Anthony Ashford v. HUGHES LOCHARD and DAVID MARCOWITZ

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 13, 2024 *
Decided March 14, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-1785
ANTHONY ASHFORD,
Plaintiff-Appellant,
v.
HUGHES LOCHARD and
DAVID MARCOWITZ,
Defendants-Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 20-CV-4240
Sue E. Myerscough,
Judge.
O R D E R
Anthony Ashford, a civil detainee at the Rushville Treatment and Detention
Facility in Illinois, appeals the decision granting the defendants’ motion for summary
judgment in his suit alleging constitutional violations arising from his medical
treatment. We affirm.
* 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NONPRECEDENTIAL DISPOSITION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. A PP. P. 32.1

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No. 23-1785 Page 2
Ashford injured his nose on December 2, 2017, while playing basketball. The next
day, he reported pain, and a nurse evaluated him and gave him acetaminophen for
pain. Three days later, a physician assistant determined that Ashford’s nose was
fractured and performed a closed nasal reduction, a procedure in which the nasal bones
are realigned without surgery. The physician assistant noted that, although Ashford
reported improved airflow, his nose was still slightly deviated (which is not unusual
regardless of injury, according to the doctor that treated Ashford).
Two days later, Ashford again complained of nose pain, so medical staff gave
him more acetaminophen and x-rayed his nose. According to the radiologist, the x-ray
showed a “minimally depressed fracture of the tip of the nasal bones” and no other
abnormalities. When Ashford’s pain persisted, the physician assistant provided him
with acetaminophen and again evaluated him. The physician assistant determined that
Ashford’s airways were patent (open) and mentioned a possible referral to an ear, nose,
and throat (ENT) specialist for surgery “if [the] nose is not patent or displacement is not
cosmetically acceptable.” On December 20, 2017, the collegial review team determined
that Ashford would be monitored onsite. The next month, Dr. David Marcowitz
ordered a second x-ray, which showed that the fracture was “stable.”
In September 2018, after Ashford asked why he had not seen a specialist or been
scheduled for surgery, medical staff scheduled a consultation with Dr. Marcowitz, who
ordered a third nasal x-ray. The radiologist’s report showed that the fracture was
“healed” and there was “[n]o improvement” since the second x-ray. Handwritten notes
analyzing the x-ray reported that the nasal passages were “patent.” A follow up x-ray in
April 2019 showed “an old healed fracture” that was “[s]table.”
In November 2020, Ashford sued Dr. Marcowitz and another doctor at Rushville,
Dr. Hughes Lochard, under 42 U.S.C. § 1983. He asserted that they treated his nasal
fracture in an objectively unreasonable manner, in violation of the Fourteenth
Amendment, when they did not refer him to a specialist for evaluation and a surgical
consultation. After discovery, the doctors moved for summary judgment, arguing that
Ashford’s suit was untimely because Ashford broke his nose in December 2017 and,
regardless, Dr. Lochard had left the facility in November 2017. Second, they argued that
he lacked sufficient evidence to raise a genuine dispute of material fact about whether
their responses to his injury were objectively unreasonable. The doctors submitted
affidavits in which they each attested that closed nasal reductions are recommended for
most fractures and that, because of the risks, surgery is not recommended unless the
fracture obstructs the airways or causes frequent infections. In response, Ashford

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No. 23-1785 Page 3
argued that the defendant doctors were not ENT specialists and failed to properly
interpret his x-rays, and further that Dr. Lochard must have been at the prison after
November 2017 because various medical records referred to him.
The district court granted the doctors’ motion for summary judgment. The court
determined that there was no dispute about whether Ashford’s treatment was
consistent with customary medical practice for his type of fracture: The physician
assistant performed the recommended closed nasal reduction just days after Ashford
fractured his nose, and the healing of the fracture was monitored through regular x-rays
thereafter. When, months later, Ashford complained that his nose was not healed and
he required surgery, doctors promptly ordered another x-ray to ensure that it was
healed. Last, Ashford failed to produce any evidence that it was objectively
unreasonable to monitor him onsite rather than refer him to an outside specialist.
Ashford appeals, and we first consider whether the action was barred by the
statute of limitations, which is two years for § 1983 claims brought in Illinois. See Ray v.
Maher, 662 F.3d 770, 772–73 (7th Cir. 2011). Accrual is governed by federal law.
See Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 517 (7th Cir. 2019). For claims
based on medical care, the wrong continues “for as long as the defendants had the
power to do something about [the plaintiff’s] condition.” Id. at 517–18. (alteration in
original). Thus, a defendant’s involvement in the alleged wrong ends when he leaves
the institution. Id. at 518. Here, Dr. Lochard left Rushville in November 2017, so the
November 2020 complaint is untimely with respect to his alleged wrongdoing. But
because Ashford’s course of treatment continued until at least April 2019, his claim
against Dr. Marcowitz is timely.
With respect to that claim, Ashford argues on appeal that, the district court could
not determine at summary judgment that he received appropriate care because he never
saw a specialist. Because Ashford is a civil detainee, his medical-care claim is reviewed
under the Fourteenth Amendment objective unreasonableness standard. See Kingsley v.
Hendrickson, 576 U.S. 389, 397 (2015); Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir.
2019) (extending objectively unreasonable standard to all civil detainee claims about
conditions of confinement, including medical care). This standard exceeds negligence
and even gross negligence: we consider “whether the medical defendants acted
purposefully, knowingly, or perhaps even recklessly” with respect to the consequences
of their treatment decisions. McCann v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018).
Based on the record here, no reasonable jury could find that Dr. Marcowitz’s
chosen course of treatment was objectively unreasonable. The only medical evidence—

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the doctors’ affidavits—shows that the treatment Ashford received was consistent with
customary medical practice. Ashford points to the physician assistant’s statements that
he could be referred to an ENT specialist as evidence that Dr. Marcowitz’s treatment
was unreasonable. But the physician assistant said that referral would be appropriate
“if [the] nose is not patent or displacement is not cosmetically acceptable.” Ashford did
not submit evidence that either of those qualifications applied to him, and record
evidence establishes that the nasal airways were patent. Regardless, the exercise of
medical discretion to deny Ashford’s referral to a specialist was not unreasonable. The
question of a referral was submitted to a collegial review panel and rejected because
Ashford had received the appropriate treatment. Disagreements between Ashford and
the panel—or even between the physician’s assistant and the panel—regarding the
proper course of treatment does not show that the chosen treatment was objectively
unreasonable. See Williams v. Ortiz, 937 F.3d 936, 944 (7th Cir. 2019).
Nor does it matter that Dr. Marcowitz is not an ENT specialist. Courts “impose
no requirement that an expert be a specialist in a given field” to offer evidence. Hall v.
Flannery, 840 F.3d 922, 929 (7th Cir. 2016). Ashford did not support his assertions that
Dr. Marcowitz was unqualified to care for a nasal fracture, nor produce any evidence
casting doubt on the doctors’ testimony about the customary treatment for nasal
fractures. Ashford’s own conclusory statements cannot defeat a motion for summary
judgment. Igasaki v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 956 (7th Cir. 2021).
Last, Ashford insists that Dr. Marcowitz must not have read his x-ray correctly
because he, as a layperson, can see a bone fragment in one of the images of his nose. But
because Ashford develops this argument for the first time in his reply brief, he has
waived it. Bradley v. Village of University Park, 59 F.4th 887, 897 (7th Cir. 2023). In any
event, Ashford’s lay interpretation of medical evidence does not place the doctor’s
interpretations in dispute, and Ashford still cannot point to any evidence that the
presence of a bone fragment would require deviation from standard course of practice
when the airways—like Ashford’s—are unobstructed.
AFFIRMED

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