NONPRECEDENTIAL DISPOSITION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 24, 2021*
Decided May 27, 2021
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20‐2688
EUGENE L. CHERRY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of
Wisconsin.
v. No. 1:18‐cv‐01602‐WCG
MARY ALSTEEN, et al., William C. Griesbach,
Defendants‐Appellees. Judge.
ORDER
Eugene Cherry, a Wisconsin prisoner, sued prison guards and medical providers
for allegedly violating his Eighth Amendment rights after a hernia surgery because he
was prescribed a pain reliever for only three days, and he missed a dose. The district
court entered summary judgment for the defendants. No reasonable jury could find that
the defendants displayed deliberate indifference to Cherry’s pain, and so 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. 20‐2688 Page 2
In August 2018, Cherry had laparoscopic surgery to repair a testicular hernia.
The surgery involved three small incisions. The surgeon told him that he would likely
be in pain for seven days but did not prescribe any pain medicine. Back at the Green
Bay Correctional Institution, Dr. Cynthia Koren prescribed hydrocodone‐
acetaminophen, a narcotic pain reliever (generic for Vicodin) to be taken as needed up
to four times per day, for three days. Per prison policy Cherry’s medicine would be
delivered to his housing unit each day at 6:00 a.m., 11:00 a.m., 3:30 p.m., and 8:45 p.m.
The day after his surgery, Cherry missed his 3:30 p.m. dose of pain medicine.
Hydrocodone is a staff‐controlled medication that inmates cannot keep in their cells;
they must come out of their cells at the scheduled times to receive their pills from the
delivery cart. Unit staff keep a list of inmates scheduled to receive medication and are
supposed to open their cell doors at the appropriate time. But Cherry’s door did not
open that afternoon, and so he did not receive his medicine from Christina Serrano, the
nurse who was distributing medication. Because Cherry’s prescription was “as
needed,” she assumed his absence meant he did not need the medication.
Cherry spoke to Officer Andrew Terrell from his cell shortly after the 3:30
medication pass, telling him that he was in pain and needed his medicine. Terrell
responded rudely, saying something like, “you get no meds now.” Cherry believed that
Terrell, who was regularly assigned to Cherry’s housing unit, assumed that he was
lying because he was not normally on the list for medicine. About 45 minutes later,
Cherry again told Terrell that he was in “extreme pain” and needed his medicine.
Terrell responded in a “snotty” tone that the nurse had left the unit, and he had no
medications available. According to Terrell, who admittedly had a hazy memory of the
events, he informed health services that Cherry was requesting medication and was
told it was not currently available.
Cherry also asked Sergeant Phil Przybylinski about his medicine: Three times
between 5:30 and 7:00 p.m., as he was walking to and from dinner and the showers,
Cherry told Przybylinski that he was in “extreme pain” and asked him to call the health
services unit. Przybylinski said he would, but he later told Cherry that he had not called
because he was “dealing with other things.” After their last exchange, Przybylinski
yelled at Cherry to return to his cell. (Przybylinski did not remember their interactions.)
Cherry was in “excruciating pain” for the five and a half hours between his
missed afternoon dose and his 9:00 p.m. dose, which he received without incident.
No. 20‐2688 Page 3
Cherry had a full bottle of Tylenol, issued before his surgery for back pain, in his cell.
He did not take any after the missed dose of hydrocodone because he believed it was
for his back and was not appropriate for his post‐surgery pain.
Over the next week, Cherry filed an inmate complaint and two health services
requests about the missed dose and about the expiration of his prescription after just
three days despite ongoing pain. Jean Lutsey, a nurse and the manager of the health
services unit, told a complaint examiner that Cherry’s prescription was reasonable for
the type of surgery he had. Mary Alsteen, another nurse, responded to a health services
request by explaining that Dr. Koren had prescribed only three days of hydrocodone,
but Cherry could take Tylenol and would be seen by a nurse at sick call the next day.
Dr. Koren saw Cherry at two follow‐up appointments about two weeks after his
surgery and, despite his requests and reports of continued pain, she declined to
prescribe more hydrocodone. Dr. Koren examined Cherry and determined that
extending the prescription was not necessary—his incision sites were healing well, his
groin was not tender, he reported only moderate pain, and he was walking normally.
Concerned about the addictive nature of hydrocodone and its potential side effect of
constipation (which a nurse in the surgeon’s office said Cherry must avoid), Dr. Koren
concluded that Tylenol, a scrotal support, and ice were appropriate treatments. Cherry’s
pain subsided within another week or so.
Cherry sued Dr. Koren, health services manager Lutsey,1 nurses Alsteen and
Serrano, and correctional officers Terrell and Przybylinski, alleging that they violated
his Eighth Amendment rights by denying him adequate medical treatment for his post‐
surgery pain. See 42 U.S.C. § 1983. He cited the responses to his health services requests,
the short prescription, and the missed dose of hydrocodone, which left him in
“excruciating pain” for several hours.
Eventually, Cherry and all defendants moved for summary judgment, and the
district court granted the defendants’ motions. The court reasoned that Dr. Koren had
acted within her medical judgment and that Lutsey and Alsteen permissibly relied on it.
Further, Cherry lacked evidence that it was Serrano’s responsibility to take any action
when Cherry did not show up to take an “as needed” medication. As for Terrell and
Przybylinski, the court concluded that no reasonable jury could find that they were
1Lutsey recently passed away, and Cherry proceeds against her estate
represented by Karen Deshler. See FED. R. APP. P. 43(a)(1).
No. 20‐2688 Page 4
deliberately indifferent because Cherry did not exhibit any outward signs of a medical
emergency requiring them to “drop everything” to respond. Moreover, the delay
caused by the missed dose of medicine was not any longer than Cherry had to go
between doses each night, and he could have used the Tylenol in his cell to lessen his
pain.
On appeal, Cherry generally challenges the entry of summary judgment for the
defendants on his deliberate indifference claims. Cherry needed evidence that he had an
objectively serious medical condition and that the defendants were aware of and
disregarded an excessive risk to his health. See Farmer v. Brennan, 511 U.S. 825, 834, 837
(1994). We agree with the district court that Cherry’s “extreme pain” after surgery was
serious, so we focus on whether the defendants acted with a “sufficiently culpable state
of mind.” See Lewis v. McLean, 864 F.3d 556, 563 (7th Cir. 2017) (quotation omitted).
Cherry’s belief that Dr. Koren should have extended his hydrocodone
prescription does not raise a question of fact about her state of mind because the record
shows that she applied her medical judgment. “[M]ere disagreement with a doctor’s
medical judgment” cannot establish an Eighth Amendment violation. Cesal v. Moats,
851 F.3d 714, 722 (7th Cir. 2017). Dr. Koren explained the decision not to extend the
hydrocodone prescription, and Cherry failed to introduce evidence showing that “no
minimally competent professional” would have prescribed hydrocodone for just three
days after a minor laparoscopic surgery. Lockett v. Bonson, 937 F.3d 1016, 1023 (7th Cir.
2019). Although Dr. Koren did not reassess Cherry until two weeks after surgery, there
is no evidence that she was aware of his complaints before then; in fact, Cherry faults
Lutsey and Alsteen for not consulting her. When Dr. Koren did learn that Cherry was
still reporting moderate pain, she responded by examining him, finding he was healing
and walking normally and determining that Tylenol, ice, and a scrotal support were
appropriate treatments for his pain, particularly given hydrocodone’s potential side
effects. All of this is consistent with the application of medical judgment, not deliberate
indifference.
Because no reasonable jury could find that Dr. Koren showed deliberate
indifference, Cherry’s claims against Lutsey and Alsteen also fail. Their only
involvement was responding to Cherry’s written complaints. They were entitled to rely
on Dr. Koren’s prescription for a three‐day course of hydrocodone unless they had
reason to believe that this treatment decision was not based on Dr. Koren’s medical
judgment, and Cherry lacks evidence of such a reason. See Rasho v. Elyea, 856 F.3d 469,
478–79 (7th Cir. 2017). And although Cherry asserts that Lutsey “ignored” his
No. 20‐2688 Page 5
complaint, prison records show that she responded within a day, though not with the
answer Cherry wanted. See Scott v. Harris, 550 U.S. 372, 380 (2007) (assertion that is
“blatantly contradicted by the record” should not be credited at summary judgment).
Cherry’s claims against Serrano, Terrell, and Przybylinski about the missed
hydrocodone dose fare no better. A single missed dose of medication resulting in
“hours of needless suffering” may support an Eighth Amendment claim if the
defendants deliberately or recklessly delayed providing it. Gil v. Reed, 381 F.3d 649, 660–
62 (7th Cir. 2004). Here, however, the record, construed in Cherry’s favor, lacks
evidence from which a jury could conclude that Serrano, Terrell, or Przybylinski acted
with the requisite ill intent.
First, Serrano, when she was delivering medicine to the housing unit, was not
obligated to go cell‐to‐cell inquiring why any inmate did not pick up “as needed”
medication. Even if there were such a duty, as Cherry asserts without evidence, there is
nothing to suggest that not following up was anything beyond negligence, which does
not violate the Constitution. See Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en
banc).
The same goes for Cherry’s allegations about Terrell: Terrell did not know why
Cherry was not let out of his cell at the appointed time, and Cherry has no evidence that
it was anything but a mistake. In Cherry’s own telling, Terrell ignored him because he
incorrectly believed Cherry was not scheduled to receive medication. As for the claim
that neither Terrell nor Przybylinski obtained hydrocodone for him after he missed the
delivery, Cherry was not exhibiting signs of a medical emergency (he was walking and
conversing normally), and only a few hours remained until the next dose. This is far
from ignoring a prisoner’s reports of severe back pain for 90 minutes, while the prisoner
was incapacitated and sobbing. Cf. Lewis, 864 F.3d at 563–64. The remarks to which
Cherry took offense—Terrell’s comment that the nurse had left the unit and
Przybylinski’s that he had been too busy to call health services—do not suggest that
they were mocking him or otherwise disregarding his pain, but merely that they were
updating him with relevant factual information. Without some evidence of a culpable
state of mind, the delay alone does not create a question of fact about deliberate
indifference. See Burton v. Downey, 805 F.3d 776, 785 (7th Cir. 2015) (holding two‐day
delay in dispensing pain medication without evidence of bad intent was not deliberate
indifference).
No. 20‐2688 Page 6
Moreover, Cherry did not provide evidence that the inaction of Serrano, Terrell,
or Przybylinski caused his injury (the extra hours of pain). See Thomas v. Martija, 991
F.3d 763, 770–71 (7th Cir. 2021). In cases based on delays in treatment, the plaintiff must
introduce medical evidence that the delay caused some harm such as “unnecessarily
prolong[ing] pain.” Id. at 771 (quotation omitted); see Williams v. Liefer, 491 F.3d 710,
714–15 (7th Cir. 2007). Cherry has not refuted the evidence that he could have taken
Tylenol until his next dose of hydrocodone. His mistaken belief that Tylenol would not
be appropriate for his post‐surgery pain is not Serrano’s, Terrell’s, or Przybylinski’s
fault. Furthermore, Cherry confirmed that no medical professional told him that
Tylenol was inappropriate, and Dr. Koren stated that Tylenol can be used for such pain.
AFFIRMED