*

 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 Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 1, 2006*

Decided February 6, 2006

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

No. 05-3824

LARRY R. HOLMAN,

Plaintiff-Appellant,

v.

ELSA HORN, ROMAN KAPLAN,

JAMES GREER, et al.,

Defendants-Appellees.

Appeal from the United States

District Court for the Eastern

District of Wisconsin.

Nos. 04 C 792 & 05 C 9

William C. Griesbach, 

Judge.

O R D E R

In these consolidated cases under 42 U.S.C. § 1983 and Wisconsin state law,

inmate Larry Holman claimed that he had been denied proper medical care while

housed at Kettle Morraine and Oshkosh Correctional Institutions (“KMCI” and

“OCI”). Specifically, Holman claimed that prison physicians violated the Eighth

Amendment and state law when they ignored gastrointestinal bleeding caused by

prescribed medicines. He also claimed that he had been denied treatment for

Hepatitis C in violation of the Eighth Amendment and the Equal Protection Clause. 

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-3824 Page 2

The district court granted summary judgment for the defendants. For the reasons

set forth in this order, we affirm the judgment of the district court.

The district court accepted the following facts from the defendants’ proposed

factual findings because Holman had failed to conform his fact statements to Local

Rule 56.2. Holman suffers from Hepatitis C, peptic ulcers, and asthma. A year after

he arrived at KMCI, his ulcers caused gastrointestinal bleeding that required

hospitalization. A hospital physician recommended that he stop taking theophylline,

an asthma medication, “given its association with his upper GI bleed.” Dr. Horn, an

internist and gastroenterologist at KMCI, immediately prescribed a different inhaler

for Holman.

About a year later, Holman submitted a request for medical services; he

complained of light red blood in his stool and expressed concern that his ulcers were

again causing gastrointestinal bleeding. Dr. Horn responded to the request, thought

the cause of the bleeding might be hemorrhoids and instructed a nurse to examine

Holman. Dr. Horn determined that his ulcers could not have caused the bleeding

because they would produce, not red, but black blood in the stool. A month later

Holman complained of an upset stomach that he feared was due to gastrointestinal

bleeding, but a prison physician examined him and found nothing unusual.

A short time later, Holman was transferred to OCI. During the 17 months of

his confinement there, he was seen by medical staff more than 60 times. Medical staff

also arranged for the evaluation of his hepatitis C condition at the University of

Wisconsin Hospital. X-rays taken at the hospital revealed that Holman had lesions on

his liver, which Dr. Horn believed to be consistent with his history of alcohol and drug

abuse while suffering from hepatitis C. Deanna Nakada, a physicians assistant at the

hospital, recommended a liver biopsy to assess the severity of the lesions. OCI doctors

approved the procedure, which revealed minimal inflation and “stage 0 fibrosis”--a

rating that indicates a complete absence of liver scarring. Nakada recommended

against hepatitis C treatment because, for patients whose biopsies reveal fibrosis less

advanced than stage 2, she considered the potential benefits outweighed by the high

cost and toxic side-effects which are similar to those from chemotherapy. The

Wisconsin Department of Corrections (“WDOC”) guidelines likewise provide for

hepatitis C treatment only for patients with fibrosis of stage-2 or greater. In

accordance with DOC’s guidelines, Holman’s request for some form of hepatitis C

treatment was denied by OCI’s medical director.

Holman then sued Dr. Horn, Nakada, the OCI physicians, nurses, and

administrators. Alleging violations of the Eighth Amendment and state malpractice

law, he claimed that these individuals had ignored the gastrointestinal bleeding

caused by medications which they had prescribed. He also claimed that the
No. 05-3824 Page 3

defendants’ refusal to treat his hepatitis C condition constituted deliberate

indifference and denied him equal protection because white inmates with comparably

advanced hepatitis C had received treatment, while he, a black inmate, had not.

The court granted summary judgment for the defendants. It determined that

Holman lacked any evidence that the defendants were deliberately indifferent to his

medical needs. The court acknowledged that Holman had serious health problems,

but these ailments resulted from his preexisting physical condition rather than from

the defendants’ treatment. Indeed, the court observed that the record reflected

“great solicitude” for Holman’s needs on the part of the defendants. As for Holman’s

equal protection claim, the court stated that “[n]ot one shred of evidence suggested

that race played any role in Holman’s treatment.” Finally, the court concluded that

Holman could not establish medical malpractice because he offered no medical

expert’s opinion, which is necessary in Wisconsin to establish the requisite standard

of care.

On appeal, Holman first contends that the district court erred in granting

summary judgment on his claim that the defendants were deliberately indifferent in

prescribing medication that caused gastrointestinal bleeding. He submits that there

was evidence that theophylline caused him gastrointestinal bleeding and should never

have been prescribed. He points to the attending physician’s note during his

hospitalization. That note recommended that theophylline be discontinued “given its

association with his upper GI bleed.” Holman admits that he was immediately taken

off theophylline, but believes that the note establishes that theophylline should never

have been prescribed. However, even if, as Holman believes, this clinical note could

establish that he should never have received theophylline due to the risk of

gastrointestinal bleeding, he lacked any evidence that the defendants knew of an

unacceptable risk and consciously disregarded it. See Estate of Cole Pardue v. Fromm,

94 F.3d 254, 259 (7th Cir. 1996) (deliberate indifference requires more than a showing

of medical malpractice).

Second, Holman submits that summary judgment was improper on his claim

that Dr. Horn was deliberately indifferent when she was told that his ulcers were

bleeding again. Dr. Horn thought the bleeding was hemorrhoidal, given the color of

the discharge, and accordingly ordered a nurse to examine him for hemorrhoids. 

Holman admits that Dr. Horn thought the bleeding was hemorrhoidal and thus

cannot show that she acted with deliberate indifference. See Gil v. Reed, 381 F.3d

649, 661 (7th Cir. 2004).

Third, Holman contends that the court erred in granting summary judgment

on his claim that Dr. Horn committed medical malpractice in prescribing

theophylline. Pointing to a letter from Mary Powers, he disputes the court’s finding
No. 05-3824 Page 4

that he lacked a medical expert’s opinion, as required in Wisconsin, see Gil, 381 F.3d

at 659. Powers identifies herself as “Poison Control Supervisor” for Children’s

Hospital of Wisconsin and states that long-term usage of Theophylline can cause the

stomach lining to bleed. Even if this letter qualified as expert testimony, it gives no

opinion related to Dr. Horn’s standard of care in prescribing theophylline for a patient

in Holman’s circumstances. See id. at 659.

Finally, Holman generally contends that the court abused its discretion in

denying his motion to serve the defendants with 25 additional interrogatories which,

he believes, would have allowed him to establish his equal protection claim. The

district court denied the motion, finding the proposed questions unreasonably

cumulative. See Fed. R. Civ. P. 26(b)(2). Holman does not dispute that

determination. Moreover, he has not shown actual prejudice from his inability to

serve the additional questions. See Packman v. Chicago Tribune Co., 267 F.3d 628,

646 (7th Cir. 2001).

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED