# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted May 19, 2020 *

Decided May 20, 2020

Before

J OEL M. FLAUM, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 19-2545

DAVID A. SLAUGHTER, Plaintiff-Appellant

,

v

.

J EAN LUTSEY and KATHY LEMENS, Defendants-Appellees

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 17-C-1448

Lynn Adelman,
J udge

.

O R D E R

David Slaughter, a Wisconsin inmate, sued a prison nurse and the health services manager, alleging that they provided inadequate medical treatment in violation of the Eighth Amendment by failing to schedule hi m an appointment with a prison doctor and by not conducting proper tests. The di strict court entered summary judgment for the defendants, concluding that no reasonable jury could find that the nurse’s actions

* We have agreed to decide this case without oral argument because the briefs and record adequately present the facts an d legal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-2545 Page 2

fell outside the bounds of accepted profe ssional judgment or that the supervisor ignored complaints that put her on notice of a serious risk to his health. We affirm.

We construe the facts in the light most favorable to Slaughter, the nonmoving
party. Shields v. Illinois Dep’t of Corrs. , 746 F.3d 782, 786 (7th Cir. 2014). On January 9, 2017, Slaughter went to the health services un it at Green Bay Correctional Institution complaining of a mouth infection. The dentist prescribed antibiotics, pain medicine, and

a lidocaine rinse.

Two weeks later, on January 24, Slaughter wrot e to the health services unit that

he had lost consciousness for fifteen minutes, experienced a lot of pain, and had a fever. Kathy Lemens, a nurse, examined him. He r treatment notes reflect that Slaughter reported he had diarrhea, no appetite, a fever, and body aches. Based on these symptoms and her observations, Lemens susp ected that Slaughter had a stomach virus. She followed the prison’s “abdominal protocol ,” which provides that the inmate should take anti-diarrheal medicine, avoid spicy foods, and drink more water. She also referred Slaughter’s chart to an advanced care provider (a doctor or nurse practitioner) and scheduled a follow-up appointment in three days.

Two days later, Slaughter reported to a gu ard that he had blood in his stool. The guard informed the health services unit of Slaughter’s complaint, and a nurse responded that Slaughter should file a re quest for an appointment. The next day, Slaughter submitted a request, stating that his condition had deteriorated and that Lemens had failed to notify the prison do ctor of his condition or schedule an appointment with the doctor. He also wrote to Jean Lutsey, the health services manager, reiterating these concerns. Lutsey respon ded that Lemens had consulted with the doctor, but that the doctor had not been available for an appointment.

Lemens examined Slaughter again that day. Her treatment notes reflect that Slaughter reported blood in his stool but do not mention diarrhea (Slaughter says he also told her that he had been coughing up blood). Slaughter acknowledged at the appointment that he had not taken the medici nes that Lemens had previously ordered. Lemens decided to continue the abdominal pr otocol and instructed Slaughter to take the anti-diarrheal medicine and acetaminophen, eat as tolerated, and drink water.No. 19-2545 Page 3

Two days later, Slaughter submitted another health services request, stating that he was still in pain and “bleeding” (without further description). He also sent another letter to Lutsey, asserting that Lemens had retaliated against him for his previous complaint about her treatment by discontinui ng the pain medication that the dentist had prescribed for his mouth infection. A nurse (not Lemens) examined Slaughter in response to his request and recorded that his main complaints were of mouth pain and

diarrhea. This nurse also followed the abdo minal protocol, referred Slaughter to the
dentist, and instructed him to take acetam inophen one to two times per day for a week. She also scheduled a follow-up appointment for four days later and told Slaughter to submit another health services request if he did not see improvement. Lutsey then responded to Slaughter’s letter a few days la ter, explaining that the dental order for pain medication for his mouth infection had or iginally been for only ten days, but that a new ten-day order had been entered that day.

On February 1, Slaughter complained to a guard that his whole body was in pain, that he coughed up blood, and that he felt like he was going to die. A nurse examined him and consulted a prison docto r, who, on February 3, ordered Slaughter transferred to the emergency room. Slaughte r was diagnosed with meningitis (“likely viral”), treated, and sent back to the prison after a six-day hospital stay.

Slaughter sued Lutsey and Lemens under 42 U.S.C. § 1983, alleging that they had been deliberately indifferent to his serious medical needs in violation of the Eighth Amendment by not consulting with a doctor sooner and by failing to conduct more appropriate tests to accurately diagnose his a ilment. The district court entered judgment

in favor of the defendants. The court conclu ded that Slaughter did not present sufficient evidence that Lemens provided ineffective treatment, as she had properly noted his symptoms, prescribed a course of treatment to remedy those symptoms, and ordered follow-up appointments. The court also conclu ded that the evidence did not show that Lutsey was deliberately indifferent to Slaughter’s complaints because she had responded to all of Slaughter’s grievances wi thin a few days (if not the same day) and had given him relevant in formation about his care.

On appeal, Slaughter maintains that Lemens and Lutsey were deliberately indifferent to his health by not providing adequate medical care or scheduling him to see a doctor. Healthcare staff at a prison violate the Eighth Amendment if they intentionally disregard a known, objectivel y serious medical condition that poses anNo. 19-2545 Page 4

excessive risk to a prisoner’s health. Farmer v. Brennan , 511 U.S. 825, 837 (1994); Wilson

v. Adams , 901 F.3d 816, 820 (7th Cir. 2018).

Slaughter first contends that Lemens wa s deliberately indifferent because she did not schedule an appointment for him to see a do ctor after he first reported blood in his stool. He maintains that Lemens—a nurse—could not perform the types of medical tests that a doctor could, so she prevented an accurate diagnosis by treating him without involving a doctor. But Slaughter lacks evid ence that Lemens acted with deliberate

indifference when she treated him for a st omach virus after examining him multiple

times. Even if Lemens was incorrect abou t the cause of his symptoms, an incorrect diagnosis alone is insufficient to show deliberate indifference. See Norfleet v. Webster

, 439 F.3d 392, 396 (7th Cir. 2006). Slaughter has presented no evidence showing that Lemens’s treatment decisions—grounded on her observations and his complaints— were not based on the exercise of her medical judgment. See Whiting v. Wexford Health
Sources, Inc. , 839 F.3d 658, 662–63 (7th Cir. 2016).

Slaughter also argues that a factual dispute exists as to whether Lemens consulted with the prison doctor after she ex amined him the first time because there is

no record evidence that the doctor made a diagnosis based on his symptoms. Slaughter has not, however, presented evidence that refut es the notes in his treatment record that a doctor was consulted and affirmed Lemens’s proposed course of care. Furthermore, even if the doctor did not review Slaugh ter’s medical chart, Slaughter still lacks

evidence that Lemen’s treatment decision s substantially departed from accepted medical practice. Whiting , 839 F.3d at 663. Slaughter also maintains that Lemens was deliberately indifferent and retaliated agains t him by discontinuing his pain medication. As Lutsey explained to him, though, the pa in medication he received for his mouth infection was scheduled to lapse ten days af ter the dentist prescribed it. Additionally, Slaughter has presented no evidence that Lemens was responsible for ordering more medication or that she deliberately failed to order more medication so that he would

suffer. See, e.g.

, Jackson v. Pollion , 733 F.3d 786, 790 (7th Cir. 2013).

Next, Slaughter contends that Lutsey was deliberately indifferent because he alerted her that the nursing staff were not giving him proper treatment, but she did nothing. Lutsey did not examine or treat Slaughter, and she may be liable as a supervisor only for acts that she personally directed or authorized. See Ashcroft v. Iqbal

, 556 U.S. 662, 677 (2009); Arnett v. Webster , 658 F.3d 742, 757 (7th Cir. 2011). Slaughter hasNo. 19-2545 Page 5

presented no evidence that Lutsey personally directed his care. See Iqbal , 556 U.S. at 677;

Mitchell v. Kallas , 895 F.3d 492, 498–99 (7th Cir. 2018) (supervisor not deliberately

indifferent when not involved in treatment decisions). Lutsey responded to Slaughter’s inquiries and made sure that he was being seen by medical professionals. Her reading of his complaints alone does not demonst rate that she knew that he was receiving inadequate care (even assuming he was) and chose to do nothing. See Mitchell , 895 F.3d
at 498–99; Greeno v. Daley , 414 F.3d 645, 657 (7th Cir. 2005).

We have considered Slaughter’s remaining arguments, and none has merit.

AFFIRMED