United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 4, 2020*

Decided March 9, 2020

Before

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 19-2387

STEPHEN L. GRANT,

Plaintiff-Appellant,

v.

RICHARD HEIDORN, et al.,

Defendants-Appellees.

Appeal from the United States District 

Court for the Eastern District of Wisconsin.

No. 17-C-1579

William C. Griesbach,

Judge.

O R D E R

Stephen Grant, a state prisoner, alleges that from 2009 to 2016, three successive 

primary-care doctors at Green Bay Correctional Institution refused to order an MRI or 

orthopedic consultation for his left knee despite persistent complaints of pain. After 

finally obtaining an MRI and ultimately having a knee replacement, he sued the doctors 

under 42 U.S.C. § 1983 claiming that they were deliberately indifferent to his pain by 

continuing ineffective treatments for years. He now appeals the district court’s entry of 

* We agreed to decide this case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 19-2387 Page 2

summary judgment for the doctors. Because Grant presented no evidence suggesting 

that the doctors failed to exercise their professional judgment in treating him, we affirm.

I. Background

We recount all facts in the light most favorable to Grant, the nonmoving party. 

Shields v. Ill. Dep’t of Corrs., 746 F.3d 782, 786 (7th Cir. 2014). Grant injured his knee in 

1999 while playing basketball at a different prison. In May 2000 his treating doctor 

requested authorization for an orthopedic evaluation, but the request was denied. Grant 

then received physical therapy. One of his physical therapists opined that he might 

have a meniscus tear and recommended an MRI, but his treating physician rejected that

recommendation.

A. Treatment by Dr. Heidorn

In 2007 Grant was transferred to Green Bay Correctional Institution. For the next 

five years, Dr. Richard Heidorn treated him for many conditions, including lower back 

and left knee pain. Grant claims that he complained to Dr. Heidorn of knee pain at an 

appointment for sleep apnea in April 2007. The medical records, however, show that 

Dr. Heidorn first treated Grant for knee pain in June 2009 after he asked for ice for his 

chronic knee pain. Grant requested an MRI and orthopedic consult, and told 

Dr. Heidorn of the suspected meniscal tear. Grant also reported that his knee had 

bothered him since the 1999 injury. Dr. Heidorn observed that the knee was stable with 

no effusion, but that Grant “resisted motion, claiming severe pain.” He diagnosed 

chronic knee pain and ordered an x-ray to serve as a baseline to track degenerative 

changes. He also prescribed nonsteroidal anti-inflammatory drugs (“NSAIDs”) and a 

knee sleeve, and he advised continuation of the physical-therapy exercises. Dr. Heidorn 

believed this treatment was appropriate because his examination showed “no severe 

disease.” 

The June 2009 x-ray revealed an “unremarkable” knee. Two weeks later a followup x-ray revealed mild degenerative changes and minimal narrowing of the joint space. 

Dr. Heidorn met with Grant to explain the x-ray results and diagnosed him with 

moderately advanced degenerative joint disease. He recommended ice, a knee sleeve, 

NSAIDs, and glucosamine supplements. According to Grant’s medical records, he did 

not complain about his knee again until January 2010 (although he had many medical 

appointments) when he requested a “no kneel” order. Dr. Heidorn granted that request 

the next day.
No. 19-2387 Page 3

Grant had a third x-ray in March 2010 because he complained of increased pain 

and decreased range of motion. The x-ray revealed no significant changes. Dr. Heidorn 

saw no evidence that Grant’s degenerative joint disease had become significant and did 

not think an MRI was necessary. Grant’s medical records show no further complaints of 

knee pain until May 2011 when he requested more ice.

Another knee x-ray was taken in July 2011, which again showed no significant 

progression of degenerative joint disease. Dr. Heidorn did not request an MRI, despite 

Grant’s request that he do so, because the x-rays provided a “baseline to evaluate the 

progression of the degenerative disease that existed in Grant’s left knee,” and the x-rays 

showed no significant changes. In his declaration Dr. Heidorn attested that he lacked 

the “significant physical findings based on x-rays and evaluations” to request approval 

for an MRI or orthopedic consult.

The next month Dr. Heidorn did, however, order a physical-therapy evaluation

and six physical-therapy appointments. Grant attended his initial physical-therapy 

evaluation and two follow-up appointments. The records reflect that at the second

follow-up appointment in November 2011, Grant had decided that “the only way he 

will cooperate is when he has an MRI that rules out everything else.” Grant denies 

being uncooperative and asserts instead that his physical-therapy regimen was

intended to end after his November appointment. 

Throughout five years of treatment, Dr. Heidorn responded to Grant’s periodic 

complaints of knee pain by ordering a low bunk, a no-kneel restriction, in-cell meals,

extra blankets and pillows to prop up his leg (although this was primarily for back 

pain), ice as needed, and physical therapy. Dr. Heidorn also prescribed several different 

medications, and when Grant reported that they were ineffective, he changed the 

dosage or prescribed a new medication. Dr. Heidorn attested that although Grant’s 

degenerative disease might eventually require knee replacement, the degeneration did 

not reach that level on his watch.

B. Treatment by Dr. Sumnicht

In October 2012 Dr. Paul Sumnicht took over Grant’s care. At Grant’s first 

appointment in February 2013, Dr. Sumnicht observed left leg weakness but believed it 

was related to Grant’s ongoing back problems. Back x-rays revealed disk problems that

Dr. Sumnicht determined could be pinching the nerves affecting the knees. 

Dr. Sumnicht examined the left leg and knee, and the tests were negative. The knee 

showed exterior swelling. Unsure of the etiology, Dr. Sumnicht ordered arthritis blood 
No. 19-2387 Page 4

tests and another x-ray, and he discontinued a cholesterol medication he suspected as a 

possible cause. He continued ongoing treatments of ibuprofen for pain and knee 

swelling and nortriptyline for chronic back pain.

This x-ray showed joint narrowing and mild degenerative changes with no 

effusion. Dr. Sumnicht diagnosed mild osteoarthritis of the left knee. He discussed these 

results in March 2013, observing that the knee had no swelling and had not been 

“giving out.” Grant did have a limp in his left leg and tenderness in the tissue around 

his knee. Dr. Sumnicht ordered a compression stocking to avert fluid build-up and 

nerve pain. He “found no objective signs that would indicate an MRI was needed.”

Dr. Sumnicht continued the ibuprofen and nortriptyline and added pain cream. He also

addressed Grant’s back pain.

Dr. Sumnicht next saw Grant in May 2013, but the appointment focused on 

Grant’s worsening back pain. Dr. Sumnicht ordered an MRI of the lumbar spine. 

Though they discussed Grant’s knee pain, Dr. Sumnicht did not believe an MRI was 

warranted because he observed no signs that the degenerative knee condition was 

worsening. A few weeks later, Grant saw Dr. Sumnicht to discuss the back MRI. 

Dr. Sumnicht determined that Grant’s lower back was the most serious issue at the 

time, so he did not assess the knee, believing his mild arthritis was properly treated 

with conservative pain management. He did not treat Grant again. 

C. Treatment by Dr. Sauvey

Dr. Mary Sauvey treated Grant from October 2013 through May 2016 at 

32 appointments for a range of medical issues, including degenerative disk disease and 

left knee pain. Dr. Sauvey attested that Grant complained of knee pain at only 

3 appointments. However, Grant contends that he complained every time he saw 

Dr. Sauvey, but she would only treat his back pain. The record contains numerous

Health Service Request forms from Grant, several of which include complaints of knee 

pain, but these forms were screened by medical staff and often resolved without a

doctor’s appointment. It is not clear how many of these request forms Dr. Sauvey 

reviewed.

Dr. Sauvey first noted Grant’s complaint of left knee pain in July 2014. At that 

appointment she deemed his knee pain secondary to his back pain. She did not believe 

an MRI or orthopedic referral was clinically necessary and continued Grant’s

conservative treatment with the addition of an elastic wrap and lidocaine gel. Grant 

says that he never received the wrap and that the gel was not helpful. Dr. Sauvey’s 
No. 19-2387 Page 5

records do not mention Grant’s knee pain again until January 2016, when they

discussed plans for back surgery. Grant stated that he would also like an MRI or 

orthopedic referral for his knee. Believing that his degenerative knee disease was mild 

to moderate and age related, Dr. Sauvey prescribed ice, oral NSAIDs, and rest. 

Dr. Sauvey believed that Grant’s back pain, which she continued to consider more 

serious partly because he could not walk without an assistive device, could complicate 

an exam and treatment of his knee because pinched nerves from his low back can cause

leg pain. Thus, she determined that his serious back condition should be addressed first.

Grant had lumbar spine surgery in early February 2016. Dr. Sauvey saw him

several times between January and March 2016, but her notes do not reference knee 

pain again until April. At that time Dr. Sauvey diagnosed Grant with degenerative joint 

disease of the left knee; she continued his medications, prescribed a knee sleeve, and 

scheduled him for a steroid injection in his left knee. It was Dr. Sauvey’s medical 

opinion that an MRI or orthopedic referral was warranted only if the steroid injection 

and knee sleeve failed or if Grant developed symptoms limiting his function. About a 

week later, Dr. Sauvey gave Grant the steroid injection in his left knee and did not see 

him again before her departure the next month. 

D. Subsequent Treatment

Dr. Dilip Tannan took over Grant’s treatment in June 2016. He referred Grant to 

advanced pain management for hip-joint injections and ordered x-rays and physical 

therapy for his knee. In August he observed that Grant now had limited range of 

motion in his left knee along with swelling from degenerative arthritis. Dr. Tannan 

ordered an MRI due to Grant’s worsening symptoms, decreasing functionality, and the 

unsuccessful course of conservative pain management. 

An MRI of the knee taken October 2016 revealed a multitude of conditions, 

including a complex degenerative tear of the lateral meniscus, joint effusion, a small

Baker’s cyst, mild osteoarthritis, and severe chondromalacia (thinning cartilage). 

Dr. Tannan opined that no injury or precipitating event caused these conditions; rather, 

he believed that they were caused by slow, gradual changes over time. These results did 

not require any emergency surgery or pressing treatment. 

Dr. Tannan referred Grant to an orthopedic specialist, who saw him in December 

2016 and diagnosed osteoarthritis and an “incidental” meniscal tear in his knee. The 

specialist recommended further conservative treatment and prescribed steroid 

injections, physical therapy, and fluid injections. Grant did not improve. After another
No. 19-2387 Page 6

x-ray in June 2017 showed moderate degenerative arthritis with additional joint 

narrowing, the orthopedist recommended arthroscopy (a less invasive surgical

procedure) over knee replacement. But in August 2017 Grant elected to have a total 

knee replacement. Dr. Tannan attested that the surgery was performed to treat Grant’s 

knee arthritis, not his ligament tears.

E. Procedural History

After the 2016 MRI, Grant sued Dr. Heidorn, Dr. Sumnicht, and Dr. Sauvey, 

alleging that they were deliberately indifferent to his knee pain because they 

“obdurately refused” to order an MRI or orthopedic consult despite years of ineffective 

conservative treatment. At screening the judge permitted Grant to proceed on these

claims (on appeal Grant does not challenge the court’s dismissal of others). Grant then 

moved for the recruitment of counsel, but the judge deemed the case straightforward 

and found him capable of representing himself at that stage. Grant never renewed his 

request for counsel.

The defendants moved for summary judgment, and the judge granted the 

motion. He concluded that the doctors had not persisted in a course of treatment they 

knew to be ineffective and instead exercised their medical judgment in prescribing, and 

continuously adjusting, conservative treatment for Grant’s knee. 

II. Analysis

On appeal Grant challenges the entry of summary judgment, which we review 

de novo, viewing the record in the light most favorable to him. Shields, 746 F.3d at 786.

To survive summary judgment, Grant needed to present evidence that his doctors acted 

with a “sufficiently culpable state of mind,” meaning that in treating his knee, they 

knew of but disregarded a substantial risk of harm to his health. Farmer v. Brennan, 

511 U.S. 825, 834, 837 (1994).

Grant primarily argues that the doctors stubbornly refused to order an MRI or 

orthopedic referral, instead persisting for years in the same “conservative courses of 

treatment that they knew to be ineffective,” needlessly prolonging his pain and 

exacerbating his knee condition. A decision “to persist with ineffective treatment and 

ignore a patient’s repeated complaints of unresolved pain and other symptoms can give 

rise to liability—or, at the very least, raise enough questions to warrant a jury trial.”

Goodloe v. Sood, 947 F.3d 1026, 1027–28 (7th Cir. 2020); Greeno v. Daley, 414 F.3d 645, 

654–55 (7th Cir. 2005). “Inexplicable delay” that exacerbates an inmate’s medical 
No. 19-2387 Page 7

condition or unnecessarily prolongs suffering can also show deliberate indifference. 

Goodloe, 947 F.3d at 1031; Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016). But this is not 

such a case.

The record shows that Grant’s doctors believed a degenerative joint condition

caused his knee pain, and they provided treatment accordingly. Grant has no evidence 

that their diagnoses and treatment were not the product of the doctors’ professional 

judgment or were “blatantly inappropriate.” See Pyles v. Fahim, 771 F.3d 403, 409

(7th Cir. 2014); see also Petties, 836 F.3d at 729 (“[E]vidence that some medical 

professionals would have chosen a different course of treatment is insufficient to make 

out a constitutional claim.”). He also has no evidence that his doctors were wrong about 

the cause of his pain—despite his speculation about a long-standing meniscal tear. And

even if they were wrong, failing to correctly diagnose a condition is evidence of 

negligence, not deliberate difference. See Cesal v. Moats, 851 F.3d 714, 724 (7th Cir. 2017).

Nor does this record show that Grant’s three primary-care doctors persisted in a 

course of treatment they knew to be ineffective; rather, each doctor modified Grant’s 

treatment over time in an attempt to manage pain they believed was caused by 

degenerative joint disease. Cf. Greeno, 414 F.3d at 654–55 (continuing to treat severe 

vomiting and reflux pain over several years with the same antacids the medical staff 

knew were ineffective created a material fact issue). Although “the rendering of some 

medical care does not necessarily disprove deliberate indifference,” Cesal, 851 F.3d at 

723, on this record the frequent treatment of Grant’s knee pain while the doctors also 

attempted to deal with his more pressing back problems precludes a finding that they 

displayed deliberate indifference. Indeed, Dr. Tannan’s decision to continue the same

course of conservative treatment until Grant’s condition began to worsen and his knee 

lost functionality supports the appropriateness of the doctors’ professional judgment.

The crux of Grant’s complaint is that he wanted an MRI and orthopedic consult

much sooner than he received them. Yet “[a]n MRI is simply a diagnostic tool, and the 

decision to [forgo] diagnostic tests is ‘a classic example of a matter for medical 

judgment.’” Pyles, 771 F.3d at 411 (quoting Estelle v. Gamble, 429 U.S. 97, 107 (1976)). To 

be sure, Grant wanted different care than that provided by his doctors. But an inmate 

“is not entitled to demand specific care,” Walker v. Wexford Health Sources, Inc., 940 F.3d 

954, 965 (7th Cir. 2019) (quoting Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011)), and 

disagreement over a course of treatment does not establish a constitutional violation, see 

Pyles, 771 F.3d at 409; see also Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002) (noting 
No. 19-2387 Page 8

that “mere failure” to choose the best course of action does not amount to a 

constitutional violation).

Grant also contends that the judge abused his discretion by denying Grant’s 

request for recruited counsel. In determining whether to appoint counsel, the judge 

must consider whether the plaintiff has made a reasonable attempt to obtain counsel 

and whether, given the difficulty of the case, the plaintiff appears competent to litigate 

the case himself. Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014) (citing Pruitt v. Mote,

503 F.3d 647, 654 (7th Cir. 2007) (en banc)). Although the judge’s consideration of the 

second factor was minimal in this case, given the timing of Grant’s request—a few days 

after the court’s screening order—we see no abuse of discretion. See Pruitt, 503 F.3d at 

655–56 (limiting appellate review to the record at the time of the district court’s decision

not to appoint counsel). Grant’s filings up to that point were competent. He had filed a 

complaint, successfully obtained leave of the court to amend, largely survived 

screening, and sought reconsideration of the screening order. Although Grant now says

he relied on the assistance of other prisoners in preparing those filings, he did not 

inform the judge of that fact. At that early phase, it was not an abuse of discretion to 

conclude that Grant could competently litigate his case, and the judge stated that he 

would be open to reconsidering his decision later. See Mapes v. Indiana, 932 F.3d 968, 971 

(7th Cir. 2019) (acknowledging “the difficulty of accurately evaluating the need for 

counsel in the early stages of pro se litigation”); Romanelli v. Suliene, 615 F.3d 847, 852 

(7th Cir. 2010). 

Finally, Grant argues that the judge improperly relied on the defendants’ 

declarations as undisclosed expert-witness testimony. Grant did not raise this argument 

before the district court, and so it is waived. See Allen v. City of Chicago, 865 F.3d 936, 943 

(7th Cir. 2017). 

AFFIRMED