In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-2456

DENNIS DAVIS,

Plaintiff-Appellant,

v.

FRANCIS KAYIRA,

Defendant-Appellee.

____________________

Appeal from the United States District Court 

for the Central District of Illinois.

No. 15-cv-3075-SLD — Sara Darrow, Chief Judge.

____________________

ARGUED MARCH 25, 2019 — DECIDED SEPTEMBER 16, 2019

____________________

Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit 

Judges.

SYKES, Circuit Judge. Dennis Davis is an Illinois prisoner

suffering from kidney disease. After receiving dialysis on a

Saturday morning, he told a prison nurse that his mind was 

fuzzy and his body was weak. Both complaints were similar 

to side effects he had experienced in the past after dialysis. 

The nurse called Dr. Francis Kayira, the prison’s medical 

director, who was on call. The doctor asked her whether 
2 No. 18-2456

Davis had asymmetrical grip strength, facial droop, or was 

drooling—all classic signs of a stroke. When she said “no,”

Dr. Kayira determined that Davis was experiencing the same 

dialysis-related side effects as before rather than something

more serious. He told the nurse to monitor the problem and 

call him if the symptoms got worse. Dr. Kayira didn’t hear 

anything else for the rest of the weekend, but on Monday 

morning he examined Davis and discovered that he had in 

fact suffered a stroke. 

Davis later sued Dr. Kayira, alleging that he acted with 

deliberate indifference to his medical needs in violation of 

the Eighth Amendment. Davis also raised a state-law 

medical-malpractice claim. The district court entered summary judgment for Dr. Kayira on both claims. The judge

ruled that the deliberate-indifference claim failed because 

there is no evidence that Dr. Kayira was aware of symptoms 

suggesting that Davis was suffering a stroke. And the statelaw claim failed because Davis lacked expert testimony

about the appropriate standard of care. A magistrate judge

had blocked Davis’s sole expert because he wasn’t disclosed 

in time, and Davis never objected to that ruling before the 

district court. 

We affirm. Davis lacks evidence of deliberate indifference. And because he did not ask the district court to review

the magistrate judge’s exclusion of his expert, his state-law 

claim fails as well.

I. Background

Davis is currently serving a prison sentence at the 

Graham Correctional Center in central Illinois. He has a 

history of diabetes, high blood pressure, and renal disease. 
No. 18-2456 3

Davis’s renal disease requires dialysis, a treatment he began 

in 1996 and continues to receive three times a week.

Davis received dialysis early on the morning of Saturday, 

June 21, 2014. He told a nurse almost immediately afterward

that he was feeling weak. She observed a number of symptoms, including slurred speech, an inability to follow commands, weak hand grasps, and pupils that were pinpoint 

and nonreactive. At 5:45 a.m. she called Dr. Kayira, the 

medical director at Graham Correctional Center. Dr. Kayira 

was on call for the weekend, but he wasn’t otherwise scheduled to return to the prison until Monday morning. The 

nurse told him about the complaints and mentioned that 

Davis had previously experienced similar symptoms after 

dialysis. That isn’t surprising given that patients are often 

fatigued after dialysis because of fluid withdrawal. 

Dr. Kayira asked the nurse whether Davis had asymmetrical

hand-grip strength, whether he was drooling, and whether 

his face was drooping. She said “no” to all three, which led 

Dr. Kayira to conclude that Davis wasn’t having a stroke but 

was instead suffering the same dialysis-related side effects as 

before. Dr. Kayira directed the nurse to put Davis in the 

infirmary to be monitored more closely, and he told her to 

have the daytime nurse call back if symptoms worsened. 

Over the weekend Davis’s condition deteriorated. But 

while the medical staff reported its observations in a series 

of handwritten notes, there is no evidence that anyone 

notified Dr. Kayira. A medical technician wrote at 6 a.m. on 

Saturday that Davis was confused and his grip was weaker 

on one side than the other. The same note mentioned that 

Dr. Kayira had asked for the daytime nurse to evaluate the 

patient and call him back, but it did not say whether
4 No. 18-2456

Dr. Kayira was told about the asymmetry. According to 

another note—written at an unknown time—Davis said that 

his left arm and leg weren’t working and he thought he was 

having a stroke. A note written at 8 a.m. on Sunday said that 

Davis couldn’t move one of his legs as much as normal. A 

note written at 3:30 p.m. the same day observed that Davis 

was weak in his left hand and leg but that he could raise his 

arms and sit up in bed. Notes the following morning continued to record weakness on Davis’s left side. Again, none of 

the notes indicated that Dr. Kayira was notified of these 

changes in Davis’s condition.

When Dr. Kayira examined Davis in person on Monday, 

he immediately recognized that Davis’s strength was asymmetrical and he had likely suffered a stroke. Dr. Kayira

transferred Davis to a hospital where the stroke was confirmed. 

The following year Davis sued Dr. Kayira under 

42 U.S.C. § 1983 alleging that he acted with deliberate indifference to his medical condition in violation of his Eighth 

Amendment right to be free from cruel and unusual punishment. He later amended his complaint to add a state-law 

medical-malpractice claim. Dr. Kayira was the only named 

defendant. More than a year into the litigation, Davis sought

leave to amend his complaint again to add five nurses. The 

judge denied the motion because it was untimely and would 

cause undue prejudice and delay. 

After filing suit, Davis obtained a report from a boardcertified physician stating that his claim had merit, a prerequisite for the medical-malpractice claim under state law, 

which requires a plaintiff to obtain a certificate of merit at 

the pleading stage. See 735 ILL. COMP. STAT. 5/2-622 (2015). 
No. 18-2456 5

The report concluded that “Dr. Kayira knew or should have 

known that Dennis Davis was suffering from a stroke, or 

that a stroke was imminent.” But the report is unsigned and 

its author remains unidentified. 

Once discovery began, the district judge adopted the parties’ proposed pretrial schedule, which required that Davis 

disclose experts by June 1, 2017. All discovery was to close 

on October 1, 2017, but in November Dr. Kayira moved to 

extend the deadline. The judge granted the motion but 

rejected the parties’ new proposed schedule, reasoning that 

it would delay trial until four years after the initial filing. 

Rather than adopt another phased schedule, she simply 

ordered that all discovery be completed by February 15, 

2018. Six weeks before that deadline, she referred the case to 

a magistrate judge to handle the remaining pretrial matters.

Davis retained Dr. Coleman Seskind as an expert but 

didn’t disclose the doctor’s report until February 13, 2018—

just two days before the final discovery cutoff. Dr. Kayira 

moved to strike the expert report as untimely. In a telephonic 

hearing, the magistrate judge explained that all discovery 

had to end by February 15 under the district court’s order, 

which meant that Davis had left Dr. Kayira no opportunity 

to depose Dr. Seskind or otherwise respond to his proposed 

testimony. The magistrate judge concluded that it would be 

improper to allow Dr. Seskind to testify without that opportunity, so he granted the motion to strike.

Dr. Kayira then moved for summary judgment on both 

claims. The district judge granted the motion. She first 

concluded that the evidence was insufficient to establish that 

Dr. Kayira acted with deliberate indifference to Davis’s 

medical condition. More specifically, no jury could find that 
6 No. 18-2456

Dr. Kayira was aware based on the initial phone call that 

Davis was having a stroke. Moreover, there was no evidence 

that Dr. Kayira learned anything new until he arrived at the 

prison on Monday, at which point he immediately transferred Davis to the hospital. And Davis’s state-law claim 

failed because he had no expert testimony on the appropriate standard of care. Davis never argued to the district judge 

that the magistrate judge was wrong to exclude Dr. Seskind’s 

testimony. 

II. Discussion

“We review the court’s order granting summary judgment de novo, viewing the evidence and drawing all reasonable inferences in” the nonmovant’s favor. See Whiting v. 

Wexford Health Sources, Inc., 839 F.3d 658, 661 (7th Cir. 2016).

Summary judgment is warranted if “there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” FED. R. CIV. P. 56(a). “A factual 

dispute is genuine if the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.”

Whiting, 839 F.3d at 661 (quotation marks omitted). 

A. The Eighth Amendment Claim

The Eighth Amendment requires that the government

provide “medical care for those whom it is punishing by 

incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). But a 

claim for violation of this right is not synonymous with a 

claim for medical negligence. To prevail on a claim that a 

prison healthcare provider violated the Eighth Amendment, 

a plaintiff must prove that he “suffered from an objectively 

serious medical condition” and the defendant was “deliberately indifferent to that condition.” Petties v. Carter, 836 F.3d 
No. 18-2456 7

722, 727–28 (7th Cir. 2016). Everyone agrees that Davis’s 

stroke was an objectively serious medical condition. The 

only dispute is whether Dr. Kayira acted with deliberate 

indifference. 

The deliberate-indifference standard requires a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 

825, 834 (1994). A healthcare provider cannot be liable unless 

he “knows of and disregards an excessive risk to inmate 

health or safety.” Id. at 837. This is “essentially a criminal 

recklessness standard.” McGee v. Adams, 721 F.3d 474, 481 

(7th Cir. 2013). Indeed, “[a] medical professional is entitled 

to deference in treatment decisions unless no minimally 

competent professional would have so responded under 

those circumstances.” Pyles v. Fahim, 771 F.3d 403, 409 (7th 

Cir. 2014) (quotation marks omitted).

When a plaintiff alleges that a healthcare provider knew 

enough to infer a substantial risk of harm, he must prove 

(1) that the provider was aware of facts supporting the 

inference and (2) that the provider actually drew the inference. See Farmer, 511 U.S. at 837. To prove the subjective 

component of the claim, a plaintiff might point to a number 

of things, including “the obviousness of the risk,” “the 

defendant’s persistence in a course of treatment known to be 

ineffective,” or “proof that the defendant’s treatment decision departed so radically from accepted professional judgment, practice, or standards that a jury may reasonably infer 

that the decision was not based on professional judgment.” 

Whiting, 839 F.3d at 663 (quotation marks omitted). 

Davis claims that Dr. Kayira should have inferred that he 

was having a stroke based on the information in the initial 

phone call on Saturday morning. But there is no evidence 
8 No. 18-2456

that the information relayed to Dr. Kayira at that time would 

have led every minimally competent doctor to conclude that 

Davis was at risk of something that serious. The fatigue 

Davis experienced is common in dialysis patients. Even 

more important, Davis himself had experienced similar side 

effects following previous dialysis treatment. And when

Dr. Kayira asked the nurse whether Davis was showing 

telltale signs of a stroke, she said “no.” Based on the thenavailable information, Dr. Kayira reasonably concluded that 

Davis was not suffering a stroke. At the very least, there is 

no evidence that Dr. Kayira actually drew the necessary 

inference—in other words, that he actually believed Davis 

had suffered a stroke. 

We addressed essentially the same issue in Whiting. The 

doctor there thought it possible a patient had lymphoma but

concluded it was more likely he had an infection. See id. Like 

Dr. Kayira, that doctor was wrong. We nonetheless held that 

a reasonable jury could not conclude that the doctor acted 

with deliberate indifference because no evidence suggested 

that he knew his diagnosis was wrong or that the treatment 

he prescribed would be ineffective. See id. at 664. We emphasized that there was no expert testimony suggesting the 

doctor’s actions were a substantial departure from the norm. 

See id. This case is exactly the same. Dr. Kayira thought one 

diagnosis was far more likely than another and responded 

accordingly. There is no evidence—and certainly no expert 

testimony—to suggest he clearly should have known better. 

In response Davis directs us to Conley v. Birch, where we 

held that a jury could find a doctor deliberately indifferent 

for failing to order an x-ray in response to a nurse’s call 

about an inmate’s serious hand injury. See 796 F.3d 742, 747–
No. 18-2456 9

49 (7th Cir. 2015). But there the evidence was sufficient to 

conclude that the nurse gave the doctor enough information 

to make it obvious that the hand was fractured and that an 

x-ray was needed. The record showed that the nurse likely

told the doctor that the inmate’s hand was swelling two days 

after the injury, that he had lost function in all five fingers, 

and that the hand was discolored. See id. at 744–45. In fact, 

the record was sufficient for a jury to find that the nurse 

directly told the doctor that he thought the hand was broken. 

See id. In Davis’s case the cause of his symptoms wasn’t 

similarly obvious and there is no reason to think Dr. Kayira’s 

diagnosis was unreasonable, much less substantially so. 

Of course, this might be a different case if Dr. Kayira had 

learned new information over the weekend about Davis’s 

status. But there is no evidence that Dr. Kayira received any 

updates until he returned Monday morning. The record 

includes medical notes describing in detail how Davis’s 

condition worsened, but no evidence suggests that

Dr. Kayira was made aware of this information. Davis’s best 

evidence is the note written by the medical technician at 

6 a.m. on Saturday morning. It says that Davis’s grip was 

asymmetrical and also records Dr. Kayira’s order to watch 

Davis and have the daytime nurse call him back. But the 

note says nothing about whether the technician called 

Dr. Kayira to tell him about the asymmetry. Instead, the 

technician simply recorded what he personally observed 

while simultaneously noting Dr. Kayira’s earlier order from 

the initial phone conversation during which the doctor was 

definitively told there was no asymmetry.1

 1 At times Davis seems to suggest that Dr. Kayira conceded in his 

deposition that the technician told him about the asymmetry. As Davis 
10 No. 18-2456

Davis offers no evidence that Dr. Kayira knew more. He 

argues that the nurses and the technician might testify at trial

that they called Dr. Kayira a second time to relay new information. But without evidence that they would so testify

(say, an affidavit or a deposition), Davis cannot survive 

summary judgment. Based on the information from the 

initial (and only) phone call, Dr. Kayira thought Davis was 

experiencing normal side effects of dialysis. His response—

ordering closer monitoring and asking that he be notified of 

adverse changes—was not reckless. Granted, there is some 

evidence that he said he would call back later to check in. 

But at best that’s probative of negligence. Without expert 

testimony establishing that every minimally competent 

doctor would have done so, that fact alone isn’t enough to 

prove deliberate indifference. We therefore affirm the summary judgment on Davis’s Eighth Amendment claim.

B. The Medical-Malpractice Claim

Under Illinois law a medical-malpractice claim requires 

expert testimony about the appropriate standard of care 

“[u]nless the physician’s negligence is so grossly apparent or 

the treatment so common as to be within the everyday 

knowledge of a layperson.” Sullivan v. Edward Hosp., 

806 N.E.2d 645, 653 (Ill. 2004) (quotation marks omitted). The 

magistrate judge excluded Davis’s sole expert because his

disclosure was untimely. Davis challenges that ruling on 

appeal. 

 

tells it, Dr. Kayira chose not to rely on the technician’s observation 

because he thought him incompetent. But that’s a mischaracterization of 

what Dr. Kayira said. While he did say that he didn’t think the technician 

was competent, he also said very clearly that he didn’t recall ever 

speaking to him. 
No. 18-2456 11

The problem is that Davis never objected to that ruling 

when he was before the district court. Rule 72(a) of the 

Federal Rules of Civil Procedure says that a party may object 

to a magistrate judge’s ruling on a nondispositive pretrial 

matter within 14 days. The very next sentence says: “A party 

may not assign as error a defect in the order not timely 

objected to.” FED. R. CIV. P. 72(a); Flint v. City of Belvidere, 

791 F.3d 764, 769 (7th Cir. 2015) (“[The] failure to challenge a 

magistrate’s pretrial ruling in the district court forfeits the 

right to attack it on appeal.”). 

In response Davis directs us to the local rules for the 

Central District of Illinois. He notes that the rule about

objecting to nondispositive orders uses permissive rather 

than mandatory language. See C.D. ILL. L.R. 72.2(A) (“Appeal of Non-Dispositive Matters. Any party may appeal 

from any order of a magistrate judge within 14 days ... .”). 

He contrasts that with the rule governing dispositive motions, which explicitly says that the failure to object counts as 

a waiver. See id. L.R. 72.2(B). Thus, he reasons, a party litigating in that particular court need only object to a ruling on a 

dispositive matter in order to preserve its argument for 

appeal. But given that Rule 72(a) requires an objection to 

nondispositive orders within 14 days and itself bars further 

review of untimely objections, there’s no need for the local 

rules to parrot that mandate. Davis didn’t object to the 

magistrate judge’s exclusion of his expert within the 

timeframe required by Rule 72(a), so the issue is not properly before us.

Without expert testimony, Davis’s malpractice claim

cannot succeed. Other than Dr. Seskind, the only doctor to 

have expressed an opinion on the standard of care is the 
12 No. 18-2456

doctor who wrote the certificate of merit. See 735 ILL. COMP.

STAT. 5/2-622. But that report is unsigned and the doctor 

remains unidentified. To take a malpractice claim to trial, 

“[t]he proponent of an expert’s testimony must lay a foundation which affirmatively establishes the expert’s qualifications and competency to testify.” Weekly v. Solomon, 510 N.E. 

2d 152, 155 (Ill. App. Ct. 1987). Davis obviously can’t lay that 

foundation without identifying who the doctor is. And 

without expert testimony, his malpractice claim fails. 

AFFIRMED