NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 12, 2017*
Decided May 15, 2017
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 16‐2639
PEDRO DIAZ, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 13‐cv‐1136
SALVADOR GODINEZ, et al., James E. Shadid,
Defendants‐Appellees. Chief Judge.
O R D E R
Pedro Diaz appeals from the grant of summary judgment for the defendants in
this suit under 42 U.S.C. § 1983 claiming deliberate indifference to his chronic back pain.
Diaz went without pain medication for four months after being transferred to Pontiac
Correctional Center because employees there refused to honor his prescription for
* 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).
No. 16‐2639 Page 2
ibuprofen, confiscated his supply of the drug, and ignored his requests for a sick‐call
appointment to obtain a new prescription. We conclude that Diaz presented sufficient
evidence for a jury to find in his favor as to a medical technician responsible for
scheduling appointments, but otherwise affirm the judgment.
Diaz has a documented history of chronic back pain due to mild degenerative
changes in the spine (commonly known as osteoarthritis). In May 2011, shortly before he
was transferred to Pontiac, a doctor at Menard Correctional Center issued Diaz a
one‐year prescription for ibuprofen. Diaz arrived at Menard carrying a week’s supply on
his person, and he had enough ibuprofen for two more months in his property box. After
ten days at Pontiac, Diaz received his property box and discovered that his ibuprofen
was missing.
Diaz immediately began writing requests to the infirmary staff asking for his
medication. A few days later, a Correctional Medical Technician, Kristi Eshleman, came
to his cell and said he wouldn’t be getting his ibuprofen. In response, Diaz filed an
emergency grievance explaining that he had been prescribed ibuprofen before leaving
Menard, that a medical technician had told him he would not be receiving the
medication he brought with him, and that his old prescription would not be honored.
Diaz’s grievance also conveyed that he had not been examined at Pontiac and was
suffering pain and discomfort. His counselor, Jeff Eilts, forwarded that grievance to the
infirmary staff two weeks later. The warden at that time, Randy Pfister, marked the
grievance as not an emergency. Two more weeks passed before the healthcare
administrator, Teresa Arroyo, issued a memorandum to Diaz explaining that his medical
chart had been reviewed, that prescriptions issued at other prisons are not automatically
honored when inmates transfer to Pontiac, and that Diaz must “put in for Sick Call” to
get his ibuprofen prescription renewed. Arroyo instructed Diaz to direct his medical
concerns to “the cell house CMT who will evaluate him for treatment or refer him if
appropriate.” Alternatively, Arroyo wrote, Diaz could “send a yellow ‘Medical Request’
slip” to the infirmary. A carbon copy of this memorandum was sent to the Medical
Director, Dr. Andrew Tilden.
Yet according to Diaz’s version of events, which we must credit in reviewing the
adverse ruling at summary judgment, Rasho v. Elyea, 850 F.3d 318, 324 (7th Cir. 2017), he
had requested ibuprofen from CMT Eshleman continuously from the moment he first
learned that his supply from Menard would not be returned. Diaz finally was scheduled
for sick call in November 2011—more than four months after arriving at Pontiac. To
obtain that appointment, Diaz had remitted a mandatory $5 co‐pay to Eshleman and left
No. 16‐2639 Page 3
with a limited supply of ibuprofen. Then in March 2012, after that supply was
exhausted, Diaz tendered another $5 co‐pay to CMT Eshleman listing three distinct
ailments (back pain, heartburn, and ringing in his ears). But she refused to schedule
another appointment because, she told Diaz, he must submit a co‐pay for each ailment.
Eshleman had not made a similar demand when Diaz listed multiple ailments before his
November appointment, so Diaz submitted another grievance. Arroyo, the healthcare
administrator, responded that “in this instance” Diaz would be allowed to pay just $5 to
cover an appointment for multiple health issues. At that appointment in May 2012, he
again was prescribed ibuprofen. Later that month he transferred to another prison.
When Diaz brought suit, he included as defendants the director of the
Department of Corrections, Warden Pfister, Counselor Eilts, and several “Doe”
placeholders. After several months of discovery, Diaz sought to amend his complaint to
add additional defendants and to substitute CMT Eshleman and healthcare
administrator Arroyo for existing placeholders. The district court declined to allow more
defendants but did approve the substitution of Eshleman (and others). Oddly, though,
rather than substitute Arroyo for a Doe defendant, the court named Medical Director
Tilden (a Wexford Health Sources employee). Months later, when Diaz wanted to
identify the Doe defendants accused of confiscating his ibuprofen while inventorying his
property box at intake, the court refused, reasoning that the request had been too long
after the suit was filed and that Diaz would have discovered the names sooner except
that he had misstated the date of the seizure in his disclosure request.
Diaz’s theory is that his chronic back pain is a serious medical need that
defendants knew of and disregarded. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Perez v. Fenoglio, 792 F.3d 768, 776–77 (7th Cir. 2015). At summary judgment, the district
court did not analyze whether Diaz’s back pain is a serious medical need because, the
court reasoned, Diaz lacks evidence that any defendant consciously deprived him of
pain medication. The court reasoned that the DOC director, Pontiac’s warden,
Counselor Eilts, and other administrators did not personally participate in the alleged
deprivation “merely by participating in the grievance process.” The court similarly
reasoned that Dr. Tilden could not be liable, citing his undisputed affidavit that he never
met Diaz and does not review inmate grievances and thus would not have been
subjectively aware of the medication issue. The court also accepted the assertion of the
DOC defendants that Diaz had not followed the appropriate procedure to obtain the
ibuprofen he wanted after being told that his prescription from Menard would not be
honored at Pontiac.
No. 16‐2639 Page 4
On appeal, the DOC defendants do not clearly contest that Diaz suffers from a
serious medical condition. The Wexford defendant, Dr. Tilden, renews his contention
that back pain treatable with an over‐the‐counter pain reliever is not an objectively
serious medical need, but we reject that argument. As we have explained repeatedly,
turning a blind eye to a prisoner’s complaints of readily treatable pain can constitute an
Eighth Amendment violation, even if the condition is not life‐threatening and the failure
to treat does not exacerbate the condition. See Gomez v. Randle, 680 F.3d 859, 865 (7th Cir.
2012). We even have acknowledged that chronic arthritis pain is a serious medical need,
Norfleet v. Webster, 439 F.3d 392, 394–95 (7th Cir. 2006), as are other conditions that cause
serious or chronic pain, see Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015) (severe
heartburn from gastroesophageal reflux disease); Edwards v. Snyder, 478 F.3d 827, 831
(7th Cir. 2007) (dislocated finger); O’Malley v. Litscher, 465 F.3d 799, 805 (7th Cir. 2006)
(minor burns); Johnson v. Doughty, 433 F.3d 1001, 1003–04, 1010 (7th Cir. 2006) (hernia);
Greeno v. Daley, 414 F.3d 645, 649–51 (7th Cir. 2005) (heartburn and vomiting); Murphy v.
Walker, 51 F.3d 714, 719 (7th Cir.1995) (pain from head injury). And, as we also have
explained, the lower the cost of the treatment requested, the less need has to be shown.
Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999). Here, the minimal cost of the
ibuprofen deemed necessary by the medical staff at Menard but withheld at Pontiac
lessens Diaz’s burden of showing that the pain attributable to his osteoarthritis is a
serious need. Pain is a “uniquely subjective experience,” and it is not appropriate to
conclude at summary judgment that nontrivial pain alleged by an inmate is not
deserving of treatment. See Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996). Moreover, the
prescription Diaz received from Menard is “evidence that he really did have back pain.”
Withers v. Wexford Health Sources, Inc., 710 F.3d 688, 689 (7th Cir. 2013).
Moving on to whether there is evidence that any defendant knowingly
disregarded his untreated pain, Diaz argues that Dr. Tilden can be liable because,
according to Diaz, his role as Pontiac’s medical director gives him final say about
honoring prescriptions from other facilities and about who will be seen at sick call. But
Diaz did not produce evidence supporting his assumptions about Dr. Tilden’s duties,
and Dr. Tilden attested that he does not schedule patients for sick call or review existing
prescriptions for incoming inmates. That work, it appears, is handled by the infirmary
staff, and Dr. Tilden cannot be accountable simply because of his position as the facility
medical director. See Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008) (explaining that
there is no respondeat superior liability for claims under § 1983); Garvin v. Armstrong,
236 F.3d 896, 898–99 (7th Cir. 2001) (stating that medical director cannot be held
vicariously liable for actions of nursing staff). Diaz further argues that, in stating that
Dr. Tilden does not “review” inmate grievances, the district court exaggerated the
No. 16‐2639 Page 5
physician’s attestation that he does not “respond” to inmate grievances. Diaz makes a fair
point, but it gets him nowhere. Even if Dr. Tilden was reviewing grievances, it was not
his role to schedule appointments for inmates. See Burks v. Raemisch, 555 F.3d 592, 595
(7th Cir. 2009) (explaining that prisoners are not “entitled to insist that one employee do
another’s job”). And, if he reviewed Diaz’s grievance, then Dr. Tilden also knew that
healthcare administrator Arroyo had handled the matter already by instructing Diaz to
request a medical appointment through the CMT or by submitting a yellow request slip.
Arroyo’s response to Diaz would not have put Dr. Tilden on notice that Diaz remained
unsatisfied.
Diaz makes a similar pitch about the warden and other DOC administrators,
arguing that the grievance process made them aware that he was not getting pain
medication and yet they failed to act. But prison administrators who are not part of the
medical team have acted appropriately if they have referred the issue to medical staff
who could be expected to address it. See Arnett v. Webster, 658 F.3d 742, 755 (7th Cir.
2011); Greeno, 414 F.3d at 656–57. Diaz’s grievance was forwarded to Arroyo, so there’s
no basis for his contention that these administrators deliberately disregarded his need
for care. Moreover, nothing in the grievance would put the administrators on notice that
Diaz struggled to obtain an appointment even after following the proper procedure.
In contrast, Diaz’s next argument—that summary judgment should not have been
granted to CMT Eshleman—is substantial. The district court reasoned that Eshleman
cannot be liable for not scheduling an appointment for Diaz when he could have made
an appointment himself by submitting a yellow request slip. But as Diaz points out, the
other method for scheduling an appointment is to ask the medical technician on duty,
and Eshleman has never disputed that she was the technician on duty or that Diaz asked
her repeatedly to make him an appointment so that his ibuprofen could be restored.
Indeed, at summary judgment, CMT Eshleman offered no defense to Diaz’s Eighth
Amendment claim except to falsely accuse Diaz of refusing to submit a yellow request
slip because he didn’t want to pay the $5 co‐pay for a medical appointment. At his
deposition Diaz did acknowledge that he was frustrated to learn that healthcare staff at
Pontiac expected him to pay $5 to replace a year‐long prescription given to him at
Menard the previous month. But Diaz went on to say that he never once refused to
authorize payment when told he must do so in order to receive care. Moreover, reading
Diaz’s testimony in the light most favorable to him, CMT Eshleman continued to
stonewall him when he sought a renewal of the ibuprofen prescription the following
March. When Diaz asked for an appointment because of multiple ailments, Eshleman
inexplicably demanded that he first pay $5 per ailment until she was overruled after he
No. 16‐2639 Page 6
filed a grievance. Taken together, the evidence is enough for a jury to find that Eshleman
was indifferent to Diaz’s back pain and impeded his efforts to obtain relief. We therefore
remand for trial as to her.
All that remains is Diaz’s contention that, despite the late date, he should have
been permitted to proceed against the Pontiac employees who confiscated the ibuprofen
found in his property locker. Diaz had earlier misidentified those employees because,
during discovery, he had given counsel for the DOC defendants the date of his arrival at
Pontiac, not the date that his property was inventoried. We doubt that the defendants
could have been misled by Diaz’s mistake, since it is obvious from his discovery request
that he wanted the names of the employees who inventoried his property at intake, on
whatever day that inventory occurred. He had no way to know the correct date, but the
defendants did. Nevertheless, we cannot see how Diaz was harmed. An employee who
follows the prison’s policy of confiscating prescription drugs during a transfer is not
personally liable for deliberate indifference. Diaz does not allege that those individuals
were aware of his chronic back pain or his prescription for ibuprofen, let alone that they
consciously disregarded a risk to his health.
We have reviewed Diaz’s other contentions, and none has merit. The grant of
summary judgment for defendant Eshleman is VACATED and the case is REMANDED
for further proceedings on the claim of deliberate indifference against her. In all other
respects the judgment is AFFIRMED.