In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1175
HERBERT DIGGS,
Plaintiff‐Appellant,
v.
PARTHASARATHI GHOSH, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 3563 — John W. Darrah, Judge.
____________________
SUBMITTED FEBRUARY 21, 2017 — DECIDED MARCH 13, 2017
____________________
Before WOOD, Chief Judge, and POSNER and HAMILTON, Cir‐
cuit Judges.
HAMILTON, Circuit Judge. In 2014, Herbert Diggs, an Illinois
prisoner, sued three doctors and the former warden of State‐
ville Correctional Center, asserting principally that they were
We have agreed to decide this 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. See Fed. R. App.
34(a)(2)(C).
2 No. 16‐1175
deliberately indifferent to a full tear in his right knee’s anterior
cruciate ligament (“ACL”). The tear had been diagnosed in
2009. When he filed suit in 2014 Diggs was (and for all we
know he still is) waiting for surgery to repair the tear. The dis‐
trict court granted summary judgment for the defendants. We
affirm in part and vacate and remand in part.
Because we are reviewing a grant of summary judgment,
we consider facts that are undisputed, and where the evi‐
dence conflicts, we consider the version more favorable to
plaintiff Diggs as the non‐moving party. We also give him the
benefit of reasonable inferences from the evidence. White v.
City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016). Diggs injured
his knee in a fight with a cellmate in 2006, and for three years
his ACL tear went undiagnosed. In the interim, he repeatedly
complained to medical staff about knee pain, swelling, and
instability (fourteen times he orally requested treatment from
medical staff), for which they gave him pain medication.
In July 2009, Dr. Parthasarathi Ghosh, the prison’s medical
director, saw Diggs after he complained of right‐knee insta‐
bility. Dr. Ghosh recommended that Diggs be assigned to a
lower bunk on a lower floor and ordered an MRI. The follow‐
ing month Dr. Ghosh referred Diggs to the University of Illi‐
nois‐Chicago Medical Center (“UIC”) for the MRI, which re‐
vealed that his right ACL had a complete tear. Dr. Ghosh then
got approval from Wexford Health Sources, Inc. (the private
company that contracts with Illinois to provide medical care
to prisoners) for Diggs to receive orthopedic follow‐up at UIC.
Wexford’s approval is required whenever an inmate needs
outside medical care.
In October 2009, Diggs had his first of three visits with Dr.
Alfonso Mejia, an orthopedist at UIC who is not a defendant
No. 16‐1175 3
in this case. Diggs had a range of motion in his knee of zero to
ninety degrees, which Dr. Mejia thought was too stiff for ACL
surgery. Dr. Mejia explained that Diggs needed “to be made
into a better preoperative candidate” before being evaluated
for knee surgery. Dr. Mejia recommended ibuprofen, a crutch,
“extensive aggressive physical therapy,” and a follow‐up ap‐
pointment in four to six weeks. A month later, at Dr. Ghosh’s
request, Wexford pre‐approved knee surgery for Diggs. From
a constitutional standpoint, so far, so good.
But then, notwithstanding Dr. Mejia’s recommendations,
Diggs received no physical therapy and no medical follow‐
up. In February 2010, Diggs complained to Dr. Ghosh of con‐
tinuing knee pain. Dr. Ghosh taught Diggs stretching exer‐
cises that he could perform in his cell, and he expanded
Diggs’s medical permit to include a crutch, a knee sleeve, and
special boots. Dr. Ghosh did not understand why the pre‐ap‐
proved surgery had not taken place, so he obtained approval
from Wexford to have Diggs follow up with Dr. Mejia regard‐
ing the reason for the delay.
At a visit in July 2010, Diggs told Dr. Mejia that he had not
received any physical therapy for his knee in the past nine
months, and Dr. Mejia noted that his range of motion had de‐
creased slightly to ten to eighty degrees. Dr. Mejia recom‐
mended that Diggs receive physical therapy before being
evaluated for surgery. Dr. Ghosh noted Mejia’s recommenda‐
tion and promptly referred Diggs to the physical therapist, an
outside contractor who came to the prison twice weekly. Ac‐
cording to the physical therapist’s notes, Diggs steadily im‐
proved over the next two months and by October 2010 was
“ready for surgery.” Dr. Ghosh initially approved the physical
therapist’s recommendation for surgery, but he later decided
4 No. 16‐1175
to wait and to reevaluate the situation depending on whether
Diggs continued to complain about pain.
Another two years passed, during which Diggs had no fol‐
low‐up. Dr. Ghosh renewed Diggs’s medical permit in Febru‐
ary 2011, but otherwise took no further action. Three months
later, Dr. Imhotep Carter replaced Dr. Ghosh as the prison’s
medical director, and he did not examine Diggs for nearly a
year. In the meantime, Diggs regularly complained about his
knee pain to other medical staff. When Dr. Carter examined
Diggs in March 2012, he learned of Diggs’s knee injury, noted
Diggs’s use of a crutch, and renewed his medical permits. But
Dr. Carter did not follow up on Diggs’s knee, and he too left
the prison two months later.
Roughly around this time, Diggs says, he repeatedly told
the warden that his medical issues were being ignored. Mar‐
cus Hardy, Stateville’s warden from December 2009 to Decem‐
ber 2012, did not recall having any conversations with Diggs
or seeing him use a crutch. Diggs, on the other hand, said that
he told Warden Hardy on approximately five occasions that
he was awaiting ACL surgery, and that Warden Hardy re‐
sponded by telling him to bring the issue up with the medical
department. Shortly after Dr. Carter’s departure, Diggs filed
an emergency grievance in which he requested surgery for his
torn ACL and complained that his placement in a housing
unit with stairs effectively confined him to his cell. Diggs says
that Warden Hardy might have seen this grievance because
the warden’s office reviews all emergency grievances. The
warden’s office decided that his grievance was not an emer‐
gency and returned it to him four days later. Diggs then re‐
submitted it through the normal grievance process. Months
later it was denied by the Administrative Review Board.
No. 16‐1175 5
In the meantime Dr. Saleh Obaisi had taken over as medi‐
cal director. He assessed Diggs’s knee in September 2012.
Dr. Obaisi obtained Wexford’s approval to refer Diggs back to
UIC for follow‐up. In December 2012, Dr. Mejia again exam‐
ined Diggs, who still complained about knee pain and insta‐
bility, and the doctor noted that Diggs had completed physi‐
cal therapy and now had a normal range of motion (zero to
125 degrees). Dr. Mejia, with Dr. Obaisi’s approval, then re‐
ferred Diggs to another orthopedist at UIC for a surgical eval‐
uation.
In March 2013, Diggs saw Dr. Samuel Chmell, an orthope‐
dist at UIC, who recommended (1) that Dr. Obaisi try to find
a different hospital that had a physician who was willing to
perform ACL reconstruction surgery on inmates (since the
doctors at UIC would not) and (2) that Diggs receive more
physical therapy for the time being. Dr. Obaisi, however, did
not authorize any physical therapy. The next month Wexford
approved Dr. Obaisi’s decision to find a local orthopedist to
perform the surgery.
Shortly after Wexford approved the search, Dr. Obaisi ex‐
amined Diggs, noted mild swelling in his knee, and pre‐
scribed pain medication. He twice wrote in his treatment
notes that he wanted to send Diggs back to UIC (even though
they would not evaluate Diggs for surgery), but a visit was
never scheduled. He examined Diggs again in February 2014
for knee pain and suggested to Wexford that they send Diggs
back to UIC. This time, however, Wexford advised Dr. Obaisi
to again try to find another orthopedic surgeon for Diggs in‐
stead, and they discussed treatment options over the next four
months.
6 No. 16‐1175
In June 2014, Dr. Obaisi finally authorized another round
of physical therapy for Diggs. But in November, Diggs still
complained of pain and had swelling and tenderness in his
knee. On January 5, 2015, Dr. Ritz, a Wexford physician, re‐
portedly told Dr. Obaisi that he should comply with UIC’s rec‐
ommendation of no surgery and stop presenting Diggs’s case
to Wexford because no local doctor would perform the sur‐
gery. (Dr. Ritz apparently misunderstood UIC’s evaluation:
the doctors there never disclaimed the need for surgery.)
Dr. Obaisi saw Diggs twice more in 2015. At appointments
in May and June, Diggs reported that he had left‐hip pain
from overcompensating onto that leg, but a hip x‐ray revealed
no significant issues. Then in July, Dr. Obaisi referred Diggs
to the Dreyer Medical Clinic, which had recently agreed with
Wexford to treat Stateville inmates. In September Dr. Neena
Szuch, an orthopedist at Dreyer, examined Diggs and found
him “not an ideal candidate for ACL Reconstruction” because
he performed only low‐demand activities on a daily basis,
had not complained of functional instability in his knee, and
would not have access to daily physical therapy at the prison.
Diggs filed this civil‐rights lawsuit in May 2014 and the
district court early in the proceedings appointed counsel to
represent him. Assisted by counsel, Diggs asserted that the
doctors and Warden Hardy were deliberately indifferent to‐
ward his torn ACL and intentionally had caused him emo‐
tional distress. He also sought an injunction to compel State‐
ville’s current warden to authorize ACL surgery.
The district court granted summary judgment for all de‐
fendants. Regarding Diggs’s claims of deliberate indifference
against the three prison doctors (Ghosh, Carter, and Obaisi),
the court determined that the doctors’ treatment choices—
No. 16‐1175 7
which included “pain medication, some physical therapy, and
various permits regarding physical activity to reduce strain
on the knee”—were ones that other medical professionals
would follow, especially because no doctor said that Diggs
needed ACL surgery and Diggs’s range of motion in his knee
had improved considerably after physical therapy. As for
Diggs’s deliberate‐indifference claim against Warden Hardy,
the court concluded that Diggs did not provide facts showing
that Hardy knew that the medical staff was supposedly mis‐
treating him or not treating his ACL injury. Finally, regarding
Diggs’s claims of intentional infliction of emotional distress,
the court granted summary judgment for all defendants be‐
cause it determined that Diggs had not established that any of
the defendants’ conduct was extreme and outrageous.
On appeal Diggs, now proceeding pro se, first challenges
the grant of summary judgment to the doctors on his deliber‐
ate‐indifference claims. He maintains that the doctors delayed
essential medical care and contravened the specialists’ recom‐
mendations.
Deliberate indifference requires that a defendant “knows
of and disregards an excessive risk to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Whether a prison
official or doctor was subjectively aware of a risk “is a ques‐
tion of fact subject to demonstration in the usual ways, includ‐
ing inference from circumstantial evidence, and a factfinder
may conclude that a prison official knew of a substantial risk
from the very fact that the risk was obvious.” Id. at 842 (cita‐
tion omitted). Although a difference of opinion among doc‐
tors is not enough to establish deliberate indifference, see,
e.g., Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (en banc),
an inmate need not show that he was “literally ignored” to
8 No. 16‐1175
prevail on a deliberate‐indifference claim. Conley v. Birch,
796 F.3d 742, 748 (7th Cir. 2015) (citation omitted). “And if the
defendant’s chosen ‘course of treatment’ departs radically
from ‘accepted professional practice,’ a jury may infer from
the treatment decision itself that no exercise of professional
judgment actually occurred.” Zaya v. Sood, 836 F.3d 800, 805
(7th Cir. 2016).
With these standards in mind, we ask whether Diggs has
put forward enough evidence to survive summary judgment
with regard to the three doctors—Ghosh, Carter, and Obaisi—
whom the district court addressed together in its analysis. The
district court concluded that Diggs’s evidence was not suffi‐
cient: “The undisputed facts do not show that no minimally
competent professional would have treated Plaintiff’s injury
in the manner of Defendants.” The record, observed the court,
did not show that any doctor recommended ACL surgery, and
it was “undisputed that Defendants did provide treatment
options such as pain medication, some physical therapy, and
various permits regarding physical activity to reduce strain
on the knee.”
We begin with Dr. Ghosh, who—during the early stages of
Diggs’s treatment—repeatedly delayed medical care despite a
specialist’s recommendation to the contrary. The district court
overlooked key evidence that would allow a jury to find that
he knew of a substantial risk of serious harm and did nothing
to protect Diggs. The court relied upon evidence that Dr.
Ghosh gave Diggs pain medication, a medical permit, and a
round of physical therapy that helped improve his range of
motion. The court did not discuss, however, evidence that Dr.
Ghosh twice disregarded the advice of the UIC specialist,
Dr. Mejia. Dr. Ghosh first ignored Dr. Mejia’s advice to give
No. 16‐1175 9
Diggs “extensive aggressive physical therapy”; for the next
four months, Diggs received no treatment at all, and, at
Diggs’s next follow‐up, Dr. Mejia noted that Diggs’s range of
motion had deteriorated. After that follow‐up, Dr. Ghosh
again deviated from the treatment recommended by the spe‐
cialist. He gave Diggs physical therapy but disregarded Dr.
Mejia’s recommendation that another follow‐up be scheduled
for a surgical evaluation. Dr. Ghosh then decided to monitor
Diggs’s knee condition himself and took no further action.
The district court said nothing about these questionable deci‐
sions, which resulted in treatment being unnecessarily de‐
layed.
Similarly, the district court glossed over key details con‐
cerning Dr. Carter, who never followed up on Diggs’s knee in‐
jury at any point during his nine‐month stint at Stateville
(from July 2011 to May 2012). It is true, as Dr. Carter asserts,
that he saw Diggs only once during his brief time working at
the prison (and that was in regard to a heart issue). But the
court did not address evidence that Dr. Carter knew of Diggs’s
knee problems and did nothing. The court noted selective de‐
tails about Dr. Carter—that he had reviewed all of Diggs’s
medical records before the appointment, observed Diggs’s use
of a crutch, and renewed Diggs’s existing medical permit. The
court did not mention that Diggs testified at his deposition
that he told Dr. Carter at that March 2012 visit that he was in
pain and had been approved for ACL surgery or that the med‐
ical records reviewed by Dr. Carter contained numerous com‐
plaints he had recently made about knee pain and a prior au‐
thorization from Wexford for surgery. These unacknowl‐
edged facts are noteworthy because a jury could infer from
them that Dr. Carter “knowingly disregarded” Diggs’s ACL
10 No. 16‐1175
tear by not recommending any treatment for him. Conley,
796 F.3d at 747.
The district court also overlooked evidence that Dr. Obaisi
did not base his treatment decisions on medical judgment.
The court acknowledged that “[o]nce a physician willing to
perform the surgery was found, Dr. Obaisi submitted a re‐
quest for a referral” for an orthopedic follow‐up, but the court
did not mention Dr. Obaisi’s decisions to do nothing about
Diggs’s care. For over a year, Dr. Obaisi ignored Dr. Chmell’s
advice to give Diggs more physical therapy, despite Diggs’s
continued complaints of pain. Additionally, Dr. Obaisi largely
ignored Dr. Chmell’s other recommendation that he find a lo‐
cal surgeon to evaluate Diggs. After his initial search of un‐
known scope), he wanted to send Diggs back to UIC so that
they could make other recommendations, but he never did.
Then when Dr. Ritz, a Wexford physician, told Dr. Obaisi to
stop presenting Diggs’s case because Dr. Ritz mistakenly
thought that the UIC doctors recommended no ACL surgery,
Dr. Obaisi complied without question. Finally, for nine
months, Dr. Obaisi took no action to obtain a surgical evalua‐
tion until Wexford found an orthopedist without his assis‐
tance. In evaluating Dr. Obaisi’s decisions, the district court
did not address any of this evidence.
Diggs also argues that the district court improperly
granted summary judgment to Warden Hardy. In the court’s
view, Diggs had not “provided facts showing that Warden
Hardy had any knowledge that [he] was not being treated for
his injury or was being mistreated by medical staff.” Diggs,
the court said, offered nothing to show that he informed War‐
No. 16‐1175 11
den Hardy of his mistreatment, other than invoking conver‐
sations in which he told Warden Hardy that he was awaiting
surgery.
The district court erred in concluding that Diggs did not
present enough evidence to show that Warden Hardy knew
that the medical staff was mistreating him. The court disre‐
garded Diggs’s own sworn testimony that four or five times
over three years he told Warden Hardy that he was waiting
on surgery and had a painful knee injury. This testimony was
sufficient to show that Warden Hardy had knowledge of
Diggs’s predicament. It is undisputed that Warden Hardy
took no action to investigate Diggs’s complaints, other than to
tell Diggs to raise them with the medical staff. As a layperson,
the warden could rely on the medical staff’s expertise as long
as he did not ignore Diggs or his mistreatment. See Arnett v.
Webster, 658 F.3d 742, 755 (7th Cir. 2011); Berry v. Peterman,
604 F.3d 435, 440 (7th Cir. 2010). But Warden Hardy took no
action in response to Diggs’s repeated complaints about his
knee. Compare Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir.
2015) (plaintiff stated deliberate‐indifference claim against
grievance officials where they did not intervene after receiv‐
ing several grievances regarding plaintiff’s medical care),
with Berry, 604 F.3d at 440 (plaintiff did not present sufficient
facts from which a reasonable jury could infer that jail admin‐
istrator was deliberately indifferent where he consulted with
medical staff and responded to plaintiff’s complaints).
Diggs’s claims for intentional infliction of emotional dis‐
tress fail, however, because he has not presented sufficient
facts from which a jury could infer that the defendants’ con‐
duct was extreme and outrageous. See Dixon v. County of Cook,
819 F.3d 343, 351 (7th Cir. 2016) (applying Illinois law). As the
12 No. 16‐1175
district court explained, the doctors’ and Hardy’s actions “did
not go beyond all bounds of decency so as to be considered
intolerable in a civilized community.” Warden Hardy re‐
sponded during his daily rounds to Diggs’s complaints. Drs.
Ghosh and Obaisi provided some treatment over their tenures
as medical director and did not threaten or harass Diggs. And
Dr. Carter renewed a medical permit for Diggs’s knee. Simply
put, the circumstances would not cause a reasonable person
to think that any defendant’s conduct was outrageous.
Finally, Diggs vigorously asserts that his recruited counsel
in the district court rendered ineffective assistance by, among
other things, not properly contesting the defendants’ state‐
ments of material facts. There is, however, no Sixth Amend‐
ment right to effective assistance of counsel in civil cases.
See Pendell v. City of Peoria, 799 F.3d 916, 918 (7th Cir. 2015);
Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001). We add,
though, that notwithstanding the absence of such a constitu‐
tional right, pro se litigants’ requests for counsel are entitled
to careful consideration, Pruitt v. Mote, 503 F.3d 647, 661 (7th
Cir. 2007) (en banc), as the district court gave here.
Because a reasonable jury could find for Diggs on his de‐
liberate‐indifference claims against Warden Hardy and Doc‐
tors Ghosh, Carter, and Obaisi, we VACATE the grant of sum‐
mary judgment on these claims and REMAND for further
proceedings. We AFFIRM the judgment in all other respects.