In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3280
K EVIN B. A RNETT,
Plaintiff-Appellant,
v.
T HOMAS A. W EBSTER, M.D., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:08-cv-099-WTL-WGH—William T. Lawrence, Judge.
A RGUED M ARCH 30, 2011—D ECIDED S EPTEMBER 12, 2011
Before F LAUM, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. Kevin Arnett, a former prisoner
at the Bureau of Prisons Federal Correctional Complex in
Terre Haute, Indiana, brought this Bivens action, see
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), for cruel and unusual punish-
ment under the Eighth Amendment against a number of
prison officials for violations he alleged occurred during
his ten month stay there. When Arnett arrived at the
2 No. 09-3280
Terre Haute facility in November 2006, he was seen by
Thomas Webster, M.D., prison clinical director. Arnett
informed Dr. Webster that he had rheumatoid arthritis
(RA), a severe and debilitating form of arthritis which
is progressive and causes painful inflammation of the
joints and surrounding tissues, and asked for Enbrel
(etanercept), a medication Arnett had been taking
before arriving at the prison that had been successful in
controlling his condition.
Because Enbrel wasn’t on the prison’s approved formu-
lary, prison medical personnel had to seek prior ap-
proval to prescribe the medication by submitting a non-
formulary drug authorization request to the Central
Office of the Bureau of Prisons in Washington, D.C. (BOP)
Dr. Webster submitted a request for Arnett to receive
Gabapentin, used to treat nerve pain, but not Enbrel, and
also submitted approval for a consultation with an
outside rheumatologist. W. Eric Wilson, M.D., staff physi-
cian at Terre Haute, became Arnett’s primary care physi-
cian on December 28, 2006. An outside rheumatologist
examined Arnett in February 2007, and it can be inferred
that he directed Dr. Wilson to place Arnett back on Enbrel.
Despite the rheumatologist’s instruction and Arnett’s
repeated pleas for the medication and complaints of
continued pain and swelling, he didn’t receive Enbrel
until October 5, 2007, eleven days before he was trans-
ferred from the facility to a halfway house. Arnett was
told by the defendants during the more than ten months
he waited for the drug that the non-formulary request
had been submitted, they were waiting for a response
from the BOP, and were otherwise “working on it.” In the
No. 09-3280 3
meantime, Arnett was prescribed pain medicine, but
nothing to treat the inflammation and deterioration of
his joints.
Because Arnett sought leave to proceed in forma
pauperis, the district court screened his complaint pursu-
ant to 28 U.S.C. § 1915(e)(2)(B), and in so doing, dismissed
all the defendants, except Dr. Webster, on the basis that
Arnett failed to state a claim upon which relief could
be granted. (Shortly after screening, Arnett’s case was
transferred from Judge Richard L. Young to Judge
William T. Lawrence.) Dr. Webster then filed a summary
judgment motion and the district court granted that
motion. The district court entered judgment, directing
that plaintiff take nothing by his complaint. Arnett
appeals both rulings and we affirm in part and reverse
in part. We affirm dismissal of the non-medical de-
fendants on the pleadings, but find that Arnett properly
stated a claim against the medical defendants. We, how-
ever, affirm the district court’s grant of summary judg-
ment in favor of Dr. Webster because Arnett failed to
meet his burden to submit evidence upon which a rea-
sonable jury could find that Dr. Webster acted with
deliberate indifference.
I. Facts
Arnett brought this suit against the following Terre
Haute prison employees for violation of his Eighth Amend-
ment rights: Warden Richard Veach, Health Services
Administrator Julia Beighley, Case Manager David
Parker, Staff Physician W. Eric Wilson, M.D., Physician’s
4 No. 09-3280
Assistant Yves A. Paul-Blanc, and Clinical Director
Thomas A. Webster, M.D. (Arnett also sued the Federal
Bureau of Prisons, but recognizing that dismissal of the
BOP was proper, he has not appealed that ruling.) Because
we are reviewing a dismissal at both the pleading and
summary judgment stage, we begin by setting forth the
allegations and facts in Arnett’s complaint and docu-
ments attached thereto. See Reger Dev., LLC v. Nat’l City
Bank, 592 F.3d 759, 764 (7th Cir. 2010) (On a motion to
dismiss “[w]e consider documents attached to the com-
plaint as part of the complaint itself.”)
In 2001, Arnett was diagnosed with RA by his treating
physician, Steven R. Bergquist, M.D. RA involves autoim-
mune reactions and is a progressive disease that causes
pain and inflammation in the joints.1 After other medica-
tions proved unsuccessful in controlling his condition,
Dr. Bergquist placed Arnett on the drug Enbrel in
January 2004. Enbrel reduces joint swelling, helps prevent
1
The defendants argue that there is nothing in the record to
support these facts, but they can be found in Dr. Bergquist’s
September 5, 2007, letter that was attached to Arnett’s com-
plaint. We also note that several authoritative sources
support this description of the disease. See The Merck Manual
of Diagnosis and Therapy 283-89 (18th ed. 2006) (stating that RA
is a chronic autoimmune disease resulting in progressive
destruction of the joints). While Arnett will need to present
admissible evidence to substantiate such facts for purposes
of summary judgment, he does not need to do so at the
pleading stage.
No. 09-3280 5
damage to the joints,2 and was effective in decreasing
Arnett’s inflammation and accompanying pain. Enbrel is
a protein that inhibits inflammation in the body by sup-
pressing a substance produced by the immune system
known as tumor necrosis factor (TNF).3 Subsequently,
Arnett was convicted of a federal criminal offense and
sentenced to imprisonment. He self-surrendered at the
Terre Haute prison on November 1, 2006, and when he
arrived, he brought his Enbrel medication, but prison
officials confiscated it upon arrival.
2
Enbrel is used to reduce the progression of RA. See The Merck
Manual of Diagnosis and Therapy 289; see also Physicians’ Desk
Reference 631 (65th ed. 2011) (“Enbrel is indicated for
reducing signs and symptoms, . . . inhibiting the progression
of structural damage, and improving physical function in
patients with moderately or severely active [RA].”). The de-
fendants’ characterization of Enbrel as “pain medication” is
a misnomer.
3
This fact isn’t found in Arnett’s complaint or attached docu-
ments, but we state it here to provide relevant background
information. It can be found in the summary judgment record
in a letter from Dr. Bergquist dated April 20, 2009. This infor-
mation is supported by Enbrel’s website and authoritative text.
See http://www.enbrel.com/what-is-ENBREL.jspx (last visited
Sept. 7, 2011) (“People with inflammatory diseases such as
rheumatoid arthritis . . . have too much TNF in their bodies.
Enbrel reduces levels of the active form of TNF.”); see also
Mosby’s Nursing Drug Reference 491-92 (25th ed. 2012) (stating
that Enbrel “[b]inds [TNF], which is involved in immune
and inflammatory reactions.”); Physicians’ Desk Reference 639
(“Enbrel can reduce the effect of TNF in the body and block
the damage that too much TNF can cause . . . .”).
6 No. 09-3280
During the next ten months, Arnett lodged numerous
oral and written complaints to the defendants for Enbrel,
but to no avail. Dr. Webster examined Arnett twice
in November 2006. During both exams, Arnett told
Dr. Webster that he needed Enbrel to control his RA
and that because he didn’t have the medication, his
joints were swollen, especially his knees, and he was
in intense pain; this resulted in Arnett having to walk with
a cane. Dr. Webster agreed that Arnett’s joints were
swollen. In response to his requests for Enbrel, Dr. Webster
said, “We’ll work on it.” Dr. Webster attested that he
has no recollection of meeting with Arnett or discussing
his request for Enbrel. Arnett also informed Warden
Veach in December 2006 that his Enbrel had been con-
fiscated by prison employees and that he needed it to
control his RA. Veach told Arnett to talk to Health
Services Administrator Beighley. Arnett complained to
Beighley and she told him to put his request in writing,
which he did.
Dr. Wilson became Arnett’s primary physician at the
prison beginning December 28, 2006; he saw Arnett every
other month until his transfer from the facility in
October 2007. Each time he met with Dr. Wilson, Arnett
informed him he needed Enbrel and without it, he
suffered from joint swelling, particularly in his knees.
Dr. Wilson examined Arnett’s knees and other joints
and agreed they were swollen. In response to Arnett’s
request, Dr. Wilson stated that he had filled out new
forms to get Enbrel that had to be sent to the BOP in
Washington, D.C.
No. 09-3280 7
Arnett’s medical file was presented to the prison’s
utilization review committee on November 16, 2006, for
consideration of Dr. Webster’s recommendation that
Arnett receive a consultation with a rheumatologist for
his RA; the committee concurred that review of Arnett’s
condition by an outside consultant was warranted. Arnett
was seen by Dr. Henry Davis, a rheumatologist, on Febru-
ary 7, 2007. Dr. Davis wrote a letter to Dr. Wilson that
Arnett attached to his complaint. The letter explained
that Arnett’s RA had caused him “acute swelling and
pain in his hands, wrists, knees, and neck” and that when
he started on Enbrel, he did “fairly well,” but has been
without it for the last four months. Dr. Davis noted
that Arnett had “been taking Percocet and Norco with-
out any benefit.” During his examination, Dr. Davis
noted swelling and tenderness in different areas of
Arnett’s body and gave him an injection of Depo-Medrol
(medication used to treat joint pain and swelling that
occurs with arthritis) in his right shoulder. He stated to
Dr. Wilson, “I would like for [Arnett] to resume Enbrel
15 mg once a week.” (More will be said about Dr. Davis’
comment later.) Arnett still did not receive Enbrel, so in
April 2007, he again informed Veach that he needed
the drug to control his RA. Veach again told Arnett to
talk to Beighley. Arnett’s medical chart dated April 4
noted that Arnett was having pain in his right knee
and that he received “Enbrel injections, but that was
stopped when he arrived here.”
Between February and July 2007, Arnett directed two
more oral requests to Beighley for Enbrel. Beighley stated
that a request for the medication had been submitted,
8 No. 09-3280
but it had not arrived. On June 28, 2007, Arnett filed a
written request with Beighley for Enbrel, and stated that
he was in intense pain from his joints swelling (he de-
scribed his pain, “I’m walking on bone on bone and have
a lot of pain in my knee”), had not been provided a substi-
tute for Enbrel, and had not been seen by the orthopedic
specialist as promised. He requested that he be seen by
either a rheumatologist or an orthopedic specialist so he
could get an injection in his knee to relieve the pain.
Beighley responded, “You are on the list to be seen by
the ortho.” On July 26, Arnett was evaluated by an ortho-
pedic surgeon for complaints of right knee pain related
to his RA condition and the surgeon injected Arnett’s
knee with Depo-Medrol.
Arnett began seeing Physician’s Assistant Paul-Blanc on
a daily basis beginning in May 2007. Each time he saw
Paul-Blanc, Arnett reiterated his plea for Enbrel and stated
that because he had not been taking the drug, his joints
were swollen and he was in intense pain. Paul-Blanc
agreed that Arnett’s joints were swollen. In response to
Arnett’s requests, Paul-Blanc stated that a request for
the drug had been made but that he had not yet heard
anything from Washington, D.C. Starting in May 2007,
Arnett also went to Case Manager Parker two to three
times a week and requested that he be placed on Enbrel.
Parker told him to “talk to Blanc.” Arnett also filed an
administrative claim for damages with Parker, which
Parker denied. Arnett appealed to Veach, who also
denied the claim.
On September 5, 2007, upon Arnett’s request, Dr. Berg-
quist (Arnett’s former physician) wrote a letter to the
No. 09-3280 9
prison (“To Whom it May Concern”) that Arnett at-
tached to his complaint. Dr. Bergquist stated that Arnett
had been under his care for RA since June 2001, that he
had been on numerous medications and either did not
tolerate the medications or did not show improvement,
and that when taking Enbrel, his joint pain and swelling
decreased. Dr. Bergquist pointed out that RA is a pro-
gressive disease and if the pain and swelling of the
joints is not controlled, further joint damage can occur.
He concluded that he thought it “appropriate for
Mr. Arnett to be reevaluated by a rheumatologist to
help make the decision as to the best treatment for
Mr. Arnett’s rheumatoid arthritis.” Apparently in
response to Dr. Bergquist’s letter, the prison finally gave
Arnett an injection of Enbrel. He was released from
prison eleven days later on October 16.
Arnett alleged that the “intentional refusal by the
Federal Bureau of Prison’s personnel to give [him] the
medication Enbrel . . . constitute[d] a deliberate indiffer-
ence to [his] obvious medical condition by those defen-
dants, thereby resulting in substantial pain and
suffering . . . and irreversible physical damage and defor-
mity of his joints.” He asserted that he was simply left
untreated during this ten-month plus delay while he
“unnecessarily suffered from continual and ongoing
pain and advancing physical deterioration” in violation
of the Eighth Amendment.
We now turn to the summary judgment record, supple-
menting the facts set forth above only where necessary
and construing those facts in light most favorable to
10 No. 09-3280
Arnett. When Arnett arrived at Terre Haute, he had
several medical problems in addition to RA, including
chronic Hepatitis C, which resulted in over twenty-two
encounters with the medical department or medical
consultations with specialists during his stay at Terre
Haute. Dr. Webster did a full physical exam on Arnett a
few days after he self-surrendered at the prison and
again on November 16. Dr. Webster reviewed Arnett’s
medical records, and Arnett informed him that he was
previously prescribed Enbrel and that this drug was
effective in controlling his RA and alleviating the pain
and swelling in his joints. (Dr. Webster disputes any
awareness that Arnett was taking Enbrel before his
arrival at the prison, but Arnett has presented evidence
supporting this fact, and we must accept it as true.)
Dr. Webster was also aware that Arnett had been
taking the drug Gabapentin to treat neuropathy (nerve
damage) and resulting nerve pain. Gabapentin, like
Enbrel, was not on the prison’s approved formulary.
When a drug is not on the approved list, a physician
wanting to prescribe the medication must submit a non-
formulary drug authorization request to the BOP for
approval. Dr. Webster completed such a request for
Gabapentin and authorized Arnett’s temporary con-
tinued use of the drug for fourteen days, pending the
decision of the non-formulary request. Dr. Webster did
not submit a request for Enbrel. He issued Arnett a pass
for a lower bunk, renewed his pain medication Percocet,
ordered x-rays, and submitted an approval for a con-
sultation with a rheumatologist to the prison review
committee.
No. 09-3280 11
Arnett was then assigned to Dr. Wilson. Arnett’s
medical chart on December 28, 2006, indicates: “RA;
referral to rheumatology pending, trying to get Enbrel but
need this consult first as central office requires it (it is
obvious he has RA).” As discussed above, the request for
an outside consultation was approved and Arnett saw
Dr. Davis in February 2007. Dr. Webster averred that he
was not Arnett’s primary care physician and “had no
personal involvement with Plaintiff’s medical care other
than reviewing his chart and medications when he first
arrived at FCC Terre Haute.” He reiterated, “I was not
Plaintiff’s primary care physician and had no involve-
ment with the request for Enbrel.”A few weeks after his
February 2007 exam by Dr. Davis, however, Arnett saw
Dr. Webster in the medical unit and pointed out that
Dr. Davis stated he should be placed back on Enbrel.
Arnett asked Dr. Webster what he had done about getting
approval for Enbrel and Dr. Webster responded, “We’re
working on it.”
Arnett’s prescription for Percocet continued to be
renewed. The non-formulary request for Gabapentin
was denied, so he was instead prescribed a new pain
medication, Topamax, in December 2006. These drugs
were prescribed for their use in alleviating pain, not
reducing inflammation or slowing the progression of RA.
In April 2007, Arnett was seen during sick call for com-
plaints of right knee pain; x-rays were ordered and a
consent for orthopedic consultation was completed. On
July 9, Arnett was evaluated during a chronic care clinic
visit. The record indicates that he continued to complain
of joint pain and pressure in his knees and that he “[w]as
12 No. 09-3280
to receive Enbrel but hasn’t. Never heard back from
the non-formulary request.” The record further in-
dicates “Request Enbrel again” and “Request follow up
with rheumatology.” It then reads, “Start: Enbrel 15 mg sq
per week (non formulary submitted).” In July, Dr. Webster
also signed a record of medical care stating that
the utilization review committee approved a follow-up
appointment with Dr. Davis to consult for RA “ASAP.” A
consultation sheet that same day states “Schedule
follow up consult for [RA] . . . Advised to start Enbrel.”
Dr. Wilson submitted a request for a follow up consulta-
tion with Dr. Davis. Arnett’s medical charts indicate
that he was finally given Enbrel on October 5, 2007. He
was transferred to a half-way house on October 16.
II. Discussion
The district court dismissed Warden Veach from this
action on the basis that he only had an administrative
role and dismissed all the other defendants, except
Dr. Webster, on the basis that there was no allegation
in the complaint suggestive that these defendants acted
with the requisite mental state of deliberate indifference
to support a claim under the Eighth Amendment. The
district court (after the case was transferred to a dif-
ferent judge) then granted summary judgment in favor of
Dr. Webster reasoning that Arnett failed to submit evi-
dence showing a genuine issue of material fact that
Dr. Webster was deliberately indifferent to his serious
medical needs. We agree that Arnett failed to state a
claim against the non-medical defendants, Veach and
No. 09-3280 13
Parker, but disagree that Arnett’s allegations were insuf-
ficient to state a claim against the medical defendants,
Dr. Wilson, Beighley, and Paul-Blanc. We agree, however,
that the record on summary judgment is insufficient to
allow a reasonable jury to infer that Dr. Webster acted
with deliberate indifference.
“The Eighth Amendment safeguards the prisoner
against a lack of medical care that ‘may result in pain
and suffering which no one suggests would serve any
penological purpose.’” Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 828 (7th Cir. 2009) (quoting Estelle v.
Gamble, 429 U.S. 97, 103 (1976)).4 Prison officials violate
the Constitution if they are deliberately indifferent to
prisoners’ serious medical needs. Estelle, 429 U.S. at 104.
Accordingly, a claim based on deficient medical care
must demonstrate two elements: 1) an objectively
serious medical condition; and 2) an official’s deliberate
indifference to that condition. See Johnson v. Snyder, 444
F.3d 579, 584 (7th Cir. 2006); see also Roe v. Elyea, 631
F.3d 843, 857 (7th Cir. 2011). “Deliberate indifference to
serious medical needs of a prisoner constitutes the unnec-
essary and wanton infliction of pain forbidden by the
4
Many of the cases cited in this opinion arose under 42 U.S.C.
§ 1983. Bivens authorizes the filing of constitutional tort suits
against federal officers in much the same way that 42 U.S.C.
§ 1983 authorizes such suits against state officers. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1948 (2009) (stating that a Bivens action
is the federal analog to suits brought against state officials
under § 1983); see also King v. Fed. Bureau of Prisons, 415 F.3d
634, 636 (7th Cir. 2005) (same).
14 No. 09-3280
Constitution.” Rodriguez, 577 F.3d at 828 (quoting
Estelle, 429 U.S. at 103).
The defendants don’t disagree that Arnett suffered
from a serious medical condition. See Norfleet v. Webster,
439 F.3d 392, 395 (7th Cir. 2006) (finding that rheumatoid
arthritis is a serious medical need). And because it is
undisputed that the defendants were aware of this
serious medical need, our focus is on whether they
acted with deliberate indifference in their response.
Deliberate indifference is a subjective standard. Johnson,
444 F.3d at 585. To demonstrate deliberate indifference,
a plaintiff must show that the defendant “acted with a
sufficiently culpable state of mind,” something akin to
recklessness. Id. A prison official acts with a sufficiently
culpable state of mind when he knows of a substantial
risk of harm to an inmate and either acts or fails to act
in disregard of that risk. Roe, 631 F.3d at 857. Deliberate
indifference “is more than negligence and approaches
intentional wrongdoing.” Collignon v. Milwaukee Cnty.,
163 F.3d 982, 988 (7th Cir. 1998). In other words, “[d]eli-
berate indifference is not medical malpractice; the
Eighth Amendment does not codify common law torts.”
Duckworth v. Ahmed, 532 F.3d 675, 679 (7th Cir. 2008). “A
jury can infer deliberate indifference on the basis of a
physician’s treatment decision [when] the decision [is]
so far afield of accepted professional standards as to
raise the inference that it was not actually based on a
medical judgment.” Id. (quotation marks omitted). A
plaintiff can show that the professional disregarded
the need only if the professional’s subjective response
was so inadequate that it demonstrated an absence
No. 09-3280 15
of professional judgment, that is, that “no minimally
competent professional would have so responded
under those circumstances.” Roe, 631 F.3d at 857 (quotation
marks omitted).
A prisoner, however, “need not prove that the prison
officials intended, hoped for, or desired the harm that
transpired.” Walker v. Benjamin, 293 F.3d 1030, 1037 (7th
Cir. 2002); see also Duckworth, 532 F.3d at 679 (“[A]lthough
deliberate means more than negligen[ce], it is some-
thing less than purposeful.”). Nor does a prisoner need
to show that he was literally ignored. Greeno v. Daley,
414 F.3d 645, 653 (7th Cir. 2005). That the prisoner
received some treatment does not foreclose his deliberate
indifference claim if the treatment received was “so
blatantly inappropriate as to evidence intentional mis-
treatment likely to seriously aggravate his condition.”
Id. (quotation marks omitted).
A. Section 1915(e)(2) Screening of Complaint
Our review of a dismissal under § 1915(e)(2)(B) for
failure to state a claim is de novo. DeWalt v. Carter, 224
F.3d 607, 611 (7th Cir. 2000). We apply the same
standard used for evaluating dismissals under Rule
12(b)(6) of the Federal Rules of Civil Procedure, “taking
all well-pleaded allegations of the complaint as true
and viewing them in the light most favorable to the
plaintiff.” Santiago v. Walls, 599 F.3d 749, 756 (7th Cir.
2010). To satisfy the notice-pleading standard of Rule 8
of the Federal Rules of Civil Procedure, a complaint
must provide a “short and plain statement of the claim
16 No. 09-3280
showing that the pleader is entitled to relief,” which
is sufficient to provide the defendant with “fair notice” of
the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) and quoting Fed. R. Civ. P. 8(a)(2)). We
must however construe pro se complaints liberally
and hold them to a less stringent standard than formal
pleadings drafted by lawyers. Erickson, 551 U.S. at 94
(citation omitted); Obriecht v. Raemisch, 517 F.3d 489, 491
n.2 (7th Cir. 2008).
Recent cases instruct us to examine whether the allega-
tions in the complaint state a “plausible” claim for
relief. Iqbal, 129 S. Ct. at 1949. To survive a motion to
dismiss, the complaint “must contain sufficient factual
matter, accepted as true, to state a claim to relief that
is plausible on its face. . . . A claim has facial
plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Id. The complaint “must actually suggest that the plain-
tiff has a right to relief, by providing allegations that
raise a right to relief above the speculative level.” Windy
City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs.,
536 F.3d 663, 668 (7th Cir. 2008) (quoting Tamayo v.
Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)). This
doesn’t impose a probability requirement on plaintiffs:
“a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and un-
likely.” Twombly, 550 U.S. at 556. The complaint must
instead call for “enough fact to raise a reasonable ex-
No. 09-3280 17
pectation that discovery will reveal evidence” supporting
the plaintiff’s allegations. Id.
Based on a review of Arnett’s complaint and attached
documents we have no trouble finding that he stated
a claim against medical defendants, Dr. Wilson,
Beighley, and Paul-Blanc, for violations under the
Eighth Amendment. The defendants knew that Arnett
had RA and was in continuous pain as a result of the
inflammation in his joints; yet, they didn’t provide him
medication to treat his underlying condition, not Enbrel
as he requested and Dr. Davis instructed, nor any other
substitute medication. (In his appellate brief, Arnett
describes Dr. Davis’ comment as a “recommendation,” but
construing the facts in light most favorable to Arnett,
we prefer to refer to it as an “instruction.” After all,
Dr. Davis is a RA specialist who Arnett specifically went
to see for a consultation. When Dr. Davis said “I would
like” for Arnett to resume a specific dosage of Enbrel
once a week, that can reasonably be inferred to be an
instruction.) Arnett was not provided effective treat-
ment of his RA until October 2007, over ten months after
he arrived at Terre Haute and first sought treatment.
The summary judgment record indicates that Arnett
was given pain medication, but he was reasonably
seeking medication to treat, not simply mask, his condi-
tion.5 Even though he informed prison officials that the
5
The goal in treating RA “is to reduce inflammation as a means
of preventing erosion and progressive deformity.” See The Merck
(continued...)
18 No. 09-3280
pain medication was not working, they persisted in a
course of treatment, according to Arnett’s allegations,
known to be ineffective. Arnett alleged that the de-
fendants intentionally refused to provide him with
Enbrel and their refusal to treat him caused him
substantial pain and suffering, including irreversible
physical damage and deformity of his joints. These facts
are sufficient to state a claim.
It is not clear why the complaint was allowed to go
forward against Dr. Webster but not the other medical
5
(...continued)
Manual of Diagnosis and Therapy 283-89. Drug therapy for RA
usually combines non-steroidal anti-inflammatory drugs
(NSAIDs), which help reduce symptoms, and disease modifying
antirheumatic drugs (DMARDs), which slow disease progres-
sion. See id. NSAIDs are used to control the symptoms and
signs of the local inflammatory process, and DMARDS are
used to modify the inflammatory component of RA and its
destructive capacity. See Harrison’s Principles of Internal Medicine
2089-90 (17th ed. 2008). Enbrel is a more recent type of drug
that is aligned with DMARDS, but is classified as a “biological
response modifier”; it is a TNF-neutralizing agent that has
been shown to have a “major impact on the signs and symp-
toms of RA and also to slow progressive damage to articular
structures.” See Harrison’s Principles of Internal Medicine 2090
(stating that TNF-neutralizing agents have been “shown to
slow the rate of progression of joint damage . . . and to improve
disability.”). We express no opinion on the appropriate treat-
ment for Arnett, but we cite these authoritative sources
to illustrate commonly accepted treatment options for indi-
viduals with RA.
No. 09-3280 19
defendants. We are particularly curious about the district
court’s reasoning for dismissing Dr. Wilson, Arnett’s
primary care physician at the prison. Dr. Wilson was
aware of Arnett’s condition, his need for treatment, and
his pleas for Enbrel. In fact, Dr. Davis wrote a letter
addressed to Dr. Wilson in February 2007 instructing
that Arnett be placed back on Enbrel. The letter ex-
plained the severity of Arnett’s condition, the associated
pain, and the need for treatment to prevent permanent
joint damage. After receiving this letter, Dr. Wilson still
did nothing to treat Arnett’s RA with effective medica-
tion. As to Beighley and Paul-Blanc, Arnett asked them
repeatedly for Enbrel, but they simply told him that the
request had been submitted to the BOP and they were
waiting for a response.
Arnett has a serious medical condition and his pleas
for treatment and medication were ignored for over ten
months while he suffered intense pain. It appears that a
request for Enbrel was made to the BOP, but then lan-
guished. It is unclear who caused the delay or who was
responsible for following-up with the request, but what
we do know is that Arnett didn’t receive an Enbrel injec-
tion until October 2007. Deliberate indifference can
include the intentional delay in access to medical care.
Rodriguez, 577 F.3d at 828. A delay in treating non-life-
threatening but painful conditions may constitute de-
liberate indifference if the delay exacerbated the injury
or unnecessarily prolonged an inmate’s pain. McGowan
v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). “[T]he length
of delay that is tolerable depends on the seriousness
of the condition and the ease of providing treatment.” Id.
20 No. 09-3280
Compare id. at 640-41 (delays in referring inmate to
dentist, to oral surgeon, and ENT specialist over the
course of several months while inmate continued to
suffer significant pain and his condition deteriorated
was sufficient to state a claim of deliberate indifference),
and Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007)
(guards could be liable for delaying treatment for
painful broken nose by at least a day-and-a-half), with
Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1991)
(dismissal for failure to state a claim proper because six-
day wait to see a doctor was not unreasonably long
for infected cyst deemed not that severe). Arnett’s steady
complaints of escalating pain indicate that the delay of
ten months unreasonably prolonged his suffering. See
Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).
Allegations of refusal to provide an inmate with pre-
scribed medication or to follow the advice of a specialist
can also state an Eighth Amendment claim. See Wynn v.
Southward, 251 F.3d 588, 594 (7th Cir. 2001) (failure to
respond to inmate’s request for prescribed heart medica-
tion); see also Ralston v. McGovern, 167 F.3d 1160, 1162
(7th Cir. 1999) (refusal to administer prescribed pain
medication); Jones v. Simek, 193 F.3d 485, 490-91 (7th Cir.
1999) (failure to follow advice of specialists). Arnett had
been prescribed Enbrel for his RA before his arrival at
Terre Haute, repeatedly asked for the medication after
his arrival, and obtained a letter from Dr. Davis
informing Dr. Wilson to place him back on the medica-
tion. Even if the prison couldn’t get Enbrel because it
wasn’t on the formulary, medical personnel cannot stand
idly by for more than ten months while Arnett’s RA
No. 09-3280 21
progressively worsened and caused permanent damage
to his joints;6 they must explore alternative treatments
that are available. See, e.g., Norfleet, 439 F.3d at 395
(inmate treated by Dr. Webster received Naprosyn
(a NSAID) for his RA).
Although the defendants provided him pain medicine,
a medical professional’s actions may reflect deliberate
indifference if he “chooses an easier and less efficacious
treatment without exercising professional judgment.” See
McGowan, 612 F.3d at 641 (quotation marks omitted); see
also Gil v. Reed, 381 F.3d 649, 663 (7th Cir. 2004) (where
outside doctor prescribed prisoner Vicodin, but it was
not on the prison formulary, the prison doctor couldn’t
simply substitute with an ineffective alternative med-
ication; he needed to consider other more effective sub-
stitutes); Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir.
1990) (complaint sufficient to state claim where plain-
tiff alleged that clinic personnel deliberately gave him
certain kind of treatment knowing that it was ineffective).
A prison physician cannot simply continue with a
course of treatment that he knows is ineffective in
treating the inmate’s condition. See Greeno, 414 F.3d at 655.
6
The defendants point out that Arnett didn’t submit expert
opinion testimony on the damaging effects of RA and treat-
ment options, but Arnett did attach Dr. Davis’ February 2007
letter and Dr. Bergquist’s September 2007 letter to his com-
plaint, and while we agree that expert opinion testimony may
be necessary to survive summary judgment, it is not necessary
at the pleading stage.
22 No. 09-3280
Arnett has an inflammatory condition, yet he was
never provided anti-inflammatory medication, not even
aspirin, a well-known and readily available NSAID.
Arnett wasn’t seeking an unconventional treatment;
he sought medication that would reduce his pain and
swelling and slow the progression of his RA. Although an
inmate is not entitled to demand specific care and is not
entitled to the best care possible, he is entitled to reason-
able measures to meet a substantial risk of serious harm.
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Arnett
alleges that the medical defendants, despite their knowl-
edge of his serious medical condition, ignored his
request for effective treatment for over ten months.
Arnett’s allegations that the medical defendants
knowingly ignored his complaints of pain by continuing
with a course of treatment that was ineffective and less
efficacious without exercising professional judgment are
sufficient to state a claim. See Berry, 604 F.3d at 441-42
(“Where [inmate] made a modest request for treatment . . .,
Dr. Butler’s obdurate refusal to alter [inmate’s] course
of treatment despite his repeated reports that the med-
ication was not working and his condition was getting
worse, is sufficient to defeat her motion for summary
judgment.”) (internal citations and quotation marks
omitted). At this stage, we cannot say that Arnett’s al-
legations describe only simple negligence, as opposed
to deliberate indifference to a worsening medical condi-
tion. See, e.g., Simek, 193 F.3d at 490 (plaintiff stated a
claim where prison doctor delayed arranging appoint-
ments for inmate to see specialists and then failed to
follow the specialists’ advice, during which time in-
mate’s condition continued to worsen).
No. 09-3280 23
Maybe Arnett will be unable to support his factual
allegations with admissible evidence. Maybe Beighley
and Paul-Blanc properly relied on the advice of
Dr. Wilson. Maybe Dr. Wilson can show that he legiti-
mately explored alternative options and rejected them
for valid reasons or that his treatment decisions were
otherwise based on his medical judgment. These, and
other questions, will need to be explored through dis-
covery. Whether Arnett can support his allegations that
the medical defendants were deliberately indifferent
remains to be seen. The district court was too hasty in
dismissing his claims against the medical defendants,
especially given its duty to construe pro se complaints
liberally. See McGowan, 612 F.3d at 640 (inmate stated
a claim where he set forth a “plausible account of the
facts showing how much delay he experienced, how
often he and others asked [the defendant] to act, and
what the consequences were of inaction.”). We do not
make any determination about the ultimate merits of
the allegations contained in the complaint, nor should
our decision today be read as suggesting an ultimate
outcome. We only conclude that Arnett has stated a
claim “plausible on its face” that the medical defendants
acted with deliberate indifference to his serious medical
condition in violation of the Eighth Amendment.
We come to a different conclusion with respect to
the non-medical defendants, Warden Veach and Case
Manager Parker. Arnett conceded at oral argument that
Veach was properly dismissed, so we limit our discussion
to Parker. Arnett didn’t go so far as to say that Parker
was properly dismissed, but he did concede that Parker
24 No. 09-3280
was in a similar situation to Veach. We agree. Arnett’s
allegations against Parker are minimal. He alleges that
starting in May 2007, he went to Parker two to three
times a week and requested that he be placed back on
Enbrel. In response, Parker merely said, “Go talk to Blanc.”
Parker cannot be held liable on the basis of respondeat
superior; to be liable, he must be personally liable for
Arnett’s injury. See Iqbal, 129 S. Ct. at 1948; see also Vance
v. Rumsfeld, Nos. 10-1687 & 10-2442, 2011 WL 3437511, *6
(7th Cir. Aug. 8, 2011).
Non-medical defendants, such as Parker, can rely on
the expertise of medical personnel. We have previously
stated that if a prisoner is under the care of medical
experts, a non-medical prison official will generally be
justified in believing that the prisoner is in capable
hands. Greeno, 414 F.3d at 656. We find the following
passage from Spruill v. Gills, 372 F.3d 218, 236 (3d Cir.
2004), particularly instructive here:
[I]f a prisoner is under the care of medical experts
. . . a non-medical prison official will generally
be justified in believing that the prisoner is in
capable hands. This follows naturally from the
division of labor within a prison. Inmate health
and safety is promoted by dividing responsibility
for various aspects of inmate life among guards,
administrators, physicians, and so on. Holding a
non-medical prison official liable in a case where
a prisoner was under a physician’s care would
strain this division of labor.
See also Greeno, 414 F.3d at 656 (adopting reasoning in
Spruill). However, “nonmedical officials can ‘be chargeable
No. 09-3280 25
with . . . deliberate indifference’ where they have ‘a reason
to believe (or actual knowledge) that prison doctors or
their assistants are mistreating (or not treating) a pris-
oner.’ ” Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008)
(quoting Spruill, 372 F.3d at 236). Non-medical defendants
cannot simply ignore an inmate’s plight. See Greeno, 414
F.3d at 656 (stating that “[p]erhaps it would be a different
matter if [the non-medical defendant] had ignored
Greeno’s complaints entirely, but we can see no deliberate
indifference given that he investigated the complaints
and referred them to the medical providers who could
be expected to address Greeno’s concerns.”); see also
Berry, 604 F.3d at 440 (“As a nonmedical administrator,
[defendant] was entitled to defer to the judgment of jail
health professionals so long as he did not ignore [the
inmate].”). However, mere negligence in failing to detect
and prevent subordinates’ misconduct is not sufficient.
See Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996).
The plaintiff must demonstrate that “the communica-
tion, in its content and manner of transmission, gave the
prison official sufficient notice to alert him or her to ‘an
excessive risk to inmate health or safety.’” Id. (quoting
Farmers v. Brennan, 511 U.S. 825, 837 (1979)). Once an
official is alerted of such a risk, the “refusal or declination
to exercise the authority of his or her office may reflect
deliberate disregard.” Id.
The allegations in Arnett’s complaint are insufficient
to state a claim that Parker acted with deliberate indif-
ference in referring Arnett to medical personnel who
were treating Arnett on a regular basis. This is not a case
where Arnett was being completely ignored by medical
26 No. 09-3280
staff. Although Parker was aware, based on Arnett’s
complaints, that he wasn’t receiving the specific medica-
tion he sought, Arnett doesn’t allege that Parker condoned
or approved the medical staff’s alleged refusal to
provide him medical care, impeded their ability to
provide effective treatment, or was in a position to take
corrective action. Parker was able to relegate to the
prison’s medical staff the provision of good medical care.
See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009)
(“[Inmate’s] contention that any public employee who
knows (or should know) about a wrong must do some-
thing to fix it is just an effort to evade, by indirection,
Monell’s rule that public employees are responsible for
their own misdeeds but not for anyone else’s.”). “A
layperson’s failure to tell the medical staff how to do its
job cannot be called deliberate indifference; it is just a
form of failing to supply a gratuitous rescue service.” Id.
Arnett’s allegations against Parker are simply too
meager to state a claim of deliberate indifference against
a non-medical defendant who referred Arnett to his
treating physician’s assistant.
Maybe Arnett could have corrected the deficiencies in
his complaint against Parker. Although the district court’s
dismissal of Parker doesn’t indicate if it was with or
without prejudice, generally, an involuntary dismissal
operates as an adjudication on the merits if not other-
wise indicated. See Fed. R. Civ. P. 41(b). But given Arnett’s
pro se status and the fact that he may have been able to
cure the deficiencies in his claim against Parker, the
dismissal should have been without prejudice with
leave to amend. See Glandey v. Pendleton Corr. Facility, 302
No. 09-3280 27
F.3d 773, 775 (7th Cir. 2002) (claims dismissed pursuant
to § 1915(e) generally should be allowed to proceed
if plaintiff pays filing fee); see also Vance, 2011 WL 3437511,
at *14 n.7 (“A reversal for inadequate pleading would
require an opportunity to cure the defect unless it were
clear that the defect could not be cured.”); EEOC v.
Concentra Health Servs., Inc., 496 F.3d 773, 778 (7th Cir.
2007) (failure to provide notice under Fed. R. Civ. P. 8
“should not normally warrant dismissal with prejudice”);
Donald v. Cook Cnty. Sheriff’s Dep’t, 95 F.3d 548, 555 (7th
Cir. 1996) (“[D]istrict courts have a special responsibility
to construe pro se complaints liberally and to allow
ample opportunity for amending the complaint when
it appears that by so doing the pro se litigant would be
able to state a meritorious claim.”).
Arnett, however, never sought to amend his complaint
or re-file upon paying the filing fee and the district
court was not required to inform him that he should.
“District judges have no obligation to act as counsel or
paralegal to pro se litigants.” Myles v. United States, 416
F.3d 551, 552 (7th Cir. 2005) (quotation marks omitted)
(noting that plaintiff could have amended the com-
plaint pursuant to Rule 15(a) of the Federal Rules of
Civil Procedure after the district judge dismissed it pur-
suant to 28 U.S.C. § 1915A, but he didn’t seek to amend,
and the judge had no obligation to inform plaintiff
that he should). “Fomenting litigation is not part of the
judicial function,” id, and “district judges are not
required to solicit more litigation spontaneously,” Burks,
555 F.3d at 596. Because Arnett hasn’t suggested any way
he might have amended his complaint to state a claim
28 No. 09-3280
against Parker, we affirm the district court’s dismissal
of him. See Leavell v. Ill. Dep’t of Natural Res., 600 F.3d 798,
808 (7th Cir. 2010) (finding that dismissal with prejudice
was warranted where plaintiff didn’t explain how she
could amend her complaint to state a claim).
B. Summary Judgment as to Dr. Webster
We review a district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
ences in the light most favorable to the non-moving
party. Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th
Cir. 2010). Summary judgment is appropriate only if “the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a).
As we indicated above, a defendant cannot be liable
under Bivens on the basis of respondeat superior or super-
visory liability, rather, there must be individual partic-
ipation and involvement by the defendant. See Iqbal, 129
S. Ct. at 1948-49; see also Vance, 2011 WL 3437511, at *6.
“Absent vicarious liability, each Government official, his
or her title notwithstanding, is only liable for his or
her own misconduct.” Iqbal, 129 S. Ct. at 1949. As such,
Dr. Webster cannot be held liable merely due to his
supervisory capacity as clinical director.7 The test for
7
As clinical director, Dr. Webster presumably had supervisory
authority over Dr. Wilson. See Norfleet, 439 F.3d at 394 (stating
(continued...)
No. 09-3280 29
establishing personal responsibility was set forth in
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995):
Of course, [the defendant prison official] cannot be
personally liable under a theory of respondeat superior.
However, an official satisfies the personal responsibil-
ity requirement of section 1983 if the conduct
causing the constitutional deprivation occurs at his
direction or with his knowledge and consent. That
is, he must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye. In short,
some causal connection or affirmative link between
the action complained about and the official sued is
necessary for § 1983 recovery.
Id. (internal citations, quotation marks, brackets, and
ellipses omitted); see also Chavez v. Ill. State Police, 251
F.3d 612, 651 (7th Cir. 2001). The Supreme Court recently
stated that “purpose rather than knowledge is required
to impose Bivens liability.” Iqbal, 129 S. Ct. at 1949. Al-
though Iqbal was a discrimination case involving dis-
criminatory purpose, the Court’s reasoning in that case
has raised questions about whether a stricter standard
of personal liability for supervisors applies in delib-
erate indifference suits. We recently indicated that “mere
‘knowledge and acquiescence’ is not sufficient to impose”
such liability, but that “Iqbal did not disturb the . . . princi-
7
(...continued)
that Dr. Webster, as clinical director, was “in charge of the
medical care and treatment of all inmates.”). We say presumably
because this is not clear from the record.
30 No. 09-3280
ples holding that a supervisor may be liable as an individ-
ual for wrongs he personally directed or authorized his
subordinates to inflict,” Vance, 2011 WL 3437511, at *6 &
n.5; see also Starr v. Baca, No. 09-55233, 2011 WL 2988827,
at *4 (9th Cir. July 25, 2011) (“We see nothing in Iqbal
indicating that the Supreme Court intended to overturn
longstanding case law on deliberate indifference claims
against supervisors in conditions of confinement cases.”).
The landscape of such claims after Iqbal remains murky,
but we need not clear the waters here because the
record doesn’t show that Dr. Webster was personally
involved in the alleged constitutional violations under
the standard set forth in Gentry.
Dr. Webster examined Arnett on two occasions in
November 2006 at which time, Arnett informed him of his
RA and need for Enbrel. Enbrel wasn’t on the prison’s
formulary, so before Arnett could receive it, Dr. Webster
would have had to request authorization from the BOP.
Dr. Webster put in a non-formulary request for
Gabapentin—a pain medication that Arnett had been
taking before his arrival at Terre Haute—and continued
Arnett on Gabapentin temporarily pending a decision
on the non-formulary request. Dr. Webster didn’t
similarly put in a request for Enbrel or continue Arnett
on Enbrel temporarily. (Webster contends that’s because
he wasn’t aware that Arnett had previously been pre-
scribed Enbrel.) However, Dr. Webster did take further
steps to treat Arnett: he issued him a bottom bunk pass
(presumably because of his joint pain), prescribed pain
medication, ordered x-rays, and submitted approval for
consultation with a rheumatologist. Arnett’s medical
No. 09-3280 31
records indicate that he needed a consultation with an
outside rheumatologist before receiving Enbrel. Arnett was
seen by Dr. Davis in February 2007, during which time,
Dr. Wilson was his primary care physician. Arnett’s last
interaction with Dr. Webster was a few weeks after
his appointment with Dr. Davis when he asked Dr. Web-
ster for Enbrel pursuant to Dr. Davis’ instructions.
Dr. Webster responded, “We’re working on it.” At this
time, Dr. Webster’s involvement with Arnett’s care was
a passing conversation in the medical unit.8
This record doesn’t allow for a reasonable jury to infer
that Dr. Webster acted with deliberate indifference.
It seems Dr. Webster may have thought a request for
Enbrel had been submitted and prison medical staff
were waiting for a response from the BOP after Arnett’s
appointment with the rheumatologist. Dr. Webster failed
8
Dr. Webster’s name does appear on Arnett’s medical charts
dated March 19 and April 14, which indicated that Arnett’s pain
medications were renewed. Also on July 9, the entry that
indicates Arnett was to receive Enbrel, but hadn’t because the
prison never heard back from the non-formulary request,
indicates that labs had been requested by Dr. Webster. On
July 11, Dr. Webster further signed a record of medical
care stating that the utilization review committee approved
a follow-up appointment with Dr. Davis to consult for RA.
Arnett doesn’t indicate that he saw Dr. Webster on any of
these occasions or discussed his condition with Dr. Webster
and there is no evidence (other than Dr. Webster’s name
appearing on these documents) that he was personally in-
volved in Arnett’s care on such dates.
32 No. 09-3280
to investigate further when Arnett informed him he still
had not received the medication in February 2007.
Given Arnett’s condition and repeated pleas for Enbrel,
Dr. Webster should have investigated further. Although
his failure to do so may amount to negligence, the sum-
mary judgment record does not lead to the conclusion
that it rose to the level of deliberate indifference. “Deliber-
ate indifference is not medical malpractice; the
Eighth Amendment doesn’t codify common law torts.” See
Duckworth, 532 F.3d at 679. Arnett’s communication to
Dr. Webster was simply not sufficient, without addi-
tional evidence, to show that he failed to act despite
knowledge of a substantial risk of serious harm to
Arnett. See Vance, 97 F.3d at 993-94.
Dr. Webster provided treatment to Arnett when he
first arrived at the Terre Haute facility. It may not have
been the most appropriate treatment, but a prisoner is
only entitled to reasonable measures to meet a sub-
stantial risk of serious harm. Forbes, 112 F.3d at 267.
During Dr. Webster’s brief care of Arnett, his treatment
wasn’t so far afield of accepted professional standards
as to raise the inference that it was not actually based on
medical judgment. See Duckworth, 532 F.3d at 679; cf.
Gil, 381 F.3d at 663 & n.3 (finding deliberate indif-
ference where the prison doctor prescribed a drug that
worsened inmate’s condition because the appropriate
drug was not part of the BOP’s formulary); Greeno, 414
F.3d at 654 (finding deliberate indifference where
medical defendants would not alter Greeno’s course
of treatment over a two year period even though his
condition was getting worse and he was vomiting on a
No. 09-3280 33
regular basis and the defendants nevertheless persisted
in a course of treatment known to be ineffective).
Dr. Webster took measures to address Arnett’s pain,
and although prescribing pain medication may not have
been effective in treating Arnett’s RA, the summary
judgment record doesn’t reveal that no minimally compe-
tent professional would have provided this regime of
treatment in the short term, at least until Arnett could
be seen by a rheumatologist. See, e.g., Gayton v. McCoy,
593 F.3d 610, 622-23 (7th Cir. 2010) (nurse wasn’t deliber-
ately indifferent to inmate’s medical needs where she
took reasonable measures to ensure that inmate would
get medication). Without some evidence, such as
expert opinion testimony, creating a reasonable in-
ference that Dr. Webster’s treatment during this time
frame was so inadequate that it demonstrated an
absence of professional judgment, Arnett cannot succeed
against him on summary judgment. Dr. Wilson took over
as Arnett’s primary care physician on December 28, and
he was Arnett’s treating physician when Dr. Davis in-
structed that Arnett be placed back on Enbrel. Arnett’s
complaints are more appropriately directed toward
Dr. Wilson.
Arnett also hasn’t presented facts showing that Dr.
Webster was aware that the continued treatment Arnett
received for his RA was ineffective. Arnett offers no
evidence that Dr. Webster directly oversaw or approved
Dr. Wilson’s individualized treatment decisions or in
any way impeded Dr. Wilson’s ability to effectively treat
Arnett. Nor is there evidence that Dr. Webster examined
Arnett or reviewed his chart after November 2006 or was
34 No. 09-3280
otherwise involved with Dr. Wilson’s medical decisions
as to Arnett’s treatment regime. Compare Minix v.
Canarecci, 597 F.3d 824, 834 (7th Cir. 2010) (affirming
grant of summary judgment in favor of director of
medical services at jail because missing from the record
was “evidence suggesting that [he] was aware that [nurses
were] performing incompetent assessments of suicidal
inmates but nevertheless acquiesced in that practice”), with
Ortiz v. Webster, No. 10-2012, 2011 WL 3691437 (7th Cir.
Aug. 24, 2011) (reversing summary judgment in favor
of Dr. Webster where he was personally involved in
inmate’s care and the evidence showed that he substan-
tially and unreasonably delayed necessary treatment)
and Hayes, 546 F.3d at 524-26 (reversing summary judg-
ment in favor of the defendant where he continued to
monitor the inmate’s treatment after the initial in-person
examinations).
There must be a causal connection or affirmative link
between the action complained about and the official
sued and that connection is missing with respect to
Dr. Webster. This isn’t a case where Dr. Webster simply
walked away from the situation and left Arnett without
medical care. A review of Arnett’s prison medical
records indicates that he was being seen regularly
by medical staff, his pain medications were being
renewed, x-rays were performed, and he was examined
by an outside rheumatologist and an orthopedic surgeon.
Dr. Webster left Arnett in the care of other medical person-
nel, including a staff physician. Whether the care he
received was so far afield of accepted professional stan-
dards as to raise the inference that it was not actually
No. 09-3280 35
based on medical judgment remains to be seen. But the
defendants whose medical judgment is properly being
questioned is Dr. Wilson’s, and possibly Beighley’s and
Paul-Blanc’s depending on their involvement in Arnett’s
treatment—individuals who continued to see Arnett on
a regular basis after Dr. Davis instructed that he be
placed back on Enbrel.
Arnett had the burden to come forth with evidence to
show that Dr. Webster was personally liable for his alleged
inadequate medical treatment after December 2006, and
he has failed to do so. See Johnson v. Cambridge Indus., Inc.,
325 F.3d 892, 901 (7th Cir. 2003) (“[S]ummary judgment
is the ‘put up or shut up’ moment in a lawsuit, when
a party must show what evidence it has that would
convince a trier of fact to accept its version of events.”)
(quotation marks omitted). We realize that this may be
the result of Arnett’s pro se status and lack of legal skills
in conducting discovery, but Arnett’s pro se status
doesn’t alleviate his burden on summary judgment. See
Marion v. Radtke, 641 F.3d 874, 876-77 (7th Cir. 2011)
(“[W]hen a plaintiff fails to produce evidence, the defen-
dant is entitled to judgment; a defendant moving for
summary judgment need not produce evidence of its
own.”).
III. Conclusion
For the foregoing reasons, we A FFIRM dismissal of
Richard Veach and David Parker for failure to state a
claim, A FFIRM the grant of summary judgment in
favor of Dr. Thomas Webster, but R EVERSE dismissal of
36 No. 09-3280
Dr. Eric Wilson, Yves Paul-Blanc, and Julia Beighley, and
R EMAND for further proceedings.
9-12-11