NONPRECEDENTIAL DISPOSITION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 15, 2012*
Decided February 24, 2012
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11‐1163
ANDRE L. JOHNSON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 3:08‐cv‐00016‐GPM‐DGW
MARY LOFTIN, et al., G. Patrick Murphy,
Defendants‐Appellees. Judge.
O R D E R
Andre Johnson, an Illinois inmate suffering from HIV and hepatitis C, appeals the
grant of summary judgment against him in this action under 42 U.S.C. § 1983, claiming that
a 17‐month delay in receiving medication violated his Eighth Amendment right to adequate
medical care. Because the defendant physicians regularly saw and treated Johnson
throughout this period and adhered to the course of treatment prescribed by the Illinois
Department of Corrections and the Bureau of Prisons, we affirm.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 11‐1163 Page 2
In reviewing this grant of summary judgment against Johnson, we construe the
record in his favor. See Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011). In May 2006
Johnson was imprisoned at the Lawrence Correctional Center, where his medical care was
overseen by Drs. Mary Loftin and Dennis Larson, the regional medical director of Wexford
Health Sources. Weeks later Dr. Loftin diagnosed Johnson with HIV and hepatitis C.
Hepatitis C is a disease caused by the HCV virus, which can damage the liver. For most
infected persons, the disease progresses slowly over many years. For persons co‐infected
with the HIV virus, however, HIV can hasten the progression of chronic hepatitis C to end‐
stage liver failure.
The Bureau of Prisons guidelines, upon which IDOC policies are based, set forth
standards for treating prisoners co‐infected with HIV and hepatitis C. Under the guidelines,
co‐infected inmates should receive a liver biopsy. See Clinical Practice Guidelines, Stepwise
Approach for the Prevention and Treatment of Hepatitis C and Cirrhosis (Mar. 2011),
http://www.bop.gov/news/PDFs/hepatitis_c.pdf. And before receiving HCV medications,
co‐infected patients should consult with an infectious disease specialist.
After diagnosing Johnson’s co‐infection, Dr. Loftin began a course of treatment for
the hepatitis C. She tested Johnson’s liver enzymes and tried to meet with him, but was
unable to do so for two months because Johnson was transferred to another jail on a court
writ2 and then placed on suicide watch. Meanwhile Dr. Loftin ordered additional tests,
which disclosed that his liver enzymes were normal. In August 2006, she met with him to
recommend a liver biopsy and warned about the side effects of HCV medications, including
depression. Dr. Loftin evaluated his lab tests and noted risk factors, including a history of
mental illness. She reviewed his file with Dr. Larson, who approved the biopsy. The
following month, Johnson received the biopsy, which revealed the presence of chronic
hepatitis C and scarring and inflammation of the liver. Dr. Loftin then reevaluated the case
with Dr. Larson, who approved a consultation with an infectious disease specialist.
In October Johnson was transferred to the Pinkneyville Correctional Center, where
his condition was next overseen by Dr. Larson and Dr. Adrian Feinerman. A month later,
Dr. Feinerman met with Johnson about consulting with an infectious disease specialist. But
before an appointment could be arranged, Johnson was again transferred to another jail on a
court writ. When he returned, the appointment was set, and in March 2007 Johnson met
2
During the seventeen months, Johnson was transferred to another jail on several court
writs for a total of at least 105 days to participate in an unrelated civil rights suit. See Johnson v.
Walker et. al., No. 3:07‐cv‐3250 (N.D. Ill. Sept. 12, 2007).
No. 11‐1163 Page 3
with an infectious disease specialist, who recommended that he receive HCV medications as
soon as his mental illness stabilized.
The day after Johnson returned from a transfer on another court writ, Dr. Larson
advised him of next steps, including the need to consult with a psychiatrist to treat his
depression before beginning HCV medications. Johnson did meet with a psychiatrist and
completed a course of antidepressants, at which time Dr. Larson recommended that he
receive HCV medications. When Johnson returned in June from a final court writ, he began
a forty‐eight week regimen of medications for his hepatitis C.
Johnson then sued several IDOC physicians, including Drs. Loftin, Feinerman, and
Larson, as well as Wexford Health Sources, claiming that they violated his Eighth
Amendment right to adequate medical care by delaying treatment, and that they were
professionally negligent under Illinois law.
The district court granted summary judgment for the defendants on the Eighth
Amendment claim because Johnson had failed to show that the physicians were deliberately
indifferent to his medical condition. The district court acknowledged that the co‐infection
presented an objectively serious medical condition, but concluded that Johnson had been
seen repeatedly and treated throughout the 17 months during which he claimed not to have
received medication. According to the court, medical records reflected that the physicians
identified the co‐infection, counseled Johnson on the disease, performed a HCV work‐up,
conducted a liver biopsy, arranged consultations with specialists, and administered
hepatitis C medications.
On appeal Johnson challenges only the grant of summary judgment on the Eighth
Amendment claim, arguing that the 17‐month delay in receiving his medications was
deliberate indifference. Johnson essentially contends that there is a genuine dispute of
material fact about whether the delay was so “medically unacceptable” as to amount to
deliberate indifference.
To succeed on his Eighth Amendment claim, Johnson must show (1) that he suffered
from an objectively serious medical condition, and (2) that the defendants were deliberately
indifferent to that medical condition. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Berry v.
Peterman, 604 F.3d 435, 440 (7th Cir. 2010). Only the second prong is at issue here–whether
Johnson introduced evidence that the physicians acted with “a sufficiently culpable state of
mind.” Farmer, 511 U.S. at 834; see Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). We have
held that physicians are entitled to deference in treatment decisions “unless no minimally
competent professional would have so responded under similar circumstances.” Sain v.
Wood, 512 F.3d 886, 894‐95 (7th Cir. 2008); see Duckworth v. Ahmad, 532 F.3d 675, 682 (7th Cir.
No. 11‐1163 Page 4
2008). And when a physician intentionally withholds efficacious treatment, we have held
that the delay may amount to deliberate indifference if the delay results in serious harm or
unnecessary pain. See Berry, 604 F.3d at 441; Arnett, 658 F.3d at 753; Knight v. Wiseman, 590
F.3d 458, 466 (7th Cir. 2009).
As the district court concluded, Johnson cannot point to evidence showing that the
physicians’ course of treatment departed from accepted professional standards of care or
that the physicians withheld efficacious treatment from him. To the contrary, the record
shows that the physicians were responsive to his co‐infection and adhered to IDOC and
Bureau of Prisons guidelines. From May to September 2006, Dr. Loftin diagnosed Johnson
with the co‐infection, evaluated his liver enzymes and white blood cell counts, conferred
with him, and had his liver biopsied. After scheduling setbacks because Johnson was first
transferred on court writ and then because the infectious disease specialist had no
appointment available for months, Dr. Feinerman arranged a March 2007 visit with the
specialist, who recommended that Johnson receive HCV medications after his mental illness
was stabilized. At each phase of the course of treatment, Drs. Loftin and Feinerman
consulted with Dr. Larson, who approved the liver biopsy, an appointment with both an
infectious disease specialist and a psychiatrist, and ultimately a 48‐month regimen of HCV
medications. The district court, moreover, correctly concluded that the physicians should
not be faulted for time delays beyond their control, see Walker v. Benjamin, 293 F.3d 1030,
1038 (7th Cir. 2002), as here there were many months when Johnson was unavailable for
treatment because he was away on court writ, on suicide watch, or under a psychiatrist’s
care. As for Wexford, Johnson concedes that it applied IDOC and federal guidelines for
prisoners co‐infected with the HIV and HCV viruses, and he cannot point to any practice
that violates constitutional standards. To the extent he suggests that the physicians should
have deviated from IDOC and federal guidelines to administer HCV medications, this
suggestion is merely disagreement with a prescribed course of treatment and falls short of
deliberate indifference. See Berry, 604 F.3d at 441; Duckworth, 532 F.3d at 680.
AFFIRMED.