Leighton D. Lindsey v. Mary Sauvey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 22, 2019 *
Decided April 23, 2019
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 18‐2894
LEIGHTON D. LINDSEY,
Plaintiff‐Appellant,
v.
MARY SAUVEY, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 17‐C‐330
Lynn Adelman,
Judge.
O R D E R
Leighton Lindsey, a Wisconsin prisoner, sued two prison doctors and a nurse for
deliberate indifference when treating his asthma. Concluding that no reasonable jury
could find that the defendants acted with a culpable state of mind, the district judge
entered summary judgment in their favor. We affirm the judgment.
* 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. FED. 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NONPRECEDENTIAL DISPOSITION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. 18‐2894 Page 2
Before arriving at Green Bay Correctional Institution, Lindsey had been
diagnosed with “mild asthma” and prescribed two different inhalers. One was a daily
preventative inhaler and the other an as‐needed “rescue” inhaler that delivered
albuterol (a medication that eases asthmatic symptoms). Upon Lindsey’s arrival at the
prison, he was examined by Dr. Mary Sauvey, who renewed these prescriptions. But
after a prison disciplinary committee found that Lindsey had misused the rescue
inhaler (by refusing to return it to prison staff), Dr. Sauvey discontinued that
prescription. Two days later, she examined Lindsey, found him to be in “excellent”
condition, and observed no negative effects of the inhaler’s absence. Lindsey protested,
however, so one week later she ordered that albuterol be available to him as needed via
a nebulizer (an electronic machine that delivers medication in mist form to be inhaled
through a facemask) in his housing unit.
About a year later, Dr. Lisa Allen took over as Lindsey’s prison physician and he
complained to her about not having his rescue inhaler. Dr. Allen examined Lindsey,
noting that his lungs were clear, his oxygen levels were normal, and he showed no signs
of respiratory distress. Aware that Lindsey had access to a nebulizer and previously
had misused his inhaler, Dr. Allen refused to prescribe a rescue inhaler for him.
One evening, while in his cell, Lindsey complained to a prison guard that he was
experiencing asthma “complications,” including lightheadedness, dizziness, and
shortness of breath. The guard conveyed this complaint to Steve Bost, a nurse who had
treated Lindsey before; the guard added, however, that Lindsey was standing at his cell
door, speaking without difficulty, and did not appear to be in respiratory distress.
Based on this assessment, Nurse Bost instructed the guard to have Lindsey submit a
health service request. Lindsey did so the next day, but he only complained about
Nurse Bost’s conduct and did not ask to see a doctor or nurse for his asthma.
Lindsey sued both doctors and the nurse for deliberate indifference towards his
asthma under 42 U.S.C. § 1983. He argued that each violated his Eighth Amendment
rights: Dr. Sauvey discontinued his rescue inhaler, Dr. Allen refused to re‐prescribe it,
and Nurse Bost ignored his request for immediate treatment. The district court granted
the defendants’ motion for summary judgment, concluding that each defendant
permissibly used her or his medical judgment when treating Lindsey. Without deciding
whether Lindsey’s “mild” asthma was a serious condition, the court determined that
the evidence could not support an inference that any of the defendants blatantly
mistreated him or disregarded a risk to his health.

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No. 18‐2894 Page 3
On appeal, Lindsey argues that the evidence he presented raised genuine issues
of material fact and that the district court improperly weighed these facts when entering
summary judgment in the defendants’ favor. He maintains that a rescue inhaler is “the
best course of medical treatment” for him and that his doctors ignored his complaints
that prison guards had denied him access to a nebulizer whenever he requested it.
Lindsey’s conviction that the care he received was not “the best course” for him
cannot stave off summary judgment; he is not entitled to dictate his own care.
See Harper v. Santos, 847 F.3d 923, 927 (7th Cir. 2017). The Eighth Amendment protects
him from only the “criminal recklessness” of prison staff. See Huber v. Anderson,
909 F.3d 201, 208 (7th Cir. 2018). Nothing in the record suggests that the considered
opinions of both examining doctors—that he did not need a rescue inhaler, that his
symptoms remained under control without it, and that a nebulizer should be made
available in an emergency—constitute a “substantial departure from accepted
professional judgment, practice, or standards.” Petties v. Carter, 836 F.3d 722, 729
(7th Cir. 2016) (en banc) (citation omitted).
Lindsey also argues that the court failed to credit his assertion that a nebulizer
was not always available to him. But he does not suggest that any of the named
defendants denied him access to a nebulizer, and they cannot be vicariously liable
under the Eighth Amendment for someone else’s conduct. See Aguilar v. Gaston‐Camara,
861 F.3d 626, 630 (7th Cir. 2017).
Finally, Lindsey contends that a jury could find deliberate indifference on Nurse
Bost’s part in refusing him immediate assistance when requested. However, Lindsey
does not point to any evidence that the nurse blatantly mistreated him or recklessly
disregarded his needs. See Harper, 847 F.3d at 928. He disputes the fact that he was at
the door to his cell having a conversation with the prison guard when he requested
medical attention. Regardless, it is uncontested that the guard told Nurse Bost that
Lindsey was speaking and breathing normally, and that the nurse generally was aware
of Lindsey’s medical history. Given these uncontested facts, the district court correctly
recognized that no reasonable jury could find Nurse Bost to have been deliberately
indifferent.
AFFIRMED

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