United States Court of Appeals
For the Eighth Circuit
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No. 19-3299
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Elvin Redmond
lllllllllllllllllllllPlaintiff - Appellant
v.
Joel Kosinski, M.D.; Jana Hacker, NP; Robert Johnson, Warden, Fort Dodge;
James McKinney, Warden; Greg Ort, Deputy Warden; Michael Willey, M.D.;
Kimberly Leman, M.D.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: January 14, 2021
Filed: June 7, 2021
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Before LOKEN, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Elvin Redmond, an Iowa Department of Corrections inmate, says that the
defendants delayed treatment for a sore on his right foot, allowing it to become a
major medical crisis resulting in a below-the-knee amputation. Redmond filed a
claim under 42 U.S.C. § 1983, alleging that the defendants violated his Eighth
Amendment rights by acting with deliberate indifference to his serious medical needs
and safety. The district court1 granted summary judgment to all defendants and we
affirm.
I.
Redmond first reported that the fifth toe of his right foot was painful and
swollen on March 27, 2017. Redmond has diabetes and hepatitis, serious medical
conditions requiring ongoing management. Jana Hacker, a nurse practitioner at the
Fort Dodge Correctional Facility, examined his foot, prescribed pain medication, and
scheduled a follow-up visit two days later. When she later saw a blister had formed,
Hacker prescribed an antibiotic injection, a daily oral antibiotic, and a twice-a-day
topical cream. After Redmond’s blister opened and he ran a temperature, Hacker sent
him to the University of Iowa Hospitals and Clinics emergency room on March 31.
UIHC staff evaluated the infection, x-rayed his foot, and sent him back to the prison
that same day with an order for an oral antibiotic, which an IDOC physician
substituted with a different antibiotic. Hacker saw Redmond on two follow-up visits
and, on April 7, when she saw that the wound was larger and the flesh around the
wound was changing color, she sent him back to UIHC’s emergency room and he was
hospitalized.
UIHC orthopedic surgeon Michael Willey examined Redmond’s foot on
April 8, ordered tests, recommended a vascular consultation, and noted that “[a]s he
is hemodynamically stable there is no need for urgent operative intervention at this
point.” On April 11, UIHC discharged Redmond to the Iowa Medical and
Classification Center, a medical correction facility. Joel Kosinski, a physician at
IMCC, saw Redmond multiple times in April and May, evaluated the infection,
ordered his wound care and disease management treatments, prescribed medications,
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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and documented that Redmond needed a toe amputation. After Redmond filed an
April 29 grievance saying that he had been forced to miss UIHC medical
appointments, he was taken to the UIHC Orthopedic Department where staff placed
a cast on Redmond’s foot. His follow-up appointment with the orthopedic
department was also delayed, and Redmond filed another grievance. On May 18,
Willey evaluated Redmond’s foot and noted that he planned a possible toe amputation
after a vascular consult.
Redmond’s condition worsened, and he was hospitalized again at UIHC on
May 26. The infection had spread to Redmond’s fourth toe, and Willey removed the
two toes on May 30. During surgery, Willey found that the infection had extended
beyond the toes and that the best treatment would be a below-the-knee amputation.
The surgery did not take place two days later as scheduled because Redmond
developed an acute kidney infection. He remained hospitalized at UIHC until June
15, and then returned to IMCC. Redmond’s renal condition improved and UIHC
scheduled him for surgery July 13. Against medical advice, Redmond refused the
surgery so he could call his family during a family reunion. The hospital rescheduled
surgery for August 8 and Willey amputated Redmond’s leg below the knee.
Redmond’s recovery required significant follow-up and an additional surgery.
Redmond filed a pro se § 1983 complaint and the district court granted his
request for counsel. He then filed an amended and substituted complaint claiming
that seven defendants violated his Eighth Amendment rights by showing deliberate
indifference to his serious medical needs and safety. He sought damages from
doctors Kosinski and Willey, nurse practitioner Jana Hacker, physician’s assistant
Kimberly Leman, and prison officials Robert Johnson, James McKinney, and Greg
Ort.
The district court granted summary judgment to Warden Johnson, Warden
McKinney, Deputy Warden Ort, and physician’s assistant Leman. Redmond does not
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appeal that part of the district court’s decision, but rather appeals the grant of
summary judgment to UIHC orthopedic surgeon Dr. Willey and nurse practitioner
Hacker and Dr. Kosinski, both from IDOC.
II.
We review the district court’s summary judgment decision de novo, “viewing
the evidence most favorably to the nonmoving party.” Johnson v. Leonard, 929 F.3d
569, 574 (8th Cir. 2019). “[W]e will affirm the grant of summary judgment ‘if the
record indicates that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’” Jackson v. Riebold, 815
F.3d 1114, 1119 (8th Cir. 2016) (citation omitted). “If there is a dispute, and a
reasonable jury could return a verdict for either party, then summary judgment is not
appropriate.” Jones v. Minn. Dep’t of Corr., 512 F.3d 478, 482 (8th Cir. 2008).
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (cleaned up) (citation omitted). The
plaintiff must show (1) “an objectively serious medical need,” and (2) “that the
defendant knew of and disregarded that need.” Coleman v. Rahija, 114 F.3d 778, 784
(8th Cir. 1997). “As long as this threshold is not crossed, inmates have no
constitutional right to receive a particular or requested course of treatment, and prison
doctors remain free to exercise their independent medical judgment.” Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
Negligence is not enough. See Estelle, 429 U.S. at 106. To survive summary
judgment, Redmond must show grossly incompetent or inadequate care “so
inappropriate as to evidence intentional maltreatment or a refusal to provide essential
care.” Dulany, 132 F.3d at 1242 (citation omitted). But “medical treatment may so
deviate from the applicable standard of care as to evidence a physician’s deliberate
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indifference.” Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001). “Often whether
such a significant departure from professional standards occurred is a factual question
requiring expert opinion to resolve.” Id. This inquiry is factually intensive and
presents a “substantial evidentiary threshold” to show that medical providers
“deliberately disregarded the inmate’s needs by administering an inadequate
treatment.” McRaven v. Sanders, 577 F.3d 974, 982 (8th Cir. 2009) (citation
omitted).
Redmond does not clear this threshold. He presented no medical evidence that
Hacker’s actions did not meet a nurse practitioner’s standard of care or that her
alleged four-day delay in transferring him back to the hospital caused his wound to
deteriorate. See Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (affirming
summary judgment when inmate failed to submit verifying medical evidence that
prison officials’ delay had an adverse effect). And without expert testimony, no jury
could conclude that Kosinski or Willey made decisions that do not meet a physician’s
standard of care or caused Redmond’s condition to worsen. Id.
Instead, Redmond claims that all three medical providers delayed his treatment
in some way and that the detrimental effect is as “obvious to the layperson” as it was
in Moore v. Jackson, 123 F.3d 1082, 1086 (8th Cir. 1997) (citation omitted). In
Jackson, we said that the effect of an eight-month delay in adequate treatment for a
toothache was obvious, even to non-professionals, and showed that “[s]omething
appear[ed] wrong with the dental care system.” Id. The plaintiff’s claims there
survived because the court inferred, as it must on summary judgment, that the dentist
and nurse received the inmate’s complaints as alleged and did not take any action to
treat his abscess. Id. at 1086-87.
Redmond does not allege the defendants delayed all treatment, but that they
failed to provide the proper treatment at the proper time to prevent his wound from
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becoming infected and his condition from worsening.2 When an inmate claims that
a delay in medical care violates the Eighth Amendment, “the objective seriousness
of the deprivation should also be measured ‘by reference to the effect of delay in
treatment.’” Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005) (cleaned up)
(citation omitted). “A prisoner alleging a delay in treatment must present verifying
medical evidence that the prison officials ignored an acute or escalating situation or
that these delays adversely affected his prognosis.” Holden v. Hirner, 663 F.3d 336,
342 (8th Cir. 2011) (cleaned up) (citation omitted). And if the treatment is for a
sophisticated medical condition, “testimony is required to show proof of causation.”
Alberson v. Norris, 458 F.3d 762, 765–66 (8th Cir. 2006).
Redmond’s records reflect a complex medical situation with an unfortunate
result. Diabetes, hepatitis, and infected wounds are treated with a variety of
medications and procedures. Specially trained providers may make different
decisions on treatment and patients may have varying outcomes. The sophisticated
medical question here is not within the common understanding of the jury or the
court¾and it is not “so obvious that a layperson would easily recognize” whether the
medical provider’s alleged actions or inactions were grossly incompetent or
inadequate. See Jones, 512 F.3d at 482.
2
For the first time on appeal, Redmond claims that Hacker “inexplicably failed
to follow” UIHC’s prescription for the antibiotic Cephalexin and instead switched
him to the antibiotic Amoxicillin. He also now alleges that Kosinski withheld the
antibiotic Ciprofloxacin for over two weeks after it was ordered by the UIHC
physician. We ordinarily do not consider arguments raised for the first time on
appeal. Foster v. Mo. Dep’t of Health & Senior Servs., 736 F.3d 759, 762 (8th Cir.
2013). And even had Redmond raised the argument below, the record does not
support him. The record shows that physician Steven Cook ordered the Amoxicillin
on March 31, see D. Ct. Dkt. 44 at 33, and Redmond admitted that Ciprofloxacin was
administered from April 10 to 17, see Response to Defendants’ Undisputed Material
Facts, D. Ct. Dkt. 53-1 at 4-5, ¶10.
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Redmond’s unsupported medical conclusions cannot create a question of fact
about whether the defendants’ medical decisions were reasonable, negligent, grossly
negligent, or so ineffective as to be criminally reckless, rising to the level of
deliberate indifference. Without medical evidence, no reasonable jury could conclude
that the providers were deliberately indifferent to his serious medical need. Id.
III.
Redmond fails to provide evidence from which a trier of fact could draw an
inference that Hacker, Kosinski, or Willey provided care that was “grossly
inappropriate” or “intentional maltreatment,” Dulany, 132 F.3d at 1241, and so we
affirm the district court’s grant of summary judgment to Hacker, Kosinski, and
Willey.
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