Keith Jackson v. Patrick Murphy

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 17, 2021 *
Decided August 17, 2021
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20-2062
KEITH JACKSON,
Plaintiff-Appellant,
v.
PATRICK MURPHY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17-cv-194-pp
Pamela Pepper,
Chief Judge.
O R D E R
Keith Jackson, a Wisconsin prisoner, alleged that officials at Oshkosh
Correctional Institution were indifferent to his medical conditions that later required
surgery. The district court entered summary judgment because the undisputed
evidence showed that the prison doctor had reasonably chosen a conservative treatment
plan until he approved the surgery. Because we agree that no reasonable factfinder
could determine that Jackson’s care was constitutionally inadequate, we affirm.
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-2062 Page 2
Jackson’s claims center on a three-year period during which Dr. Patrick Murphy
treated him for a noncancerous testicular cyst. Jackson developed the cyst sometime
before he was transferred to Oshkosh in 2010. He testified that he complained of pain as
early as 2011; Dr. Murphy, though, first treated the cyst in 2012. At that time,
Dr. Murphy continued Jackson’s pre-existing prescription for a scrotal support and
increased the dosage of pain relievers he was already receiving for chronic abdominal
pain. Jackson found these steps inadequate and requested the cyst be removed. After a
year of trying different combinations of medications, Jackson reported no decrease in
pain despite an ultrasound showing little change in the cyst, so Dr. Murphy referred
him to a urologist. According to the urologist, Jackson demanded the cyst be removed,
but she concurred with Dr. Murphy’s decision to manage Jackson’s symptoms rather
than attempt a surgery that was not guaranteed to relieve his pain, and that could even
have increased it. The urologist recommended referring Jackson to a pain clinic;
Dr. Murphy approved, and Jackson visited the clinic in November 2013.
Staff at the clinic believed that Jackson’s pain might have been neuropathic rather
than related to the cyst, but investigation of that theory was stymied by another of
Jackson’s conditions—severe nasal congestion later linked to a deviated septum.
Dr. Murphy scheduled an MRI in December 2013, but the test was canceled because of
Jackson’s difficulty breathing. Dr. Murphy diagnosed him first with an upper
respiratory infection, then allergies, and prescribed Jackson nasal spray, a sinus
cleaning kit, and various medications. Meanwhile, Jackson saw the urologist again and
this time she recommended surgery—though she again warned that it could worsen his
pain. Dr. Murphy decided against surgery until an MRI could be conducted to rule out
neuropathy.
While Jackson’s congestion cleared, Dr. Murphy started treating Jackson’s pain
with steroid injections. In May 2014, Jackson was able to undergo the MRI, which
showed no abnormalities. Ultrasounds that summer also showed the cyst had not
grown significantly over the years, but Jackson continued to report no improvement
despite the steroid injections and more adjustments to his medications. Having
exhausted non-surgical treatment options, Dr. Murphy authorized surgery to remove
the cyst in early 2015. He also referred Jackson to an ear, nose, and throat specialist to
resolve his lingering congestion before the surgery. The specialist diagnosed the
deviated septum and suggested surgery if symptoms continued despite Dr. Murphy’s
treatment plan. They did continue, so in May 2015, Jackson had his septum repaired.
The cyst was successfully removed a few months after.

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No. 20-2062 Page 3
Jackson later brought this suit under 42 U.S.C. § 1983. He alleged that
Dr. Murphy and other members of the prison medical staff violated his Eighth
Amendment rights by delaying surgery and mistreating his symptoms. He also asserted
that various prison officials ignored his complaints of ineffective medical treatment.
Defendants moved for summary judgment, and the district court granted that motion.
In a detailed order, the court explained that, although Jackson disagreed with his course
of treatment, no reasonable factfinder could conclude that it fell so far short of
professional standards that it amounted to cruel and unusual punishment.
On appeal, Jackson urges that the record shows a material factual dispute over
whether Dr. Murphy withheld effective treatment for his cyst and other conditions. He
does not develop any arguments regarding the other defendants, who in any event he
accused primarily of ignoring his complaints about Dr. Murphy.
We agree with the district court that no reasonable jury could find that
Dr. Murphy was “deliberately, that is subjectively, indifferent” to Jackson’s health.
See Johnson v. Dominguez, No. 19-1727, 2021 WL 3123756, at *4 (7th Cir. July 23, 2021).
Far from ignoring Jackson’s symptoms, Dr. Murphy continually responded to Jackson’s
complaints, exercised his medical judgment in evaluating them with the help of
specialists, and attempted a multitude of treatments. This sort of varied and responsive
care does not support a constitutional claim. Id. at *5.
Jackson insists that Dr. Murphy knew that non-surgical remedies would be
ineffective. He highlights one drug the doctor prescribed in October 2014 that he
refused to take because it had previously failed to relieve his abdominal pain. But he
has offered no evidence to suggest that this prescription departed substantially from
acceptable medical judgment nor that it undermined the totality of the care he received.
See Lockett v. Bonson, 937 F.3d 1016, 1023–24 (7th Cir. 2019). Although he expressed a
consistent preference for immediate surgery over trying any of the varying options
Dr. Murphy prescribed, the Constitution does not entitle Jackson to demand specific
treatment. See Harper v. Santos, 847 F.3d 923, 928 (7th Cir. 2017).
Jackson contends that a jury could fault Dr. Murphy for persisting in his own
treatment plan instead of relying on specialists. His argument rests principally on
Hayes v. Snyder, 546 F.3d 516 (7th Cir. 2008), in which we recognized that a factfinder
could infer deliberate indifference when a prison doctor did not know the cause of an
inmate’s symptoms and refused to refer him to a specialist for that reason. Id. at 526. But
Dr. Murphy did not rebuff specialists, and indeed worked with several to diagnose and

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No. 20-2062 Page 4
treat Jackson. Perhaps, as Jackson argues, Dr. Murphy could have referred him sooner,
but the decision to refer a patient to a specialist is itself an “exercise of medical
discretion,” that violates the Constitution only if a doctor’s choice is “blatantly
inappropriate.” Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014) (citation omitted). No
reasonable jury could find that Dr. Murphy’s decisions fit that bill. Dr. Murphy did not
need the urologist to diagnose the cyst, and the urologist initially agreed with his
treatment plan. And though only the ear, nose, and throat doctor diagnosed the
deviated septum, Dr. Murphy’s treatments were endorsed by that specialist and helped
to rule out other possibilities, including the allergies that the specialist agreed were
another potential cause of Jackson’s symptoms even while recommending surgery.
Jackson also argues that Dr. Murphy should have approved the cyst removal as
soon as the urologist recommended it in early 2014. Dr. Murphy, though, exercised his
reasoned medical judgment in electing to await the outcome of the MRI and steroid
injections first. Mere disagreement between medical professionals about the best course
of action does not suggest deliberate indifference. See id. at 409. And the urologist and
Dr. Murphy did not disagree much; the urologist acknowledged that surgery could
have made things worse instead of better. This is strong evidence suggesting that
Dr. Murphy’s decision to try other options before surgery was reasonable. See Howell v.
Wexford Health Sources, Inc., 987 F.3d 647, 660 (7th Cir. 2021).
AFFIRMED

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