United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 21, 2019*

Decided November 26, 2019

Before

DIANE P. WOOD, Chief Judge

FRANK H. EASTERBROOK, Circuit Judge

DANIEL A. MANION, Circuit Judge

No. 18-3688

RICHARD HOLMAN,

Plaintiff-Appellant,

v.

ANDREW TILDEN and WEXFORD 

HEALTH SOURCES, INC.,

Defendants-Appellees.

Appeal from the United States District 

Court for the Central District of Illinois.

No. 14-1439-HAB

Harold A. Baker,

Judge.

O R D E R

Richard Holman, an Illinois inmate, sued his prison doctor and Wexford Health 

Services under 42 U.S.C. § 1983, alleging that he received constitutionally inadequate 

medical care pursuant to a Wexford policy. The district court entered summary 

judgment for the defendants, concluding that the doctor was not deliberately indifferent

 

* We have agreed to decide the 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).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 18-3688 Page 2

to Holman’s serious medical condition in violation of the Eighth Amendment and that, 

therefore, Wexford was not liable either. We affirm. 

We recount the following facts and make all reasonable inferences from them in 

Holman’s favor. See Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). At some point in 

the past, Dr. Andrew Tilden, the medical director at Pontiac Correctional Center, 

misdiagnosed Holman with gout. Then, in April 2014, Dr. Tilden evaluated Holman for

complaints of stomach pain, vomiting, and trouble urinating; he admitted Holman to 

the infirmary for observation and ordered diagnostic tests. The tests revealed that 

Holman had developed diabetes and was suffering serious complications, so Dr. Tilden 

ordered intravenous fluids, insulin, and blood sugar monitoring. The next day, at 

Dr. Tilden’s direction, Holman was transferred to the University of Illinois at Chicago 

Hospital. There, medical staff diagnosed rhabdomyolysis (kidney failure), which they 

attributed to an allergic reaction to a cholesterol medication. Dr. Tilden had prescribed 

this medication, and Holman had been taking it for years without incident. 

Three months later, Holman was admitted to the prison’s infirmary with a fever, 

chills, and vomiting. Dr. Tilden ordered intravenous fluids, insulin, blood sugar 

monitoring, and diagnostic tests. Holman did not improve, so he was transferred by 

ambulance to St. Joseph Medical Center that same day. He was admitted with sepsis 

due to a urinary tract infection, acute respiratory failure, acute kidney failure, and a 

draining colovesicular fistula (an open connection between the colon and bladder). 

Later, Holman was released with a recommendation that he be sent to UIC to repair the

fistula; Dr. Tilden approved that procedure.

Initially proceeding pro se, Holman sued under 42 U.S.C. § 1983, alleging that 

Dr. Tilden had provided him with constitutionally deficient care. He asserted that 

Wexford was also liable because of its “widespread practice” of denying inmates access 

to proper or sufficient medical attention. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 

694 (1978). The district court sua sponte recruited counsel to represent Holman.

In February 2017, the district judge set a discovery deadline of May 15, 2018. In 

December 2017 Holman’s counsel asked to depose Dr. Tilden, but Dr. Tilden had 

suffered appendicitis that required surgery. Originally, it was anticipated that 

Dr. Tilden would become available in March, so Holman’s counsel served a notice of 

deposition for that month. Dr. Tilden, however, had suffered complications from his 

surgery, and, as a result, was unavailable to be deposed between December 2017 and 
No. 18-3688 Page 3

May 2018. During this time, the defendants’ attorneys kept Holman’s counsel apprised 

of Dr. Tilden’s unavailability. At one point, they lost track of Dr. Tilden when he went 

to visit family in Poland, but upon his return, they contacted Holman’s counsel multiple 

times with dates when he could sit for a deposition. Holman’s counsel did not respond. 

The defendants also moved to extend the discovery period; the district court granted 

the motion and reset the discovery deadline to July 9, 2018. Days before the deadline, 

Holman’s counsel moved for sanctions on the basis that Dr. Tilden had unreasonably 

dodged his deposition. 

After the close of discovery, defendants moved for summary judgment, relying 

primarily on an affidavit by Dr. Tilden. In response, Holman argued that the defendants 

could not prevail because they had not deposed any of Holman’s disclosed witnesses

and therefore could not establish that he lacked evidence for his claims. See Celotex 

Corp. v. Catrett, 477 U.S. 317, 328 (1986). Holman also argued that he could not answer 

the motion because he needed to take more discovery. See FED. R. CIV. P. 56(d). Holman 

did not address the defendants’ substantive arguments, respond to their proposed 

statement of undisputed material facts, or submit his own affidavit or other evidence. 

Taking up the parties’ motions, the district court first denied Holman’s motion 

for discovery sanctions. It concluded that Dr. Tilden’s temporary unavailability for a 

deposition was unavoidable because of his serious illness. Moreover, the court 

determined, Holman could not show he was prejudiced by the unavailability because 

the defendants made several attempts to schedule Dr. Tilden’s deposition once he 

became available, and Holman ignored them.

In addressing the motion for summary judgment, the district court concluded

that because Holman did not respond to defendants’ statement of facts, he had 

admitted them. See C.D. ILL. LOCAL R. 7/1 (D)(2)(b)(6). The court then determined that 

Dr. Tilden was not deliberately indifferent to Holman’s medical needs, and that, 

without an underlying constitutional violation, Wexford could have no liability.

On appeal, Holman first argues that the district court erroneously denied his 

motion for sanctions because Dr. Tilden was unavailable for a deposition during the 

discovery period without a valid reason. But the “trial court has broad discretion 

concerning the imposition of discovery sanctions.” Park v. City of Chicago, 297 F.3d 606, 

614 (7th Cir. 2002). And the district court did not abuse that discretion in concluding 

that Dr. Tilden’s unavailability was not in bad faith and that Holman could not show 
No. 18-3688 Page 4

prejudice. Dr. Tilden was unavailable for only five months out of the 17-month 

discovery period, and because of serious illness. Holman’s counsel, Jared Kosoglad,

knew about Dr. Tilden’s unavailability, and, once Dr. Tilden became available, the 

defendants tried to reschedule. But Mr. Kosoglad failed to respond, never filed a motion 

to compel, and did not request an extension of the discovery deadline.

Relatedly, Holman argues that the district court should have stayed summary 

judgment until Dr. Tilden could be deposed because, without that deposition, he could 

not respond to the defendants’ motion. But the district court did not err in deciding the 

summary judgment motion. True, the court did not specifically address Holman’s 

request to reopen discovery, which was supported by a declaration of Mr. Kosoglad

that he could not respond without taking evidence. See FED. R. CIV. P. 56(d). But where a 

party fails to secure discovery because of its own lack of diligence, “the district court 

can in its discretion hold the party to the consequences of its choice and decide the 

summary judgment motion.” See Helping Hands Caregivers, Ltd. v. Darden Rests., Inc., 

900 F.3d 884, 891 (7th Cir. 2018). As the court noted in its sanctions and summary 

judgment orders, the failure to take depositions during the discovery period resulted 

from Mr. Kosoglad’s lack of diligence in marshaling evidence to support Holman’s 

claim. That is not a basis for overturning the district court’s ruling on a properly filed 

motion. 

Holman also reprises the argument that the district court should have denied the 

motion for summary judgment because the defendants failed to depose his witnesses. 

He relies on the concurring and dissenting opinions in Celotex to argue that this failure

prevented the defendants from showing the absence of a material factual dispute. 

See Celotex, 477 U.S. at 328–39. But the defendants did not file a Celotex-type motion 

premised on the absence of evidence for a necessary fact. They argued that, based on 

the medical records and Dr. Tilden’s affidavit, no reasonable jury could find that 

Dr. Tilden exhibited deliberate indifference to Holman’s serious medical needs.

Next, Holman contends, as he did in the district court, that Dr. Tilden’s affidavit 

was inadmissible because parts of it lack foundation or offer impermissible opinion 

testimony. But a general physician may be “competent to testify about problems that a 

medical specialist typically treats,” see Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 

2010), and Holman does nothing to establish that Dr. Tilden, who demonstrated 

familiarity in monitoring and treating rhabdomyolysis, lacked competence to testify as 

to its potential causes. In any case, Holman’s qualms relate only to Dr. Tilden’s 
No. 18-3688 Page 5

disagreement with the UIC staff that his rhabdomyolysis was a side effect of his 

cholesterol medication. The cause of the rhabdomyolysis—whether induced by 

medication or something else—is not material because there is no evidence that a 

misapprehension about the cause of condition delayed appropriate treatment. 

Holman did not argue the merits of his deliberate indifference claim in the 

district court and therefore waives that argument on appeal. See United Central Bank v. 

Davenport Estate, LLC, 815 F.3d 315, 318 (7th Cir. 2016). Because he might have 

anticipated a ruling on his Rule 56(d) motion before being required to respond 

substantively, however, we note that summary judgment was properly entered. 

Holman needed to point to evidence from which a reasonable juror could find that 

Dr. Tilden knew of and disregarded a substantial risk of harm to Holman in making 

treatment decisions. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Even if we accept 

Holman’s premise that his cholesterol medication caused his kidney failure, the record 

contains no evidence that Dr. Tilden knew, or should have known, when he prescribed 

it that Holman would have a severe reaction, especially when Holman had been taking 

it for years without issue. Holman also maintains that Dr. Tilden misdiagnosed him in 

the past, but he does not connect this supposed misdiagnosis to his medical problems in 

April and June 2014. What we are left with is evidence of Dr. Tilden’s response to 

Holman’s serious symptoms with tests, treatment, and immediate escalation to outside 

hospitalization when he could not stabilize Holman’s condition. Without evidence that 

these actions totally diverged from accepted medical standards, judgment for Dr. Tilden 

was proper. See Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016).

Holman concludes by arguing, without elaboration, that the district court should 

not have entered judgment for Wexford on his Monell claim. But that claim required 

proof that he suffered a constitutional violation caused by an express or de facto policy 

of Wexford’s that Dr. Tilden implemented. Because Holman could not prove any

underlying constitutional violation, Wexford cannot be liable. See Pyles v. Fahim, 

771 F.3d 403, 412 (7th Cir. 2014). 

 AFFIRMED