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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
GEORGE ANDREWS,
Plaintiff-Appellant,
v.
CRAIG A. HANKS, et al.,
Defendants-Appellees.
No. 01-1454
50 Fed. Appx. 766
October 16, 2002 *, Submitted
NOTICE: RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Indiana
inmate George Andrews sued various prison officials at Wabash Valley
Correctional Facility under 42 U.S.C. § 1983, alleging they were deliberately
indifferent to his serious medical needs in violation of the Eighth Amendment.
The district court dismissed the complaint under the screening mechanism of 28
U.S.C. § 1915A for failure to state a claim, and Andrews appeals. We affirm in
part, and vacate and remand in part.
On February
13, 2000, Andrews fell from the top of a trash dumpster while working on the
labor line. The next day Andrews
visited the medical clinic, complaining of pain and swelling in his left wrist.
Clinic staff scheduled a doctor's
appointment, gave him Motrin and put an OCL splint n1 on his wrist from
mid-finger to mid-forearm. Andrews returned to the medical clinic the next day
with the same complaints and medical staff scheduled him for an x-ray. The
x-ray revealed a "fracture involving the navicular." At one of these
early visits, Andrews received a wrist brace from Dr. Chavez, n2 one of
the [*768] defendants in this action. Approximately two weeks later,
Andrews returned to the clinic and the clinic staff scheduled him for a
circulation assessment and a medical consult. During March Andrews visited the
clinic several times for consultations and x-rays. He received an Ace bandage
on March 5th and an OCL wrist splint on March 10th. On March 31 Andrews was
sent to Wishard Memorial Hospital to see an orthopedic specialist, who ordered
an MRI and considered several different courses of treatment. The Wishard
doctor recommended surgery and instructed Andrews to continue wearing his wrist
brace until surgery could be performed.
On April 29
Andrews visited the prison medical clinic to replace his brace, which was
coming apart. Instead of replacing his brace, however, Nurse Jodi Ashba
confiscated the brace, leaving his wrist without any support. Although
documents provided by Andrews suggest that the nurse took away the brace
because there was "no med. order for this item," Andrews alleges that
she kept the brace because it contained a metal piece and because she said
nothing was wrong with his wrist. She also told him to stop whining. Andrews
filed a grievance regarding the incident but did not obtain any relief. There
is no information in his complaint or brief about whether he used the grievance
appeal process. Further, there is no information about whether Andrews
ultimately received a new brace or surgery.
In October
2000 Andrews filed suit in the district court alleging an Eighth Amendment
violation based on deliberate indifference to his serious medical needs by four defendants: Dr. Chavez, Nurse
Ashba, Medical Director Don Osborne, and Superintendent Hanks. The district
court dismissed Andrews's complaint, concluding that he failed to allege
deliberate indifference and therefore did not state a claim under the Eighth
Amendment.
On appeal Andrews argues that the district court erred in dismissing
his case for failure to state a claim. We review the district court's decision
de novo, Sanders v. Sheahan, 198 F.3d 626, 626 (7th Cir. 1999), and in reading
the complaint we assume all factual allegations to be true and view them in the
light most favorable to the plaintiff, Gutierrez v. Peters, 111 F.3d 1364,
1368-69 (7th Cir. 1997). Moreover, because Andrews proceeded pro se in the
district court, we construe his complaint liberally and subject it to less
stringent scrutiny than complaints prepared by counsel. Id. at 1369. Nevertheless, even a pro se plaintiff can plead himself out of
court by alleging facts that show he has no claim. See id at 1374.
We turn
first to Dr. Chavez. To state a viable Eighth Amendment claim, Andrews must allege
that prison officials were deliberately indifferent to his serious
medical need. See Estelle v. Gamble,
429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Deliberate
indifference contains both subjective and objective elements. First, the
prisoner must identify that he has an objectively serious medical need. Wynn v.
Southward, 251 F.3d 588, 593 (7th Cir. 2001). Second, the prison official must
have acted with a "sufficiently culpable state of mind," Farmer v.
Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994); that is,
he must have been aware of the prisoner's medical need and disregarded an
excessive risk to the prisoner's health or safety. Wynn, 251 F.3d at 593.
Andrews
cannot claim deliberate indifference by Dr. Chavez. Andrews alleges in his
complaint that Dr. Chavez told him nothing was wrong with his wrist and
[*769] thus failed to treat the break
for two months, but the extensive records attached to his complaint and
appellate brief demonstrate that Andrews received prompt and substantial care
in the two months following his accident. See Fed. R. Civ. P. 10(c); Wynn, 251
F.3d at 594 (documents attached to
complaint are to be read as part of complaint). Andrews visited the clinic
several times, obtained two OCL splints, received x-rays, obtained an Ace
bandage to wrap his wrist, obtained a wrist brace immediately after the
accident from Dr. Chavez personally, received orders to take Motrin and Tylenol
for his pain, and eventually
was taken to an orthopedic specialist for care. Although it is not clear from
the records exactly how Dr. Chavez participated in this care, Andrews was not
ignored by prison medical staff. His recovery was indeed slow, but while
Andrews may not view the care he received as sufficiently aggressive for a
broken wrist, his disagreement with medical providers does not demonstrate
deliberate indifference. Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996).
It is true that repeated acts of negligence may constitute deliberate indifference,
but this is not such a case. Compare Kelley
v. McGinnis, 899 F.2d 612, 616-617 (7th Cir. 1990) (three years of ineffective
treatment). Prison medical staff treated Andrews immediately with x-rays and
immobilizing devices, and when his fracture failed to heal within six weeks, he
was sent to a specialist.
Andrews counters that the
district court should at least have given him leave to amend before dismissing
with prejudice as against Dr. Chavez. But, leave to amend was not required as
the complaint against Dr. Chavez could not have been cured with an
amendment. Williams v. United States
Postal Serv., 873 F.2d 1069, 1072 (leave to amend need not be granted when an
amendment will not cure legal deficiencies).
Nurse
Ashba, however, presents a different situation. The complaint and attached
documents show that when Andrews visited the prison clinic on April 29, 2000,
his brace was coming apart and he wanted a new one. Andrews alleges that
instead of replacing or repairing the brace, Ashba declared his wrist to be
fine and, contrary to doctor's orders, confiscated the brace, leaving his wrist
without support. Although there is no mention in the records about whether
Andrews ever received a new brace, he was still seeking a replacement on May
25, 2000. This was enough to state a claim for deliberate indifference, and the
district court should have allowed Andrews to proceed with this claim. Andrews
alleges a serious medical need--a broken wrist--that Ashba knew about and disregarded.
See Murphy v. Walker, 51 F.3d 714, 720
(7th Cir. 1995) (defendant stated Eighth Amendment claim when he alleged that
prison officials removed cast from his broken hand in violation of a doctor's
orders). Although documents attached to the complaint hint that Ashba
confiscated the brace pursuant to a prison rule, Andrews points out that he had
the brace from February until April, and that Dr. Chavez gave it to him without
any suggestion that he was not supposed to have it. Further, Ashba's motivation
for taking the brace may be valid, but her failure to provide an acceptable
substitute could suggest deliberate indifference. Ashba's real motivation for
confiscating the brace and failing to provide an alternative is not a matter
for resolution at this preliminary stage.
Andrews also raises claims against Superintendent Hanks and
Medical Director Osborn. In his complaint, Andrews alleges that he
"notified Defendant Craig Hanks, Supt. ... in which he did nothing."
Regarding Osborne, Andrews alleges, "I contacted him, but nothing was ever
done nor did I get any response." When [*770] making a § 1983 claim against administrative defendants who did
not directly provide medical care, a plaintiff cannot simply rely on a theory
of respondeat superior or negligent supervision. Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999). Rather, a
plaintiff must allege personal involvement. See Payne v. Churchich, 161 F.3d 1030, 1039 (7th Cir. 1998). Although
a letter to prison officials may be sufficient to allege personal involvement,
see Gentry v. Duckworth, 65 F.3d 555,
561 (7th Cir. 1995), Andrews's
claim against Hanks and Osborn suffers from a flaw. To the extent that Andrews
alleges that the officials had any knowledge about his medical treatment, he
suggests only that they knew about the alleged two month delay in care. Nowhere
does he suggest that they had any personal knowledge about the brace incident.
Because we find
that the alleged delay in care did not raise a constitutional claim, the claims
against the administrators for the delay must fail.
The
judgment of the district court is AFFIRMED IN PART, and VACATED AND REMANDED IN
PART
FOOTNOTES:
* Appellees notified this
court that they were never served with process in the district court and would
not be filing a brief or otherwise participating in this appeal. After examining
the appellant's brief and the record, we have concluded that oral argument is
unnecessary. Accordingly, the appeal is submitted on the appellant's brief and
the record. See Fed. R. App. P. 34(a)(2).
October 21, 2002, Decided
n1 OCL is plaster splinting material. See
OCL Plaster Splinting System,
http://www.m-pactmed.com/pdf/Plaster%20Splinting%20brochure.pdf (last visited
Sept. 11, 2002); JKL Medical Dictionary, http://www.jklcompany.com/o.html (last
visited Sept. 11. 2002).
n2 Andrews named "Dr. Chaze" as a
defendant, but the documents he attached to the complaint and appellate brief
reveal that the doctor's name is spelled "Chavez."