David C. Lee Walton v. Virginia Trzebiatowski

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 22, 2024*
Decided March 26, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-2571
DAVID C. LEE WALTON,
Plaintiff-Appellant,
v.
VIRGINIA TRZEBIATOWSKI,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 22-C-479
William C. Griesbach,
Judge.
O R D E R
David Walton, a Wisconsin prisoner, appeals the summary judgment in favor of
a nurse who he alleges ignored his pain and delayed a neurology appointment in
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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violation of his Eighth Amendment rights. See 42 U.S.C. § 1983. In entering summary
judgment, the district court reasoned that the nurse did not work at the prison during
most of the relevant time, and for the time she was employed, a jury could not find that
she ignored his condition. Because the court correctly concluded that no reasonable jury
could find that the nurse was deliberately indifferent to Walton, we affirm.
We recite the facts in the light most favorable to Walton, the non-moving party.
See Arce v. Wexford Health Sources, Inc., 75 F.4th 673, 678 (7th Cir. 2023). Walton has
occipital neuralgia, a neurological condition that causes throbbing pain in his head. In
August 2021, a neurologist prescribed carbamazepine for the condition and suggested
that they meet again in three months to discuss possibly adjusting the dosage. Walton
transferred to Green Bay Correctional Institution in October 2021, and a week later he
saw Virginia Trzebiatowski, a nurse, who reviewed his medical history and continued
his prescription for carbamazepine.
Trzebiatowski was a semi-retired worker. She worked under term contracts with
the prison. As part of her contract, she left her work with Green Bay in late December,
the month after she saw Walton. She did not return until mid-April of the next year.
Walter wrote to the health unit several times. Shortly before Trzebiatowski’s
term ended in December, Walton asked (without directing his inquiry to any named
person) whether the unit had scheduled a follow-up meeting with the neurologist, and
he added that his head was in pain. Dissatisfied with the responses, which came from
nurses other than Trzebiatowski, he repeated his requests and complaints in the months
after Trzebiatowski left. A nurse replied that his advanced care provider would need to
see him before referring him to a specialist and that scheduling constraints could delay
a meeting with that provider. Walton asked who his provider was, and he was told,
while Trzebiatowski was still out, that it was Trzebiatowski.
On the day that Trzebiatowski returned to the prison, Walton sued her. He
alleged that, from the time she first saw him at Green Bay until he filed his suit, she had
violated his Eighth Amendment rights by deliberately ignoring his complaints of pain
and requests for a follow-up neurology appointment. Trzebiatowski moved for
summary judgment. Because she filed her motion more than two months after the
court’s deadline for dispositive motions, her counsel also asked for leave to file it late,
explaining that staff turnover had led to an inadvertent failure to note the filing
deadline. Walton opposed the request for leave but did not assert any prejudice.

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No. 23-2571 Page 3
The court ruled on both requests. First it found that, by moving for summary
judgment “as soon as possible” and causing no prejudice, Trzebiatowski’s counsel had
excusable neglect for the delay. See F ED. R. CIV. P. 6(b); 16(b)(4). The court also granted
the motion for summary judgment, explaining why no reasonable jury could find that
Trzebiatowski had recklessly ignored Walton’s condition: When she first met with
Walton, she continued the neurologist’s prescription for Walton’s neuralgia, and no
evidence showed that she saw Walton’s written complaints about pain.
Walton’s brief on appeal is deficient. It is almost an exact copy of his brief
opposing summary judgment; thus it does not engage with the district court’s decision
and violates Rule 28(a)(8) of the Federal Rules of Appellate Procedure, with which even
a pro se appellant must comply. See Anderson v. Hardman, 241 F.3d 544, 545–46 (7th Cir.
2001); F ED. R. A PP . P. 28(a)(8). We could dismiss his appeal for that reason, but we prefer
to decide a case on the merits if we can. See Boutros v. Avis Rent a Car Sys., LLC, 802 F.3d
918, 924 (7th Cir. 2015). We can do so here.
We first address Walton’s objection to the district court’s extension of time for
Trzebiatowski to move for summary judgment. Rule 6(b)(1)(B) of the Federal Rules of
Civil Procedure authorizes a court to extend any deadline “if the party failed to act
because of excusable neglect.” Courts have “wide latitude,” Nartey v. Franciscan Health
Hosp., 2 F.4th 1020, 1024 (7th Cir. 2021), to assess excusable neglect, which we review for
abuse of discretion, Sherman v. Quinn, 668 F.3d 421, 425 (7th Cir. 2012). The relevant
factors are the extent of, the reason for, and any prejudice from a delay, as well as the
movant’s good faith. Id. at 425–26. Here, the court was well within its discretion to find
that, because counsel filed the motion “as soon as possible” and caused no prejudice
through a modest delay attributable to inadvertence, the neglect in meeting the original
deadline was excusable. The ruling is thus sound.
That brings us to the adverse summary judgment, which we review de novo,
construing all facts in favor of Walton, the non-movant. Arce, 75 F.4th at 678. We agree
with the district court that no reasonable jury could find that Trzebiatowski violated
Walton’s Eighth Amendment rights. To stave off summary judgment, Walton had to
cite evidence that Trzebiatowski knew of and deliberately disregarded Walton’s serious
medical condition. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Stockton v. Milwaukee
Cnty., 44 F.4th 605, 615 (7th Cir. 2022). This standard “mirrors the recklessness standard
of the criminal law.” Brown v. LaVoie, 90 F.4th 1206, 1212 (7th Cir. 2024). Walton cites no
such evidence, and the record indicates the opposite. When Trzebiatowski first met
Walton in November 2021, she immediately reviewed his medical history and

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reasonably continued his prescription for relieving pain from his occipital neuralgia.
Walton insists that she ignored the complaints of pain that he later sent to the health
unit. But no evidence suggests that Trzebiatowski saw these before she stopped
working at the prison a month later. The complaints that he submitted to the unit before
her term ended in December were sent just before she left, were not addressed to her
personally, and were answered by other nurses.
We recognize that, when Trzebiatowski was not at the prison, Walton continued
to ask the health unit to schedule a neurology appointment to address his pain, and a
nurse replied that Trzebiatowski was the provider he had to see to get an appointment
with a specialist. But these facts cannot render Trzebiatowski culpable. Under § 1983,
defendants may be liable only for conduct in which they are personally involved.
Stockton, 44 F.4th at 619. No evidence suggests that during her absence Trzebiatowski
had the authority to schedule Walton with a specialist. Further, Walton has not sued
whoever told him that he needed to rely on an absent Trzebiatowski, and Trzebiatowski
cannot be liable for tasks assigned to others during her absence. See Burks v. Raemisch,
555 F.3d 592, 595 (7th Cir. 2009); see also Hunter v. Mueske, 73 F.4th 561, 566 (7th Cir.
2023).
AFFIRMED

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