In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-1727 

ZACHARY JOHNSON,

Plaintiff-Appellant, 

v.

BESSIE DOMINGUEZ, et al., 

 Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:14-cv-10280 — Matthew F. Kennelly, Judge. 

____________________ 

ARGUED APRIL 21, 2021 — DECIDED JULY 23, 2021 

____________________ 

Before FLAUM, SCUDDER, and KIRSCH, Circuit Judges. 

KIRSCH, Circuit Judge. Zachary Johnson, an inmate at 

Dixon Correctional Center in Illinois, sued four medical professionals under 42 U.S.C. § 1983 alleging that they were deliberately indifferent to his serious medical needs because 

none of them referred Johnson for surgery to repair his hernia. 

The district court granted summary judgment in defendants’ 

favor, concluding that the record failed to support that defendants acted with deliberate indifference. Although the 
2 No. 19-1727 

record showed that Johnson complained, intermittently, of 

hernia pain to Dixon medical staff over a period of several 

years, Johnson’s hernia was at times undetectable on examination, and even when detected, it was always small and reducible. Additionally, defendants prescribed Johnson overthe-counter pain medication and abdominal binders to manage his symptoms. On appeal, Johnson insists that a jury question remains as to whether defendants’ treatment was constitutionally deficient. But because the record lacks evidence to 

support that defendants’ non-surgical treatment amounted to 

deliberate indifference, we affirm. 

I 

Zachary Johnson has been incarcerated at Dixon Correctional Center since 2011. Johnson first noticed his hernia prior 

to his incarceration in 2009 while helping a friend move. At 

that time, Johnson noticed a bulge in his stomach after feeling 

something, but he “left it at that” without seeking treatment. 

Johnson also has Type 1 Diabetes—a condition that was diagnosed prior to his incarceration. 

Between June 2011 and June 2016, medical professionals at 

Dixon evaluated Johnson more than ninety times. These visits 

included treatment of other conditions unrelated to his hernia, including management of his often-uncontrolled diabetes. Johnson first complained about his hernia on June 20, 

2011, to nurse Virginia Mavis. Johnson requested hernia surgery, reporting that his hernia had been present for five years. 

Nurse Mavis then referred Johnson to Dr. Imhotep Carter for 

evaluation. On August 9, 2011, Johnson returned to sick call 

and nurse Jenny Brower treated him. At that appointment, 

Johnson inquired about the status of a physician appointment 

to evaluate his hernia, and nurse Brower told him an 
No. 19-1727 3

appointment would be made for August 17, 2011. Johnson did 

not attend that appointment. He returned to nurse sick call on 

September 20, 2011, advising that he missed his hernia appointment because he was on a court writ and requested it be 

rescheduled. 

On October 5, 2011, Johnson saw defendant Dr. Bessie 

Dominguez for assessment of his hernia. Dr. Dominguez recorded Johnson’s complaint of a right-side hernia, which Johnson said he had for two or three years. Dr. Dominguez testified that given Johnson’s report of a hernia, she would have 

examined Johnson standing up and lying down; if she could 

not feel a hernia, she would then ask Johnson to strain or 

cough. During her examination, Dr. Dominguez found no 

presence of a hernia or abdominal bulge and determined that 

no treatment was required. Dr. Dominguez later treated Johnson six times for other medical issues between December 22, 

2011, and April 10, 2012. Johnson did not complain about his 

hernia at any point during these visits. 

Johnson next reported pain from a “lower abdominal hernia” on May 4, 2012, to a nurse at the Dixon healthcare unit. 

The nurse recorded a hernia, explaining that it was easily reducible1 on exam, though noting that Johnson reported that it 

pops out while exercising. The nurse diagnosed Johnson with 

a bulge in the upper right quadrant of his abdomen and ordered a physician evaluation. Per that order, Dr. Dominguez 

again evaluated Johnson on May 8, 2012. Dr. Dominguez recorded that Johnson reported an upper quadrant abdominal 

hernia with tenderness and a bulge. But after examining 

1 An “easily reducible hernia” is one that “returns to its resting or natural 

position easily.” R. 123 at 16. 
4 No. 19-1727 

Johnson while standing up and lying down, Dr. Dominguez 

could not feel a hernia. Dr. Dominguez then requested that 

defendant physician assistant Ava Valdez perform a separate 

exam, and physician assistant Valdez found questionable 

weakness on the left side of Johnson’s abdominal wall. Dr. 

Dominguez diagnosed Johnson with a questionable left side 

abdominal hernia and prescribed an abdominal binder. At 

this time, Dr. Dominguez additionally noted that Johnson’s 

diabetes was uncontrolled, and that Johnson was not reporting for his blood sugar checks twice a day. 

On May 14, 2012, at Dr. Dominguez’s request, defendant 

Dr. Arthur Funk assessed Johnson for a hernia. Johnson reported to Dr. Funk that he had abdominal pain with exertion 

for one year. Johnson also stated that he had an ultrasound at 

Cook County Jail, before his incarceration at Dixon, that 

showed a hernia. On physical examination, Dr. Funk could 

not find a hernia. He recorded that Johnson’s abdomen was 

flat and soft, and that he detected no bulge. Dr. Funk initially 

approved Dr. Dominguez’s request for an ultrasound, but 

that request was denied by defendants’ employer for insufficient information. Dr. Funk requested and received information about Johnson’s medical records from Cook County, 

including a CAT scan of Johnson’s abdomen. The scan did not 

show a hernia. Although possible that a hernia would not 

show up on a CAT scan, Dr. Funk determined that no further 

imaging was necessary and advised Johnson to return to the 

healthcare unit if his pain worsened or if a bulge became visible. 

Johnson next received evaluation for his hernia in October 

2012 after he was referred by a nurse in the Dixon healthcare 

unit to physician assistant Valdez. Physician assistant Valdez 
No. 19-1727 5

examined Johnson’s abdomen, and explained that, while she 

was unsure, she may have felt a small bulge. She diagnosed a 

questionable small ventral hernia and ordered an abdominal 

binder. 

Defendant nurse practitioner Susan Tuell began treating 

Johnson in August 2013 for diabetes management, and she 

subsequently treated Johnson for other medical issues in November and December of 2013. Nurse practitioner Tuell did 

not treat Johnson’s hernia until April 2014 after Johnson reported that he lost his abdominal binder in segregation. When 

examining Johnson, she could not locate a hernia when Johnson was lying down, but she felt a two-to-three-centimeter 

bulge to the right of Johnson’s bellybutton when Johnson 

stood that was tender with palpation. Nurse practitioner Tuell 

diagnosed Johnson with a right abdominal wall hernia that 

was small and stable. She ordered a replacement abdominal 

binder and 400 milligrams of Motrin for Johnson to take two 

or three times a day as needed. Nurse practitioner Tuell also 

told Johnson to avoid lifting heavy weights, particularly 

when not wearing his abdominal binder. Johnson saw nurse 

practitioner Tuell twice more for treatment of blood sugar issues and hypoglycemia in June 2014, but Johnson did not seek 

hernia treatment during these appointments. 

Johnson next complained about hernia pain to nurse 

Christine Peppers on July 4, 2014. Nurse Peppers noted that 

Johnson was not wearing his abdominal binder and that Johnson reported that he was lifting weights. Nurse Peppers 

talked to Johnson about hernia reduction and using his abdominal binder, and she instructed Johnson to follow up if he 

experienced increased symptoms. Johnson followed up with 

nurse Cynthia Whitmer on August 19, 2014, complaining of 
6 No. 19-1727 

intermittent abdominal pain. Nurse Whitmer evaluated Johnson, noting that Johnson had a small right upper quadrant 

hernia that protruded slightly, though was reducible. Johnson’s hernia was tender with palpation, and Johnson reported 

that his Motrin was only sometimes effective. Johnson advised he wore his abdominal binder at the gym, on the yard, 

and when sleeping. Nurse Whitmer instructed Johnson to 

avoid heavy lifting and to continue taking Motrin, and she 

scheduled Johnson for follow up with nurse practitioner 

Tuell.

Nurse practitioner Tuell saw Johnson on September 4, 

2014. Johnson explained that he wore his abdominal binder 

but continued to lift weights up to 185 to 200 pounds, leading 

her to determine that he was noncompliant with medical orders. After examining Johnson’s hernia, she determined that 

it had not changed in size or condition since her prior exam. 

Nurse practitioner Tuell told Johnson to avoid weightlifting 

more than ten to twenty pounds, while instructing Johnson to 

continue taking ibuprofen and wearing his abdominal binder. 

Johnson later saw nurse practitioner Tuell several times in 

November and December of 2014 for issues relating to his diabetes, but she did not treat Johnson’s hernia during these visits. 

For his part, Johnson asked defendants, and other Dixon 

medical staff, for surgery to repair his hernia starting at the 

time of his initial complaint in June 2011. Johnson reported 

that he subsequently asked each defendant for hernia surgery 

at various medical appointments in which defendants evaluated his hernia. Each defendant refused to refer him for surgery. Specifically, Johnson said that defendants told him that 

he would not receive surgery unless his hernia became 
No. 19-1727 7

strangulated or incarcerated.2 He also asserted that the overthe-counter pain medication and abdominal binder prescribed by defendants helped at times, but overall, it was not 

effective in managing his pain. Even with the abdominal 

binder and medication, Johnson reported that his hernia 

caused him pain while sleeping and walking. By the time of 

his deposition, Johnson rated his pain as a seven to eight on a 

ten-point scale, and sometimes as high as a twelve to fifteen.

Johnson sued Dr. Dominguez, Dr. Funk, physician assistant Valdez, and nurse practitioner Tuell under 42 U.S.C. 

§ 1983, alleging that they were deliberately indifferent to his 

medical needs by not referring him for hernia surgery and engaging in a course of treatment known to be ineffective in violation of the Eighth Amendment. After Johnson and defendants were deposed, the district court granted Johnson’s motion to appoint an expert witness and appointed Dr. Mark T. 

Toyama. 

Dr. Toyama reviewed Johnson’s medical records and concluded that Johnson had an umbilical hernia. In his expert letter, Dr. Toyama opined that the standard of care in treating a 

“medically fit” individual with an umbilical hernia is surgical 

repair. But when an umbilical hernia is not strangulated or 

incarcerated, Dr. Toyama noted that surgery is not urgent and 

usually scheduled as an elective procedure. Dr. Toyama explained that “elective repair would have been indicated when 

2 A strangulated hernia is a hernia in which the contents of the hernia itself 

have become compromised to a point that they have died. An incarcerated 

hernia is a hernia that is not reducible, which means you cannot push it in 

and out. See R. 127 at 6. 
8 No. 19-1727 

[Johnson] was medically fit and cleared for operation,” which 

would include addressing Johnson’s uncontrolled diabetes. 

In his deposition, Dr. Toyama reiterated that Johnson’s 

medical records showed no evidence that Johnson’s hernia 

was strangulated or acutely incarcerated to require urgent 

surgery. Dr. Toyama also testified that Johson’s medical records established that his hernia never changed significantly in 

size, that he continued to be physically active despite his hernia, and that he had difficulty controlling his diabetes. Dr. Toyama noted that Johnson’s diabetes did “not necessarily” preclude surgical repair, but that delaying surgery could allow 

more time for a hernia complication to develop. When asked 

whether he had any criticisms of defendants’ treatment, Dr. 

Toyama answered, “No.” 

Defendants moved for summary judgment, arguing that 

Johnson lacked evidence of a serious medical condition—that 

is, a hernia—because defendants never found objective medical evidence showing that Johnson had a hernia. Even if Johnson did have a hernia, defendants additionally contended that 

his hernia was not an objectively serious medical condition.3

Separately, defendants argued that no evidence supported 

Johnson’s claim that defendants acted deliberately indifferent 

to his medical condition by not referring him for hernia surgery. 

The district court granted summary judgment in favor of 

defendants. In a thorough and carefully reasoned order, the 

district court first concluded there was a triable fact question 

3 On appeal, defendants do not renew their argument that Johnson lacked 

medical evidence of a hernia, nor their contention that Johnson’s hernia 

was not an objectively serious medical condition. 
No. 19-1727 9

concerning whether Johnson suffered from an objectively serious condition (i.e., a hernia or its resulting pain). Notwithstanding, the district court also held that defendants were not 

deliberately indifferent to Johnson’s medical condition because no defendant consciously disregarded it. Johnson now 

appeals. 

II 

We review a district court’s grant of summary judgment 

de novo, construing all facts and drawing all reasonable inferences in the light most favorable to the non-moving party. See 

Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 

2002). Summary judgment is appropriate if “the movant 

shows that 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 dispute of material fact is genuine “if 

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Zaya v. Sood, 836 F.3d 800, 804 

(7th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986)). Accordingly, “[t]he mere existence of a scintilla of evidence in support of the non-moving party’s position 

will be insufficient.” Johnson v. Doughty, 433 F.3d 1001, 1009–

10 (7th Cir. 2006) (quotation and alteration omitted). 

The Eighth Amendment’s prohibition against cruel and 

unusual punishment imposes a duty on the states, through 

the Fourteenth Amendment, “to provide adequate medical 

care to incarcerated individuals.” Boyce v. Moore, 314 F.3d 884, 

889 (7th Cir. 2002) (citing Estelle v. Gamble, 429 U.S. 97, 103 

(1976)). “Prison officials can be liable for violating the Eighth 

Amendment when they display deliberate indifference towards an objectively serious medical need.” Thomas v. Blackard, 2 F.4th 716, 2021 WL 2644224, at *4 (7th Cir. 2021). Thus, 
10 No. 19-1727 

to prevail on a deliberate indifference claim, a plaintiff must 

show “(1) an objectively serious medical condition to which 

(2) a state official was deliberately, that is subjectively, indifferent.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 

662 (7th Cir. 2016) (quotation omitted). 

We assume without reaching that Johnson established a 

triable fact issue on the first prong of his deliberate indifference claim—whether Johnson’s hernia, or its resulting pain, is 

an objectively serious medical condition. Cf. Wilson v. Wexford 

Health Sources, Inc., 932 F.3d 513, 521 (7th Cir. 2019) (noting 

that our cases have recognized that a hernia can be an objectively serious medical condition, and that in some cases, the 

chronic pain from a hernia may present a separate objectively 

serious medical condition). This appeal instead turns on 

whether defendants were deliberately indifferent to that condition. We agree with the district court that the record lacks 

evidence to support defendants’ deliberate indifference with 

respect to Johnson’s hernia and its resulting pain. 

Deliberate indifference is a subjective standard, requiring 

that a defendant both “know [] of and disregard[] an excessive 

risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 

825, 837 (1994); see Whiting, 839 F.3d at 662. Though establishing deliberate indifference requires more than negligence, the 

plaintiff need not show purposeful conduct. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). Stated differently, a 

plaintiff must establish that an “official knows of and disregards an excessive risk to inmate health or safety” or that “the 

official is both aware of facts from which the inference could 

be drawn that a substantial risk of serious harm exists, and he 

draws the inference.’” Id. (alterations omitted) (quoting 

Farmer, 511 U.S. at 837). 
No. 19-1727 11

In the inadequate medical care context, deliberate indifference does not equate to “medical malpractice; the Eighth 

Amendment does not codify common law torts.” Duckworth, 

532 F.3d at 679; see also Johnson, 433 F.3d at 1013 (“[I]t is important to emphasize that medical malpractice, negligence, or 

even gross negligence does not equate to deliberate indifference.”). And we must give medical professionals “a great deal 

of deference in their treatment decisions.” Wilson, 932 F.3d at 

519. Accordingly, “[a] constitutional violation exists only if no 

minimally competent professional would have so responded 

under those circumstances.” Id. (quotation omitted). When a 

plaintiff’s claim focuses on a medical professional’s treatment 

decision, “the decision must be so far afield of accepted professional standards as to raise the inference that it was not actually based on a medical judgment.” Norfleet v. Webster, 439 

F.3d 392, 396 (7th Cir. 2006). 

With these principles in mind, we cannot conclude that 

defendants were deliberately indifferent in treating Johnson’s 

hernia. Johnson resists this conclusion, pressing three overlapping arguments that he believes show that a jury question 

remains concerning whether defendants were deliberately indifferent when treating his hernia: (1) defendants administered blatantly inappropriate medical care, (2) defendants 

failed to exercise their professional judgment and (3) defendants unnecessarily delayed medical treatment. These arguments find no support in this record. 

To the contrary, the record shows that each defendant responded to Johnson’s complaints and exercised their medical 

judgment in evaluating his hernia and reported pain. At the 

outset, Dr. Dominguez examined Johnson for a hernia but 

could not identify one. Even so, in response to Johnson’s 
12 No. 19-1727 

medical complaints, she prescribed an abdominal binder. So 

did physician assistant Valdez who also had difficulty locating Johnson’s hernia on examination. In addition, Dr. 

Dominguez referred Johnson to Dr. Funk for further evaluation. Dr. Funk too could not feel a hernia when he examined 

Johnson in 2012, and he reviewed the results of Johnson’s 

prior medical imaging, which did not show a hernia. 

We recognize that Johnson’s complaints increased over 

time and he was ultimately diagnosed definitively with a hernia by Dixon medical staff, including by nurse practitioner 

Tuell in April 2014. But he received treatment for his hernia—

just not the surgery that he desired. When Johnson reported 

intermittent hernia pain during medical visits, nurse practitioner Tuell prescribed over-the-counter pain medication to 

treat it and instructed Johnson on precautions to take to minimize his symptoms. And when Johnson continued to complain of pain, it was often accompanied by his admission that 

he continued to lift between 150 to 200 pounds without wearing his abdominal binder. Moreover, it is unrefuted that Johnson’s hernia never changed in size and was never strangulated or incarcerated to require urgent surgery. The record, 

viewed in the light most favorable to Johnson, establishes that 

each defendant exercised their professional judgment in responding to Johnson’s hernia. Johnson’s ultimate disagreement with defendants’ course of treatment provides no basis 

to support defendants’ deliberate indifference. Johnson, 433 

F.3d at 1013 (“mere dissatisfaction or disagreement with a 

doctor’s course of treatment is generally insufficient” to establish deliberate indifference).

Beyond Johnson’s own disagreement with defendants’ 

treatment, he argues that Dr. Toyama’s expert opinion 
No. 19-1727 13

supports that defendants medical care was blatantly inappropriate and lacked professional judgment. Dr. Toyama opined 

that the standard of care in treating an umbilical hernia in a 

medically fit individual is surgical repair, and that for Johnson, surgery would have been indicated when he was medically fit and cleared for an operation. Yet, in his opinion “medically fit” included obtaining control over Johnson’s diabetes, 

and the record established that this was not the case. Further, 

when asked whether he had any criticisms of defendants’ 

treatment, Dr. Toyama unequivocally answered, “No.” Dr. 

Toyama’s opinion does not support that defendants acted 

negligently, let alone that defendants acted with deliberate indifference. Although we have recognized that a departure 

from professional standards that is “so inadequate that it 

demonstrated an absence of professional judgment” could 

support deliberate indifference, Collignon v. Milwaukee Cty., 

163 F.3d 982, 989 (7th Cir. 1998), Dr. Toyama’s opinion falls 

far short of raising such inference. 

Further, Johnson’s contention that defendants’ unnecessarily delayed medical treatment also finds no support in the 

record. We have recognized that “a significant delay in effective medical treatment ... may support a claim of deliberate 

indifference, especially where the result is prolonged and unnecessary pain.” Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 

2010). But here, defendants did not “delay” referring Johnson 

for surgery—they determined a surgery referral was not appropriate. This determination, as discussed above, was not 

“blatantly inappropriate” or made in the absence of professional judgment. Johnson also invokes our recognition that a 

medical professional’s decision to proceed with an “easier” 

treatment course known to be ineffective can evidence deliberate indifference. Johnson 433 F.3d at 1013. Yet the evidence 
14 No. 19-1727 

here does not bear out this assertion. To be sure, Johnson complained of hernia pain intermittently over the course of several years to Dixon medical staff. While defendants continued 

with non-surgical treatment, they repeatedly instructed Johnson to follow up if his hernia changed in size or his symptoms 

worsened. And, as discussed above, it is unrefuted that Johnson’s hernia did not change significantly in size and remained 

reducible. While at the time of his deposition Johnson reported his hernia pain to be as high as a twelve to fifteen on a 

ten-point scale, he failed to connect this evidence to defendants’ treatment during the relevant time period. The evidence 

simply does not show that defendants persisted in treatment 

that they knew to be ineffective. 

Lastly, Johnson’s contention that defendants operated 

pursuant to a policy of refusing all non-emergent hernia surgeries regardless of their impairment was not developed before the district court. As a result, this argument is waived, 

and we do not consider it here. See Puffer v. Allstate Ins. Co., 

675 F.3d 709, 718 (7th Cir. 2012) (arguments that are not raised 

or developed before the district court are waived). 

AFFIRMED