* 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). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 16, 2010 *

Decided January 5, 2011

Before

JOHN L. COFFEY, Circuit Judge

JOEL M. FLAUM, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 10

‐ 2023

CHARLES A. KIMBROUGH, JR.,

Plaintiff

‐ Appellant

,

v.

MARK STUTLEEN, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 08

‐ CV

‐ 641

J. P. Stadtmueller,

Judge

.

O R D E R

Charles Kimbrough, Jr., a Wisconsin inmate, was hospitalized with anemia likely

caused by a Vitamin B

‐ 12 deficiency. In this action under 42 U.S.C. § 1983, he claims that a

prison nurse and three guards were deliberately indifferent to his condition because they

did not take him to the prison infirmary the day before he was hospitalized. In granting

summary judgment for the defendants, the district court assumed that Kimbrough’s anemia NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 2023 Page 2

was serious but concluded that a jury could not find from the evidence that the defendants

were aware of, or indifferent to, his illness or that he suffered any harm due to their alleged

inaction. We agree with the court’s analysis and affirm the judgment.

Our focus is on the events of September 20, 2007, the day before Kimbrough was

hospitalized. His § 1983 claim concerns that date exclusively, since the four named

defendants were not involved in his medical treatment before or after that date. Unless

otherwise noted, the following facts were undisputed at summary judgment.

Kimbrough, who was then 26, was summoned to give blood and urine specimens on

September 20. Nine days earlier a nurse had examined him after he complained of

shortness of breath, a rapid heart beat, weight loss, dizziness, and numbness in his

fingertips. At the time he was listed as a participant in Ramadan fasting that had started on

August 22, but he maintains that he never fasted before he saw the nurse. She told him to

eat regular meals, drink more water, and rest. She also consulted a prison doctor. The

doctor (who, like this first nurse, is not a defendant) ordered lab tests to determine the

source of Kimbrough’s symptoms but did not perceive a need for emergency treatment.

When Kimbrough arrived in the room where he was to give his specimens, he was

met by Kathy Lemons and Daniel Levesque, both defendants. Lemons, a nurse, drew a

blood sample while Levesque, a guard, observed. Kimbrough was unable to give a urine

sample, however, and after two unsuccessful tries he left the room without permission and

went back to his cell. Lieutenant Mark Stutleen, also a defendant, went after Kimbrough

and escorted him back to Nurse Lemons. When Kimbrough still could not give a urine

sample, Stutleen and the fourth defendant, guard Curt Flannery, escorted him to a cell near

the infirmary. He was told to call for a nurse if necessary. Kimbrough says that he passed

out, but his medical records document—and he does not dispute—that he delivered his

urine specimen to an unidentified guard at some point before the day was over.

The parties disagree about Kimbrough’s physical state on September 20. Lemens

and Levesque insist that, during their initial effort to obtain a urine specimen, he did not

show signs of physical distress, nor were they aware of any significant health issue.

Kimbrough, on the other hand, maintains that he told them he felt dizzy, “like he was going

to pass out,” and demanded to be taken to the infirmary. Another inmate corroborates that

Kimbrough looked weak and told Lemens and Levesque that he felt faint and was unable to

walk. According to Stutleen, Kimbrough did stop once and kneel down while under escort

but otherwise walked under his own power and exhibited no sign of physical distress.

Kimbrough and two other inmates counter that he wanted to stop and catch his breath but

was forced along by Stutleen and Flannery.No. 10

‐ 2023 Page 3

Kimbrough’s specimens were processed quickly, and the next day, September 21, the

prison doctor ordered him hospitalized after reviewing the lab results. Hospital physicians

diagnosed profound anemia likely caused by a Vitamin B

‐ 12 deficiency. Kimbrough was

treated with a blood transfusion and Vitamin B

‐ 12

‐ injections. After his release from the

hospital, he experienced no more symptoms. His anemia, according to the undisputed

opinion of the prison physician who treated him, was a cumulative condition that

developed over a period of weeks or months and “did not deteriorate” between September

20 and 21. The doctor also confirms, in an affidavit submitted at summary judgment, that

Kimbrough’s anemia would not have been discovered and treated until the lab tests were

completed. In that affidavit the doctor also rejects Kimbrough’s unsupported assertion that

an eye condition diagnosed the following month was linked to his anemia.

In this court Kimbrough presses his theory that these defendants did not do enough

for him on September 20, but he never confronts the district court’s conclusions that a jury

could not reasonably find from the evidence at summary judgment that the named

defendants ignored—or even knew about—his illness or that their conduct on September 20

caused him harm. Liability under the Eighth Amendment for the denial of medical care

turns on proof that a defendant acted with deliberate indifference to a serious medical

condition, see Farmer v. Brennan

, 511 U.S. 825, 832

‐ 33, 835 (1994); Knight v. Wiseman

, 590 F.3d

458, 463 (7th Cir. 2009), and that the inmate suffered harm as a result, see Walker v. Benjamin

,

293 F.3d 1030, 1038 (7th Cir. 2002); Doe v. Welborn

, 110 F.3d 520, 523 (7th Cir. 1996).

“Deliberate indifference” is a subjective standard that equates with ignoring a known risk.

Farmer

, 511 U.S. at 835; Johnson v. Snyder

, 444 F. 3d 579, 585 (7th Cir. 2006). Liability cannot

be premised on negligence or even gross negligence; a defendant’s conduct must have been

“reckless in the criminal sense.” Lee v. Young

, 533 F.3d 505, 509 (7th Cir. 2008).

There is no evidence in this record that the defendants knew or suspected that

Kimbrough was anemic, nor is there any evidence that they hindered his treatment for that

condition. Kimbrough essentially complains that, on his view of events, the defendants

showed little compassion for his dizziness, fatigue, and shortness of breath on September 20

and pressed him for blood and urine specimens instead of taking him to the infirmary. But

Kimbrough’s “relatively minor” symptoms were not themselves objectively serious,

Rodriguez v. Plymouth Ambulance Service

, 577 F.3d 816, 829 (7th Cir. 2009); Henderson v,

Sheahan

, 196 F.3d 839, 846 (7th Cir. 1999); Gutierrez v. Peters

, 111 F.3d 1364, 1372

‐ 73 (7th Cir.

1997), and nothing could be done to relieve his symptoms until the root cause—the anemia

and underlying vitamin deficiency—was discovered. The lab results were key, and taking

Kimbrough to the infirmary instead of obtaining and processing samples of his blood and

urine might have made him momentarily more comfortable but ultimately would have

slowed the discovery and treatment of his anemia. Kimbrough was being tended by

Lemons, a nurse

, and it was not his place to decide where or when the medical staff carriedNo. 10

‐ 2023 Page 4

out the doctor’s order to obtain those specimens. In any event, the defendants’ actions on

September 20 did not cause any actionable harm to Kimbrough.

AFFIRMED.