NONPRECEDENTIAL DISPOSITION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 15, 2013*
Decided April 15, 2013
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐3047
GREGORY MUSE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 12‐787‐GPM
MEARL J. JUSTUS, et al., G. Patrick Murphy,
Defendants‐Appellees. Judge.
O R D E R
Gregory Muse, formerly a pretrial detainee at the St. Clair County Jail, appeals from
the dismissal of his suit under 42 U.S.C. § 1983 alleging that a prison doctor and the county
sheriff were deliberately indifferent toward a rash he developed. Because his complaint
failed to state a claim, we affirm.
*
The appellees were not served in district court and are therefore not participating in
this appeal. After examining the appellantʹs brief and the record, we have concluded that
the case is appropriate for summary disposition. See FED. R. APP. P. 34(a)(2)(C).
No. 12‐3047 Page 2
In his complaint Muse alleged that, shortly after being jailed for first‐degree murder
(of which he was later convicted), he developed a severe rash in his groin and backside. The
rash, he said, was painful and in places developed into sores. He believed that the rash
stemmed from the “filthy” condition of the jail cells, showers, and eating facilities, which
the county sheriff, Mearl Justus (who died during the pendency of this appeal) allowed to
persist. Muse alleged that he reported the rash to the jail’s doctor, a Dr. Shaw, who took a
sample of his blood and prescribed a cream and antibiotic pills, but these remedies proved
ineffective. Muse’s rash lasted two months.
The district court dismissed his complaint at screening. 28 U.S.C. § 1915A. The court
acknowledged that Muse’s skin condition “arguably” constituted a serious medical need,
but concluded that Muse did not allege that the defendants failed to take appropriate steps
to mitigate a known risk of substantial harm. As for the claim against Justus, the court
concluded that Muse failed to allege his personal involvement, and he could not be
vicariously liable under § 1983.
On appeal Muse challenges only the dismissal of his claim against Dr. Shaw and
now asserts for the first time that the doctor provided him with no treatment whatsoever.
We agree with the district court, however, that dismissal was warranted.1 First, we will
disregard Muse’s blanket assertion in his appellate brief that Dr. Shaw did not treat him at
all because this contradicts the allegations in his complaint that he was treated with cream
and an antibiotic. See Flying J Inc. v. City of New Haven, 549 F.3d 538, 542 n.1 (7th Cir. 2008).
Second, to the extent that Muse asserts that Dr. Shaw bears responsibility for providing
ineffective treatment, that is not deliberate indifference. The mere fact that Dr. Shaw
prescribed a treatment that proved ineffective does not state a claim. See Duckworth v.
Ahmad, 532 F.3d 675, 680 (7th Cir. 2008).
Muse incurred one “strike” for filing his complaint and incurs another for this
appeal. See 28 U.S.C. § 1915(g); Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir.1997).
AFFIRMED.
1
The court properly noted that deliberate‐indifference claims of pretrial detainees
are analyzed under the Fourteenth rather than the Eighth Amendment. See Rice v. Corr. Med.
Servs., 675 F.3d 650, 664 (7th Cir. 2012).