NONPRECEDENTIAL DISPOSITION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 October 31, 2017 *
Decided November 1, 2017
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16-3934
JAMES E. HOTCHKISS, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 16-cv-0752-MJR
ALFONSO DAVID and BLAKE Michael J. Reagan,
WOODS, Chief Judge.
Defendants-Appellees.
ORDER
James Hotchkiss, an Illinois inmate, sued a prison doctor and a nurse
practitioner, alleging that they were deliberately indifferent to his hip and leg pain and
*
The appellees were not served with process in the district court and have not
participated in this appeal. We have agreed to decide the case without oral argument
because the appellant’s brief and the record adequately present the facts and legal
arguments, and oral argument would not significantly aid the court. See FED. R. APP. P.
34(a)(2)(C).
No. 16-3934 Page 2
his low blood pressure. Screening Hotchkiss’s complaint under 28 U.S.C. § 1915A(a),
the district judge dismissed it with prejudice and assessed a “strike,” id. § 1915A(g),
upon concluding that it was frivolous and failed to state a claim. Because Hotchkiss
stated a plausible claim that the doctor prolonged and exacerbated Hotchkiss’s leg and
hip pain and other symptoms by continuing an ineffective course of treatment, we
vacate and remand with respect to the claim against the doctor and otherwise affirm.
We take the following factual allegations from Hotchkiss’s complaint as true.
See Perez v. Fenoglio, 792 F.3d 768, 774 (7th Cir. 2015). Hotchkiss suffers from severe pain
in his left leg and hip and has difficulty maintaining his balance. The symptoms, he
says, have two causes. First, he was in a motor vehicle accident and had two surgeries
on his left leg, leaving him with an artificial knee cap and a steel rod in his leg. Second,
his left leg is shorter than his right; whether this is related to the accident and surgeries
is not clear. When Hotchkiss was transferred from a county jail to Menard Correctional
Center, his customized shoes, which had “a 1/2 inch lift” in the left shoe, were taken
away. He was told that he would get new shoes fitted when he arrived at his assigned
unit. But Hotchkiss contracted a MRSA infection at Menard and was sent to the acute
care unit at Shawnee Correctional Center. After he recovered he was released into the
general population at Shawnee with no mention of the shoes.
Hotchkiss immediately began to feel pain in his left leg from wearing the
prison’s standard-issue boots. Because his legs are uneven in length, he cannot
distribute his weight equally. He says he walks with a limp and experiences intense
pain, popping, “grinding,” and loss of balance that causes him to fall down. The boots
exacerbate this problem. He explained his concerns about the boots to prison physician
Dr. Alfonso David and other medical staff, but throughout months of treating him, they
did nothing but prescribe pain medication. No one performed a physical examination
or ordered an X-ray. During this time, Hotchkiss continued to have pain in his knee,
femur, and hip, and he fell down regularly. He was issued a permit for a low bunk for
six months when he was released into the general population, but when he tried to get
the permit renewed and sought permission to walk with a cane in October 2015, David
denied the requests. Blake Woods, a nurse practitioner, later renewed his low bunk
permit and authorized “slow-walk” and “low-gallery” permits, but Hotchkiss
continued experiencing pain and went back to the infirmary regularly.
Hotchkiss submitted medical records with his complaint, which show that on
average he went to the infirmary about two to three times per month to discuss his leg
issues. He says he often mentioned that his shoes were the cause of the pain. Hotchkiss
received various doses of pain medications from ibuprofen to Neurontin. Woods told
No. 16-3934 Page 3
him in February 2016 that he would not be getting special shoes. Hotchkiss continued to
complain about the pain, and asked medical staff to renew his permits whenever they
were due to expire. Finally in April (a year after Hotchkiss entered Shawnee), Woods
examined his legs and confirmed that his left leg was “1/2 to 3/4 inch[es]” shorter than
the right. Hotchkiss then received permission to use a cane.
Hotchkiss alleges that David was deliberately indifferent to his leg pain because
he did not physically examine him or order X-rays for months. In his appellate brief
Hotchkiss adds that David gave him a heel insert in August 2016, although Hotchkiss
believes it is inadequate when used in the heeled boots. (Hotchkiss also alleged in his
complaint that David and Woods were deliberately indifferent to his low blood
pressure, but he has abandoned that claim on appeal. See Chaib v. Geo Grp., Inc., 819 F.3d
337, 341 n.1 (7th Cir. 2016).)
Hotchkiss is proceeding in forma pauperis, so the district judge screened the
complaint, see 28 U.S.C. § 1915A(a). He concluded that Hotchkiss failed to state a claim
of deliberate indifference against David or Woods, id. § 1915A(b), and that the claim
was frivolous, see id. The district judge focused on Hotchkiss’s allegation that his leg
pain went untreated for six months, although that was only one of many allegations
Hotchkiss described related to his leg pain. The judge reviewed the attached medical
records (part of the plaintiff’s pleadings for all purposes, see FED. R. CIV. P. 10), and
concluded that Hotchkiss’s pain did not go untreated during that time because he
received medication and complained only once about pain. The judge also determined
that Hotchkiss’s complaint that David did not take X-rays or physically examine him
did not suggest deliberate indifference because those decisions were soundly within the
doctor’s professional judgment, and prisoners are not entitled to any specific treatment.
On appeal, Hotchkiss challenges only the dismissal of his claim as it applies to
David. His brief, which reads more like a complaint, alleges in more detail the facts
supporting his contention that David failed to address the underlying cause of
Hotchkiss’s symptoms—his leg-length disparity. He argues that David continued an
ineffective course of treatment and that the pain medications he received would have
been unnecessary had he been properly diagnosed and treated with the simple fix that
worked before. Hotchkiss also argues that there was an inexcusable delay in permitting
him to use a cane, which has helped him get around the prison without falling.
Our review of a dismissal under § 1915A is de novo. Perez, 792 F.3d at 776. To
state a claim under the Eighth Amendment, Hotchkiss must show that he suffered from
No. 16-3934 Page 4
an objectively serious medical condition to which the defendants were deliberately
indifferent. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Perez, 792 F.3d at 776.
Hotchkiss states a claim under this standard. First, we are satisfied, as was the
district judge, that Hotchkiss alleged a serious medical condition—chronic pain. Wheeler
v. Wexford Health Sources, Inc., 689 F.3d 680, 681–82 (7th Cir. 2012) (prisoner stated
Eighth Amendment claim when he alleged that defendants ignored “severe ongoing
pain from a medical condition”). Hotchkiss presents two plausible theories of deliberate
indifference. First, Hotchkiss says that despite voicing his concerns about walking in
shoes that lacked a lift on the left foot, he received only pain medication and nothing
that addressed that underlying problem. A doctor can be deliberately indifferent to an
inmate’s medical issues if he “chooses an easier and less efficacious treatment without
exercising professional judgment.” McGowan, 612 F.3d at 641 (quoting Estelle v. Gamble,
429 U.S. 97, 104 n.10 (1976)) (internal quotation marks omitted). And in this case,
Hotchkiss entered the state prison system with customized shoes to treat his condition,
so—taking the complaint’s allegations as true—the doctor not only undertreated his
condition but effectively discontinued a simple and effective treatment without
explanation.
The district judge’s reasoning that Hotchkiss complained of pain just once in
seven months is hard to square with the complaint and its exhibits; we count at least
14 complaints during that time. The district judge also concluded that receiving
medication and slow-walk and low-bunk permits were sufficient as a matter of law, but
this conclusion, which is contrary to Hotchkiss’s allegations, does not give Hotchkiss
the benefit of the doubt he is entitled to at the dismissal stage. See McGowan v. Hulick,
612 F.3d 636, 639–40 (7th Cir. 2010) (district court erred in dismissing deliberate
indifference claim by reasoning that prisoner’s allegations about delay amounted only
to negligence, contrary to prisoner’s assertions).
True, prisoners have no right to demand specific care. See Forbes v. Edgar, 112
F.3d 262, 267 (7th Cir. 1997). But the facts that David never examined Hotchkiss, refused
to treat him with orthotic shoes, and refused him a low-bunk permit, strengthen
Hotchkiss’s contention that the doctor provided treatments that partially masked, but
did not address, his underlying ailment. See Arnett v. Webster, 658 F.3d 742, 752–54 (7th
Cir. 2011). Even the cane, which Hotchkiss waited many months for, helps him stay
balanced, but could have been unnecessary if he had received a heel lift or custom shoe
to correct his anatomical impairment.
No. 16-3934 Page 5
That leads us to Hotchkiss’s second plausible theory—that he was subjected to
an unnecessary delay in treatment which prolonged his pain and the lack of balance
that caused multiple falls. Hotchkiss informs us on appeal that he was given an insert
for his left shoe on August 4, 2016, approximately a year and four months after he left
the acute care unit and began experiencing problems with his hip and knee. He received
a cane twelve months after his first complaint. As we have explained many times, a
delay in treating a medical condition may constitute deliberate indifference when it
exacerbates an existing condition or causes an inmate unnecessary pain. Lewis v.
McLean, 864 F.3d 556, 563 (7th Cir. 2017); McGowan, 612 F.3d at 640; Grieveson v.
Anderson, 538 F.3d 763, 779 (7th Cir. 2008). One factor that is considered when deciding
whether a delay is tolerable is the “ease of providing treatment.” McGowan, 612 F.3d at
640. If Hotchkiss’s knee, hip, and leg pain could be easily fixed with a heel insert or
special shoes, a 16-month delay could have violated his constitutional rights. See Arnett,
658 F.3d at 753. So too with the cane; although it did not treat the underlying condition,
it was an effective stopgap that prevented Hotchkiss from falling down.
That Hotchkiss regularly visited the infirmary to see a nurse, nurse practitioner,
or the doctor, and was given medicine to ameliorate his pain, does not preclude him
from stating a deliberate-indifference claim. “If all the Eighth Amendment required was
that prison officials provide some ‘immediate and ongoing attention,’ they could shield
themselves from liability (and save considerable resources) by shuttling sick or injured
inmates to perfunctory medical appointments wherein no meaningful treatment is
dispensed.” Perez, 792 F.3d at 777. Months of treatment with various pain pills did not
stop Hotchkiss’s complaints that he had pain and trouble walking; therefore, at the
pleading stage, we cannot deem the treatment “meaningful” because of the number of
times Hotchkiss saw a medical provider. On the contrary, it also would be reasonable to
infer from the number of visits that Hotchkiss was not receiving adequate treatment.
The district judge’s conclusion that Hotchkiss received sufficient treatment was
premature at the screening stage when factual allegations must be accepted as true and
reasonable inferences drawn in favor of the plaintiff. We also question why the district
judge did not give Hotchkiss the customary leave to amend the complaint’s perceived
deficiencies before dismissing it with prejudice. See Runnion ex rel. Runnion v. Girl Scouts
of Greater Chi. & Nw. Ind., 786 F.3d 510, 519–20 (7th Cir. 2015) (stating that given “liberal
approach to amending pleadings,” district judge’s denial of leave to amend will be
“reviewed rigorously on appeal”); Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014,
1023–24 (7th Cir. 2013) (holding that in forma pauperis litigants have same entitlement
to amend as fee-paying litigants).
No. 16-3934 Page 6
The refusal to allow amendment might have stemmed from the district judge’s
view that the medical records incorporated into the complaint definitively showed that
David adequately cared for Hotchkiss and thus his complaint, in addition to not stating
a claim, was “frivolous.” As we have said, those records could support a different story,
involving a sixteen-month-long quest for a relatively simple treatment while
experiencing serious pain and balance issues. Moreover, the district judge’s
characterization of the claim as frivolous rests on the same analysis as its conclusion
that Hotchkiss failed to state a claim. But there is a difference between these standards.
No matter how one interprets Hotchkiss’s medical records, his claim is not “based on an
indisputably meritless legal theory,” and his factual allegations are far from “clearly
baseless,” “fanciful,” “fantastic,” “delusional,” “irrational,” or “wholly incredible.”
Felton v. City of Chicago, 827 F.3d 632, 635 (7th Cir. 2016) (quoting Denton v. Hernandez,
504 U.S. 25, 32–33 (1992)).
Because we conclude that Hotchkiss states a claim, plausible on its face, that
David acted with deliberate indifference, we VACATE the judgment in David’s favor
and REMAND the case to the district court for further proceedings. Defendant Woods,
however, shall not be reinstated as a defendant because on appeal Hotchkiss does not
discuss Woods’s role in the alleged denial of appropriate medical care, and his
complaint did not sufficiently allege that Woods ignored his complaints or otherwise
acted in a manner indicative of deliberate indifference. As to Woods, the judgment is
AFFIRMED.