NONPRECEDENTIAL DISPOSITION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 February 6, 2019*
Decided February 6, 2019
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 17-2557
RODNEY HEARD, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 14-CV-905
NATHAN CHAPMAN, et al., Nancy J. Rosenstengel,
Defendants-Appellees. Judge.
ORDER
Rodney Heard, an Illinois inmate, argues that five prison officials violated the
Eighth Amendment through their deliberate indifference to a lump in his jaw that
turned out to be a benign tumor. The district court entered summary judgment in favor
of three defendants, concluding that no reasonable jury could find that they were
deliberately indifferent to Heard’s serious medical needs. After a trial, a jury returned a
verdict in favor of the two remaining defendants. Seeing no error in the entry of
summary judgment or the jury verdict, we affirm.
*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. See FED. R. APP. P. 34(a)(2)(C).
No. 17-2557 Page 2
Heard began experiencing jaw pain in early 2011 while he was an inmate at
Pontiac Correctional Center. In March of that year, Dr. J.W. Mitchell, the Pontiac dentist,
diagnosed Heard as having a salivary duct infection. A round of antibiotics did not
resolve the problem, so Dr. Mitchell referred Heard to an oral surgeon, who offered the
same diagnosis. X-rays showed no abnormalities, but the radiologist opined that if a
salivary gland stone were “still of clinical concern,” then a CT scan “could also be
performed.” Dr. Mitchell did not order a CT scan.
In June 2011, Dr. Andrew Tilden, Pontiac’s medical director, concurred in the
salivary duct stone diagnosis, becoming the third physician to reach this conclusion. Dr.
Tilden prescribed pain relievers and antibiotics and recommended a follow-up visit in
two months. He also did not order a CT scan, believing that conservative treatment
would resolve the issue within a few weeks. Heard testified that after the second round
of antibiotics, his pain went away and did not return during the remainder of his time
at Pontiac. Heard did not have the two-month follow-up appointment with Dr. Tilden
because of his imminent transfer to another prison.
Upon Heard’s fall 2011 transfer to Pinckneyville Correctional Center, the
facility’s dentist, Dr. Nathan Chapman, reviewed Heard’s dental and medical records
and determined that it was not necessary to examine him immediately. Within a week,
however, Heard’s mouth pain returned.
In August or September 2012, Heard told David Hess, his correctional counselor,
that he had submitted four requests to see a dentist but received no response. Heard
asked for a grievance form, but Hess did not give him one.
Heard was examined regularly at Pinckneyville’s hypertension clinic by Dr.
Vipin Shah, facility’s medical director. During a November 2012 checkup, Dr. Shah
noted some swelling in the lymph node on Heard’s neck and prescribed an antibiotic.
Despite the treatment, the painful lump persisted.
During Heard’s biannual dental checkup in February 2013, Dr. Chapman noted
several loose teeth and a hard knot on the floor of Heard’s mouth. X-rays revealed a
large cyst, which Dr. Chapman suspected might be ameloblastoma, a benign but
aggressive tumor that can erode the jawbone if not treated. He submitted an urgent
request for an oral surgeon to conduct a biopsy. The surgeon removed the tumor,
several of Heard’s teeth, and a portion of his jaw bone. (Heard later underwent multiple
reconstructive surgeries.)
No. 17-2557 Page 3
During Heard’s recovery, Dr. Chapman changed the gauze in his mouth. Heard
says that, despite his surgeon’s instructions, he was not given additional gauze after his
release from the infirmary, leading to the development of a painful dry socket. When he
complained about the dry socket at his follow-up appointment a week later, Dr.
Chapman treated it with a sterile gel foam, which Heard says “took all the pain away.”
In August 2014, Heard filed a complaint against numerous prison officials,
alleging deliberate indifference to his serious medical needs for the doctors’ failure to
timely diagnose and treat the tumor. At screening, see 28 U.S.C. § 1915A, the district
court dismissed Heard’s claim for “denial of access to grievances” against Hess on the
basis that prison grievance procedures do not implicate the due process clause. The
court permitted Heard to proceed on his Eighth Amendment deliberate-indifference
claim against Chapman, Shah, Tilden, and Mitchell, and Hess.
All defendants eventually moved for summary judgment. The district court
granted Chapman, Tilden, and Mitchell’s motion, reasoning that Heard had not
furnished evidence to support a finding that any of these defendants was deliberately
indifferent to his medical needs.
Heard proceeded to a jury trial on his claim against Hess and Dr. Shah. Toward
the end of the two-day trial, the district court instructed the jury on the law and
specified what Heard must show to establish an Eighth Amendment violation:
Plaintiff Rodney Heard claims he was injured and sustained damage
and that Defendant[] … Dave Hess violated his rights under the Eighth
Amendment … in the following [way]:
….
Defendant David Hess acted with deliberate indifference in refusing
to give Mr. Heard a grievance form to permit him to file a grievance about
dental care despite having actual knowledge that Mr. Heard had received
no response to four requests to see a dentist and knowing that Mr. Heard
faced a substantial risk of serious harm if Hess did not provide Mr. Heard
with a grievance form to utilize in obtaining necessary dental treatment….
Heard objected to this instruction on grounds that it was adopted from a state court
instruction and was confusing and duplicative. In overruling his objection, the court
explained that the instruction “giv[es] the jury an overview of what the case is about.”
No. 17-2557 Page 4
The jury returned a verdict in favor of both Dr. Shah and Hess.
On appeal, Heard challenges the district court’s entry of summary judgment in
favor of Drs. Tilden, Mitchell, and Chapman. We assume, as did the district court, that
ameloblastoma is an objectively serious medical condition and thus focus on whether
any of the defendants was deliberately indifferent to that condition. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
Heard first argues that Dr. Tilden was deliberately indifferent by failing to
conduct the two-month follow-up appointment at Pontiac. But Heard admitted in his
deposition that his mouth pain went away after he took the antibiotics that Dr. Tilden
prescribed, and the pain did not return until after his transfer to Pinckneyville. Because
the treatment resolved Heard’s complaint, no reasonable jury could find that Dr. Tilden
“knew of a substantial risk of harm to [Heard] and disregarded the risk.” Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005).
Next, Heard faults both Drs. Tilden and Mitchell for failing to order a CT scan
following the first set of x-rays. But the Supreme Court has been clear that “the decision
to forego diagnostic tests is ‘a classic example of a matter for medical judgment.’” Pyles
v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 107
(1976)). For a delay in treatment to be actionable under the Eighth Amendment, a
“plaintiff must also provide independent evidence that the delay exacerbated the injury
or unnecessarily prolonged pain.” Petties v. Carter, 936 F.3d 722, 730–31 (7th Cir. 2016)
(en banc). As the district court noted, Heard offered no evidence to suggest that the
tumor had been present but somehow missed in the x-rays taken at Pontiac in spring
2011 (or that it would have been detectible through a CT scan at that time). Nor is there
any evidence that Heard’s salivary-duct condition or swollen lymph node was in any
way related to or indicative of ameloblastoma.
As for Dr. Chapman, Heard argues that the dentist acted with deliberate
indifference when he did not call him in for an immediate examination after his transfer
to Pinckneyville. Yet it is undisputed that Heard’s mouth pain had been resolved by the
time of his transfer (though it returned a week later). And Heard does not suggest that
anything in his medical records should have alerted the dentist to the risk of
ameloblastoma—or that Dr. Chapman was actually aware of such a risk, as required for
a deliberate-indifference claim. See Greeno, 414 F.3d at 653.
No. 17-2557 Page 5
Heard also contends that Dr. Chapman violated his Eighth Amendment rights by
failing to provide him with additional gauze post-surgery, which led to a painful dry
socket. We examine “the totality of the inmate’s medical care” when considering
whether that care evidences deliberate indifference to his serious medical needs, and in
this case, the overall treatment record cannot support such a finding. Petties, 936 F.3d at
728. The record shows that as soon as Dr. Chapman identified a possible problem with
Heard’s oral health, he ordered x-rays and then submitted an urgent request for an oral
surgeon to perform a biopsy. He changed Heard’s gauze post-surgery and immediately
treated the dry socket when it was brought to his attention. Viewed in this context, Dr.
Chapman’s alleged failure to provide Heard with additional gauze post-surgery
amounts to mere negligence or an “an isolated occasion… where [Heard] did not
receive prompt treatment [from Dr. Chapman],” neither of which is insufficient to state
a claim under the Eighth Amendment. Jackson v. Kotter, 541 F.3d 688, 698 (7th Cir. 2008)
(citation omitted); see also Petties, 936 F.3d at 728.
Heard next argues that he is entitled to a new trial because the district court
erroneously overruled his objection to the challenged jury instruction, which, Heard
says, improperly referred to his screened-out due process claim. But Heard
misapprehends the nature of the instruction: the instruction directly addressed what he
must prove to establish an Eighth Amendment violation. (Hess’s failure to provide
Heard with a grievance form is relevant to this claim to the extent that it evinces
deliberate indifference to his serious medical needs.) Further, Heard does not argue that
the challenged instruction misstated the law or that the jury instructions, taken as a
whole, misled the jury or prejudiced him in any way. Accordingly, he is not entitled to a
new trial on this basis. See Lindsey v. Macias, 907 F.3d 517, 520 (7th Cir. 2018).
Finally, Heard argues that he is entitled to a new trial because the jury verdict
was “contrary to the testimony and evidence presented.” But by failing to move for
judgment as a matter of law in the district court, Heard forfeited any challenge to the
sufficiency of the evidence on appeal. See FED. R. CIV. P. 50; Empress Casino Joliet Corp. v.
Balmoral Racing Club, Inc., 831 F.3d 815, 823 (7th Cir. 2016). In any event, our review of
the record convinces us that the evidence adduced at trial provided the jury a legally
sufficient basis to render a verdict for Dr. Shah and Hess.
AFFIRMED