Berry v. Peterman

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-3557

A KIDA B ERRY,
Plaintiff-Appellant,
v.

L T. G EORGE P ETERMAN, R.N. D AVE R EICH, AND
K AREN B UTLER, M.D.,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CV-0421—J.P. Stadtmueller, Judge.

S UBMITTED M ARCH 17, 2010—D ECIDED M AY 5, 2010

Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. In the spring of 2008, plaintiff
Akida Berry, an inmate in the Wisconsin Department
of Corrections, was transferred temporarily to the
Waushara County Jail because of overcrowding. Berry
developed a serious toothache. The nurse and the doctor
at the jail told him to take over-the-counter pain
relievers, but they refused to refer him to a dentist. After
2 No. 09-3557

about two months of serious pain, Berry was returned to
a state facility where he promptly saw a dentist who
performed a root canal the same day.
Berry, proceeding without a lawyer, sued the nurse, the
doctor, and the jail administrator under 42 U.S.C. § 1983
for violating his Eighth Amendment right not to be sub-
jected to cruel and unusual punishment. The defendants
moved for summary judgment, arguing (1) that Berry
failed to exhaust his administrative remedies as re-
quired by 42 U.S.C. § 1997e(a); (2) that Berry did not
suffer a serious medical condition; and (3) that even if
Berry did suffer a serious medical condition, he could
not prove that any defendant acted with deliberate indif-
ference toward that condition. The district court disagreed
with the defendants on the first two points but agreed
on the third and thus granted summary judgment to all
three defendants. Berry v. Peterman, 2009 WL 3061977
(E.D. Wis. Sept. 23, 2009).
We affirm in part and reverse in part. We agree with the
district court that Berry has raised a genuine issue of
material fact as to whether he exhausted his administra-
tive remedies. We also agree that Berry suffered a
serious medical condition and that the jail administrator
is entitled to summary judgment because he was not
deliberately indifferent to Berry’s situation. As a lay-
person, the administrator was entitled to rely on the
doctor’s and nurse’s advice regarding Berry’s dental
pain. But we conclude that Berry has offered sufficient
evidence from which a reasonable jury could infer that
the doctor and nurse acted with deliberate indifference
No. 09-3557 3

toward his condition by persisting in an easy but inef-
fective course of treatment that subjected him to two
months of serious but avoidable pain. We remand
those claims for trial.

The Facts for Summary Judgment
This case comes before us on review of a grant of sum-
mary judgment, so we must give plaintiff Berry the benefit
of all conflicts in the evidence and all reasonable and
favorable inferences that might be drawn from the evi-
dence. See Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir.
2006); Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1132
(7th Cir. 1994). We do not vouch for the objective truth
of every detail of the following account or take any posi-
tion as to Berry’s ultimate chance of success on the merits.
Berry was confined at the Waushara County Jail for
approximately ten weeks—from March 28, 2008, through
June 6, 2008—due to overcrowding at Wisconsin’s De-
partment of Corrections (“DOC”) facilities. Approxi-
mately one month before his transfer to Waushara, Berry
had a DOC dental exam and was classified as ” level 20,”
meaning that he had routine or chronic dental needs
and appeared unlikely to suffer an acute dental episode
in the next six months.
During his detention at the Waushara County Jail,
Berry filed numerous complaints concerning a steadily-
worsening toothache. As early as April 3rd, Berry asked to
see a dentist about an ailing tooth, claiming that air, water,
and food all caused him pain. On April 11th, Berry filed a
4 No. 09-3557

complaint stating that he did not believe he could wait
until his transfer back to a DOC facility to see a dentist.
He wrote that nothing was helping his tooth and that
he was “having constant pains [and] headaches.” On
April 13th, Berry again asked to see a dentist and com-
plained that his tooth caused him continuous pain, head-
aches, and problems eating and sleeping. Again on
April 18th, Berry complained that his tooth was
causing him “a great deal of pain, and the worst head-
ache I’ve ever had,” and that he was “unable to drink
water at times, or brush my teeth due to the [pain].” On
April 21st, Berry asked his nurse whether he could be
sent to an off-site dentist to address his increasing
pain, and he complained that his pain medication was
ineffective. Berry complained again on April 24th that
he was in such pain that he had to chew food on only
one side of his mouth, and he noted that the pain had
affected his sleeping and eating. On April 29th, Berry
complained that he had not been able to brush his teeth
because cold water caused him intolerable pain. A few
days later, on May 1st, Berry complained to the jail ad-
ministrator that he needed to see a dentist. Berry filed
this lawsuit on May 14th. He complained to the jail ad-
ministrator again on May 18th, stating that he needed
to see a dentist and that his requests had been ignored.
Defendant Dave Reich—a registered nurse working
for Health Professionals, Ltd., which contracted to pro-
vide medical and nursing services at the Waushara
County Jail—received and replied to most of Berry’s
complaints. In response to Berry’s numerous requests
to see a dentist, Nurse Reich regularly responded that
No. 09-3557 5

Waushara did not have a dentist on staff, that the
Waushara County Jail’s medical staff could treat only
pain or infections, and that any dental work would be
performed when Berry was transferred back to a DOC
facility. At times Nurse Reich changed Berry’s treatment
or made suggestions to alleviate his pain, but he often
merely reminded Berry that he had upcoming doctor
appointments and that he was already receiving pain
treatment (over-the-counter pain relievers). Other times,
Nurse Reich simply replied that Berry’s complaints
had already been addressed.
Defendant Karen Butler, a physician also working for
Health Professionals, examined Berry twice during his
time at the Waushara County Jail. The record contains
no evidence that Dr. Butler x-rayed Berry’s teeth nor
any details as to the methods used to examine Berry’s
teeth on either visit. On the limited record, it appears
that Dr. Butler examined Berry only for infections
or “dental emergencies.” During her examination on
April 17, 2008, Dr. Butler noted no such infections or
emergencies. On April 24th, Dr. Butler examined Berry
again, this time noting a filling in tooth No. 19 but nothing
that would cause pain. On this second visit, Berry
insisted on seeing a dentist. Dr. Butler refused to make
a referral, apparently because Berry presented with
nothing more urgent than unexplained severe pain.
Instead, she recommended a different pain medication.
Dr. Butler persisted in this course of treatment even
after Berry complained that those medications were
ineffective. She never contacted a dentist to examine
Berry’s teeth.
6 No. 09-3557

Defendant George Peterman, Waushara County’s jail
administrator, had limited contact with Berry, who ad-
dressed only three complaints to him. Peterman replied
to the second complaint and told Berry that he had
raised his concerns with the medical staff. At Berry’s
request, Peterman later looked at Berry’s teeth himself.
Not surprisingly, he told Berry that he was not qualified
to diagnose or treat dental problems. In response to the
third complaint, in which Berry requested to see a
dentist, Peterman forwarded Berry’s request to the
medical staff and notified the DOC of Berry’s complaints.
Berry was transferred from the Waushara County Jail to
a DOC facility on June 6th and had a “priority” appoint-
ment with a dentist on June 12th. According to his chart,
Berry complained of pain in tooth No. 19 when he ate,
when he brushed his teeth with cold water, and at night.
The dentist’s exam revealed that the pulp in tooth
No. 19 was “clearly necrotic,” and the dentist performed
a root canal or pulpotomy—surgical removal of a
portion of the tooth’s pulp (the connective tissue
within, containing blood vessels and nerve tissue)—to
salvage the remaining pulp. The dentist’s notes
indicate that if Berry’s pain had not subsided after the
root canal, the tooth would have to have been removed.
The district court granted summary judgment for all
three defendants, concluding that Berry’s dental pain
was objectively serious but that none of the defendants
had been deliberately indifferent to his condition. The
court explained that Peterman and Nurse Reich
properly deferred to the medical assessments made by
No. 09-3557 7

Dr. Butler, who treated Berry’s pain and examined him
twice but saw no indication of infection or other
dental emergency.

Analysis
The Eighth Amendment to the United States Constitu-
tion protects prisoners from being subjected to cruel
and unusual punishment. This amendment, incorporated
to apply to the states pursuant to the Fourteenth Amend-
ment, includes a right to adequate medical care. Estelle
v. Gamble, 429 U.S. 97, 104-05 (1976); Johnson v. Doughty,
433 F.3d 1001, 1010 (7th Cir. 2006). Pursuant to 42 U.S.C.
§ 1983, a prisoner may bring suit against any person
who caused a violation of the prisoner’s Eighth Amend-
ment rights while acting under color of state law.
Berry asserts that his Eighth Amendment rights were
violated because the defendants showed deliberate indif-
ference to his repeated complaints of severe dental pain.
To succeed on this claim, Berry must show (1) that he
suffered from an objectively serious medical condition;
and (2) that the individual defendant was deliberately
indifferent to that condition. Johnson v. Snyder, 444 F.3d
579, 584 (7th Cir. 2006), citing Zentmyer v. Kendall County,
220 F.3d 805, 810 (7th Cir. 2000).
On the first element, the district court correctly con-
cluded that Berry had come forward with sufficient
evidence of an objectively serious medical condition.
Berry offered ample evidence that he suffered from tooth
decay and serious pain while at the Waushara Jail—his
8 No. 09-3557

tooth’s pulp was “clearly necrotic,” according to the
dental records, requiring an immediate root canal when
Berry was finally seen by a dentist shortly after leaving
Waushara and returning to a DOC facility. Tooth decay
can constitute an objectively serious medical condition
because of pain and the risk of infection. Board v.
Farnham, 394 F.3d 469, 480-81 & n.4, 482-83 (7th Cir. 2005);
Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (tooth
cavity presented serious medical condition).1
Though the district court agreed that Berry suffered
from an objectively serious medical condition, it con-
cluded that none of the defendants acted with deliberate
indifference to that condition. Deliberate indifference
occurs when a defendant realizes that a substantial risk
of serious harm to the prisoner exists, but the defendant
disregards that risk. See Farmer v. Brennan, 511 U.S. 825,
837 (1994); Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.
2010), citing Collins v. Seeman, 462 F.3d 757, 761 (7th Cir.
2006). Deliberate indifference is intentional or reckless
conduct, not mere negligence. Gayton, 593 F.3d at 620.
Because each defendant played a different role in regard
to Berry’s treatment at the Waushara Jail, we address
each defendant in turn.

1
The defendants argue that Berry’s purchases of candy and
other sticky, sugary foods show that he did not actually suffer
from an objectively serious condition. We agree with the
district judge that this evidence only raises an issue of material
fact to be resolved by a jury, not by the court on summary
judgment. See Berry, 2009 WL 3061977, at *5-*6.
No. 09-3557 9

I. The Jail Administrator
Berry failed to present sufficient evidence to support
a reasonable jury finding that jail administrator
Peterman acted with deliberate indifference. As a non-
medical administrator, Peterman was entitled to defer to
the judgment of jail health professionals so long as he did
not ignore Berry. See Hayes v. Snyder, 546 F.3d 516, 527-28
(7th Cir. 2008); Johnson v. Doughty, 433 F.3d 1001, 1010-11
(7th Cir. 2006); Greeno v. Daley, 414 F.3d 645, 655-56 (7th
Cir. 2005); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
The undisputed facts show that Peterman met this stan-
dard. He consulted with the medical staff, forwarded
Berry’s concerns to the DOC, and timely responded to
Berry’s complaints. That he took no further action
cannot be seen as deliberate indifference. As a practical
matter, it would be unwise to require more of a non-
medical staff member like Peterman. As Hayes, Johnson,
Greeno, Spruill, and a host of other cases make clear, the
law encourages non-medical security and administra-
tive personnel at jails and prisons to defer to the profes-
sional medical judgments of the physicians and nurses
treating the prisoners in their care without fear of
liability for doing so. The district court properly granted
summary judgment as to defendant Peterman.

II. The Jail Doctor
Dr. Butler is not entitled to summary judgment. Neither
medical malpractice nor mere disagreement with a doc-
tor’s medical judgment is enough to prove deliberate
10 No. 09-3557

indifference in violation of the Eighth Amendment. See
Estelle, 429 U.S. at 106; Estate of Cole v. Fromm, 94 F.3d
254, 261 (7th Cir. 1996). But a prisoner also is not required
to show that he was literally ignored. Sherrod v. Lingle,
223 F.3d 605, 611 (7th Cir. 2000). Although the doctor
did not completely ignore plaintiff’s pain, a doctor’s
choice of the “easier and less efficacious treatment” for
an objectively serious medical condition can still amount
to deliberate indifference for purposes of the Eighth
Amendment. Estelle, 429 U.S. at 104 & n.10, citing Williams
v. Vincent, 508 F.2d 541 (2d Cir. 1974); Johnson v. Doughty,
433 F.3d at 1013 (stating that “medical personnel cannot
simply resort to an easier course of treatment that they
know is ineffective”); Greeno, 414 F.3d at 655 (noting
that persistence in a course of treatment “known to be
ineffective” violates the Eighth Amendment). A sig-
nificant delay in effective medical treatment also may
support a claim of deliberate indifference, especially
where the result is prolonged and unnecessary pain.
Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008)
(reversing summary judgment for defendants where
plaintiff did not receive treatment for painful broken
nose for nearly two days), citing Gutierrez v. Peters, 111
F.3d 1364, 1371-72 & n.6 (7th Cir. 1997) (collecting cases).
Also, as we explained in Grieveson, a non-trivial delay
in treating serious pain can be actionable even without
expert medical testimony showing that the delay aggra-
vated the underlying condition. 538 F.3d at 779, distin-
guishing Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir.
1996) (one-hour delay in responding to claim of injury
by rape in prison did not rise to level of constitutional
No. 09-3557 11

violation). In this context, courts may consider the “cost
of treatment alternatives [when] determining what con-
stitutes adequate, minimum-level medical care,” Johnson,
433 F.3d at 1013, citing Ralston v. McGovern, 167 F.3d
1160, 1162 (7th Cir. 1999), “but medical personnel cannot
simply resort to an easier course of treatment that they
know is ineffective.” Johnson, 433 F.3d at 1013, citing
Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990).
On the summary judgment record, a jury could reason-
ably conclude that Dr. Butler knowingly adhered to an
easier method to treat Berry’s pain that she knew
was not effective. She had not identified an effective
pain medication, nor could she explain Berry’s pain, yet
she rejected the obvious alternative of referring Berry to
a dentist. A jury could find that she simply concluded
that Berry could endure his pain until his transfer back
to the DOC several weeks later, when Berry would be
the DOC dentist’s problem, not hers. It is hard to
imagine that a doctor seeing a civilian patient, or a
doctor in a prison having on-site dental staff, would
respond in this way to persistent complaints of severe
dental pain over a period of weeks, even in the absence
of a “dental emergency.” A basic dental examination
is not “an expensive or unconventional treatment,” nor
is it esoteric or experimental. See Ralston, 167 F.3d at 1162.
Such examinations are inexpensive and commonly
sought immediately to address severe dental pain. Thus,
Dr. Butler’s refusal to permit Berry such a basic treat-
ment option could be characterized as a “gratuitous
cruelty” forbidden by the Eighth Amendment. See id.
12 No. 09-3557

Where Berry made a modest request for treatment by a
dentist, Dr. Butler’s “obdurate refusal to alter [Berry’s]
course of treatment despite his repeated reports that the
medication was not working and his condition was
getting worse”, see Greeno, 414 F.3d at 654, is sufficient
to defeat her motion for summary judgment.2
We are troubled by the evidence that Dr. Butler would
not refer Berry to a dentist unless and until he presented
either a “dental emergency” or infection. For a physician
to wait to treat a patient until an infection occurs
seems counterintuitive. Medical science has long tried to
prevent infections from occurring in the first place. The
record does not explain just what is included in the
term “dental emergency,” but such emergencies are
certainly not the only serious dental conditions that
demand reasonably prompt professional attention.
Berry could have required emergency treatment if an
infection had spread from his afflicted tooth into his
bloodstream, but a doctor could not conscionably wait
until that late point to finally provide effective treatment,

2
The defendants make much of Berry’s purchase of candy and
junk food during his stay at the Waushara County Jail. This
evidence might support an argument that Dr. Butler believed
Berry was exaggerating his pain, but again, that argument
presents at most a factual issue that must be addressed to a
jury. See Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002)
(holding that doctor’s and nurse’s belief that prisoner was
malingering presented jury issue, not grounds for summary
judgment, where they refused to dispense prescribed pain
medication).
No. 09-3557 13

particularly when confronted with persistent complaints
of severe dental pain that was not responding to med-
ication.
Dr. Butler’s refusal to refer Berry to a dentist resulted
in a substantial and unnecessary delay in the treatment
of his decaying tooth. The medical records and Berry’s
steady complaints of escalating pain indicate that the
delay unreasonably prolonged Berry’s suffering, making
summary judgment inappropriate. See, e.g., Grieveson,
538 F.3d at 779-80 (evidence of one-and-a-half day delay
before treating painful broken nose was sufficient to
survive summary judgment); Williams v. Liefer, 491 F.3d
710, 716 (7th Cir. 2007) (affirming denial of judgment as
a matter of law; jury could conclude that the delay
in treatment “unnecessarily prolonged and exacerbated”
prisoner’s pain). Of course, we do not suggest that a
minor delay in treatment constitutes deliberate indif-
ference. See, e.g., Knight v. Wiseman, 590 F.3d 458, 466 (7th
Cir. 2009) (noting that two-and-a-half hour delay in
treatment of plaintiff’s shoulder injury “was minimal and
had no adverse consequences”). Anyone who has ever
visited a doctor’s office knows that some delays in treat-
ment are inevitable, particularly absent a life-threatening
emergency. Such delays are even more likely in the
prison environment. See, e.g., id. at 467 (noting that
delay was result of guards’ inability to leave prison work
gang unattended). The delay in this case, however, was
neither minimal nor justified by Berry’s status as a pris-
oner. Berry was forced to endure nearly two months of
serious pain despite the availability of an obvious treat-
ment—a simple dentist visit—that Berry had specifically
14 No. 09-3557

requested numerous times. The only apparent reason
for that delay was that he had the misfortune of being
transferred to a jail without an on-site dentist.

III. The Jail Nurse
We also conclude that Nurse Reich was not entitled to
summary judgment. The district court concluded that
Reich was entitled to defer to Dr. Butler regarding
Berry’s treatment. Here, however, the record shows that
Dr. Butler last saw Berry on April 24th, six weeks before
he was transferred to the DOC facility where he finally
received the needed root canal. During much of that
time, Nurse Reich was aware of Berry’s ongoing pain
and the ineffectiveness of the recommended pain med-
ications, yet he apparently never consulted Dr. Butler
again regarding whether a dentist’s examination was
necessary. Rather, Nurse Reich continued to respond
personally to Berry’s complaints (including one com-
plaint directed to defendant Peterman), telling Berry that
he could not see a dentist until his next DOC placement
and asking if Berry needed to see Dr. Butler about an
infection. Given the substantial passage of time after
Dr. Butler last examined Berry and Nurse Reich’s contin-
ued responses to Berry’s complaints during that time,
a jury could conclude that Reich acted independently
rather than on Dr. Butler’s instructions and was there-
fore personally responsible for delaying Berry’s dental
treatment, at least after he last saw Dr. Butler on
April 24th. A jury could conclude that the imposition of
this delay constituted deliberate indifference to Berry’s
serious pain.
No. 09-3557 15

To the extent that Nurse Reich did in fact consult with
Dr. Butler over the course of Berry’s last weeks at the
Waushara County Jail, though, a jury could question
whether he could justifiably defer to Dr. Butler’s opinions
regarding Berry’s dental complaints. Although a med-
ical care system requires nurses to defer to treating physi-
cians’ instructions and orders in most situations, that
deference may not be blind or unthinking, particularly if
it is apparent that the physician’s order will likely harm
the patient. See Frank J. & Nancy M. Cavico, The
Nursing Profession in the 1990’s: Negligence and Malpractice
Liability, 43 Clev. St. L. Rev. 557, 613-16 (1995) (discussing
cases). As an ethical matter, a nurse confronted with an
“inappropriate or questionable practice” should not
simply defer to that practice, but rather has a professional
obligation to the patient to “take appropriate action,”
whether by discussing the nurse’s concerns with the
treating physician or by contacting a responsible adminis-
trator or higher authority. American Nurses Ass’n, Code
of Ethics for Nurses With Interpretive Statements, Provi-
sion 3.5 (2001), available at http://nursingworld.org/ethics/
code/protected_ nwcoe813.htm (last visited April 9, 2010).
We do not suggest that these professional standards are
part of the Eighth Amendment, but they are relevant in
evaluating whether Nurse Reich can rely on the general
supervision by Dr. Butler to excuse his responses to
Berry’s continuing complaints of pain in a way that
otherwise could reasonably be deemed to show deliberate
indifference to his pain.
Also, a jury could find that Nurse Reich’s deference
was less justifiable than usual because this was a case
16 No. 09-3557

of dental pain rather than a medical problem clearly
within Dr. Butler’s professional expertise. Nothing in
the record indicates that Dr. Butler had any dental
training or experience to which Nurse Reich could or
should defer. As a matter of simple common sense, few
people would turn to a general practitioner physician
for the treatment of a cavity or gum disease.
We are not persuaded, at least as a matter of law, by
Nurse Reich’s argument that he cannot be held liable
because he lacked the authority to refer Berry to a
dentist without further approval. Nurse Reich always
had the ability to contact Peterman or other supervisory
personnel to voice any concerns about Dr. Butler’s treat-
ment of Berry’s condition. See American Nurses Ass’n,
Code of Ethics for Nurses With Interpretive State-
ments, Provision 3.5.
In sum, Berry has offered sufficient evidence to defeat
Nurse Reich’s motion for summary judgment. The
extent to which Nurse Reich relied on Dr. Butler’s
medical judgment and the reasonableness of any such
reliance require further exploration at trial, particularly
given the regime of individual liability under section
1983, under which the defendants might try to blame
each other for Berry’s suffering.
Accordingly, we A FFIRM the judgment of the district
court as to defendant Peterman, R EVERSE as to defendants
Reich and Butler, and R EMAND this matter for further
proceedings consistent with this opinion. Thus far, Berry
has pursued this case without a lawyer, and he has pre-
sented the evidence and his legal arguments well. If this
No. 09-3557 17

matter proceeds to a trial on the merits, however, the
district court will want to consider the possibility, pursu-
ant to the standards set forth in Pruitt v. Mote, 503 F.3d
647 (7th Cir. 2007) (en banc), of requesting counsel to
represent him at trial if Berry is receptive to the idea.
See 28 U.S.C. § 1915(e)(1).

M ANION, Circuit Judge, concurring in part and dissenting
in part. I agree with the court (and the district court)
that Berry has raised a genuine issue of material
fact regarding the exhaustion of his administrative reme-
dies, that he suffered a serious medical condition, and
that the jail administrator is entitled to summary judg-
ment because he was not deliberately indifferent to
Berry’s situation. However, I disagree with the court
that Berry has offered sufficient evidence that would
allow a jury to infer that Dr. Butler and Nurse Reich
acted with deliberate indifference when responding to
Berry’s complaints about the painful condition of his
tooth. Therefore I would affirm the district court’s con-
clusion that given the evidence most favorable to Berry,
a reasonable jury could not find that Dr. Butler or Nurse
Reich were deliberately indifferent to his medical needs.
At most, this unfortunate case amounts to negligence
on the part of Dr. Butler and Nurse Reich. I don’t believe
18 No. 09-3557

a reasonable jury could even find gross negligence,
much less deliberate indifference which would amount
to intentional cruel and unusual punishment. As the
district court noted, “Berry cannot overcome the record
showing that he was offered repeated medical examina-
tions to screen an emergency dental situation. Defendant
Butler states that she did not see any sign of infection or
other emergency dental condition when she examined
Berry twice in April of 2008.” In addition, the district
court noted that “Nurse Reich was entitled to rely on
Dr. Butler’s conclusion that Berry did not require emer-
gency dental care. In addition, Reich responded promptly
to Berry’s many complaints by offering advice on mini-
mizing pain, arranged for Berry to try a different pain
reliever approved by the doctor, and offered to schedule
a third medical examination if Berry would request
one.” This court observes that “the doctor and nurse
acted with deliberate indifference toward his condition
by persisting in an easy but ineffective course of treat-
ment that subjected him to two months of serious but
avoidable pain.” To describe the treatment as “easy but
ineffective” describes nothing more than negligence.
Dr. Butler supposedly examined Berry to determine if
he had an infection. An easy but likely effective alterna-
tive would have been to prescribe a strong enough antibi-
otic (instead of a pain pill) to attack what should have
been an obvious infection, but if not obvious at least a
precautionary alternative. If the tooth was infected (the
dentist later described it as necrotic), the infection that
was likely causing the significant pain would have been
eliminated quickly with an effective antibiotic. That
No. 09-3557 19

process would have been just as “easy,” and would have
temporarily resolved the problem until the dentist could
get at it upon Berry’s return to prison.
Therefore I would conclude that the evidence most
favorable to Berry amounted to negligence on the part of
both the doctor and the nurse. Berry turned down the
offer of a third visit by the doctor, and Nurse Reich was
in continual contact with him with various attempts,
albeit ineffective, to treat his pain. On numerous
occasions this court has held that when prison medical
personnel continue to pay attention to and to treat a
prisoner’s medical complaints, even if the treatment
is not up to par, the medical efforts on the prisoner’s
behalf are enough to overcome any presumption of de-
liberate indifference. See, e.g., Duckworth v. Ahmad, 532
F.3d 675 (7th Cir. 2008). While that could likely be found
as negligent treatment, it does not amount to a delib-
erately indifferent attitude that translates into cruel and
unusual punishment. Therefore I would affirm the dis-
trict court.

5-5-10