*

The defendants were not served with process in the district court and are not

participating in this appeal.  After examining the appellant’s brief and the record, we have

concluded that oral argument is unnecessary.  Thus, the appeal is submitted on the brief

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 17, 2010*

Decided February 17, 2010

Before

FRANK H. EASTERBROOK, Chief Judge

DIANE P. WOOD, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 09‐3175

GILBERT CHADWICK, JR.,

Plaintiff‐Appellant,

v.

ROGER E. WALKER, JR., et al.,

Defendants‐Appellees.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 09‐cv‐059‐DRH

David R. Herndon,

Chief Judge.

O R D E R

Gilbert Chadwick, an Illinois inmate, filed a civil rights suit under 42 U.S.C. § 1983

against medical staff and prison administrators for their alleged deliberate indifference to

his need for surgery to repair an inguinal hernia.  At initial screening, see 28 U.S.C. § 1915A,

the district court dismissed Chadwick’s complaint.  Chadwick then moved for

reconsideration and in the motion asked for leave to amend his complaint.  The court

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

FED. R. APP. P. 32.1
No. 09‐3175 Page 2

denied the motion.  On appeal Chadwick challenges the denial of his motion to reconsider,

including the request to amend his complaint.  We affirm the judgment.

Chadwick filed his complaint in January 2009.  He alleged that a year earlier he

started complaining to medical staff that he was experiencing severe pain as a result of his

hernia and requested surgery.  In the months that followed, Chadwick said, three different

doctors examined him and concluded that surgery was not necessary because his hernia

was reducible.  And when he filed suit, Chadwick added, his prison doctor was regularly

monitoring his condition and updating his prescription for pain medication.  Nevertheless,

Chadwick claimed that this treatment was constitutionally deficient because he continued to

experience pain and was reliant on pain medication which, he assumed, would eventually

damage his liver and stomach.

The district court concluded that Chadwick’s allegations were insufficient to state an

Eighth Amendment claim.  The court reasoned that most of the defendants had no personal

involvement in Chadwick’s medical care, and that Chadwick had pleaded himself out of

court with regard to the defendant doctors because his allegations showed that his

condition was not sufficiently serious and that he was being treated, albeit not with his

preferred course of treatment.  The court entered final judgment in the case on the same day

that it dismissed Chadwick’s complaint.

Chadwick then filed a timely motion for reconsideration.  See FED. R. CIV. P. 59(e). He

conceded that his complaint did not state a claim for deliberate indifference, but he

requested leave to amend and also submitted medical records showing that he received

corrective surgery for his hernia approximately six weeks after he filed his complaint.  In

addition Chadwick tendered synopses of legal decisions recognizing that delays in

providing treatment can violate the Eighth Amendment.  Days later Chadwick also

submitted a proposed amended complaint, which mostly tracked his initial complaint but

altered the legal theory to allege a delay in care.  The district court concluded that its

dismissal was correct and denied Chadwick’s motion for reconsideration.  It is unclear

whether the court had received Chadwick’s amended complaint by the time it denied the

motion.

In this appeal Chadwick argues that the district court should have granted his

postjudgment motion because he submitted what he terms “newly discovered evidence,”

i.e., the medical records showing that he eventually received surgery.  Although newly

discovered evidence can be the basis for a Rule 59 motion, United States v. Resnick, No. 08‐

4039, slip op. at 10 (7th Cir. Feb. 2, 2010), the medical records Chadwick submitted—and his

new legal theory of unconstitutional delay—“could and should” have been presented

earlier, see id.; Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007); In re Prince, 85
No. 09‐3175 Page 3

F.3d 314, 324 (7th Cir. 1996).  The surgery documented in those records occurred after

Chadwick filed his complaint, but before he successfully moved to supplement the record

with exhibits, so he had an opportunity to submit the records earlier, or at least to alert the

court to their existence.  He also should have added any allegations about the delay in

receiving surgery at that time.  Moreover, the records do not strengthen Chadwick’s claim

of deliberate indifference.  We now know that his hernia was repaired six months before his

lawsuit was dismissed, so in hindsight it is clear that the condition had become more

serious than the district court believed when it ruled.  See Johnson v. Doughty, 433 F.3d 1001,

1014 (7th Cir. 2006).  But the new records do not suggest that doctors ignored Chadwick’s

condition or waited unreasonably long to opt for surgery.  On the contrary, the records

undermine this prong of Chadwick’s claim: once his hernia became difficult to reduce, he

was given surgery.  See Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591‐92 (7th

Cir. 1999) (rejecting deliberate indifference claim where prison staff was “responsive” to

plaintiff’s medical needs); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1996) (concluding

that plaintiff’s deliberate indifference claim failed where he “repeatedly received

treatment”).  

So even with “new” evidence and a revised theory of delay in care, Chadwick’s

claim still could not have withstood screening or a motion to dismiss.  At best, he alleges

disagreement with medical professionals about his treatment needs, and a disagreement

with the exercise of medical judgment does not state a claim for deliberate indifference.  See

Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003).  Accordingly, the district court did not

abuse its discretion in denying Chadwick a second bite at the apple.  See Foster v. DeLuca,

545 F.3d 582, 584 (7th Cir. 2008).   

    

We AFFIRM the district court’s judgment.