In the

United States Court of Appeals

For the Seventh Circuit

No. 97-4058

CLARA WALKER,

Plaintiff-Appellant,

v.

HOWARD PETERS, SALVADOR GODINEZ,

RICHARD GRAMLEY, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 93 C 5831--James B. Moran, Judge.

Argued December 10, 1999--Decided November 30, 2000

 Before EASTERBROOK, ROVNER and DIANE P. WOOD, Circuit

Judges.

 ROVNER, Circuit Judge. Dwayne Walker was a

prisoner who suffered from a variety of serious

illnesses. He sued a number of prison officials

and doctors for violating his Eighth Amendment

right to be free from cruel and unusual

punishment, claiming these various individuals

were deliberately indifferent to his serious

medical needs. The district court granted summary

judgment in favor of the defendants, finding

that, at most, Walker’s complaints amounted to a

malpractice action and not a constitutional

deprivation. We affirm.

I.

 Dwayne Walker suffered from hemophilia,

avascular necrosis of his right hip, arthritis,

retinoschisis, a partially fused right ankle, a

partially fused left elbow, a pinched nerve in

his back, and AIDS. He suffered from mental

problems as well, including anti-social

personality disorder. He was incarcerated by the

Illinois Department of Corrections ("IDOC") from

June 1984 until his death in August 1999./1

Because of his hemophilia, Walker required

infusions of a substance known as "Factor VIII,"

a clotting protein that occurs naturally in the

blood of persons who do not suffer from

hemophilia. Factor VIII, marketed under the trade

name "Factorate," is a concentrate derived from
donor blood. In the early 1980s, donor blood was

not yet tested for the presence of HIV, and

consequently, a large percentage of hemophiliacs

contracted HIV and, subsequently, AIDS, as a

result of taking Factor VIII. The defendants do

not dispute Walker’s statement that 90% of

hemophiliacs taking Factor VIII during this time

period eventually contracted AIDS. 

 Walker exhibited a number of symptoms consistent

with HIV infection and AIDS from the beginning of

his incarceration. In particular, he exhibited

generalized lymphadenopathy and an inverted T-4

helper cell/T-8 suppressor cell ratio, and these

symptoms were noted in medical records

transferred to the prison within a few months of

the date of his incarceration. Because he was in

a high risk group for contracting AIDS, and

because he exhibited these symptoms, certain

prison doctors assumed Walker was HIV positive,

or strongly suspected that he had HIV infection

and/or AIDS. One of the prison doctors noted in

Walker’s record that he "received so much Factor

VIII [that he is] assumed to be HIV positive."

Another health summary in Walker’s prison records

indicated that Walker was at high risk for AIDS

because of his hemophilia, and another indicated

that he had repeatedly refused to take a blood

test to confirm or rule out HIV infection. Walker

does not deny that he refused to take the

confirmatory blood test, but explained that the

results would have stigmatized him in prison. 

 Although he exhibited these symptoms and fell

into this high risk group, and although some

prison officials and physicians assumed he was

HIV positive, Walker received no treatment for

this condition until 1993. The parties agree that

the appropriate treatment for a person infected

with HIV and possibly suffering from AIDS was

AZT, an anti-viral drug that became generally

available in 1987, and Bactrim, a widely

available antibiotic that is effective in

preventing certain opportunistic infections

associated with AIDS. The defendants contend that

they did not prescribe these medications for

Walker because he would not take the confirmatory

test. It would have been malpractice, they

maintain, to administer the potent and dangerous

drug AZT without confirmation that Walker was in

fact HIV positive. They maintain that they were

merely following the Centers for Disease Control

("CDC") criteria when they required a positive

HIV test before prescribing AZT. Walker contends

they did not provide the proper treatment for

more sinister reasons. He argues that the CDC

guidelines did not require a positive HIV test

for an AIDS diagnosis beginning in 1987. He also

points to the IDOC AIDS Manual, which he claims

allows AZT treatment for inmates with a CD4 count
below 300, whether or not HIV infection has been

confirmed. Moreover, upon his transfer to another

prison in the Illinois system in late 1993, he

began receiving AZT and Bactrim even though he

continued to refuse to take the confirmatory HIV

test. Finally, Walker maintains that if the HIV

test was required before treatment, the

defendants could have forced him, under Illinois

law, to take the test at any time. The defendants

are not allowed, Walker argues, to avoid learning

the true nature of his condition once they have

reason to believe he is seriously ill.

 Walker’s treatment for hemophilia also proved to

be troublesome. Construing the facts in favor of

Walker as we must on summary judgment,

hemophiliacs are able to sense their need for

Factor VIII, and should be infused with the

substance when they ask for it. Apparently

hemophiliacs can learn to recognize the signs

that they are having an internal bleed, and that

clotting factor is needed. Factor VIII should be

infused as soon as possible after the patient

senses the need. The consequences for an

untreated bleed can be severe and permanent.

Untreated bleeds in joints can lead to extreme

pain and limitation of the movement of that joint

in the future. A delay of even an hour can have

dire consequences. Walker states that on many

occasions when he requested Factor VIII, prison

officials refused to give it to him. Other times,

he was offered Factor VIII which had been

improperly prepared, and he refused to take it.

The defendants counter that Walker was an

unreliable indicator of his need for Factor VIII,

that he often asked for it when he did not need

it, and that he then refused to take it without

good reason after it had been mixed. Because the

substance must be discarded three hours after it

is prepared, Walker’s refusals led to repeated

spoilage of the expensive substance. Rather than

preparing the substance every time Walker

requested it, a prison doctor would examine him

and determine whether Walker actually needed the

Factor VIII before dispensing it. The defendants

claim that Walker was not harmed by this policy

and that his own actions made appropriate

treatment nearly impossible.

 Walker sued a number of prison officials and

doctors for deliberate indifference to his

serious medical needs, in violation of the Eighth

Amendment proscription against cruel and unusual

punishment. Count I of his complaint alleged that

the defendants failed to take the medically

necessary steps to determine whether he was

infected with HIV or whether he had AIDS, that

they failed to timely inform him of his HIV or

AIDS status, and that they failed to treat him

for HIV infection and AIDS. Count II alleged that
the defendants failed to provide Walker

appropriate treatment for his hemophilia by

routinely refusing to give him Factor VIII, and

by not informing non-medical prison staff of the

greater risk of physical injury to Walker

inherent in his hemophilia. Walker also complains

in Count II that the defendants failed to provide

adequate pain management for his hemophilia and

that even when they began treating him for AIDS,

the treatment was not medically appropriate.

 The defendants moved for summary judgment and

the district court granted judgment in favor of

the defendants on both counts. The court found

that the defendants’ failure to treat Walker for

HIV or AIDS could not constitute deliberate

indifference because Walker could have obtained

treatment by agreeing to the HIV confirmatory

test. The court also held that a refusal to

provide AZT without a confirmatory test was a

matter of medical judgment, and that action based

on medical judgment could never rise to the level

of a constitutional violation. The court found

that, contrary to Walker’s claim, Illinois law

did not give the defendants authority to test

Walker for HIV against his will unless he had

otherwise consented to treatment. Because the

record was replete with Walker’s refusal to

consent to treatment in a variety of contexts,

and because he had expressly refused to consent

to the HIV test, the district court held that

Illinois law did not grant authority to the

defendants to test Walker for HIV against his

will. As for Walker’s complaint that the

defendants sometimes refused to give him Factor

VIII when he requested it, the court found that

requiring clinical observation before dispensing

Factor VIII could not constitute deliberate

indifference because it was, once again, action

based on medical judgment. Finally, the court

granted summary judgment in favor of the nonmedical defendants because Walker could not

demonstrate that they were personally responsible

for any decisions regarding his medical care. The

court therefore granted summary judgment in favor

of all of the defendants and against Walker on

Counts I and II. Walker appeals.

II.

 On appeal, Walker contends that the defendants

were deliberately indifferent to his serious

medical needs because they failed to take the

medically necessary steps to determine whether he

was HIV positive or had AIDS, failed to timely

inform him of his HIV or AIDS status, and failed

to timely provide the medical treatment necessary

for a person with HIV disease or AIDS. He also

maintains that the defendants were deliberately

indifferent to his serious medical needs when
they routinely failed to provide appropriate

treatment for his hemophilia. Finally, he argues

that even when the defendants did begin to treat

him for AIDS, they did not provide treatment in

a medically appropriate manner. 

 The defendants contend that Walker’s refusal to

cooperate in his own diagnosis is fatal to his

claim of deliberate indifference in the diagnosis

and treatment of HIV infection and AIDS.

Similarly, in the treatment of his hemophilia,

the defendants maintain that Walker’s repeated

wasting of Factor VIII led the prison officials

to refuse to provide the substance to him on

demand. Moreover, the defendants claim that

Walker cannot show that he was damaged by any of

the refusals to give him Factor VIII on any

particular occasion. Finally, the non-medical

defendants contend that Walker cannot demonstrate

that they were aware of his medical conditions or

treatment much less that they were involved in

the decision-making. Without personal

involvement, the non-medical defendants claim

they cannot be held liable under 42 U.S.C. sec.

1983.

A.

 We turn first to the standard for deliberate

indifference. In a case involving an attack on a

prisoner by other inmates, the Supreme Court set

forth the following definition:

We hold instead that a prison official cannot be

found liable under the Eighth Amendment for

denying an inmate humane conditions of

confinement unless the official knows of and

disregards an excessive risk to inmate health or

safety; the official must both be aware of facts

from which the inference could be drawn that a

substantial risk of serious harm exists, and he

must also draw the inference. . . . [A]n

official’s failure to alleviate a significant

risk that he should have perceived but did not,

while no cause for commendation, cannot under our

cases be condemned as the infliction of

punishment.

Farmer v. Brennan, 511 U.S. 825, 837-38 (1994).

The Court further explained that an inmate need

not show that a prison official acted or failed

to act believing that harm would actually befall

the inmate; rather it is enough for the inmate to

show that the official acted or failed to act

despite his knowledge of a substantial risk of

serious harm. 511 U.S. at 842. Moreover, whether

a prison official had the requisite knowledge of

a substantial risk is a fact question that could

be demonstrated by drawing an inference from

circumstantial evidence. For example, a fact
finder could conclude that the official was aware

of the substantial risk from the very fact that

the risk was obvious. Id. 

 As we noted above, Farmer was a case in which a

prisoner was assaulted by other inmates, and we

subsequently expanded on the theme of obviousness

in the medical treatment context. We first noted

that people are not always conscious of what

reasonable people would be conscious of. Steele

v. Choi, 82 F.3d 175, 178 (7th Cir. 1996), cert.

denied, 519 U.S. 897 (1996). We do not consider

what a reasonable doctor would have done. That is

an objective test, and Farmer dictated a

subjective analysis. 82 F.2d at 179. Nor is it

enough to show that a prison doctor committed

malpractice. At the very least, a prison official

must act or fail to act despite his knowledge of

a substantial risk of serious harm. 82 F.3d at

178. Thus, in Choi, we noted that where there was

no evidence that the inmate’s symptoms were

consistent only with a single diagnosis, and

where there is no evidence that the doctor was

ignoring the inmate’s medical needs, it is not

enough to show that a reasonable doctor would

have made the correct diagnosis and treatment. 82

F.3d at 179. "If the symptoms plainly called for

a particular medical treatment--the leg is

broken, so it must be set; the person is not

breathing so CPR must be administered--a doctor’s

deliberate decision not to furnish the treatment

might be actionable under sec. 1983." Id. A

doctor might be careless in not appreciating the

need to investigate several possible explanations

for a particular prisoner’s symptoms, and this

carelessness may constitute malpractice. But

malpractice alone is not enough to meet the

constitutional standard. Id.

 Walker believes that his symptoms were obvious

and plainly called for a particular medical

treatment. Walker’s generalized lymphadenopathy

and inverted T4 helper cell/T8 suppressor cell

ratio, together with his hemophilia at a time

when hemophiliacs were contracting HIV at an

alarming rate all led a number of doctors to

strongly suspect, even assume, that he was HIV

positive. Indeed, a notation on his medical

records indicates that he had received so much

Factor VIII that he was presumed to be HIV

positive. The defendants agree that they strongly

suspected Walker was HIV positive and had

contracted AIDS. Thus, Walker presented enough

evidence from which an inference could be drawn

that at least some of the defendants knew of a

substantial risk of serious harm. The question

remains, however, whether Walker has any evidence

that the defendants’ response to this knowledge

was inadequate. Under Farmer, prison officials

who are aware of a substantial risk of serious
harm may not be held liable if they responded

reasonably to the risk, even if the harm was not

ultimately averted. 511 U.S. at 844; Reed v.

McBride, 178 F.3d 849, 854 (7th Cir. 1999)

("[t]he remaining question is whether the

defendants’ response can be characterized either

as inaction or woefully inadequate.").

 Everyone agrees that the defendants refused to

treat Walker unless and until he took a

confirmatory HIV test. They disagree on the

reason why prison officials insisted on this

step, and on the reason why Walker refused to

submit to the blood test. Even Walker does not

deny that at any point, he could have received a

confirmatory blood test, and if found positive,

would have been treated with AZT and Bactrim.

Walker argues that neither prison policy nor

medical standards at the time required a positive

HIV test before treatment could begin, and that

even if the HIV test was the only barrier to

obtaining treatment, the defendants could have,

indeed should have, forced him to undergo the

test. Walker points out that prison officials had

forced treatment on him in the past, requiring

him to take psychotropic medications. Walker

objected to that treatment, and sued prison

officials there for violating his Eighth

Amendment rights. See Walker v. Shansky, 28 F.3d

666 (7th Cir. 1994). He points also to the

Illinois AIDS Confidentiality Act, which

provides, in relevant part, that written informed

consent to the HIV test is not required where, in

the judgment of the physician, the testing is

medically indicated to provide appropriate

diagnosis and treatment, provided that the

subject of the test has otherwise consented to

medical treatment. See 410 ILCS 305/8. Although

the defendants disagree on the applicability of

this section, we will assume, in this summary

judgment context, that prison officials could

have forced Walker to undergo an HIV test, and

knew that they had the legal authority to do so. 

 That does not answer the question, however. The

question is whether a reasonable jury could find

that prison officials were deliberately

indifferent to Walker’s serious medical needs

because they required the HIV test as a

prerequisite to treatment and then did not force

him to take it. Walker claims that officials are

now hiding behind the test as the reason for

their inaction when in fact no such test was ever

really required before treatment could be

dispensed. His evidence for this proposition is

thin. Although CDC criteria for counting AIDS

cases at that time did not include a requirement

of a positive HIV blood test, Walker has no

evidence that CDC criteria for treating (as

opposed to simply counting) AIDS patients did not
include a requirement for an HIV positive blood

test before AZT could be dispensed. Walker also

presents a 1989 memorandum from Dr. Ronald

Shansky, a defendant in this case, to all medical

directors and physicians in the Illinois

Department of Corrections. That memo, which has

a subject line of "Treatment of HIV Infection,"

states, in relevant part:

All individuals, whether confirmed with the

diagnosis of AIDS or ARC or with asymptomatic HIV

infection (T4 counts below 300), should be given

the same dose of AZT--that dose being 600 mg per

day. . . . All confirmed cases of AIDS should be

on this dose. In addition, I am recommending that

all individuals who have T4 counts of less than

300 and whose T4 cells are less than 20 percent

of the total T-cells be started on this dosage.

Walker cites this memo as evidence that no HIV

blood test was necessary as of 1989 in order to

begin treatment with AZT. Rather, all that was

needed was a T4 cell count of less than 300,

which prison doctors knew he had. Walker’s

reading of the memo is strained past the limits

of reasonableness. His best evidence that

requiring an HIV test was simply a ploy to deny

him treatment is that as soon as he was

transferred to another prison within the same

system, and subject to the same policies, he was

given AZT without taking an HIV test. 

 This, however, is merely evidence that, in

another physician’s judgment, treatment could

begin in some cases without an HIV blood test.

Even so, requiring an HIV test before dispensing

a dangerous drug used to treat HIV positive

persons and persons with AIDS is so clearly

within the realm of reasonable conduct by the

prison that no reasonable jury could find that

the prison was deliberately indifferent to

Walker’s serious medical needs for requiring that

test, even though he had many of the symptoms of

the disease. Like the plaintiff in Choi, there is

no evidence tending to suggest that Walker’s

symptoms were consistent only with AIDS or HIV

infection, and there is no evidence that the

prison was ignoring Walker’s needs. Rather, they

required him to take a test confirming what they

suspected to be the case before they would begin

treatment. Nor are we persuaded by the fact that

the prison officials chose not to force the

needed test on Walker. Walker does not claim to

be incompetent or to have displayed any signs of

an inability to make medical decisions for

himself. As a competent adult, he was free to

refuse treatment. Here he impliedly refused

treatment by refusing to take the one test he

knew would lead to a confirmed diagnosis and

treatment with AZT. If there had been any
evidence that the defendants were aware he was

mentally ill and incompetent to make his own

medical decisions, or perhaps suffering from

AIDS-related dementia, for example, this might

well be a different case. Without evidence of

incompetence, no reasonable jury could find the

defendants were deliberately indifferent to

Walker’s serious medical needs simply because

they required an HIV confirmatory test before

dispensing a powerful and dangerous drug. The

district court correctly granted summary judgment

in favor of the defendants.

B.

 We turn next to Walker’s claim that the

defendants were deliberately indifferent to his

serious medical needs by routinely refusing to

give him Factor VIII on demand, and by giving him

inadequate treatment for AIDS once they did begin

to treat him for that condition. In particular,

he complains that the prison officials did not

provide adequate nutrition, exercise, living

conditions or psychological counseling for a

person with AIDS, and that prison staff were not

properly trained on how to handle a person with

hemophilia. His complaints relating to his

treatment for AIDS and his handling as a

hemophiliac are not supported by any evidence in

the record other than his own personal opinion

given in deposition testimony. No medical

testimony supports the proposition that his

treatment for AIDS was inadequate once the prison

officials began to treat him. Nor does he cite

any medical evidence in the record that he was

mishandled as a hemophiliac. No reasonable jury

could conclude based on his personal testimony

that his medical treatment was inadequate without

any competent evidence in the record to support

these claims. The district court therefore

correctly entered summary judgment on those

claims. 

 Walker’s complaint about the administration of

Factor VIII is a closer call. Some of the prison

doctors agreed that hemophiliacs in general can

learn to recognize the signs of an internal bleed

and that they should be administered Factor VIII

on demand when they request it. Walker does not

dispute that he sometimes requested Factor VIII

and then refused to take it because he believed

it had been prepared improperly. Because the

substance can be used for only a few hours after

it is prepared, his refusals resulted in the

wasting of Factor VIII on occasion. Prison

officials have a different explanation for why

Walker refused to take Factor VIII after

requesting it. According to them, Walker often

requested narcotic pain medication at the same

time and refused to take the Factor VIII unless
he was also given the pain medication, even when

doctors believed the pain medication was not

needed. On summary judgment, we will give Walker

the benefit of the doubt and assume that he

refused to take Factor VIII because he thought it

had been improperly prepared. There is no

evidence in the record that it had, in fact, been

improperly prepared but we will assume Walker had

a good faith belief that it had been. That still

left the prison in the position of having to

decide whether to prepare Factor VIII every time

Walker requested it. Some doctors gave Walker

Factor VIII on demand, and others decided to

examine him to determine if he needed it before

preparing it and potentially wasting it. There

was clearly a difference of medical opinion on

how to treat Walker’s hemophilia, but there is no

evidence that the prison officials were

deliberately indifferent to Walker’s condition.

We examine the totality of an inmate’s medical

care when determining whether prison officials

have been deliberately indifferent to an inmate’s

serious medical needs. See Reed, 178 F.3d at 855.

Viewing the totality of the care Walker received

for his hemophilia, isolated incidents of delay

or even refusals to administer Factor VIII after

clinical determinations that none was needed

cannot be construed to be deliberate

indifference. 

 The decisive factor, however, is that Walker

has no evidence that he was injured by the

defendants’ refusal on some occasions to provide

him Factor VIII. Although it is true that the

defendants admitted that a hemophiliac could be

harmed by delays or refusals in providing Factor

VIII, there is no evidence that Walker actually

was harmed by these decisions. In support of this

alleged harm, he cites the deposition of his

hematologist. She states that Walker’s inability

to walk could be the result of untreated joint

bleeds, or could be the result of muscle weakness

from lack of use. Because she is speculating as

to the cause of his difficulties, nothing in her

testimony supports Walker’s claim that he was

actually injured by the occasional refusals to

infuse him with Factor VIII when he requested it.

Because he cannot show injury, he cannot make out

a claim of deliberate indifference relating to

his treatment as a hemophiliac. The district

court was correct to grant summary judgment on

that claim as well.

III.

 Because Walker refused to take a reasonably

requested confirmatory test that would have led

to appropriate treatment, we conclude that he

cannot make out a claim for deliberate

indifference to his serious medical needs.

Likewise, we affirm the grant of summary judgment
on his claim of inappropriate treatment for

hemophilia because he cannot show that he was

injured by the defendants’ policies or practices.

Finally, we affirm summary judgment in favor of

the defendants on Walker’s remaining claims

because there is no competent evidence in the

record to support claims that he was not treated

appropriately once prison officials did begin

treating him for AIDS.

AFFIRMED.

FOOTNOTES

/1 Dwayne Walker died while this appeal was pending.

By order of this Court, his mother, Clara Walker,

was allowed to substitute as plaintiff. When we

refer herein to "Walker," we are referring to

Dwayne Walker.