Christopher Berry v. Jean Lutsey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 20, 2019*
Decided July 3, 2019
Before
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 18‐2614
CHRISTOPHER BERRY,
Plaintiff‐Appellant,
v.
JEAN LUTSEY, et al.,
Defendants‐Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17‐C‐551
William C. Griesbach,
Chief Judge.
O R D E R
Christopher Berry, a Wisconsin inmate, appeals the entry of summary judgment
on his Eighth Amendment claim that prison medical staff and administrators were
deliberately indifferent to his pain from scoliosis. Because the record undisputedly
shows that the healthcare providers applied constitutionally adequate medical
* We have agreed to decide the 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NONPRECEDENTIAL DISPOSITION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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judgment to treat Berry, and the administrators permissibly relied on that judgment, we
affirm.
We derive the events from the defendants’ statement of facts. Berry’s response to
the defendants’ motions for summary judgment did not comply with the Eastern
District of Wisconsin’s Local Rule 56(b)(2)(B) because Berry did not address their
proposed facts. So, like the district court, we accept the defendants’ statement of facts
where supported by admissible evidence, but still view those facts in the light most
favorable to Berry. Gosey v. Aurora Med. Ctr., 749 F.3d 603, 605 (7th Cir. 2014).
Berry’s care at Green Bay Correctional Institution began in 2015. A doctor at a
previous prison had prescribed restrictions to accommodate Berry’s scoliosis, such as a
lower bunk, back brace, extra pillow, and supportive shoes. Upon Berry’s arrival at
Green Bay, Dr. Mary Sauvey continued these restrictions for three months (until
February 2016) and scheduled an appointment in January 2016 for Berry to request their
extension. At that January appointment, Berry did not request extensions. Afterward,
though, he asked that the prison extend his restrictions indefinitely. A nurse responded
that Green Bay did not prescribe restrictions indefinitely and reminded Berry that,
unless renewed, his restrictions would expire in February.
Medical staff continued to review Berry’s need for medical restrictions.
Dr. Sauvey examined him in March 2016. She found that Berry had no need for special
shoes, but ordered a back brace for him and another appointment in six months. She
did not prescribe a low‐bunk restriction or extra pillow, so those accommodations were
not renewed. Dissatisfied, Berry responded with requests for pain medicine, a low
bunk, and an extra pillow. A nurse replied that the doctor “gave you a back brace to
help” and that the order for other restrictions had “expired.” He was scheduled to see a
doctor again on March 21. That visit, however, was cancelled when his unit was locked
down that day. Afterward, Berry filed grievances to complain again that his restrictions
had expired and that he wanted to see a doctor for back pain. His grievances were
dismissed because his medical records showed that he did not need more restrictions,
and though the prison was temporarily without a full‐time physician—Dr. Sauvey
retired in April—Berry would be seen by one “as soon as possible.”
Over the next six months, the prison again scheduled Berry to see a doctor. He
had an appointment on June 1 to discuss his medical restrictions, but he refused to go.
Apparently, a guard (who is not a defendant) had mistakenly told him that it was for an
eye exam, not his back pain. A week later, Berry went to health services for a walk‐in
visit to complain about the missed appointment. A nurse advised him to attend each

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scheduled doctor’s appointment to learn what it is for, and that he could refuse care at
that point. She put him on a waiting list to see a doctor. She also observed that Berry
was in no “acute distress” and walked with a “steady … even gait.” Berry responded
with more requests to see a doctor and renew his restrictions. Nurses responded to each
request. They noted that his exams showed no need for the restrictions, that he was on
the waiting list to see a doctor, and that he could see a nurse at a walk‐in visit if he did
not want to wait. Berry did see a nurse in July. She did not reinstate any restrictions but
scheduled his next doctor’s appointment for September.
Berry saw Dr. Lisa Allen, the prison’s new full‐time physician, in
September 2016. That month matched the time frame that Dr. Sauvey had planned in
March for his six‐month, follow‐up visit. After an exam where Berry walked with a
“steady” gait, Dr. Allen prescribed an extra pillow, a low bunk, gel inserts for his shoes,
and new pain medicine. She noted that she would reevaluate the restrictions annually.
A follow‐up was scheduled two weeks later to assess the new pain medication.
Over the next year, Berry requested more accommodations. Upon receiving
each request, Dr. Allen or a nurse, along with Green Bay’s Special Needs Committee,
weighed the need for the restriction against security concerns. Whenever they denied
his requests, Berry responded with grievances. Each grievance was dismissed on the
basis that medical staff had found that the request was medically unnecessary or that
security concerns outweighed any medical need. His chief complaint was that his pain
medicine was ineffective. In response to this complaint, a nurse practitioner ordered an
MRI and referred Berry to outside experts. Those experts concluded that surgery was
not necessary but recommended steroid injections, which Berry received. Throughout
this period, the doctors and nurses who evaluated Berry also observed that Berry
walked with a “normal” or “steady” gait. By the end of this period, in September 2017,
based on test results and pain‐management treatments, the prison determined that the
“objective evidence” did not support Berry’s “subjective” complaints. They terminated
many of his restrictions, but continued steroid injections. A prison doctor corroborated
these findings two months later.
Berry’s next step was this lawsuit. He sued doctors, nurses, and administrators at
Green Bay for violating the Eighth Amendment through deliberate indifference to his
medical needs. As relevant to this appeal, he focuses on three issues: first, the delay in
scheduling him to see a doctor from April to September 2016; second, the prison’s
decisions to deny him some of the restrictions and treatment that he wanted; and third,
the prison administrators’ refusal to rectify these problems through his grievances.

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Seeing no evidence suggesting that his medical care was reckless, the district court
entered summary judgment for the defendants.
On appeal, Berry argues that a jury could find that the defendants deliberately
ignored his pain and need for restrictions. To survive summary judgment, Berry needed
to submit evidence showing that (1) his medical need was objectively serious, and
(2) the defendants consciously disregarded this need. See Farmer v. Brennan, 511 U.S.
825, 834 (1994); Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc). “[D]eliberate
indifference to prolonged, unnecessary pain can itself be the basis for an Eighth
Amendment claim.” Smith v. Knox Cty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012).
We will assume that Berry’s scoliosis and pain were serious. Nevertheless, we
agree with the district court that no jury could find that the prison staff deliberately
ignored his condition. We begin with Berry’s complaint about the six months that it
took for him to see a doctor between his appointments with Dr. Sauvey in March 2016
and Dr. Allen in September. For two reasons, this wait did not violate the Eighth
Amendment.
First, the gap in doctors’ visits was rooted in medical judgment. Dr. Sauvey
determined, based on her full evaluation of Berry’s condition in March (when she
ordered a back brace for Berry’s back pain and scoliosis), that a follow‐up in six months
was proper. An exercise of medical judgment like this negates a claim of deliberate
indifference. See Petties, 836 F.3d at 729. Furthermore, Berry points to no medical
evidence contradicting the propriety of a semi‐annual review of his condition. And
Berry’s own neglect in January to ask for an extension of his restrictions, even though
that was one purpose of the appointment, reinforces the conclusion that Dr. Sauvey’s
judgment to schedule a follow‐up appointment six months later was not reckless.
Second, during these six months, medical staff did not ignore Berry when he
demanded urgent care. Even though the prison was without a full‐time doctor for a few
of these months, it twice scheduled him to see one, in late March and in June. True, a
lockdown cancelled the March visit, and a guard mistakenly told Berry that the June
appointment was for his eyes. But Berry cannot attribute those decisions to the
defendants personally. See George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). For
example, he has not suggested that the defendants faked the lockdown or told the
guard to trick him into ignoring his appointment. And after he ignored his June
appointment, the staff still attended to his needs: a nurse rescheduled the appointment,
advised him to keep all other appointments, and told him that, at any time, he could see
a nurse at a walk‐in clinic who would refer him to a doctor if needed. Under these

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circumstances, we see no evidence of deliberate indifference. See Wilson v. Adams, 901
F.3d 816, 821–22 (7th Cir. 2018) (affirming grant of summary judgment on claim of
deliberate indifference to pain where “totality” of care showed proper attention to
inmate.)
We next address Berry’s contention that the defendants recklessly disregarded
his requests for restrictions and complaints of pain. The record belies this contention.
Dr. Sauvey prescribed some restrictions when Berry arrived at Green Bay; medical staff
told him that the prison does not keep restrictions in place indefinitely; and in
September 2016, Dr. Allen restored restrictions for an extra pillow, a low bunk, gel
inserts for his shoes, and new pain medicine. When Berry’s pain did not abate in 2017,
he received an MRI, a visit with outside experts, and steroid injections. Although Berry
did not receive every accommodation that he wanted, when the staff did not grant
Berry one of his requests, they did so based on the absence of a medical need (such as
his normal or steady gait) or their assessment that any asserted need did not outweigh
security concerns. Berry points to no evidence that this process is “such a substantial
departure from accepted professional judgment, practice, or standards” that a jury
could find deliberate disregard of his concerns. Petties, 836 F.3d at 729 (quoting Estate of
Cole v. Fromm, 94 F.3d 254, 261–62 (7th Cir. 1996)); see also Lane v. Williams, 689 F.3d 879,
882–83 (7th Cir. 2012) (affirming grant of summary judgment because institutional
security can justify some limits on medical care).
Next, we turn to the prison administrators whom Berry faults for not intervening
to provide him with more care after he submitted his grievances. The claim fails
because no evidence suggests that they had reason to think that the medical staff based
their treatment decisions on anything but medical judgment. See Rasho v. Elyea, 856 F.3d
469, 478–79 (7th Cir. 2017). In his grievances, Berry offered only his lay opinion that his
care was deficient. But a mere difference of opinion with a treatment plan does not
require intervention. See Petties, 836 F.3d at 729. And administrators may rely on the
professional judgment of the medical staff. See Rasho, 856 F.3d at 478–79. Therefore, they
did not recklessly disregard Berry’s Eighth Amendment rights.
One final matter: Berry argues that the district court erred in denying his motion
for recruitment of counsel, but we see no abuse of discretion. The district court
reasonably concluded based on an evaluation of Berry’s pleadings and the record that
his deliberate‐indifference claims were not so complex in relation to his litigation skills
that he required outside assistance to prosecute it. See Olson v. Morgan, 750 F.3d 708,
711–12 (7th Cir 2014); Pruitt v. Mote, 503 F.3d 647, 654–59 (7th Cir. 2007) (en banc).

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We have considered Berry’s remaining arguments, and none has merit.
AFFIRMED

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