# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted March 10, 2011 * Decided August 24, 2011

Before

DANIEL A. MANION, Circuit Judge

DIANE P. WOOD, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 10-1126

DAVID ELIJAH BOWERS, SR., Appeal fr om the United States District Plaintiff-Appellant , Court for the Eastern District of Wisconsin.

v. No. 01-C-975

ELLIE SEYMOUR, et al., Rudolph T. Randa, Defendants-Appellees

. Judge.

O R D E R

In this action under 42 U.S.C. § 1983, David Bowers has sued three nurses currently or formerly employed at the Milwaukee County Hous e of Correction. (Bowers also sued a fourth

nurse but did not substitute the nurse’s estate when he later died). All three defendants dispensed phenytoin, an anti-convulsant drug marketed as Dilantin and in generic forms, during Bowers’ incarceration at the Milwau kee jail from December 1999 through September
2000. At times Bowers refused the medication, an d he told the nurses that he did not suffer NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1

* After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and record. See Fed. R. App. P. 34(a)(2)(C).No. 10-1126 Page 2

from seizures and had no medical need for it. Bowers contends that each defendant ignored him when he protested that they were giving him the drug by mistake. As a result of receiving phenytoin, Bowers suffered severe dental side effects causing the loss of most of his teeth. He alleges that each of the defendants was deliberat ely indifferent to his serious medical needs, in violation of his constitutional rights. The dist rict court initially dism issed Bowers’s complaint at screening, but in 2002 we remanded for further proceedings. After extensive discovery, the district court granted summary judgment in favor of the de fendants. Bowers appeals the judgment, and we affirm.

The relevant facts, which we construe in the light most favorable to Bowers,

see Catalan v. GMAC Mortg. Corp. , 629 F.3d 676, 681 (7th Cir. 2011), begin in December 1999

when Bowers was extradited to Milwaukee from Detroit, Michigan. When Bowers arrived at the jail in Milwaukee County, he received a lim ited medical screening from former employee Joanne Retzlaff, a nurse who is not a defendant. In her deposition testimony, she recalled asking Bowers about his medical history and recording his responses , but conceded that she did not examine him except to check his blood pressure and sugar level. At that intake meeting, the deputy escorting Bowers handed ov er to Retzlaff the medications sent from the jail in Detroit: drugs for high blood pressure an d diabetes, a prescription inhaler for bronchitis, and phenytoin under the name Dilantin. Bowers had been given a six-month prescription for each medication shortly after he arrived in the jail in Detroit. According to the intake form that Retzlaff prepared and Bowers signed at the ja il in Milwaukee, he se lf-reported a history of seizure disorder. When deposed, however, Bowe rs denied telling Retzlaff that he suffered from
seizures, and he insisted that she told him to si gn the form without giving him a chance to read it. On appeal from summary judg ment, we must give Bowers the benefit of this conflict in the evidence. After this screening, Retzlaff issued a directive that staff continue giving Bowers the medications he had been receiving in Detroit, and a jail physician approved the prescriptions

. Defendant Ellie Seymour, a nurse practitioner, acknowledged at her deposition that frequently there is no follow-up examination after the initial screening.

Bowers immediately began receiving his pres cribed medications, including phenytoin.

His medical file confirms that ea ch day he received drugs for hi gh blood pressure and diabetes, as well as three doses of the phenytoin (either Dilantin or a generic). Bowers continued to receive these drugs for the duration of his 10-mont h stay. (In his complaint Bowers also alleged that during this same 10-month period he wa s receiving Paxil, an an tidepressant, but his medical records reflect that he was not given an antidepressant (trazo done rather than Paxil) until 2001 at the Wisconsin Department of Correctio ns. In any event, Bowers did not produce evidence that his use of an antidepressant caused harm, so we need not say more about the Paxil.)No. 10-1126 Page 3

Beginning around January or February 2000, Bowers learned that one of the drugs he was taking was for seizures. He started sporadic ally refusing that medication. Several former nurses, including defendant Janise Johnson, explained in their depositions that they

documented in Bowers’ “medical administrati on record” or “MAR” the instances when he

refused the seizure medication. An inmate’s MAR is a chronological report of the drugs administered to him. Nurses carry th e MARs when making rounds to dispense d rugs. Bowers

almost always accepted the phenytoin without complaint. The MARs show only about 25

recorded refusals of a medication that was administered three times a day for 10 months. Bowers maintains, however, that he often accept ed the seizure medication because he could not

differentiate it from his other dr ugs. (Diabetes has impaired his vision, and he is color-blind.) Bowers also testified at his depo sition that he feared disciplinary action after he was placed in segregation for refusing medication in March 2000. (The defendants and other prison employees testified that inmates are not punished for refusing medication, but again, we give Bowers the benefit of the doubt at this stage.)

Bowers insists that when he refused the phen ytoin, he told Johnson repeatedly that he

did not suffer from seizures and should not be taking seizure medication. On August 31, 2000, Johnson documented in Bowers’ MAR the expl anation he gave for refusing phenytoin: “States no seizure history and did not know what medi cation was for.” In her deposition, Johnson

testified that she did not remember Bowers but could tell from looking at his MAR that he was supposed to receive phenytoin and that other nurses also had continued giving phenytoin to Bowers without receiving any complaints. Johnson also said that if she had been alarmed by Bowers’ protests, she would have checked his chart or followed up with the prescribing physician. Neither of those steps, however, would have corroborated Bowers’ assertion that the phenytoin was unnecessary: Johnson would ha ve learned that Bowe rs had self-reported seizures and had indeed been prescribed phenytoin.

Bowers testified in his deposition that he also told Mary Kay Schuknecht, the third

defendant who was then the health-care coordina tor at the jail, that he did not suffer from seizures. According to Bowers, Schuknecht on several occasions had summoned him to her

office to administer his medications. In her own deposition, Schuknecht testified that although she sometimes treated inmates, she generally did not distribute medications and did not remember ever interacting with Bowers. Schuknecht acknowledged that she would have reviewed any written medical request from Bowers, but she testified that she never

encountered one.

Bowers first sought dental treatment nine da ys after arriving at the jail and continued submitting written requests for dental care, usually several per month, until September 2000. As a nurse practitioner, Seymour so metimes addressed Bowers’ dental compl a ints. Her

handwritten notes appear on at least three of the forms he submitted. But the forms sayNo. 10-1126 Page 4

nothing about wrongly receiving medication. Mo re than once she referred him to the prison dentist, who prescribed a treatment plan and pe rformed several surgeries to extract teeth and cut back Bowers’s gums

. At one point in August 2000, Bowers submitted a form addressed to

the “cashier” asking that his co-payment for one of the dental visits be refunded. On that

document he noted that his mouth had been “all [m essed] up” by being “given the wrong

medications for someone else.” Seymour and Schuknecht denied ever seeing this document. Seymour also disputed Bowers’ deposition testimony that he told her in person that he should not be taking phenytoin, but again, we must a ccept Bowers’ version at this stage of the case.

As of July 2005, dentists had extracted 17 of Bowers’ teeth and recommended removing the rest. Several experts testified about the e ffects of phenytoin on Bowers’ oral health. Phenytoin can cause gingival hy perplasia, an inflammation of the gums. The experts agreed that Bowers already suffered from periodontitis, another type of gum inflammation that can be caused by poor oral hygiene, before he bega n experiencing gingivial hyperplasia. They also agreed that giving Bowers seizure medication during his confinement at the Milwaukee jail

contributed to the deterioration of his gums and the need to remove his teeth.

Bowers was transferred from the jail to the Wisconsin Department of Corrections at the end of September 2000. After the move he a pparently continued to receive phenytoin until March 2001. At that time Bowers was prompted to go to the infirmary because another inmate had observed symptoms that he described to Bowe rs as a seizure. Testing led the medical staff

to conclude that Bowers had suffered what he calls a “sugar blank-out.” He was taken off phenytoin, and there is no evidence that the drug has been prescribed since.

In 2001 the district court dismi ssed at screening Bowers’s claim of deliberate indifference under the Eighth Amendment, but we vacate d the decision and remanded for further proceedings. Bowers v. Milwaukee County Jail Med. Staff , 52 F. App’x 295 (7th Cir. 2002). The district court had misconstrued the complaint to allege that jail staff were indifferent to a diagnosed medical condition; the court did not sa y which condition but apparently meant

Bowers’s diabetes. Id . at 298. In fact, however, Bowers has claimed all along that he was harmed by taking phenytoin even after jailers knew that the drug was not indicated. The district court, at our urging, recr uited counsel to represent Bowers.

When we last reviewed this lawsuit base d entirely on Bowers’s original pro se complaint, his theory appeared to be one of mi staken identity: he alleged that jailers had
confused him with two other men—his son, Da vid E. Bowers, Jr., and a David A. Bowers—who were at the Milwaukee County jail at the same time. Bowers produced evidence that these men were incarcerated at the same jail between D ecember 1999 and September 2000, that his son

was prescribed P axil, and that David A. Bowers had a seizure after receiving incorrect

medication. Nonetheless, medical records show that plaintiff Bowers himself was prescribedNo. 10-1126 Page 5

phenytoin in Detroit. If a mist ake initially caused Bowers to receive phenytoin, that mistake

occurred before he encountered an yone at the jail in Milwaukee.

After we remanded the case, Bowers amende d his complaint to limit the defendants to Johnson, Seymour, Schuknecht, and the now-de ceased nurse. On defendants’ motion for summary judgment, the district court conclude d that Johnson had responded appropriately because, according to the court, she had said during her deposition that her practice was to check an inmate’s “chart” if there was a question about a medication being dispensed. The court reasoned that Johnson would have checke d Bowers’ chart on the day she documented his insistence that phenytoin was not indicated, an d that Johnson “would have seen that he had been prescribed Dilantin [phenytoin] for a seiz ure disorder and that he was also taking the medication for that same purpose at his previo us institution.” As for Seymour, the court

reasoned that she could not have been deliberat ely indifferent because she had sent Bowers to the dentist. The court said nothing about Schuknecht.

Bowers once again is before us pro se, and his appellate brief is sparse. The defendants construe his brief as arguing that he presente d enough evidence to survive summary judgment, and that is a fair interpretation. Aided by hi s reply brief, we understand Bowers to argue more specifically that the defendants displayed deliberate indifferenc e by failing to investigate his repeated assertions that he did not have a se izure disorder and should not be receiving an anticonvulsant. Our previous decision in this ca se established that rece iving prescription drugs that are not medically indicated “is not a risk i nherent in prison life,” so that Bowers has a legally sufficient claim that the defendants expo sed him to “an objectively serious risk to his

future health.” Bowers , 52 F. App’x at 298; see Helling v. McKinney , 509 U.S. 25 (1993) (recognizing that Eighth Amendment is violated by deliberate indifference to an objectively serious risk to inmate’s future health). The de fendants do not argue that Bowers actually had a medical need for phenytoin. On this record, a jury easily could find (a) that all three defendants dispensed to Bowers this powerful drug, which (b) contributed to the loss of many

of his teeth.

The decisive issue is the element of deliber ate indifference. To win reversal, Bowers

must offer evidence that would allow a reasonab le jury to find that Johnson, Seymour, and/or Schuknecht actually knew that dispensing phenytoin when not medically necessary was dangerous, Grieveson v. Anderson , 538 F.3d 763, 775 (7th Cir. 2008), yet disregarded that risk either deliberately or at least recklessly. Knight v. Wiseman , 590 F.3d 458, 463 (7th Cir. 2009);

Collins v. Seeman , 462 F.3d 757, 762 (7th Cir. 2006).

We conclude that a jury could find that th e defendants knew about the risk to Bowers. When the conflicting evidence is viewed in the lig ht most favorable to Bowers, it presents a fact question for the jury concerning whether Seymour and Schuknecht knew that Bowers shouldNo. 10-1126 Page 6

not be getting phenytoin. Although these tw o defendants said they could not recall Bowers telling them that phenytoin was no t indicated, Bowers testified that he did. His testimony, which is corroborated by the depositions of hi s fellow inmates and by Johnson, could allow a jury to conclude that Bowers repeatedly notified Seymour and Schuknecht that he was receiving the wrong medication and that he had no history of seizure disorder

. See Wilson v.
McRae’s, Inc. , 413 F.3d 692, 694 (7th Cir. 2005) (explaining t hat self-serving nature of party’s

affidavit does not make affidavit deficient). And Johnson’s knowledge cannot be disputed; the note she wrote in the MAR establishes that she knew about the risk that Bowers was receiving a drug he did not need.

We turn, therefore, to w hether a jury could find that the defendants responded to the

kno wledge of the risk with deliberate indifference. A reasonable response to the risk would

absolve them from a finding of deliberate indifference. See Borello v. Allison

, 446 F.3d 742, 748 (7th Cir. 2006); Peate v. McCann

, 294 F.3d 879, 882 (7th Cir. 2002). Since the defendants are all medical professionals, Bowers must show that their responses demonstrated “an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances.” R oe v. Elyea

, 631 F.3d 843, 862-63 (7th Cir. 2011); Jackson v. Kotter , 541 F.3d 688, 697 (7th Cir. 2008) ; Johnson v. Doughty , 433 F.3d 1001, 1018 (7th Cir. 2006). Johnson, Seymour, and Schuknecht ar e nurses, and “a medical care system requires nurses to defer to treating physicians’ instruct ions and orders in most situations.” See Berry v.

Peterman , 604 F.3d 435, 443 (7th Cir. 2010). Unlike the plaintiff in Berry , Bowers did not exhibit any symptoms of illness and was not suffe ring due to ineffective medications.

Bowers did not present sufficient evidence from which a reasonable jury could conclude that the defendant nurses were required to ques tion the orders of medical directors and treating physicians. T he nurses were presented with an inmate who refused a medicat ion 25 out of approximately 900 times that it was dispensed. That means that Bowers accepted anti-seizure

medication more than 97 percent of the time. The responses of the defendants were reasonable or, at worst, negligent. See Gayton v. McCoy

, 593 F.3d 610, 623 (7th Cir. 2010 ) (affirming

summary judgment for one nurse: failure to check an inmate’s chart to see if medications had

been delivered was not deliberate indifference); Duckworth v. Ahmad

, 532 F.3d 675, 679-80 (7th

Cir. 2008) (affirming summary judgment for one doctor: failure to order one indicated test might have been negligence but not deliberate indifference). J ohnson testified that s h e recorded a note in the MAR. And though she acknowledged that other steps could have been

taken to investigate Bowers’ complaints, a jury could not conclude that she disregarded a risk

to his health simply because she did not undertake furthe r action. Similarly, while a jury might conclude that Seymour and Schuknecht did little to respond to Bowers’ complaints about
medication, their actions do not sh ow a recklessness to danger, see Qian v. Kautz , 168 F.3d 949, 955 (7th Cir. 1999), in light of the risk presented by Bowers’ sporadic refusal of medication. ToNo. 10-1126 Page 7

the contrary, the fact that Seymour repeatedly examined Bowers and sent him to the dentist based on his complaints about his teeth sh ows that she was not ignoring Bowers.

We can assume that someone wrongly prescr ibed unneeded anti-seizure medication to Bowers. Under our system of laws for compensa ting violations of cons titutional rights under 42 U.S.C. § 1983, however, a plaintiff like Bowe rs must prove an individual defendant’s responsibility for a violation. Because Bowers arrived at the Milwaukee County Jail with the anti-seizure medication in hand, the original mistake did not occur at the Milwaukee County Jail. Perhaps if he had been given a more th orough intake examinatio n, jail personnel would have discovered the problem. But on this re cord, none of these individual defendants were involved in prescribing the medications for Bowe rs, and a reasonable jury could not find that they were deliberately indiffe rent to the risks he faced.

Accordingly, the judgment of the district court is AFFIRMED.