NONPRECEDENTIAL DISPOSITION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 16, 2022 *
Decided February 18, 2022
Before
DIANE S. SYKES, Chief Judge
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 21-1273
RICHARD L. KELLY Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:17-cv-03649-JRS-DML
BRUCE IPPEL and LORETTA James R. Sweeney II,
DAWSON, Judge.
Defendants-Appellees.
ORDER
Richard Kelly, an Indiana prisoner, sued a prison doctor and a nurse practitioner
alleging that they were deliberately indifferent to his chronic pain in violation of his
*
We have agreed to decide the 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. FED. R. APP. P. 34(a)(2)(C).
No. 21-1273 Page 2
Eighth Amendment rights. The district court entered summary judgment for the
defendants based on the conclusion that they exercised professional medical judgment
in choosing treatment for Kelly. Because there is no evidence that the defendants
provided treatment below the standards required by the Constitution, we affirm.
Kelly is chronically ill; he has spinal stenosis, nerve damage, and degenerative
bone disease, and now resides full time in the prison’s infirmary. We describe Kelly’s
medical care based on the undisputed facts at summary judgment, viewed in the light
most favorable to Kelly. Lockett v. Bonson, 937 F.3d 1016, 1022 (7th Cir. 2019).
Kelly’s conditions cause chronic pain and numbness, for which he has received
treatment from Dr. Bruce Ippel. At several appointments with Dr. Ippel in 2016, Kelly
specifically requested methadone (an opioid) for pain relief. But because of the risks
attendant to regular use of opioids, Dr. Ippel instead prescribed baclofen (a muscle
relaxer); gabapentin (an anticonvulsant used for nerve pain); and tramadol (an as-
needed opioid pain reliever). Other physicians who treated Kelly in the past had
prescribed drugs, including methadone and oxycodone (also an opioid), as well as
higher doses of tramadol. Throughout the next three years, Dr. Ippel gave Kelly hip
injections for localized pain relief and referred him to outside specialists for diagnostic
testing. In addition, Dr. Ippel entered orders for Kelly to receive a wheelchair and be
moved permanently to the infirmary, where Kelly receives his pain medication four
times per day (as opposed to twice per day in the prison’s general population) and has
his meals delivered. Despite all this, Kelly continues to experience chronic pain.
After Dr. Ippel initially prescribed the three medications, Kelly had one
appointment with Loretta Dawson, a nurse practitioner, in November 2016. Dawson
evaluated Kelly’s medical history and expressed concern at how long Kelly had been
taking tramadol, which can be habit-forming. Dawson noted that Kelly had a history of
substance abuse. When she explained that she would discontinue the prescription for
tramadol for those reasons, Kelly argued that she should continue the drug and raise
the dosage. Kelly’s response increased Dawson’s concerns about drug dependency, and
she discontinued the prescription despite his protests. Kelly had no further
appointments with Dawson, and Dr. Ippel restarted the tramadol prescription a few
months later when Kelly complained of continued pain.
Kelly sued Dr. Ippel and Dawson under 42 U.S.C. § 1983 for deliberate
indifference to his severe chronic pain. The other defendants he sued exited the case at
screening, through voluntary dismissal by Kelly, or upon the entry of summary
judgment in their favor based on his failure to exhaust administrative remedies.
No. 21-1273 Page 3
About a year into the case after Kelly had amended the complaint once and the
issue of exhaustion of administrative remedies had been decided, Kelly moved for leave
to file a second amended complaint. The judge denied the motion because (1) the
proposed pleading included two defendants who had already obtained summary
judgment based on exhaustion; (2) Kelly raised claims based on circumstances arising
after the events included in the earlier complaints; and (3) he brought claims under a
vicarious-liability theory, which is improper under § 1983. Discovery proceeded. Along
the way, the judge denied Kelly’s motions to recruit counsel, appoint an expert, and
compel discovery of the defendants’ records of professional discipline.
Dr. Ippel and Dawson moved for summary judgment on the deliberate-
indifference claim. They argued that although Kelly had a “long and significant medical
history,” they had exercised appropriate medical judgment in treating his serious pain.
In response Kelly primarily argued that he required more or stronger pain
medication—specifically, opioid pain relievers—that the defendants had refused. The
judge granted the defendants’ motion, concluding that Kelly did not produce any
evidence that their treatment decisions deviated from accepted professional standards.
Kelly timely appealed. 1 He first argues that Dr. Ippel and Dawson were not
entitled to summary judgment because their medication decisions contradicted
recommendations from other doctors, Dawson cruelly deprived him of tramadol, and
his medications did not provide complete pain relief. We review the decision to grant a
motion for summary judgment de novo. Id.
A medical provider’s choice of treatment violates the Constitution when “no
minimally competent professional would have so responded under those
circumstances.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (quoting Sain v. Wood,
512 F.3d 886, 894–95 (7th Cir. 2008)). Here, no reasonable jury could find that Dr. Ippel
or Dawson provided care that fits that description. Dr. Ippel responded to Kelly’s
complaints of pain with multiple treatments like prescription drugs and localized
1 Kelly’s notice of appeal was docketed in this court more than 30 days after the
judge entered summary judgment for the defendants. After supplemental briefing, this
court determined that (1) Kelly mailed a motion to alter or amend judgment within
28 days of the summary-judgment decision, stopping the time for filing a notice of
appeal, and (2) Kelly submitted his notice of appeal for mailing within 30 days of the
judge’s order denying his motion to alter or amend judgment. Kelly’s appeal is
therefore timely. FED. R. APP. P. 4(a)(4), 4(c).
No. 21-1273 Page 4
injections, further diagnostic testing, and lifestyle modifications like a wheelchair and
transfer to the infirmary. Although Kelly is dissatisfied with this treatment because it
diverged from what his prior doctors did and his medications did not provide complete
relief, neither fact is evidence of a constitutional violation. With his chronic conditions,
even optimal medical care might not alleviate all pain, and Dr. Ippel and Dawson
weighed the risks and benefits of particular pain medications. See Lockett, 937 F.3d at
1025. And disagreement among doctors on appropriate treatment is also insufficient to
demonstrate an Eighth Amendment violation. See Pyles, 771 F.3d at 409. Further,
Dawson’s decision to discontinue tramadol after her professional assessment of Kelly’s
personal risk of substance abuse and given his continued use of two other pain
medications does not evince deliberate indifference, even though Dr. Ippel reversed the
decision. See Lockett, 937 F.3d at 1025; Pyles, 771 F.3d at 409. Because Kelly offered no
evidence that Ippel and Dawson’s treatment decisions were not the product of their
medical judgment, Kelly’s disagreement cannot sustain a deliberate-indifference claim.
Kelly next challenges a number of discretionary rulings, beginning with the
denial of his motion for leave to amend his complaint a second time. Because the
judge’s decision was based on the futility of allowing the amendment, our review of
that legal conclusion is de novo. Taylor v. JPMorgan Chase Bank, N.A., 958 F.3d 556, 562
(7th Cir. 2020). We agree that Kelly’s proposed amended complaint did not state any
additional claims. There already was a judgment for two of the named defendants
based on exhaustion, and Kelly did not (or could not) redress that, so the judgment was
final. See Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011). Two more defendants,
regional medical directors, were not personally involved in Kelly’s care and could not
be vicariously liable under § 1983. Taylor v. Ways, 999 F.3d 478, 493 (7th Cir. 2021).
Finally, the actions of the newly named treating providers occurred after the course of
medical treatment described in the amended complaint and would expand the scope of
the case; the court permissibly concluded that those allegations should be brought in a
separate suit. See Owens v. Evans, 878 F.3d 559, 566 (7th Cir. 2017).
Kelly also challenges the rulings denying his motions to appoint a neutral expert,
recruit pro bono counsel, and compel the disclosure of any professional discipline the
defendants had incurred. None of these challenges has merit. First, Kelly does not
develop any argument about why it was unreasonable for the judge to conclude that at
least until trial, it did not need expert assistance to understand the evidence, which
could be understood by a layperson. Gil v. Reed, 381 F.3d 649, 659 (7th Cir. 2004).
No. 21-1273 Page 5
Second, Kelly does not establish that the denial of his motion for recruited
counsel was erroneous or that it prejudiced him. See Henderson v. Ghosh, 755 F.3d 559,
564–65 (7th Cir. 2014). The judge gave two sound reasons for not recruiting counsel:
first, another judge in the district had entered an order requiring Kelly to show special
circumstances when moving for attorney representation because he had abused the
privilege in another case; second, the judge considered Kelly’s ability to litigate his case
himself, his past litigation experience, the high quality of his existing filings, and his
specific recall of past events, and concluded that he could effectively represent himself.
Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc); see Cartwright v. Silver Cross
Hosp., 962 F.3d 933, 937 (7th Cir. 2020) (recruitment of pro bono counsel is a privilege
that should not be wasted). We add that Kelly lost based on the affirmative evidence
that the defendants exercised professional medical judgment, which is not something
an attorney could have averted.
Third, Kelly again could not demonstrate the required prejudice on appeal with
respect to the denial of his motion to compel discovery of the defendants’ professional
disciplinary records. Gonzalez v. City of Milwaukee, 791 F.3d 709, 713 (7th Cir. 2015).
Assuming any records existed and Kelly had obtained them, they would not have been
admissible at summary judgment because prior bad acts cannot be introduced to show
a propensity for providing inadequate medical treatment. FED. R. EVID. 404(b); see Gevas
v. McLaughlin, 798 F.3d 475, 487 (7th Cir. 2015).
Finally, Kelly appears to renew his request for this court to recruit counsel for
him; our order denying his first such motion explained that the merits panel could look
at the issue anew. Like the district judge, however, we find that Kelly can manage by
himself. See Pruitt, 503 F.3d at 655. Kelly’s briefs refer to the relevant law and facts and
present cogent arguments. And Kelly’s contention that he needs counsel to help him
recruit an expert witness would be relevant only if we were to remand.
AFFIRMED