In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2991
M ICHAEL M C G OWAN,
Plaintiff-Appellant,
v.
D ONALD A. H ULICK, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-017-DRH—David R. Herndon, Chief Judge.
S UBMITTED M AY 26, 2010 —D ECIDED JULY 20, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
The defendants were not served with process in the district
court and are not participating in this appeal. After examining
the appellant’s brief and the record, we have concluded that
oral argument is unnecessary. The appeal is therefore sub-
mitted on the appellant’s brief and the record. See F ED . R. A PP .
P. 34(a)(2)(C).
2 No. 09-2991
W OOD , Circuit Judge. Michael McGowan had an upper
molar extracted in January 2007 while he was impris-
oned at Illinois’s Menard Correctional Center, but the
extraction site did not heal and became infected. He
was still suffering from complications in November 2007,
when a specialist performed the second of two surgeries
to close the hole left by the extraction. McGowan then
brought this pro se lawsuit under 42 U.S.C. § 1983 and
Illinois law, claiming that the dentist who performed the
extraction, the prison’s dental director, the regular
prison physician, and the prison warden were all
negligent and deliberately indifferent to his plight. At
screening the district court dismissed the complaint
with prejudice for failure to state a claim, see 28 U.S.C.
§ 1915A(b)(1), reasoning that McGowan’s allegations
could not support a finding of deliberate indifference, as
opposed to negligence. McGowan moved for reconsid-
eration, but only with respect to Dr. John Gardner, the
dentist who extracted his tooth, and Dr. Chapman, the
prison’s dental director. The district court denied the
motion and allowed the dismissal to stand for all four
defendants. McGowan’s appeal concerns only Drs.
Gardner and Chapman.
The complaint, supplemented by medical and dental
records, provides the information on which we must rely
at this stage; we accept its factual allegations as true
and draw all reasonable inferences in McGowan’s favor.
See Erickson v. Pardus, 551 U.S. 89, 90 (2007). McGowan’s
molar began hurting in early November 2006, when he
began filing almost-weekly sick-call requests describing
his increasing pain. His pleas went unanswered until
No. 09-2991 3
he saw Gardner on January 30, 2007. McGowan asked
Gardner to provide a filling for the tooth, but Gardner
told him the tooth would have to be extracted because
“Menard doesn’t do fillings.” That statement, says
McGowan, was a lie, but he agreed to the extraction
rather than endure the pain any longer. The procedure
went badly. Although Gardner administered two shots
of a local anesthetic, McGowan nonetheless experienced
excruciating pain. The tooth fragmented during the
extraction, and, McGowan believes, Gardner used non-
dental instruments, including an ice pick, to dig the
splinters from his gums. McGowan has no other com-
plaints against Gardner. His follow-up care was pro-
vided by another prison dentist, who is not a defendant.
In the month following the procedure, McGowan’s
pain increased. He was given aspirin, but the medication
provided no relief. On February 28, 2007, he awoke to
find that a mass of tissue the size of a golf ball had
broken through the stitches; it was so large that he could
not close his mouth. He saw his treating dentist, who
excised some of the tissue, gave him Tylenol and salt, and
recommended to the prison dental director, Chapman,
that McGowan see an oral surgeon. But the Tylenol
was also ineffective in reducing his pain, and the visit
to the oral surgeon was not forthcoming. Chapman still
had not approved that consultation by March 28 when
McGowan’s prison dentist saw him on an emergency
basis for more pain and swelling at the extraction site
and diagnosed him with a “sinus perforation with
fistula tract.” (This is no laughing matter: a sinus perfora-
tion is a complication that may occur during the extraction
4 No. 09-2991
of an upper molar. See Wikipedia, Dental Extraction,
http://en.wikipedia.org/wiki/Dental_extraction (last visited
July 15, 2010). A fistula is basically a passageway—in
this case, one that connected McGowan’s mouth to his
sinus cavity. See Medline Plus, Fistula, http://www.
nlm.nih.gov/medlineplus/ency/article/002365.htm (last vis-
ited July 15, 2010). See also S TEDMAN ’S M EDICAL D ICTIO -
NARY 736 (28th ed. 2006) (noting that a pathologic con-
nection between mouth and maxillary sinus is called an
oroantral fistula and is most commonly a complication
of removing an upper molar). McGowan alleges that he
continued to be in pain as the infection spread up his
face and that the mass in his mouth and the foul-tasting
discharge kept him from eating, causing him to lose
weight.
By April 9, 2007, McGowan had received Chapman’s
approval to see the contract oral surgeon on the
surgeon’s next regular visit to Menard. That visit was
scheduled for the week of April 23, nearly two months
after McGowan’s treating dentist had sought approval
for intervention by an oral surgeon. But the surgeon
cancelled his visit, and McGowan was told he would
have to wait another three months until the surgeon
came again. Unwilling to postpone treatment for so
long, McGowan filed an emergency grievance on April 30.
That grievance prompted the treating dentist to request
a referral to an oral surgeon at an outside hospital and
to prescribe a splint to cover the hole in McGowan’s
mouth so that he could eat. But when McGowan re-
ceived the splint two weeks later, the protrusion—now
about the size of a large marble—prevented the splint
No. 09-2991 5
from fitting properly and without pain, and so he was
unable to use it.
Around this time, Chapman approved the outside
referral, and McGowan finally saw an oral surgeon on
May 25, 2007. But the surgeon announced that he was not
qualified to treat McGowan’s injury and recommended
that McGowan see an ear, nose, and throat (“ENT”)
specialist. That recommendation did not reach Menard
for another two weeks, apparently because the oral sur-
geon’s office had the wrong fax number. This meant
that the new request for the ENT specialist was not sub-
mitted for approval until June 11. Dental records docu-
ment that earlier, on June 6, McGowan’s treating dentist
had personally advised Chapman of the need to expedite
the referral, but Chapman waited until June 20 to give
his approval. By then, McGowan alleges, nasal mucus
was draining out of the extraction site instead of his
nose, and the prison doctor had begun treating him for
a sinus infection.
Finally, on June 29, 2007, McGowan was evaluated by
an ENT specialist, who ordered a CT scan of McGowan’s
sinuses before proceeding with treatment. The CT scan
was approved the next day but did not occur until July 16.
On August 3 the ENT specialist performed a sinus endos-
copy, which is a procedure to remove blockages from the
sinuses. See eHealthMD, What Is Endoscopic Sinus Sur-
gery?, http://www.ehealthmd.com/library/endosinus/ess_
whatis.html (last visited July 15, 2010). Unfortunately,
McGowan’s pain continued, the extraction site did not
heal, and the hole from his mouth to his sinus allowed
6 No. 09-2991
food to enter his nose when he ate. The ENT specialist
performed another surgery on November 2 to remove
the tissue mass and close the hole.
At screening the district court concluded that
McGowan’s allegations did not describe deliberate indif-
ference on the part of either Gardner or Chapman; it
therefore dismissed the case. The court did not mention
the negligence allegations. It is possible that it implicitly
declined to exercise its supplemental jurisdiction, see
28 U.S.C. § 1367(c), but the dismissal apparently addressed
the entire complaint and was with prejudice. The court
reasoned that McGowan’s allegations about the tooth
extraction described only negligence by Gardner and
not deliberate indifference. The court then concluded
that the May 2007 referral to an outside oral surgeon and
the June 2007 referral to an ENT specialist negated the
possibility that any of the remaining defendants with-
held medical care from McGowan. The court acknowl-
edged that McGowan’s treatment had been dragged out
over a long time, but it thought that “a delay in process
does not constitute deliberate indifference.”
McGowan maintains that his complaint states a claim
against Gardner and Chapman for deliberate indiffer-
ence. He stresses that Gardner essentially forced him to
have the molar extracted by falsely stating that fillings
are not available to Menard inmates and then performed
a “grossly deficient procedure.” Chapman, he continues,
purposely delayed his treatment solely for economic
reasons, leaving him now with permanent structural
damage to his oral and nasal cavity. Our review of a
No. 09-2991 7
dismissal under § 1915A for failure to state a claim is
de novo. Santiago v. Walls, 599 F.3d 749, 755-56 (7th
Cir. 2010).
The Eighth Amendment prohibits cruel and unusual
punishment; that guarantee encompasses a prisoner’s
right to medical care. It is well established that
“deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton inflic-
tion of pain proscribed by the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quotation marks
and citation omitted). This principle applies equally to
dental care. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir.
2010). But negligence, even gross negligence, does not
violate the Constitution. Estelle, 429 U.S. at 105-06;
Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). Only
deliberate indifference or worse in the face of a serious
medical need will do. Estelle, 429 U.S. at 103-04; Hayes v.
Snyder, 546 F.3d 516, 522 (7th Cir. 2008). A delay in treat-
ment may constitute deliberate indifference if the delay
exacerbated the injury or unnecessarily prolonged an
inmate’s pain. Estelle, 429 U.S. at 104-05; Gayton v. McCoy,
593 F.3d 610, 619 (7th Cir. 2010); Edwards v. Snyder, 478
F.3d 827, 832 (7th Cir. 2007). There is no question that
McGowan’s complaint sufficiently alleges a serious
medical need. The issue here is whether the complaint
also plausibly suggests that either Gardner or Chapman
or both were deliberately indifferent to that need.
We conclude that the district court was too hasty in
dismissing the claim against Chapman, especially given
its duty to construe McGowan’s pro se complaint lib-
8 No. 09-2991
erally. See Erickson, 551 U.S. at 94; Haines v. Kerner, 404 U.S.
519, 520 (1972). McGowan set forth a plausible account of
the facts showing how much delay he experienced,
how often he and others asked Chapman to act, and
what the consequences were of inaction. Delay is not a
factor that is either always, or never, significant.
Instead, the length of delay that is tolerable depends on
the seriousness of the condition and the ease of providing
treatment. See Grieveson v. Anderson, 538 F.3d 763, 778-
80 (7th Cir. 2008) (guards could be liable for delaying
treatment for painful broken nose by at least a day-and-a-
half); Edwards, supra, 478 F.3d at 831 (two-day delay
in treatment for open dislocated finger for no medical
reason stated a claim against prison doctor for deliberate
indifference); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th
Cir. 1997) (dismissal for failure to state a claim proper
because six-day wait to see a doctor was not unrea-
sonably long for infected cyst deemed not that severe);
Cooper v. Casey, 97 F.3d 914, 916-17 (7th Cir. 1996) (pre-
sented jury question “whether the plaintiffs were in
sufficient pain to entitle them to pain medication with-
in the first 48 hours after the beating”).
McGowan’s complaint alleges with specificity a
number of troubling delays in his treatment. He was
forced to wait three months to see a dentist after he
first complained of dental pain. That unexplained delay
could support a deliberate-indifference claim if Chapman
was aware of the severity of McGowan’s dental problems
yet refused to approve a dental visit. See Hartsfield v.
Colburn, 371 F.3d 454, 457 (8th Cir. 2004); Boyd v. Knox, 47
F.3d 966, 969 (8th Cir. 1995). And McGowan has alleged
No. 09-2991 9
that Chapman knew as early as February 28, 2007, that
McGowan needed to see an oral surgeon after the
botched extraction, yet Chapman required McGowan
to wait until April, when the contract oral surgeon
was scheduled to come to the prison. The symptoms
McGowan describes—painful swelling at the extraction
site coupled with discharge—could support a finding that
two months was too long to wait. Even when it was
clear that the extraction had led to a sinus perforation,
Chapman stalled in authorizing a referral to an outside
surgeon after the contract surgeon had cancelled his
planned April visit and was not expected back for
another three months. It took a grievance from McGowan
to secure the new referral to the oral surgeon, but still
Chapman waited two weeks before acting on the
prison dentist’s request to expedite the referral to an
ENT specialist. Finally, the complaint recounts several
instances of delayed scheduling with the ENT specialist,
including a missed appointment.
We recognize that a more complete examination of the
facts may show that McGowan’s condition did not need
immediate treatment, that Chapman was not aware of the
need for more urgent care, or that someone else was
responsible for the delay. But those are details to be
explored during discovery. At this stage, McGowan has
stated a claim for such serious delay in his treatment that
the Eighth Amendment may have been violated. His
allegations suffice to put Chapman on notice of what he
is accused of doing wrong: that is, he allegedly delayed
approval for McGowan to see a dentist, an oral surgeon,
and an ENT specialist, and these delays both caused
10 No. 09-2991
McGowan to suffer unnecessary pain and made his
condition deteriorate. This is enough. See Erickson, 551
U.S. at 93-94; Burks v. Raemisch, 555 F.3d 592, 594 (7th
Cir. 2009).
McGowan’s case against Gardner is a different matter.
His complaint focuses only on Gardner’s decision to
extract the tooth rather than to fill it and on the way
that Gardner allegedly proceeded. According to
McGowan, Gardner lied when he said that “Menard
doesn’t do fillings,” and the purpose of the lie was to
obtain permission to perform the extraction. But in the
end, this dispute is over nothing but the choice of one
routine medical procedure versus another, and that
is not enough to state an Eighth Amendment claim. See
Berry, supra, 604 F.3d at 441; Ciarpaglini v. Saini, 352 F.3d
328, 331 (7th Cir. 2003). Although a medical professional’s
actions may reflect deliberate indifference if he or she
chooses an “easier and less efficacious treatment” without
exercising professional judgment, Estelle, 429 U.S. at 104
n.10; Johnson v. Doughty, 433 F.3d 1001, 1018-19 (7th
Cir. 2006), that is not what McGowan accuses Gardner of
doing. He also asserts that Gardner botched the extrac-
tion, but his allegations describe only negligence,
perhaps gross negligence, without suggesting that
Gardner maliciously intended to cause McGowan pain
or otherwise performed the procedure in a way that he
knew would create a substantial risk of complications. See
Farmer v. Brennan, 511 U.S. 825, 842-45 (1994). The
closest McGowan comes to an Eighth Amendment claim
is when he says that Gardner used an ice pick to extract
the tooth. All McGowan can be saying, however, is that
No. 09-2991 11
he saw Gardner use something that looked to him like an
ice pick; that much is possible, because some dental
instruments may resemble an ice pick to an untrained
eye. There is nothing in the complaint supporting the
highly unlikely possibility that the set of tools available
to the prison dentists at Menard included a common ice
pick. We conclude, therefore, that the district court cor-
rectly dismissed McGowan’s claims against Gardner. See
generally Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
Because we have concluded that it was error to dismiss
McGowan’s complaint against Chapman, we vacate the
order dismissing the action to that extent and remand
for further proceedings consistent with this opinion.
McGowan is also entitled to have his supplemental state-
law claim against Chapman for negligence reinstated. We
affirm the dismissal of the federal claim against Gardner.
Because we understand the district court to have recog-
nized that McGowan’s complaint against Gardner
might have stated a state-law claim for negligence, how-
ever, we also order that the dismissal of that claim be
modified to show that it is without prejudice. See 28
U.S.C. § 1367(c).
V ACATED AND R EMANDED.
7-20-10