NONPRECEDENTIAL DISPOSITION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 December 7, 2018*
Decided December 14, 2018
Before
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 18-2347
MARCUS MILLER, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 17-cv-1101-SMY
DR. LARSON**, et al., Staci M. Yandle,
Defendants-Appellees. Judge.
ORDER
Marcus Miller, acting pro se, claims that a prison doctor violated the Eighth
Amendment by recklessly allowing the prison’s medical staff to treat Miller with the
wrong medicine and deliberately ignoring his repeated pleas for treatment. After Miller
received the wrong prescription drug, he allegedly experienced serious complications.
After granting Miller leave to amend his complaint, the district court dismissed the
complaint at a preliminary screening before service, see 28 U.S.C. § 1915A, and assessed
* We have agreed to decide this case without oral argument because the appellate
brief and 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).
** Dr. Larson’s first name is not in the record, so we have left the caption as is.
No. 18-2347 Page 2
a strike, see id. § 1915(g). We vacate the district court’s dismissal in part because Miller
has adequately alleged that the doctor violated the Eighth Amendment.
We treat the allegations in Miller’s amended complaint as true for purposes of
this appeal. Perez v. Fenoglio, 792 F.3d 768, 774 (7th Cir. 2015). Where the allegations in
his original complaint elaborate on and are consistent with his amended complaint, we
include those as well. See Otis v. Demarasse, 886 F.3d 639, 644–45 (7th Cir. 2018)
(amended complaint not treated as “superseding complaint” because pro se litigants are
entitled to leniency on procedural matters).
Miller is an Illinois prisoner who needs medication for high blood pressure. Dr.
Larson is a prison physician responsible for the care of prisoners at Big Muddy River
Correctional Center in Ina, Illinois. Following an appointment on December 15, 2016,
Dr. Larson prescribed medication to treat Miller’s blood pressure condition.
On December 21, a nurse dispensed to Miller a pill that he did not recognize.
Miller questioned the nurse about it, and the nurse replied that the pill was Clonidine
Hydrochloride, a new drug for his high blood pressure that Dr. Larson had ordered.
Miller took the pill but quickly experienced dizziness, nausea, and vomiting. The next
morning Miller alerted a different nurse about these symptoms. She assured him that
his reaction should be short-lived and was normal. Miller took the drug at the nurses’
encouragement for over a week despite ongoing dizzy spells and vomiting. Miller
requested a follow-up appointment with Dr. Larson to address his concerns about the
drug, but the doctor was on vacation for the holidays. On January 1, Miller refused to
continue taking the drug after nurses suggested that it might be negatively interacting
with one of his other medications or that he might have been prescribed an incorrect
dosage.
Miller saw Dr. Larson again on January 9. After reviewing Miller’s complaints,
Larson was surprised that Miller had received Clonidine and insisted that he had never
prescribed the drug for Miller. When Larson reviewed the medical record, he
exclaimed, “They did it again! They … misread my writing and issued this guy the …
wrong medication.” Larson discontinued the prescription and ordered that Miller
receive Tylenol and Pepto-Bismol to counter the side effects.
But when the dizziness and vomiting persisted, Dr. Larson dismissed Miller’s
requests for additional help. The doctor refused “further tests” or a “different course of
treatment to relieve him of his condition,” scoffing at the symptoms as “just in his
No. 18-2347 Page 3
head.” Larson filed an initial grievance with the prison on January 12, in which he
related the incident and indicated that he believed he was experiencing more severe
internal medical issues than Larson had acknowledged. He requested a physical exam
by an “independent doctor.” Prison officials denied the grievance on February 8, noting
that Miller had made no further complaints and that Larson had discontinued the
incorrect drug and treated Miller’s symptoms. Miller continued to experience dizziness
and nausea and continued to file grievances, but the prison took no further action.
Miller later experienced a urinary infection and kidney failure, which he attributes to
the incorrect medication and its possible interactions with other medicines he was
taking at the time.
Miller sued Dr. Larson, Debbie Isaacs (the prison’s healthcare administrator), the
unknown pharmacist, various unknown nurses, and the prison’s grievance officer
under 42 U.S.C. § 1983 for violating the Eighth Amendment in two ways. As relevant on
appeal, he accuses the doctor of deliberately disregarding (1) the need to treat Miller’s
long-term reaction to the wrong drug, and (2) the prison staff’s practice of dispensing
drugs that the doctor had not prescribed to his patients. Miller also faults both Larson
and Isaacs for not preventing the misdelivery of medicine. Finally, he alleged that the
prison’s grievance officer was deliberately indifferent by failing to handle the
grievances in a timely matter.
After allowing an amendment to cure pleading defects but before the defendants
were served, the district judge dismissed the suit with prejudice. First, she ruled that
Miller had not plausibly alleged that his persistent dizziness and nausea were serious
medical needs. Next, she decided that Miller was seeking to hold Larson and Isaacs
responsible for the errors of their subordinates, and § 1983 does not recognize respondeat
superior liability. She also concluded that Miller’s allegations against the unnamed
medical staff were too vague because it was “impossible to determine whether Plaintiff
is discussing the pharmacist or the nurses at any given time” or which prison nurses
were involved. Lastly, Miller’s claim against the grievance officer failed, she explained,
because Miller had not adequately pleaded any indifference on his part.
On appeal, Miller first argues that his claim against Dr. Larson is sufficient. A
prisoner states a claim that a doctor violated the Eighth Amendment if he alleges an
objectively serious health concern that the doctor “knows of and disregards.” Farmer
v. Brennan, 511 U.S. 825, 834, 837 (1994). Under § 1983, prison doctors are not vicariously
liable for the misconduct of others, but they may violate the Eighth Amendment by
“turn[ing] a blind eye” to misconduct that they know will deny an inmate needed
No. 18-2347 Page 4
medical care. See Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011) (quoting Gentry
v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
Miller correctly argues that he experienced objectively serious harm. First, he
suffered from high blood pressure, which is an objectively serious condition. Jackson v.
Pollion, 733 F.3d 786, 789–90 (7th Cir. 2013). He was diagnosed with it and told that he
needed treatment for it, another indication of its seriousness. Pyles v. Fahim, 771 F.3d
403, 409 (7th Cir. 2014) (“A medical condition is objectively serious if a physician has
diagnosed it as requiring treatment, or the need for treatment would be obvious to a
layperson.”) Second, after he received the wrong drug to treat his high blood pressure,
he experienced persistent dizziness, nausea, and chronic vomiting. These symptoms are
in combination also objectively serious. See Greeno v. Daley, 414 F.3d 645, 654 (7th Cir.
2005) (inmate stated Eighth Amendment claim when medical staff refused to address
frequent vomiting, heartburn, nausea); see also Smith v. Knox Cty. Jail, 666 F.3d 1037, 1040
(7th Cir. 2012) (inmate who bled, vomited, sustained eye damage, and had dizziness
and severe pain stated claim for deliberate indifference). Third, in concluding that
Miller did not allege a serious medical need, the district court did not even consider the
alleged kidney failure or bladder infection; these conditions added to the seriousness of
Miller’s medical problems.
Miller also plausibly alleged that Dr. Larson violated the Eighth Amendment by
deliberately ignoring his medical needs in two respects. First, he alleges that Dr. Larson
did nothing to address the harm that he knew Miller faced from a staff that regularly
provided the wrong drugs. The doctor’s remark that the pharmacy had “again” given
the wrong drug permits an inference that he knew about but ignored this danger. A
prison official may violate the Eighth Amendment when the official knows that an
inmate may receive inadequate medical care but “fail[s] to exercise his or her authority
to intervene on [the inmate’s] behalf to rectify the situation.” Perez, 792 F.3d at 782. See
also Dixon v. Cty. of Cook, 819 F.3d 343, 350 (7th Cir. 2016) (prisoner stated
deliberate-indifference claim against prison nurse who knew of prisoner’s untreated
medical needs but did nothing); Gentry, 65 F.3d at 561 (prison administrator could be
liable under § 1983 for ignoring constitutional deprivation caused by other prison staff).
Second, when Miller told Dr. Larson that the Pepto-Bismol and Tylenol did not resolve
his vomiting, nausea, and dizziness, Dr. Larson brushed him off and gave no further
care. A doctor who “persists in a course of treatment known to be ineffective” may
violate the Eighth Amendment. Petties v. Carter, 836 F.3d 722, 729–30 (7th Cir. 2016) (en
banc).
No. 18-2347 Page 5
We pause to observe that these are only allegations and that, because the suit
was dismissed before any defendants were served, Dr. Larson has not yet participated
in the proceedings. At this preliminary stage, we merely conclude that Miller has
sufficiently stated an Eighth Amendment claim against Dr. Larson. Further proceedings
are needed to determine their truth and to allow Dr. Larson to respond with possible
defenses.
The district judge properly dismissed the remainder of Miller’s suit. Miller
contends that because Isaacs oversaw the medical staff, she could have prevented the
whole episode. But unlike Dr. Larson, Isaacs was not responsible for individualized
patient care and did not know about the danger that he faced from the medical staff.
Therefore, Miller’s allegations against her are tantamount to an assertion of
respondeat-superior liability, which § 1983 does not permit. See Arnett, 658 F.3d at 757.
Miller also contends that the unnamed nurses and pharmacist were deliberately
indifferent because they mishandled his prescriptions and disregarded his symptoms.
But Miller never alleged that these putative defendants knew or recklessly ignored
what Dr. Larson had prescribed. Even after the district court gave him an opportunity
to cure his pleading defects, at most Miller alleged that the nurses and pharmacist were
negligent. Yet negligence is insufficient to state a valid claim of medical mistreatment
under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Finally,
Miller seems to have abandoned his claim against grievance officer David Hermetz on
appeal, so we do not address it.
We VACATE and REMAND the dismissal of the Eighth Amendment claim
against Dr. Larson, as well as the assessment of a strike against Miller pursuant to 28
U.S.C. § 1915A. We AFFIRM in all other respects.