NONPRECEDENTIAL DISPOSITION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 April 11, 2022 *
Decided April 19, 2022
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-2926
JEFFREY VOGELSBERG, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v. No. 17-cv-596-jdp
YOUNG KIM, et al., James D. Peterson,
Defendants-Appellees. Chief Judge.
ORDER
Jeffrey Vogelsberg, now a convicted Wisconsin prisoner, sued medical providers
at the Dane County Jail over events that occurred there when he was a pretrial detainee.
The district court entered summary judgment for the defendants on Vogelsberg’s claims
that they provided objectively unreasonable treatment for his bleeding ulcer and
*
We have agreed to decide the case without oral argument because the briefs and
the 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. 20-2926 Page 2
retaliated against him when he complained about poor medical care. Because no jury
could reasonably find that Vogelsberg’s medical treatment fell below constitutional
standards or that he was punished for his speech, we affirm.
We recount the facts in the light most favorable to Vogelsberg. See James v. Hale,
959 F.3d 307, 314 (7th Cir. 2020). While in jail awaiting a trial, Vogelsberg spent weeks
with severe abdominal pain. The day after he first requested treatment in July 2014, a
nurse examined him and consulted with a jail doctor, defendant Young Kim. Suspecting
a gastrointestinal issue, the doctor prescribed an antacid and a laxative to be used as
needed, but he denied Vogelsberg’s request for an x-ray. Vogelsberg declined to take
the antacid because he felt it unnecessary. He was already on several medications, such
as warfarin (a blood thinner), naproxen (a non-narcotic pain reliever), and psychiatric
drugs for conditions including schizophrenia and post-traumatic stress disorder.
Because warfarin increases the risk of bleeding issues, Vogelsberg received regular
blood tests to assess his dosage and detect possible internal bleeding.
Vogelsberg continued to see medical staff over the next several weeks with
complaints of abdominal pain. After an appointment in early August, Dr. Kim ordered
tests, adjusted Vogelsberg’s warfarin dose, and prescribed a fiber supplement (which
Vogelsberg also declined to take). Later that month, Vogelsberg requested a renewal of
his naproxen prescription and a new one for acetaminophen (another analgesic), both of
which he received. Vogelsberg was seen again in early September after complaining of
worsening pain and was given a blood test that did not indicate internal bleeding. The
doctor advised Vogelsberg to inform a nurse if his symptoms did not resolve.
Vogelsberg returned to the clinic several days later, again with severe abdominal pain.
The doctor stopped all pain medications to avoid masking symptoms and ordered
diagnostic tests, daily examinations, and a liquid diet.
Vogelsberg, whose criminal trial had begun, returned, unimproved, several days
later. During this evaluation, Vogelsberg complained to Dr. Kim that his treatment thus
far had been inadequate. He then reported that his pain was “excruciating,” that he was
nauseated, and that his last bowel movement—three days prior—produced black stool.
The doctor now suspected gastrointestinal bleeding and ordered x-rays and observation
in the clinic. Vogelsberg refused to assent to the medical observation, though, because
he wanted to attend his criminal trial, and he believed the observation was retaliation
for his complaint. No decision about observation was necessary, though: when the
results of a blood test were abnormal, Dr. Kim sent Vogelsberg to a nearby emergency
No. 20-2926 Page 3
department. There, he was diagnosed with intestinal bleeding caused by an ulcer and
had surgery to correct the condition.
The day Vogelsberg went to the hospital, a correctional officer told a mental-
health staffer that he feared Vogelsberg might be suicidal. During a monitored phone
call, Vogelsberg had alluded to getting a gun; another inmate had expressed concern
Vogelsberg planned to overdose on medication. A nurse learned that Vogelsberg had
purchased 50 tablets of aspirin, although he knew he could not safely take it while on
warfarin. Dr. Kim therefore referred Vogelsberg for a psychological evaluation when he
returned from the hospital. Though a hospital blood test showed no signs of aspirin
overdose, Vogelsberg was placed under “self-harm watch,” which involved isolation
and deprivation of his clothes and possessions. A psychiatrist determined that
Vogelsberg was not suicidal, and he was released from segregation after several days.
After he was later convicted and imprisoned, Vogelsberg—with the aid of
another inmate—sued Dr. Kim and multiple nurses under 42 U.S.C. § 1983 for violating
his Fourteenth Amendment rights by failing to treat his abdominal pain or diagnose his
ulcer. Alleging a policy of poor medical care, he also sued the jail’s medical contractor
and Dane County under Monell v. Department of Social Services, 436 U.S. 658 (1978). He
further maintained that his placement on self-harm watch was punishment for orally
complaining to the doctor about inadequate treatment, in violation of his rights under
the First Amendment. Last, Vogelsberg claimed that Dr. Kim committed malpractice
(under state law) by simultaneously prescribing naproxen and warfarin, allegedly
causing his ulcer and intestinal bleeding.
During discovery, Vogelsberg moved for the appointment of a guardian ad litem
or, alternately, recruitment of counsel. See FED. R. CIV. P. 17(c)(2); 28 U.S.C. § 1915(e)(1).
He cited his mental-health conditions as the reason he required assistance. The district
court denied the motion, explaining that Vogelsberg’s performance at a deposition, the
number and clarity of his filings, and his communications with the court demonstrated
his competence to litigate his federal claims, which did not appear overly complex. And
the court determined that recruitment of counsel for the state-law malpractice claims
(which would require a medical expert, under Wisconsin law) was premature until the
court decided if it would ultimately retain jurisdiction over those claims.
The defendants moved for summary judgment. In response, Vogelsberg moved
for more discovery, contending he had not yet obtained sufficient evidence to oppose
summary judgment. See FED. R. CIV. P. 56(d). The district court denied Vogelsberg’s
No. 20-2926 Page 4
motion, noting that he mostly renewed already-adjudicated discovery disputes and
failed to explain what other evidence might help him oppose the defendants’ motion.
The court then granted the motion for summary judgment. It concluded that
Vogelsberg had not countered the defendants’ evidence that his medical care
comported with the Constitution. He also lacked evidence that Dr. Kim ordered either
medical observation or, later, a psychiatric evaluation to punish him for his criticisms.
Indeed, it is not difficult to imagine a different legal action against Dr. Kim if he had not
given such orders. And because Vogelsberg could not establish an underlying
constitutional violation, his Monell claim also failed. Having disposed of the federal
claims, the court relinquished supplemental jurisdiction over the remaining state-law
claims. See 28 U.S.C § 1367(c)(3).
On appeal, Vogelsberg first challenges the entry of summary judgment, a
decision that we review de novo. James, 959 F.3d at 314. Pretrial detainees have a right
to adequate medical care under the Fourteenth Amendment. See Williams v. Ortiz, 937
F.3d 936, 942 (7th Cir. 2019); Miranda v. County of Lake, 900 F.3d 335, 352 (7th Cir. 2018).
For his claim to survive summary judgment, Vogelsberg needed evidence that his ulcer
was a serious medical condition—something the defendants do not dispute—and that
the defendants’ response was objectively unreasonable. Williams, 937 F.3d at 942. Unlike
the more demanding “deliberate indifference” standard under the Eighth Amendment,
“[t]his standard requires courts to focus on the totality of facts and circumstances faced
by the individual alleged to have provided inadequate medical care and to gauge
objectively . . . whether the response was reasonable.” McCann v. Ogle County, 909 F.3d
881, 886 (7th Cir. 2018). This standard does not reach negligent conduct; rather, the
plaintiff must show the defendants acted “with purposeful, knowing, or reckless
disregard of the consequences” of their actions. Miranda, 900 F.3d at 354.
Vogelsberg’s central assertion on appeal is that the doctor and nurses “did
nothing” for his medical condition beyond prescribe naproxen, which they knew was
ineffective for his stomach pain. A constitutional violation can occur when medical
providers persist in a treatment known to be ineffective or when there is an
“inexplicable delay” in treatment that worsens or prolongs the patient’s suffering.
See Goodloe v. Sood, 947 F.3d 1026, 1031 (7th Cir. 2020). Here, however, Vogelsberg did
not present evidence that would allow a jury to conclude either that the medical staff
delayed treatment or unreasonably persisted in ineffective treatment.
No. 20-2926 Page 5
The undisputed facts show that Vogelsberg was seen promptly and regularly by
the medical staff when he complained of stomach pain between July and September
2014. Throughout this time, Dr. Kim prescribed and adjusted medications, ordered
numerous diagnostic tests, and monitored his worsening condition. Vogelsberg does
not dispute that his blood tests were normal until September. And when he reported
new symptoms that suggested possible internal bleeding, the doctor adjusted treatment
again and ordered Vogelsberg to the hospital immediately after abnormal test results.
This “persistent and reasoned medical attention” by Dr. Kim and the nurse defendants
is not consistent with unreasonable medical care. Williams, 937 F.3d at 944.
Indeed, Vogelsberg does not specifically challenge anything but Dr. Kim’s
decision to prescribe naproxen along with warfarin. But there is no evidence to suggest
he did so without regard to the consequences, and even if the decision was negligent,
that is not enough to show that it was objectively unreasonable. McCann, 909 F.3d at
866. And to the extent that Vogelsberg suggests that earlier testing, such as an x-ray,
would have resulted in a faster diagnosis, he only speculates; further, disagreement
with a doctor’s chosen course of treatment does not make the treatment objectively
unreasonable. Williams, 937 F.3d at 944.
Vogelsberg’s claim that he was punished for complaining to Dr. Kim about poor
medical care fares no better. Assuming his complaint was protected speech, see Herron
v. Meyer, 820 F.3d 860, 864 (7th Cir. 2016), the proposed “segregation” was for medical
observation, not punishment. According to Vogelsberg, the doctor suspected (correctly,
as it turns out) that Vogelsberg was bleeding internally. The other act that Vogelsberg
cites—the doctor and a nurse falsely asserting that he might be suicidal, leading to the
psychiatric evaluation when he returned from the hospital—also was not punitive.
Vogelsberg does not dispute that a correctional officer independently raised concerns
about his risk of self-harm. Vogelsberg needed some evidence that his complaint was at
least a motivating factor in the decision to place him under observation, see Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009), and his speculation that it related to his
complaint is insufficient by itself, see Consolino v. Towne, 872 F.3d 825, 830 (7th Cir. 2017).
Indeed, without evidence that the correctional officer knew (or cared) that he had
complained to Dr. Kim—unlikely, based on the timing—the theory is implausible.
Finally, Vogelsberg challenges the denial of his motion to recruit counsel or
appoint a guardian ad litem. Despite Vogelsberg’s diagnosed mental illnesses, the
district court reasonably concluded that Vogelsberg’s filings and communications
demonstrated that he was mentally competent under the applicable Wisconsin law for
No. 20-2926 Page 6
appointing a guardian and capable of litigating his case for purposes of our precedent
on the recruitment of counsel. See Kainz v. Ingles, 2007 WI App 118, ¶ 52, 300 Wis. 2d
670, 705, 731 N.W.2d 313, 331 (providing factors to determine mental competence);
Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). Vogelsberg points to his use of
jailhouse lawyers to explain the clarity of his filings, but the court also relied on
Vogelsberg’s unassisted performance at his deposition and court hearings. The district
court took both requests seriously, identified the applicable law, and arrived at
reasonable decisions, so it did not abuse its discretion. See Pruitt, 503 F.3d at 658.
Two matters remain. First, because Vogelsberg does not present any argument
about liability for the county or medical contractor, he has waived that issue on appeal.
Klein v. O'Brien, 884 F.3d 754, 757 (7th Cir. 2018). Second, the district court properly
relinquished its jurisdiction over the state-law claims when it resolved all the federal
claims; however, subject to any restraints under state law, Vogelsberg may pursue those
claims in the appropriate state court. See 28 U.S.C. § 1367(c)(3).
AFFIRMED