NONPRECEDENTIAL DISPOSITION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 August 26, 2016*
Decided September 16, 2016
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐3304
DARREN GRAY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 14‐cv‐1418‐SMY
PHIL MARTIN, et al., Staci M. Yandle,
Defendants‐Appellees. Judge.
O R D E R
Darren Gray brought this suit under 42 U.S.C. § 1983 claiming that medical staff
at Lawrence Correctional Center in Illinois were deliberately indifferent in treating his
chronic cough and abdominal pain while he was incarcerated there. The district court
screened his complaint (which he already had amended once) and dismissed it for
failure to state a claim. See 28 U.S.C. § 1915A. We affirm.
* The defendants were not served with process in the district court and are not
participating in this appeal. We have unanimously agreed to decide the case without
oral argument because the brief and record adequately present the facts and legal
arguments, and oral argument would not significantly aid the court. See FED. R. APP.
P. 34(a)(2)(C).
No. 15‐3304 Page 2
Gray alleged that he did not receive adequate medical care for a cough he
developed while working in the prison laundry in October 2012.1 He said that Dr. Paul
Talbot prescribed cold and allergy medications for the cough but did not provide
treatment to “specifically remove the lint and dirt” from his lungs or run tests to
determine “the real reason” for his cough. When the medications did not work, Gray
asserted, the doctor “only prescribed different medications.” Gray also said that
Dr. Talbot had a face mask in his office that he could have given him to wear while
working in the laundry to protect his lungs, but that he did not do so. Gray added that a
second doctor, Dr. Albertto Butalid, merely “went off the assumptions of Dr. Paul
Talbot,” as recorded in his medical file, did not run further tests, and “only prescribed
more medications” when the cough persisted. In March 2014, Gray said, Dr. John Coe
continued the same prescription despite observing that, so far, “nothing has worked.”
And the following month Nurse Baker renewed that prescription. Gray said that he had
regular follow‐up appointments for his cough throughout early 2015, when he was
transferred to another correctional facility, but the cough never was cured.
In addition to his cough, Gray alleged that he was not properly treated for
abdominal pain. He claimed that Dr. Coe had diagnosed him with H. Pylori, a common
collection of bacteria that reside in the digestive system and in rare cases can cause
peptic ulcers, but waited three months to prescribe medication. Initially, within the first
three months of starting the medication, Gray said that he tested negative for the
presence of blood antibodies to the bacteria. When he was tested again a year later,
however, the results were positive, reflecting either a current or past infection. Dr. Coe
examined Gray that same month, noting the he experienced “mild tenderness” in his
upper abdomen, that his “problem is long term,” and that the antibodies had “dropped
to near borderline.” According to Gray, Dr. Coe at that point should have provided
further treatment, but instead merely scheduled three follow‐up appointments over the
next five months, during which he ordered blood tests and X‐rays to check for
H. Pylori, acid reflux, indigestion, and gastritis.
The district court screened the amended complaint, see 28 U.S.C. § 1915A, and
concluded that Gray failed to state a claim of deliberate indifference against the
defendants. Doctors Talbot and Butalid, the court explained, prescribed medications to
1 Gray has abandoned his claim that his supervisor in the prison laundry was
deliberately indifferent in failing to provide him with a face mask to protect his lungs
from dryer lint. He has also abandoned his claim against Phil Martin, the health care
unit administrator at the prison, who, he said, oversaw the doctors who treated him.
No. 15‐3304 Page 3
treat his cough, and when those medications did not work, they tried different ones.
Although neither doctor ordered further tests, the court said, there was no indication
that more testing was necessary. Nor was Dr. Talbot required to provide Gray with a
facemask. Nurse Baker, the court added, treated his cough by prescribing medications.
And as for Dr. Coe, the court concluded, he reasonably and effectively treated Gray’s
abdominal pain with prescriptions for H. Pylroi, gastroesophageal reflux disease
(GERD), gastritis, and reflux bronchitis—as well as ordering follow‐up tests to monitor
the H. Pylori infection. Although the medications did not eliminate Gray’s abdominal
pain, the court said, nothing in the record suggested that the treatment was
inappropriate or not based on legitimate medical judgment.
On appeal Gray maintains that he adequately stated a claim that the defendants
acted with deliberate indifference in providing inadequate care for his cough and
H. Pylori infection. The doctors, he said, should have run more tests to determine the
cause of his cough rather than merely assume that it had been caused by lint from the
laundry room. But the district court correctly concluded that Gray failed to state a claim
of deliberate indifference based on the treatment of his cough. Although none of the
prescribed medications cured Gray’s cough, the doctors did not “simply continue with
a course of treatment that” they knew to be ineffective. Arnett v. Webster, 658 F.3d 742,
754 (7th Cir. 2011). By Gray’s own account, see Gutierrez v. Peters, 111 F.3d 1364, 1374
(7th Cir. 1997) (plaintiff pleads himself out of court where complaint itself shows he has
no claim), when one medication did not work they tried another one. Gray contends
that the doctors should have run further tests to determine the cause of the cough, but
that is a claim of negligence or malpractice rather than deliberate indifference, id., and
will not support a claim under § 1983. Nothing in the complaint suggests that the
doctors’ decision to continue treating his cough with medicine rather than running
further tests was “such a substantial departure from accepted professional judgment,
practice, or standards, as to demonstrate that the” doctors “actually did not base the
decision” on medical judgment. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008)
(quoting Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)).
Gray also challenges the dismissal of his claim against Dr. Coe, who he believes
should have treated his H. Pylori infection sooner than three months upon diagnosis
and should have treated him as soon as he tested positive a year later for the presence
of antibodies to the bacteria. Failure to properly treat his H. Pylori infection, Gray says,
increased the chances that he may suffer from intestinal damage or stomach cancer in
the future.
No. 15‐3304 Page 4
We agree with the district court that Gray did not state a claim with respect to
the treatment of his abdominal pain. He did not allege that the three‐month delay in
receiving medication harmed him, see Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012);
indeed, as he acknowledged, he tested negative for the presence of antibodies to
H. Pylori within three months of starting the medicine. Although Dr. Coe did not
prescribe treatment after he tested positive a year later, the doctor explained that the
antibodies had “dropped to near borderline” levels and that H. Pylori was a “long
term” problem that would have to be monitored. As Gray acknowledges, Dr. Coe over
the next five months examined him at three follow‐up appointments and ordered
further blood tests.
AFFIRMED.