired later that same month.

In fact, Chambers asserts that this request was made but denied by Dr. Mitcheff.

Chambers brought this § 1983 action alleging that Dr. Talens and Dr. Mitcheff were

deliberately indifferent to a serious medical need by failing to adequately diagnose and

treat his ongoing abdominal pain. Dr. Talens’s treatment decisions, Chambers argued,

constituted a substantial departure from professional judgment. And Dr. Mitcheff, he

continued, was responsible for the lack of effective treatment because he repeatedly denied

requests for outside consultations and tests. The district court concluded, however, that a

jury could not reasonably conclude from the evidence that the two defendants had been

deliberately indifferent to Chambers’s abdominal pain. According to the court, Dr. Talens

had responded appropriately to each of Chambers’s complaints by prescribing medications

and using diagnostic tools in an effort to discover the cause of his pain. Moreover, the court

explained, Dr. Mitcheff had exhibited a pattern of approving—not denying—outside tests in

an effort to diagnose the cause of Chambers’s pain.

On appeal Chambers essentially contends that his evidence conclusively shows that

he received wholly ineffective treatment for his abdominal pain. He also argues that a

purported diagnosis of a femoral hernia obtained in anticipation of litigation establishes

that Dr. Talens and Dr. Mitcheff denied him treatment for that condition. To sustain his

Eighth Amendment claim, Chambers was required to show that he suffered from an

objectively serious medical need and that the defendants were deliberately indifferent to

that need. See Farmer v. Brennan

, 511 U.S. 825, 834, 837 (1994); Norfleet v. Webster

, 439 F.3d

392, 395 (7th Cir. 2006). Because the defendants do not dispute that Chambers’s continuous

abdominal pain qualifies as a serious medical need, our focus is on whether Dr. Talens or

Dr. Mitcheff was deliberately indifferent to that pain, whatever its cause.

We begin with Dr. Talens. To show that Dr. Talens was deliberately indifferent,

Chambers needed to establish that the doctor was aware of but intentionally or recklessly

disregarded his serious medical need. See Farmer

, 511 U.S. at 837; Hayes v. Snyder

, 546 F.3d

516, 522–23 (7th Cir. 2008). Chambers argues that in 2008 and 2009 Dr. Talens knew that the

treatment prescribed for constipation was not alleviating his pain, and yet the physician

continued to provide ineffective treatment. We defer to a medical professional’s treatment

decisions “unless ‘no minimally competent professional would have so responded under

those circumstances.’” Sain v. Wood

, 512 F.3d 886, 894–95 (7th Cir. 2008) (quoting Collignon v.

Milwaukee County

, 163 F.3d 982, 988 (7th Cir. 1998)); see Jackson v. Kotter

, 541 F.3d 688, 698

(7th Cir. 2008). Chambers points to no evidence which might suggest that Dr. Talens’s

treatment plan in 2008 and 2009 was unreasonable; Dr. Talens examined Chambers multiple

times, ordered an x

‐ ray, attempted to treat his constipation with laxatives, fluids, activity,

and compresses, and still requested further testing when Chambers’s pain did not subside.

The record shows that Dr. Talens’s treatment of Chambers was grounded in professionalNo. 12

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### Page 5

judgment and was reasonable. See Jackson

, 541 F.3d at 698; Johnson v. Doughty

, 433 F.3d 1001,

1014 (7th Cir. 2006). Even if Dr. Talens was wrong, as long as he believed that his diagnosis

was consistent with Chambers’s symptoms and that he was providing appropriate

treatment, he was not deliberately indifferent to Chambers’s pain. See Walker v. Peters

, 233

F.3d 494, 499 (7th Cir. 2000).

Chambers counters, though, that Dr. Talens diagnosed him with a hernia in January

and February 2011 but failed to treat it. Chambers misreads the January and February 2011

treatment notes. Those notes, as well as Dr. Talens’s affidavit, show that Dr. Talens planned

to request outside testing to determine whether Chambers had a hernia. But even if we

assume that Dr. Talens did say that Chambers had a hernia, as Chambers asserts, Dr. Talens

could not have been deliberately indifferent simply by speculating favorably to Chambers.

Additional testing was necessary to objectively confirm this speculation, and Dr. Talens

requested an x

‐ ray, a CT scan, and a surgical consultation. The x

‐ ray and scan were negative

for a hernia, and the general surgeon conducting the consultation did not find a hernia.

Dr. Talens could have stopped right there, and yet when Chambers told him that a surgical

resident at the consultation thought he did have a hernia even though the general surgeon

did not, Dr. Talens said he would request another consultation for a second opinion. At

most the facts show a difference of opinion by other medical professionals at a private

facility, not any shortcoming by Dr. Talens. On the basis of this record, no reasonable juror

could find that Dr. Talens was deliberately indifferent to Chambers’s serious medical need.

See Duckworth v. Ahmad

, 532 F.3d 675, 681 (7th Cir. 2008) (concluding that doctor who knew

there was risk of cancer but erroneously thought that another condition was more likely

causing prisoner’s symptoms was not deliberately indifferent); Norfleet

, 439 F.3d at 396

(explaining that difference of opinion as to prisoner’s arthritis amounted to, at most,

medical malpractice, and was not a constitutional violation).

Chambers also failed to present evidence from which a jury might reasonably infer

deliberate indifference by Dr. Mitcheff. Chambers argues that Dr. Mitcheff engaged in a

pattern of denying doctors’ requests to provide outside testing, but, on the contrary,

Dr. Mitcheff approved several tests to determine the cause of Chambers’s abdominal pain

, including two CT scans, an air contrast barium enema, a testicular ultrasound, a

colonoscopy, and a surgical consultation. Chambers presses that Dr. Mitcheff showed a

reckless disregard for his symptoms by denying Dr. Talens’s first two requests for air

contrast barium enemas. But Dr. Mitcheff did not disregard Chambers’s symptoms; he

thought that the proposed procedure was premature and recommended that additional

tests be conducted first. Every test conducted in the months that followed was negative,

and yet Dr. Mitcheff approved a third request for an air contrast barium enema when all

other avenues had been exhausted. A good

‐ faith disagreement about the proper course of

treatment will never prove deliberate indifference, Norfleet

, 439 F.3d at 396; Johnson

, 433 F.3dNo. 12

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### Page 6

at 1012–13, but in this case Chambers’s contention is especially frivolous because the

procedure that Dr. Mitcheff did not authorize more quickly itself came back negative.

Chambers goes on to assert that Dr. Mitcheff also denied two requests for surgical

consultations—Dr. Stoller’s request in October 2010 and Dr. Talens’s request in May

2011—but there is no evidence that Dr. Mitcheff actually received those requests or that he

denied them. More importantly, Dr. Mitcheff authorized the surgical consultation that

Chambers received in April 2011; that consultation confirmed that Chambers did not have a

hernia, which moots any argument that the earlier request even matters. And assuming

Dr. Mitcheff received a request for a consultation in May 2011, denying a request for

another consultation just one month after a general surgeon examined Chambers and

determined that he did not have a hernia would not show reckless indifference to a serious

medical need.

In addition, Chambers argues that Dr. Mitcheff knows that he has not received any

treatment since May 2011 but has failed to intervene. This lawsuit was filed in 2010,

however, and Chambers raised this allegation for the first time in his opposition to the

defendants’ motion for summary judgment. Even if that allegation is relevant to this case,

Chambers failed to support it with any evidence that he requested and was denied medical

attention from any prison doctor after May 2011. Dr. Mitcheff supervises prison physicians;

he does not treat inmates, and Chambers has not shown that he has denied any requests to

treat Chambers or that he otherwise has been personally involved in Chambers’s care since

May 2011. See Knight v. Wiseman

, 590 F.3d 458, 462–63 (7th Cir. 2009); Johnson v. Snyder

, 444

F.3d 579, 583 (7th Cir. 2006).

Chambers also points to the July 2011 affidavit of his medical expert, Dr. Richard

Schultheis. He avers that Chambers “was recently diagnosed” with a femoral hernia and

that, in his opinion, the failure to timely diagnose and treat that hernia fell below a

reasonable standard of care. But Dr. Schultheis did not diagnose the hernia himself and

does not say who did or when. All he says is that he formed an opinion that someone (he

does not say who) was negligent. Femoral hernias are uncommon and are more likely to

affect women than men. See United States National Library of Medicine, Medline Plus,

Femoral Hernia

, http://www.nlm.nih.gov/medlin eplus/ency/article/001136.htm (last visited

Oct. 17, 2012); The Merck Manual of Diagnosis and Therapy 102 (18th ed. 2006).

Dr. Schultheis did not personally examine Chambers; he based his opinion entirely on

specifically identified medical records, none of which include a hernia diagnosis.

As a final note, we find it troubling how long Chambers has waited for a correct

diagnosis of the source of his abdominal pain. But neither an incorrect diagnosis nor a

disagreement about the proper course of treatment alone is sufficient to show deliberate

indifference. See McGowan v. Hulick

, 612 F.3d 636, 640 (7th Cir. 2010); Mingus v. Butler

, 591No. 12

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### Page 7

F.3d 474, 480 (6th Cir. 2010); Norfleet

, 439 F.3d at 396. And Chambers has failed to present

evidence from which a jury might reasonably infer that Dr. Talens or Dr. Mitcheff

disregarded his serious medical needs.

Accordingly, the judgment is AFFIRMED

.