United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 2, 2021*

Decided September 3, 2021 

Before

FRANK H. EASTERBROOK, Circuit Judge

DIANE P. WOOD, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 19-1468 

TERRY WAGNER,

Plaintiff-Appellant, 

v. 

THOMAS BAKER, 

Defendant-Appellee.

Appeal from the United States District 

Court for the Central District of Illinois. 

No. 14-3393 

Harold A. Baker, 

Judge. 

O R D E R

Terry Wagner, an Illinois inmate, believes that his doctor, Thomas Baker, was

deliberately indifferent to his sleep apnea, gastroesophageal reflux disease (GERD), 

constipation, and frequent urination. The district court entered summary judgment for 

Dr. Baker on most of these claims, and a jury later found in the doctor’s favor on the one 

* We have 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NONPRECEDENTIAL DISPOSITION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. 19-1468 Page 2 

claim—concerning Wagner’s sleep apnea—upon which the case proceeded to trial. We 

affirm.

I. Background

This appeal concerns the treatment that Wagner received from Dr. Baker 

between 2012 (when Wagner was transferred to the Western Illinois Correctional 

Facility in Mount Sterling, Illinois) and 2015 (when Dr. Baker left his position as medical 

director). Because Wagner challenges the district court’s summary-judgment ruling and 

the jury’s verdict for Dr. Baker, we report the facts in the light most favorable to Wagner 

and in a manner that is consistent with the jury’s verdict. See Frey v. Coleman, 903 F.3d 

671, 674 (7th Cir. 2018). At Wagner’s first visit in August 2012, Dr. Baker noted his 

history of GERD, hypertension, and benign prostatic hyperplasia (an enlarged prostate). 

Dr. Baker also noted that Wagner reported that he was coughing or spitting up blood 

because of his GERD and needed to see a gastroenterologist, but no doctor at his prior 

prison had recommended or approved a referral. To treat Wagner’s GERD, Dr. Baker 

prescribed pantoprazole (a proton-pump inhibitor). He also ordered a chest x-ray and

ran tests to check for blood loss or the presence of blood in Wagner’s lungs. Based on 

repeated rounds of those tests, Dr. Baker concluded two months later—as had the 

doctors at Wagner’s previous prison—that Wagner was not actually coughing or 

spitting up blood. 

In early 2013, Wagner told Dr. Baker that he was experiencing additional 

problems related to his GERD. He said he again was coughing or spitting up blood and 

now complained of difficulty swallowing. Dr. Baker repeated the earlier tests, which 

came back normal. Attributing Wagner’s swallowing troubles to a sinus problem, 

Dr. Baker prescribed a mucus thinner and an antihistamine. After Wagner said that the 

medication was not working, Dr. Baker ordered a swallow study, which turned out

normal. Two months later, Wagner again reported coughing up blood, prompting more 

tests. These too were unremarkable, so Dr. Baker concluded that no further testing or 

treatment was needed. Wagner continued to receive pantoprazole for his GERD. 

Wagner also complained of constipation. In 2012, Dr. Baker told him to raise the 

issue first at sick call. Wagner did and was prescribed a fiber supplement and stool 

softeners. Two years later, when Wagner reported continuing constipation, Dr. Baker 

renewed those prescriptions and ordered lactulose (a laxative). Three times over the 

next year, Wagner reported that these measures were not working. Dr. Baker responded 

by ordering additional x-rays (which showed constipation but no cause), adjusting the 

timing and dosage of the lactulose, prescribing another laxative and a medication to 
No. 19-1468 Page 3 

reduce gas, and discontinuing one of the stool softeners. A CT-scan ordered by 

Dr. Baker in August 2015 detected no sign of constipation. 

Wagner also dealt with frequent urination. In fall 2014, Dr. Baker prescribed 

finasteride (a medication used to shrink an enlarged prostate) and ordered a battery of

tests and x-rays that all came back normal. After Wagner reported no improvement, 

Dr. Baker prescribed an antibiotic for a possible prostate infection. In spring 2015, 

Dr. Baker referred Wagner to a urologist, who opined that Wagner’s frequent urination

was related to his constipation and might warrant a visit to a gastroenterologist for 

laxatives. At his last visit with Williams that August, Dr. Baker prescribed a bladder 

relaxant recommended by the urologist.

Wagner further suffers from sleep apnea. At summary judgment and at trial, the 

parties presented conflicting testimony and evidence on the treatment Wagner received 

for this condition. Wagner asserted that he was diagnosed with sleep apnea in 2010 and 

told Dr. Baker upon his arrival at Western that he would stop breathing at night, but 

Dr. Baker refused to treat him for over a year. For his part, Dr. Baker asserted that 

Wagner’s medical records contained no sleep-apnea diagnosis. Further, Dr. Baker 

asserted that Wagner first complained to Western staff about difficulty breathing at 

night in late 2013, at which point Dr. Baker ordered a sleep study that diagnosed 

Wagner with the condition and then ordered Wagner a continuous positive airway 

pressure (CPAP) machine.

Wagner sued Dr. Baker (along with other prison officials and staff and several 

Illinois elected officials) for deliberate indifference to his serious medical needs, in 

violation of his rights under the Eighth Amendment. 

The district court granted in part and denied in part the defendants’ motions for 

summary judgment. The court entered summary judgment against Wagner on his

claims relating to the treatment of his GERD, constipation, and frequent urination. The

court explained that no rational juror could find that the defendants were deliberately 

indifferent to these issues, given the extensive array of tests, x-rays, and medicines that 

they ordered in response to Wagner’s reports of ongoing symptoms. And, though

Wagner insisted that his symptoms persisted and that he needed to see a 

gastroenterologist, he provided no evidence that the defendants’ determinations about

his treatment departed from accepted professional judgment. But the court denied 

summary judgment on Wagner’s claim concerning his sleep apnea. Noting that 

Dr. Baker had not addressed Wagner’s assertions that he told the doctor of his trouble 
No. 19-1468 Page 4 

sleeping for a year before he received treatment, the court determined that a reasonable 

juror could find that Dr. Baker deliberately delayed the sleep study and later treatment. 

The case proceeded to trial on the sleep-apnea claim. Wagner testified that he

had reported sleep troubles to Dr. Baker as soon as he arrived at Western and that he 

had submitted several grievances on the issue before fall 2013. Dr. Baker also testified, 

pointing out that there was no record that Wagner reported sleep issues to him or to 

anyone else at Western through the grievance process before September 2013. The jury 

found for Dr. Baker, and the court entered judgment in his favor. 

Wagner proceeded to file several post-trial motions. Within a month of the entry 

of judgment, he filed two motions that requested copies of the trial transcripts and 

expressed an intent to appeal the jury’s verdict and the court’s summary-judgment 

ruling. He also moved for a new trial, contending that the evidence did not support the 

jury’s verdict because Dr. Baker had lied. He argued that he could contradict Dr. 

Baker’s testimony through newly discovered evidence—encyclopedia entries on sleep 

apnea and a note from a correctional officer at his current prison (not Western) that 

stated that grievances there were not recorded in the way that Dr. Baker testified. The 

court denied Wagner’s motion, concluding that the jury was entitled to credit 

Dr. Baker’s testimony. Wagner then sought reconsideration of the denial of his motion 

for a new trial; the court denied that motion on January 30. 

II. Discussion

We first address the scope of our jurisdiction. Wagner’s notice of appeal, mailed 

on February 28, 2019, was timely to appeal only the denial of reconsideration of the 

denial of his motion for a new trial. He mailed the notice more than 30 days after the 

denial of his motion for a new trial on December 17, 2018, and the time for appealing 

that denial was not tolled by his later motion for reconsideration. See FED. R.

APP. P. 4(a)(1)(A), (a)(4)(A)(v), (c); Armstrong v. Louden, 834 F.3d 767, 769 (7th Cir. 2016). 

We therefore ordered the parties to file supplemental briefs addressing whether our

jurisdiction extended over only the denial of his motion for reconsideration.

We are satisfied that our jurisdiction is not so limited, however, because 

Wagner’s motions for transcripts provided notice of his intent to appeal the jury’s 

verdict and the district court’s order entering summary judgment. A filing that does not 

meet the technical requirements of Rule 3 of the Federal Rules of Appellate Procedure

may nonetheless provide adequate notice of a litigant’s intent to appeal if it includes 

“the functional equivalent” of what the rule requires. Smith v. Barry, 502 U.S. 244, 248 
No. 19-1468 Page 5 

(1992). Here, both of Wagner’s motions were timely filed within 30 days of the 

judgment. See FED. R. APP. P. 4(a)(1)(A), (a)(4)(B)(i). The first motion said he was “going 

to appeal the jury verdict to the Seventh Circuit of Appeals,” and the second elaborated 

that “even if the motion for a new trial is denied ... it is the Plaintiff’s intent to appeal 

the Defense counsel’s motion for summary judgment being granted as well as the jury’s 

verdict in favor of Dr. Thomas Baker.” Because they contain the name of the party 

taking the appeal, designate the jury verdict and the summary-judgment order as the 

rulings being appealed, and name this court, these filings are functional equivalents of a 

notice of appeal under Rule 3. See FED. R. APP. P. 3(c)(1); Smith, 502 U.S. at 248; Smith v. 

Grams, 565 F.3d 1037, 1041–42 (7th Cir. 2009). But Wagner did not submit any timely 

filing that reflected an intent to appeal the court’s order denying his motion for a new 

trial, so we may not review that decision. See FED. R. APP. P. 4(a)(4)(B)(ii). 

As for the merits, Wagner first challenges the district court’s decision to enter 

summary judgment for Dr. Baker on his claims that he was deliberately indifferent to 

his GERD. He argues that he had identified a fact dispute based on his testimony that 

Dr. Baker ignored his complaints of coughing or spitting up blood. He also contends 

that the court overlooked evidence that Dr. Baker refused to follow through on referrals 

made by his former prison doctors and urologist for him to see a gastroenterologist. 

But the record does not support Wagner’s version of events, and no reasonable 

jury could find that Dr. Baker deliberately disregarded this serious medical condition. 

See Farmer v. Brennan, 511 U.S. 825, 837, 846 (1994); Petties v. Carter, 836 F.3d 722, 728 

(7th Cir. 2016) (en banc). First, Dr. Baker did not ignore Wagner’s complaints about his 

GERD or coughing or spitting up blood. Instead, the record shows that Dr. Baker 

prescribed medication to reduce stomach acid and relied on extensive testing to 

determine that Wagner did not require other treatment. Wagner cannot point to any 

evidence showing that Dr. Baker’s treatment decisions departed from professional 

standards to such an extent that they demonstrated an absence of professional 

judgment. See Johnson v. Dominguez, 5 F.4th 818, 826 (7th Cir. 2021). Second, the record 

does not reflect that any doctor referred Wagner to a gastroenterologist. And even if one

had, Dr. Baker’s disagreement with another physician does not show that he provided 

constitutionally inadequate care. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). 

Wagner next argues that the district court improperly entered summary 

judgment on his claims that Dr. Baker was deliberately indifferent to his complaints of 

constipation and need to urinate frequently. He contends that the evidence showed that 

Dr. Baker persisted with ineffective treatment for those problems and ignored the
No. 19-1468 Page 6 

advice of specialists—for instance, by not treating his constipation before his urinary 

frequency, as recommended by the urologist. 

Here too, the district court correctly concluded that Wagner had not produced 

evidence supporting his claims. He does not identify any evidence that questions the 

changes in treatment (i.e., alterations in his medication) that Dr. Baker made in response

to his complaints. Cf. Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005) (jury could find 

deliberate indifference where defendants continued with ineffective treatment). Indeed, 

the last scans reviewed by Dr. Baker showed that Wagner was not constipated. Wagner 

also produced no evidence suggesting that Dr. Baker ignored a specialist’s advice. 

See Harper v. Santos, 847 F.3d 923, 927 (7th Cir. 2017). Rather, Dr. Baker followed the 

urologist’s instruction that, once he was no longer constipated, Wagner’s urinary 

frequency could be treated with a bladder relaxant. 

Wagner next raises two challenges to the jury’s verdict. First, he takes issue with 

defense counsel’s statement at closing argument that he lied when he testified that he

complained about his sleep apnea before 2013. But Wagner waived this argument when 

he failed to object at trial to counsel’s closing remarks. See Black v. Wrigley, 997 F.3d 702, 

710–11 (7th Cir. 2021). Second, Wagner challenges defense counsel’s introduction of

certain medical records (pertaining to his prior drug addiction and sexually transmitted 

disease) that he regards as prejudicial. But the introduction of these records could not 

have been plain error, given that Wagner posed no objection and used them himself at 

trial. See id. at 709; United States v. Addison, 803 F.3d 916, 919 (7th Cir. 2015). 

Finally, Wagner argues that the district court erred in refusing to reconsider the 

denial of his motion for a new trial. The court appropriately exercised its discretion to 

deny that motion. See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir. 2013).

The evidence Wagner purported to be newly discovered—the encyclopedia entry on 

sleep apnea and the note from the correctional officer about the grievances process—

did not contradict Dr. Baker’s testimony or warrant a new trial. See id at 955. 

We have considered Wagner’s other arguments, and none has merit.

AFFIRMED