In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2783

FLOYD K. HAYES,

Plaintiff-Appellant,

v.

DONALD N. SNYDER,JESSE MONTGOMERY,MARK A.PIERSON,

WANDA L. BASS, and WILLIAM M. HAMBY,

Defendants-Appellees.

 

Appeal from the United States District Court 

for the Central District of Illinois.

No. 04-cv-1062—Michael M. Mihm, Judge.

 

ARGUED MAY 30, 2008—DECIDED OCTOBER 9, 2008

Before BAUER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Since 2001, Floyd K. Hayes has

suffered from a medical condition that causes spasms

in the cremasteric muscle associated with the left side of

his scrotum. During these spasms, which occur at least

once, and often multiple times, each day, Hayes’s

cremasteric muscle cramps and retracts, compressing his

testicle and causing excruciating pain. When these
2 No. 07-2783

spasms began, around September 2001, Hayes was an

inmate at Illinois’s Hill Correctional Center (“Hill”). From

that time through August 2002, when Hayes was released from Hill and placed on parole, he repeatedly

sought medical treatment for this pain. In 2004, he brought

this lawsuit under 42 U.S.C. § 1983, alleging that Dr.

William M. Hamby, medical director at Hill during the

relevant time period, and various non-medical prison

officials were deliberately indifferent to his serious

medical needs in violation of the Eighth Amendment. The

district court granted summary judgment in favor of both

Dr. Hamby and the non-medical defendants. Hayes

challenges both rulings on appeal. We affirm the judgment in favor of the non-medical prison officials, but we

reverse the judgment for Dr. Hamby and remand the

case for trial.

I

Hayes, now in his early 60s, is a Vietnam War veteran

and former Kentucky State Trooper. In 1997, he began

serving a 10-year sentence in the Illinois Department of

Corrections, the bulk of which he spent at Hill. Hayes

first complained of testicular cysts in the fall of 2000. An

ultrasound ordered by Hill physician Dr. Mohammed

Choudry revealed that the cysts were benign; blood work

and urinalysis results were normal. Dr. Choudry did not

refer Hayes to a urologist, but he did discuss Hayes’s case

with a urologist in December 2000. Choudry concluded

that neither the removal of the cysts nor a referral for

a urology consult or biopsy was indicated.
No. 07-2783 3

As time went on, the cysts became larger and more

painful. Worried and experiencing intense discomfort,

Hayes asked in March 2001 to be seen by a urologist for

a biopsy of the cysts. His request and related grievance

were denied, and Hayes took no further action until

September 2001, when his pain began to bother him on a

daily basis. He sought treatment and was given a prophylactic antibiotic and Tylenol III for the pain. As instructed,

Hayes visited the medical unit on October 4, 2001. He saw

Dr. Hamby that day, and also 10 days later. (Those were

his only two “in-person” visits with Dr. Hamby.) Dr.

Hamby wrote on Hayes’s chart that he observed “tenderness” and “discomfort,” but he did not use the word

“pain.” Hayes asserts that he complained of pain at those

visits; Dr. Hamby counters, based solely on his notes, that

he must not have thought Hayes was in much pain. (Dr.

Hamby asserted that he had no independent memory

of Hayes.)

When Hayes returned to the medical unit on October 29,

2001, he saw Dr. Richard Shute for the first of several

times. Dr. Shute’s notes from those visits indicate that he

wanted to refer Hayes to a urologist and prescribe

prescription-strength pain medications, but that Dr.

Hamby refused to approve those treatments. Hayes’s

recollection of his visits with Dr. Shute suggests the

same: “[Dr. Shute] said he couldn’t make Doctor Hamby

give me those outside tests that he had asked for. . . . He

told me he couldn’t give me nothing different because

Hamby wouldn’t approve. Everything Shute did, okay,

Doctor Hamby had to approve or disapprove.”
4 No. 07-2783

Dr. Hamby stated in his deposition that he never approved the urology referral or painkiller prescriptions

because he did not receive the proper forms. Nothing in

the record establishes whether such forms were in fact

filled out or, indeed, whether they were required at all.

What we do know is that Dr. Shute made notes in Hayes’s

chart about Hayes’s increasing pain, wrote at least once

that Hayes should have a urology referral, and also

prescribed ibuprofen and wrote permission slips that

allowed Hayes to have ice packs to ease his pain.

These minimal remedies did not provide relief for

Hayes. Having been told by Dr. Shute that no more could

be done “because Hamby wouldn’t approve,” Hayes began

to write letters and to file grievances with non-medical

prison officials, complaining that he was not receiving

adequate treatment from the medical unit—specifically, Dr.

Hamby. He wrote a letter on April 16, 2002, addressed to

Assistant Administrative Director Jesse Montgomery. The

letter expressly asked to see a “specialist” in the appropriate field of medicine “to determine what these growths

are.” He referred to a prior letter that he had sent to Hill

Director Donald Snyder, and then attempted to describe

his condition, asking Montgomery to “excuse my

graphic details”:

My testicles swell abnormally. My left testicle draws

upward like a leg cramp which causes my penis to

bend upward into a fishhook position. In order to

urinate, I must reach down and under to pull my

testicle down to unbend my penis. As you can imagine,

this is an extremely painful thing that I must do each

time I go to the bathroom.
No. 07-2783 5

He reiterated that this was an “ongoing undiagnosed

condition”; noted that at least one examining physician

had said that Hayes should be seen by a urology specialist,

but Dr. Hamby had denied the request; and wrote that

“[i]n the meantime, I remain in constant pain with

new growths being discovered weekly.”

After Montgomery received this letter, an administrative

assistant at Hill wrote the following email, sent May 9,

2002, to personnel in the medical unit: 

I am researching a response to inmate Hayes for ADD

Montgomery. In Inmate Hayes’ correspondence he

complains of insufficient care by health care staff, i.e.,

testicles continue to swell, difficulty urinating due to

bent penis, numbness in right palm and fingers . . . .

Bottom line, he wants out early. Can you give me any

update on his medical condition? When conducting

prior review in December 2001, his condition was

then reported as remaining stable and health care

needs being addressed. Just a brief history/comments

will suffice.

Dr. Hamby responded to this email sometime in May

2002 with a three-page, single-spaced summary of Hayes’s

chart and medical history, starting in September 2000.

Dr. Hamby’s letter concluded by stating that Hayes had

“a right epididymal cyst” and a “small left epididymal

cyst. These have remained stable except for self-reported

swelling and occasional tenderness. . . . Telephone consultation and length of follow-up indicate the epididymal

cysts are simply cysts. Biopsy and/or surgical excision are

not indicated at this time.”
6 No. 07-2783

Assistant Warden Wanda Bass was placed in charge

of responding to Hayes’s complaint, and she sent a letter

to Hayes on May 24, 2002, stating that she had contacted

the medical unit director (Dr. Hamby), who in turn indicated that Hayes was being “seen and monitored on a

regular basis.”

Hayes wrote a response to Bass on June 10, 2002, reiterating that the problem was that he was being “seen and

monitored,” but not being treated. In addition to repeating his complaints about his “severe pain” and the

medical unit’s refusal to order a referral or tests, he added

that “[a]lthough I was given pain medication in the past,

they now refuse to do so.” He attached his medical files to

the letter, noting that they “clearly show the pain and

extreme changes” in his condition that he had to endure.

Bass responded to this letter on June 17, 2002:

As indicated in my response to you dated 05/24/02,

your medical concerns have been reviewed by appropriate medical staff. However, upon receipt of your

most recent correspondence, I had a discussion with

the Health Care Unit Administrator. Your medical

chart has again been reviewed. 

According to your medical records, you have a history

of scrotal cysts which occasionally swell and cause

you pain. These cysts do respond to ice packs and

Ibuprofen. The Urologist you saw on December 16,

2000 and the current medical Director indicate that

you do not require further intervention. However, if

you feel you need further education regarding cysts,

please sign up for nurse sick call.
No. 07-2783 7

Warden Mark Pierson concurred with Bass’s conclusions

in a letter dated July 1, 2002.

The conclusion of the non-medical prison officials,

based on the information they had received from Hill’s

medical staff, was that nothing further needed to be done

about Hayes’s medical complaints. For the sake of accuracy, however, we note that Bass was in error when she

referred in her letter of June 17 to Hayes’s seeing a urologist on December 16, 2000. Hayes never “saw” a urologist

while he was at Hill; Dr. Choudry, a non-specialist, simply

noted in Hayes’s chart that he had discussed Hayes’s

case with a urologist. Furthermore, although Bass was

correct that Hayes’s pain often responded to ice packs

and ibuprofen, even those minimal treatments were

taken away from him at some point.

Although Hayes did not find Bass’s response satisfactory, he did as she suggested and filed four “nurse sick

call” requests between May and July of 2002. These efforts

were unavailing. In addition to writing letters, Hayes also

filed a formal grievance on June 20, 2002, stating that he

had repeatedly complained about his “extreme pain,

cancer, and swollen testicals [sic], and lack of medical care

to all concerned parties.” He further noted that “I’m in

extreme Pain” and requested “Pain Medication, Proper

cancer test, po[ss]ible removal of growths on testicals [sic]

[,] Ice for Swollen Testicals [sic], Proper outside medical

Care.”

The grievance officer denied this grievance on July 12,

2002, stating that “Dr. Hamby (MD) responds [that] inmate

Hayes’ [sic] first complained of testicle problems on
8 No. 07-2783

9/18/00. Was treated and tested accordingly.” This indicates that despite Dr. Hamby’s assertion that he was not

involved with Hayes’s case at any time after October 2001

and that he “would never have seen” Hayes’s June 20,

2002, grievance, a trier of fact could conclude otherwise.

The grievance report makes several references to Dr.

Hamby, and it states that Dr. Hamby was the source

from which the grievance officer received the information upon which he based the denial. The response

Dr. Hamby supplied to assist with Bass’s reply to Hayes’s

April 16, 2002, letter also was apparently used as the

basis for denying the formal grievance that Hayes filed on

June 20. Warden Pierson concurred in the denial of that

grievance on July 18, 2002.

Hayes was released from Hill on August 15, 2002. The

same day, he went directly from the prison to the Veterans’

Administration (“VA”) Hospital in Danville, Illinois,

seeking treatment for his pain. When he arrived, the

hospital staff thought that his chief issues involved his

mental, not physical, health. The reason is simple: three

days before Hayes’s release from Hill, the hospital

received a call from Hill informing it that Hayes likely

would be going there upon his release and that his “primary problems are psychiatric.” Hayes does suffer from

post-traumatic stress disorder on account of both childhood trauma and his service in Vietnam, but his reasons

for visiting the hospital that day had nothing to do with

post-traumatic stress disorder. The progress notes from

the date he was admitted report that Hayes was “admitted

on 8/15/02 with the chief complaint of testicular pain.”

Notwithstanding that complaint, the hospital sent Hayes
No. 07-2783 9

straight to the psychiatry ward and gave him only

15 minutes with a urologist, Dr. Narayan R. Amin. The

Danville hospital did, however, provide Hayes with

prescriptions for ibuprofen and Darvocet (a narcotic) for

his pain before discharging him on August 25, 2002.

Hayes then left Danville and went on to his final destination, Kentucky, where his family is. There, Hayes saw a

nurse practitioner at the Lexington VA Hospital on September 12, 2002. She evaluated him and ordered a

testicular ultrasound and urology consult. On September

30, 2002, he saw primary care physician Dr. Alicia Bigham,

who prescribed Lortab (another narcotic) for his pain; he

then saw urologist Dr. William Terence Connor on

October 10, 2002. Dr. Connor diagnosed Hayes with

“crema[s]tic muscle spasm with chronic pain and peronies

[sic] disease.” Peyronie’s disease is a connective tissue

disorder involving the growth of fibrous scar tissue in

the soft tissue of the penis. The hardened scar tissue

prevents the normal tissue from moving where it otherwise would in a healthy organ, and this causes an abnormal (and often painful) curvature of the penis. Urologists

can diagnose this condition, though it sometimes takes

an even higher degree of specialty because “the disease

and its current treatments are not well understood

by most urologists in general practice.” See

http://en.wikipedia.org/wiki/Peyronie’s_disease. After

getting this diagnosis, Hayes was referred to a painmanagement specialist, Dr. Joseph Atallah, for treatment.

He remains under Dr. Atallah’s care and continues to

receive treatments and medication to manage his chronic

pain.
10 No. 07-2783

Hayes filed this lawsuit under 42 U.S.C. § 1983 on

March 3, 2004, alleging that Dr. Hamby knew that Hayes

was enduring excruciating pain and nonetheless refused to

provide readily available prescription-strength pain

medication or to refer Hayes to a urology specialist who

could diagnose and properly treat him. He further

asserted that Dr. Hamby and his subordinates provided

only non-prescription medication and ice packs, and

that Dr. Hamby terminated even this minimal treatment

for Hayes’s pain after finding out that Hayes had complained to non-medical prison officials about his pain

and filed formal grievances about his medical care. In

addition, Hayes contended that the non-medical prison

officials also violated his constitutional rights when they

failed properly to respond to his serious medical condition.

On March 19, 2007, the district court granted the defendants’ motions for summary judgment, ruling both on the

merits and on the basis of qualified immunity. It denied

Hayes’s motion to alter the judgment, and this appeal

followed. We note that although Hayes’s complaint

initially named four non-medical defendants, he has

voluntarily withdrawn two of them (Director Snyder

and Assistant Administrative Director Montgomery),

leaving only Warden Pierson and Assistant Warden

Bass for this appeal.

II

We review the district court’s grant of summary judgment de novo, examining the record in the light most

favorable to the non-moving party. Koger v. Bryan, 523
No. 07-2783 11

F.3d 789, 796 (7th Cir. 2008). “Prison officials violate the

Eighth Amendment’s proscription against cruel and

unusual punishment when they display ‘deliberate indifference to serious medical needs of prisoners.’ ” Greeno v.

Daley, 414 F.3d 645, 652 (7th Cir. 2005) (quoting Estelle v.

Gamble, 429 U.S. 97, 104 (1976)). In Greeno, we spelled out

the two-part test that applies to these claims: 

A claim of deliberate indifference to a serious medical

need contains both an objective and a subjective

component. To satisfy the objective component, a

prisoner must demonstrate that his medical condition is “objectively, sufficiently serious.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (internal quotations

omitted); see also Walker v. Benjamin, 293 F.3d 1030, 1037

(7th Cir. 2002). A serious medical condition is one that

has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay

person would perceive the need for a doctor’s attention. See Foelker v. Outagamie County, 394 F.3d 510,

512-13 (7th Cir. 2005). To satisfy the subjective component, a prisoner must demonstrate that prison officials acted with a “ ‘sufficiently culpable state of

mind.’ ” Farmer, 511 U.S. at 834 (quoting Wilson v.

Seiter, 501 U.S. 294, 297 (1991)). The officials must

know of and disregard an excessive risk to inmate

health; indeed they must “both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists” and “must also

draw the inference.” Farmer, 511 U.S. at 837. This is not

to say that a prisoner must establish that officials

intended or desired the harm that transpired. Walker,
12 No. 07-2783

293 F.3d at 1037. Instead, it is enough to show that the

defendants knew of a substantial risk of harm to the

inmate and disregarded the risk. Id. Additionally, “a

factfinder may conclude that a prison official knew

of a substantial risk from the very fact that the risk

was obvious.” Farmer, 511 U.S. at 842.

Id. at 653 (parallel citations omitted).

A 

We consider first whether, as an objective matter, Hayes

has presented enough evidence to support a finding that

he suffered from a serious medical condition. In Gutierrez

v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997), we explained

that a prisoner’s medical need is “serious” where “the

failure to treat a prisoner’s condition could result in

further significant injury or the unnecessary and wanton

infliction of pain,” and we noted, with approval, that other

courts had found the following circumstances to be

indications that a prisoner has a serious medical need:

“The existence of an injury that a reasonable doctor or

patient would find important and worthy of comment

or treatment; the presence of a medical condition that

significantly affects an individual’s daily activities; or

the existence of chronic and substantial pain.” Id. (citations and quotation marks omitted).

The non-medical defendants did not brief the issue of

serious medical need; they rely for that point on the

reasoning of the district court and whatever Dr. Hamby

had to say in his brief. They focus instead on their argu-
No. 07-2783 13

ment that they lacked the subjective component of deliberate indifference, and so we postpone our consideration

of Hayes’s claim against them until we reach that issue.

Dr. Hamby urges us to find that Hayes did not have a

serious medical need. He also characterizes Hayes’s

position as a request for a rule under which “a prison

physician violates the Eighth Amendment when he or

she fails to diagnose at the very first stage a rare, progressively worsening condition that masquerades in its early

stages as an insignificant medical condition.” The Eighth

Amendment, he concludes, requires no such thing.

But Dr. Hamby is asking us to disregard important

parts of the record. As we have detailed above, Dr.

Hamby’s involvement in Hayes’s case was much greater

than he is implying here. Although Dr. Hamby gave

Hayes’s complaints of pain little weight, we have recognized that “self-reporting is often the only indicator a

doctor has of a patient’s condition,” and so there “is no

requirement that a prisoner provide ‘objective’ evidence of

his pain and suffering.” Greeno, 414 F.3d at 655. Hayes did

try to obtain a referral to a specialist, who presumably

could have provided (one way or the other) the kind of

“objective” evidence that Dr. Hamby thinks was lacking.

Hayes was never permitted to see a specialist, however,

because Dr. Hamby refused to authorize a referral. See id.

(“[T]he defendants fail to acknowledge that Greeno spent

two years trying to obtain ‘objective’ evidence, but was

prevented from doing so by Dr. Daley and the other

medical providers.”); see also Cooper v. Casey, 97 F.3d 914,

916-17 (7th Cir. 1996).
14 No. 07-2783

The district court concluded that because a layperson

would not be able to “diagnose” Hayes’s malady or

“determine what treatment was needed,” Hayes’s condition was not objectively serious. This is not the correct

standard. The Eighth Amendment’s protections are not

triggered only by conditions that a layperson would be

able to diagnose and treat, especially when the defendant

is not a layperson but is instead a physician. A trier of

fact could conclude in Hayes’s case that even a layperson

would realize that a man with cysts and growths on

his testicles, who could not even urinate without extraordinary measures and who repeatedly complained of

excruciating and increasing pain, would require “a doctor’s

attention.” Even more so, a reasonable physician should

have realized that the patient was trying to bring a

serious condition to his or her attention. See Gutierrez,

111 F.3d at 1373 (recognizing that a “serious medical need”

exists where the condition features “chronic and substantial pain”). Hayes has met his burden of showing, for

purposes of summary judgment, that he was suffering

from a serious medical condition.

B

The subjective component of Hayes’s Eighth Amendment

claims requires him to present facts from which a jury

could find that the relevant officials knew of Hayes’s

serious medical condition but intentionally or recklessly

disregarded it. Greeno, 414 F.3d at 653 (citing Farmer,

511 U.S. at 837); Walker v. Benjamin, 293 F.3d 1030, 1039-40

(7th Cir. 2002) (collecting cases). Hayes does not need to
No. 07-2783 15

prove that his complaints of severe pain were “literally

ignored,” see Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir.

2000); rather, he must show only that the defendants’

responses to it were so plainly inappropriate as to

permit the inference that the defendants intentionally or

recklessly disregarded his needs. Greeno, 414 F.3d at 653

(citing Farmer, 511 U.S. at 837). We begin our analysis of

this component with Dr. Hamby, and then consider the

non-medical defendants.

1

Dr. Hamby argues that he cannot be deemed deliberately

indifferent because the diagnosis that Hayes eventually

obtained was for a “rare, progressively worsening condition which objectively appears in its early stages as an

insignificant medical condition.” He argues that Hayes’s

condition when he arrived at the Lexington VA Hospital

in late September 2002 was not the same as what Dr.

Hamby saw when he examined Hayes in October 2001. He

identifies the critical question presented here as: “was Dr.

Hamby’s medical treatment of this prisoner was [sic] so

blatantly inappropriate as to evidence intentional mistreatment?” This is almost correct, but it is missing a

crucial point. This case comes to us on summary judgment. Thus, the complete question is whether, when

viewing the record in the light most favorable to Hayes, a

reasonable trier of fact could conclude that Dr. Hamby

was subjectively aware of Hayes’s serious medical condition and either knowingly or recklessly disregarded it.
16 No. 07-2783

Subjective awareness and deliberate indifference normally can be proved only with circumstantial evidence.

Here, the record includes a number of facts that would

support those findings with respect to Dr. Hamby. First, as

we already have pointed out, Dr. Hamby’s involvement

in Hayes’s treatment at Hill was not limited to his two inperson examinations of Hayes in October 2001. He was

monitoring Hayes’s treatment at least enough to be in a

position to provide the non-medical prison officials with

a thorough summary of Hayes’s chart in May 2002.

In addition, Dr. Hamby’s approval was required before

various treatments, such as prescription-strength medicine or a referral to a specialist, could be administered to

Hayes, and he refused to give that approval. Dr. Hamby

acknowledged in his deposition that other physicians

at Hill had requested these treatments for Hayes. He

asserted that the reason he denied their requests was

that he did not receive the proper paperwork. That may or

may not be true—it depends on whether a trier of fact

would believe Dr. Hamby’s explanation. What is important

at this point is that this testimony reveals that Dr. Hamby

continued to be aware of Hayes’s condition and

involved in his treatment long after October 2001.

Dr. Hamby’s deposition testimony also suggests that

even if he had received formal paperwork requesting the

additional treatments, he probably would have done

nothing differently. Dr. Hamby stated flatly in his deposition that no pain experienced by any prisoner ever warrants prescription-strength painkillers. He acknowledged

that the “policy for all physicians in [the Department of

Corrections]” is to dispense prescription-strength pain
No. 07-2783 17

medications (opiates) only when the physician “absolutely

felt they were necessary.” He went on, however, to state

his belief that prisoners never needed such drugs, and so

he personally never prescribed them. When asked what he

would do if he saw a patient “whose level of pain or whose

condition warranted an opiate level of pain medication,”

Dr. Hamby replied that he would “[p]ut them in the

infirmary and observe them and you very rapidly found

that Tylenol was all they needed. That was my experience.”

This suggests that even if the allegedly required forms

had been submitted to Dr. Hamby, he would not have

signed off on a request to provide Hayes with prescriptionstrength pain medicine. (Dr. Hamby never distinguished

between opiates and other types of prescription pain

medications, and so a trier of fact would not be compelled to conclude that his concerns extended to opiates

alone.)

Dr. Hamby’s attorney objected to any line of questioning

relating to his client’s prescribing methods, arguing that

“[t]here’s no evidence in this case that [Hayes] ever

needed any other medication during the time frame that

Dr. Hamby was treating him . . . .” That objection strikes us

as bizarre, given the evidence Hayes has presented.

Furthermore, Hayes showed that he stopped receiving

even the minimal treatment of over-the-counter ibuprofen

and ice packs in May 2002, right after Dr. Hamby learned

from the non-medical prison officials that they were

investigating a complaint from Hayes about inadequate

medical care. Hayes argues that Dr. Hamby revoked these

treatments in retaliation for his complaints. If believed
18 No. 07-2783

by a trier of fact, that could factor into a finding that Dr.

Hamby was deliberately indifferent to Hayes’s condition.

Dr. Hamby’s testimony is also revealing with respect to

his denials of Hayes’s persistent requests to see a

specialist in urology. During his deposition, Dr. Hamby

was shown a note in Hayes’s chart from another

physician at Hill, Dr. Shute, who had recommended

that Hayes be given a urology referral: 

Q [Hayes’s counsel]: . . . And it says referral for urology. Now can you see where it says that?

A [Dr. Hamby]: It says referral for urology work-up. 

Q: Okay.

A: Whatever that means. 

Q: So you don’t know what that means?

A: I have no idea. He didn’t fill out any form. He didn’t

spell out anything.

Here, Dr. Hamby professed to “have no idea” what it

means for a physician to write “referral for urology workup” on Hayes’s chart. A trier of fact could reject the

assertion that the director of a medical unit is not aware

of the meaning of that phrase, as well as the notion that

the medical director knows nothing until a subordinate

physician fills out a form explaining the concept of a

referral to a specialist. Even if some type of form was

required before a Hill physician could provide Hayes

with an outside referral to a urologist, a fact-finder could

infer from Dr. Hamby’s responses on this point that he

was hostile and dismissive to Hayes’s needs. The

following exchange is telling:
No. 07-2783 19

A [Dr. Hamby]: The limitation for a referral was

medical necessity and that’s the way it has been and

it is everywhere you go. The practice of medicine

within the prison system and outside the prison

system is essentially the same.

Q [Hayes’s counsel]: When you speak of medical

necessity, if somebody’s having pain, even extreme

pain but the pain is not—is not related to a fatal

illness or a deteriorating sort of illness, could that pain

nonetheless be considered a medical necessity?

A: The pain could be and I emphasize could be listed

as a medical necessity if I could document a cause

for the pain.

Q: So if somebody were complaining about a severe

pain or substantial pain and you couldn’t document

a cause, then would that person then not—not be able

to see a specialist? 

A: I wouldn’t know which specialist to send him to if

I can’t come up with a documented cause for pain such

as reaching up, grabbing a testicle and pulling it down

and having the guy go into spasm. . . . Or something

like that. I don’t—I don’t need to come up with a

documented diagnosis. I need to come up with something that I don’t know what it is [that] is causing

pain that I can document.

These are troubling statements. Dr. Hamby’s assertion

that a patient’s report of extreme pain without a documented cause does not constitute a “medical necessity,”

and his insistence that a referral to a specialist is not
20 No. 07-2783

appropriate when “I don’t know what it is [that] is causing

the pain,” make no sense. The fact that a general practitioner is unable to identify or document the cause of a patient’s pain does not strike us as a reason to reject a

request to see a specialist; indeed, as Hayes’s counsel

observed, it suggests just the opposite. Dr. Hamby essentially said that he will not refer a patient to a specialist

unless he already knows what the problem is (and thus

does not need the specialist’s input). But the very reason

why a specialist would be called in is that a generalist

is unable to identify the cause of a particular ailment. If

what Dr. Hamby was saying was that no referral was

needed because Hayes was not “really” in substantial

pain, there is a different problem. That takes us back to

the evidence indicating that Dr. Hamby knew of, but

disregarded, Hayes’s repeated reports of severe, progressively worsening pain. And while Dr. Hamby said, implausibly, that he would not “know which specialist to

send [Hayes] to if I can’t come up with a documented

cause for pain,” no one here disputes that the proper

specialist for an evaluation of Hayes’s testicular pain

was a urologist. The record shows that Dr. Hamby knew

that Dr. Shute requested a urology referral in 2001, and

that as early as September 2000, Dr. Choudry had done

a urology work-up and consulted with a urologist

about Hayes’s case. Hayes’s medical records show a

universal awareness of the fact that these problems

were the domain of a urologist.

Though we could say more, this is enough to show that

a reasonable trier of fact could conclude that Dr. Hamby’s

treatment of Hayes constituted deliberate indifference to
No. 07-2783 21

a serious medical need. Summary judgment was therefore an inappropriate resolution of Hayes’s case against

Dr. Hamby.

2

The position of the non-medical defendants is different.

Here again, our prior decision in Greeno is instructive.

Greeno, like Hayes, had complained to non-medical

prison officials, both in letters and by filing formal grievances, that he was receiving inadequate care from the

prison’s medical unit. The district court granted summary

judgment or dismissal for all of the defendants. We

concluded that summary judgment was appropriate

for some of them, but not all. When discussing Greeno’s

claims against the grievance officer who handled “at least

seven” of Greeno’s inmate complaints (Charles Miller, a

non-medical official), we stated:

Greeno contends that Miller was deliberately indifferent to his medical needs because he failed to investigate the complaints or remedy the medical defendants’ failure to provide appropriate treatment. Our

review of the record, however, reveals that Miller

reviewed Greeno’s complaints and verified with the

medical officials that Greeno was receiving treatment.

We do not think Miller’s failure to take further

action once he had referred the matter to the medical

providers can be viewed as deliberate indifference.

414 F.3d at 655-56. We went on to adopt the reasoning of

the Third Circuit in Spruill v. Gillis, 372 F.3d 218, 236 (3d

Cir. 2004), which held that
22 No. 07-2783

[i]f a prisoner is under the care of medical experts . . .

a non-medical prison official will generally be justified

in believing that the prisoner is in capable hands. This

follows naturally from the division of labor within a

prison. Inmate health and safety is promoted by

dividing responsibility for various aspects of inmate

life among guards, administrators, physicians, and so

on. Holding a non-medical prison official liable in a

case where a prisoner was under a physician’s care

would strain this division of labor.

372 F.3d at 236. We added that we “decline[d] to extend

responsibility for Greeno’s medical care to Miller. Perhaps

it would be a different matter if Miller had ignored

Greeno’s complaints entirely, but we can see no

deliberate indifference given that he investigated the

complaints and referred them to the medical providers

who could be expected to address Greeno’s concerns.” 414

F.3d at 656 (citing Hernandez v. Keane, 341 F.3d 137, 148 (2d

Cir. 2003)). Accord, Johnson v. Doughty, 433 F.3d 1001, 1012

(7th Cir. 2006).

Like Miller in Greeno, the non-medical defendants in

this case investigated Hayes’s complaints and referred

them to the responsible medical providers. Hayes recognizes the hurdle that Greeno presents, but he argues that his

case is different, because, as Spruill recognized, nonmedical officials can “be chargeable with the Eighth

Amendment scienter requirement of deliberate indifference” where they have “a reason to believe (or actual

knowledge) that prison doctors or their assistants are

mistreating (or not treating) a prisoner.” Spruill, 372 F.3d
No. 07-2783 23

at 236; see also Greeno, 414 F.3d at 655-56; Johnson, 433

F.3d at 1012. Here, Hayes argues, Bass and Pierson did

have actual knowledge, or at least reason to believe, that

the prison doctors were “mistreating (or not treating)” him.

He notes that he told Bass about his pain and about

the doctors’ refusal to respond to his pleas for treatment.

The non-medical defendants counter that they investigated Hayes’s complaints, sought reports from medical

officials, and relied on the judgment of the prison physicians. They note that although Greeno and Johnson

reversed summary judgments for certain medical officials

in each case, those cases affirmed the judgments for nonmedical defendants because the latter had investigated

“and verified with the medical officials that [the

inmates were] receiving treatment, and were entitled to

rely on the judgments of medical staff.”

The question is whether the non-medical defendants

had any duty to do more than they did, in light of their

knowledge of the situation. We think not. The policy

supporting the presumption that non-medical officials are

entitled to defer to the professional judgment of the facility’s medical officials on questions of prisoners’ medical

care is a sound one. Here, the non-medical officials responded readily and promptly to each of Hayes’s letters

and grievances. They contacted Medical Director Hamby

and the administrator, requesting reports and summaries

about the care that Hayes had received in order to ensure

themselves that his complaints did not require further

action. At worst, they may have been negligent in failing

to investigate further after receiving the summaries
24 No. 07-2783

from the medical staff, but negligence is not deliberate

indifference. Because the non-medical defendants were

entitled to rely on the professional judgment of medical

prison officials, and because nothing in Dr. Hamby’s

reports made it obvious that Hayes might not be

receiving adequate care, the district court correctly

granted summary judgment in favor of the non-medical

defendants.

C

Before concluding, we must say a word about qualified

immunity, because Dr. Hamby argued in the alternative

that he was entitled to judgment on that ground. The

district court concluded that all of the defendants were

entitled to qualified immunity. It based that conclusion

solely on its determination that none of the defendants

had violated Hayes’s Eighth Amendment rights. Because

Hayes had “failed to establish the violation of a federal

right,” the court found, he could not defeat the defendants’

claims for qualified immunity. On appeal, Dr. Hamby

has not presented an alternative argument to support a

finding of qualified immunity. We have rejected the

district court’s conclusion that Hayes failed to state a

claim under the Eighth Amendment, or that he failed to

come forward with enough evidence to support such a

claim. It has been established for decades that prison

physicians violate inmates’ constitutional rights when

they deliberately disregard an inmate’s serious medical

condition, and only a trial can resolve the facts that are

in dispute.
No. 07-2783 25

III

The judgment in favor of Mark A. Pierson and Wanda L.

Bass is AFFIRMED. The judgment in favor of William M.

Hamby is REVERSED and REMANDED for further proceedings consistent with this opinion. The costs on appeal

shall be divided equally between appellant Hayes and

appellee Hamby. 

10-9-08