Daryise L. Earl v. Steve R. Kinziger

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 11, 2024*
Decided September 12, 2024
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-3227
DARYISE L. EARL,
Plaintiff-Appellant,
v.
STEVE R. KINZIGER, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 20-cv-617-pp
Pamela Pepper,
Chief Judge.
O R D E R
Daryise Earl, a Wisconsin prisoner, appeals the summary judgment rejecting his
claim that a dentist at his facility was deliberately indifferent to his abscessed tooth.
Because no reasonable jury could find that the dentist’s treatment violated Earl’s rights
under the Eighth Amendment, 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. 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NONPRECEDENTIAL DISPOSITION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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We construe the record in favor of Earl, the non-movant. See Arce v. Wexford
Health Sources Inc., 75 F.4th 673, 678 (7th Cir. 2023). In 2015, Earl, housed at Kettle
Moraine Correctional Institution in Plymouth, Wisconsin, was diagnosed with a dental
fistula (a kind of canal that develops under the gumline and transports pus from an
infection). The fistula was caused by a dental abscess (an infection at the end of the root
of the tooth), and a prison dentist recommended extraction of the tooth or a root canal.
Earl, who reported that he was not in any pain, declined immediate treatment.
At a teeth cleaning three years later, a dental hygienist noted that the fistula had
become chronic. Although Earl denied that the fistula bothered him, the hygienist
advised him that an untreated abscess could lead to other health issues. And several
months later, the prison dentist, Dr. Steve Kinziger, placed Earl on the routine waitlist
for an extraction.
The following year, Earl began inquiring about the date when his abscessed
tooth would be extracted. On September 9, 2019, he filed a dental service request (DSR)
asking when he would be seen by a dentist. The next day, he received a response from
Dr. Angelo Panos, a part-time dentist who had since replaced Dr. Kinziger. Dr. Panos
informed Earl that he was on the list to be seen, but no exact date could be provided.
Earl then wrote to the Health Services Manager, complaining about the delay. Dr. Panos
assured Earl that he was on the waitlist and would be alerted when an appointment
was available. On September 11, Earl sent another DSR to the dental services unit, this
time reporting that he was in pain and needed to be seen immediately. The next
morning, September 12, Dr. Panos responded by jotting a notation on the bottom of the
form that Earl “will be seen today.” Later that morning, Earl was directed by a
correctional officer to report to an appointment with Dr. Panos.
Earl, who had experienced flu-like symptoms all week and was asleep in his cell,
was slow to respond. He first had to, in his words, “immediately empty [his] bowels.”
Twenty-five minutes later, an officer from the Health Services Unit (HSU) called Earl’s
unit officer to ask if Earl was on his way. The unit officer said that Earl “was still
washing his face and [slowly] getting ready for his appointment.” Because of this delay,
Dr. Panos decided to declare Earl a “no show”; the dentist noted in Earl’s dental records
that the appointment would be rescheduled.
Later that day, Earl wrote to the Health Services Manager and explained his
reason for running late, reiterating that his dental situation was urgent and needed
immediate attention. But at the time, the prison did not have a Health Services

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No. 23-3227 Page 3
Manager. (A new Health Services Manager did not begin work until September 16, and
she did not respond to Earl’s letter until September 20.)
Meanwhile, on September 14, Earl submitted another DSR, stating that he
needed to be seen immediately for his painful abscessed tooth. The request was
stamped as having been received on September 15. According to Earl’s dental records,
Dr. Panos received the request on September 17 and placed Earl on the “essential”
waitlist (to be seen within eight weeks) for a tooth extraction. Two days later, Earl
brought his need for immediate care to the attention of a unit officer, who called the
HSU on Earl’s behalf.
On September 19, another dentist extracted Earl’s abscessed tooth.
Earl brought this deliberate indifference suit against Dr. Panos and several other
dentists and healthcare providers at the prison along with the Wisconsin Injured
Patients and Families Compensation Fund (a program that provides medical
malpractice coverage to certain healthcare providers in Wisconsin). According to Earl,
Dr. Panos inexplicably delayed treating his abscessed tooth for a week, in violation of
his rights under the Eighth Amendment. See 42 U.S.C. § 1983.
The judge entered summary judgment for the defendants, ruling that Earl
presented no evidence from which a jury could find that Dr. Panos had inexplicably
delayed treatment.
Under the Eighth Amendment, Dr. Panos may be held liable for deliberate
indifference if he knew about and yet consciously disregarded a serious medical
condition. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The deliberate indifference
standard is “essentially a criminal recklessness standard.” Davis v. Kayira, 938 F.3d 910,
915 (7th Cir. 2019) (quoting McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013)). An
inexplicable delay in treating an abscessed tooth can support an inference of deliberate
indifference. See Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 940 (7th Cir. 2015). Because the
district judge decided the case on summary judgment, our review is de novo. Arce,
75 F.4th at 678.
Earl challenges only the district judge’s summary judgment ruling for Dr. Panos.
He argues, first, that the district judge overlooked evidence that Dr. Panos ignored his
September 12 letter to the Health Services Manager, in which he explained his reason
for missing the appointment and his need for his immediate treatment. In Earl’s view,
Dr. Panos must have received his letter because the doctor had responded to another

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letter that he sent two days earlier to the Health Services Manager. According to Earl,
Dr. Panos’s disregard of his September 12 letter intentionally delayed any treatment for
his abscessed tooth by a week.
Earl’s narrative, however, misconstrues the record. Earl does not point to any
evidence that calls into question Dr. Panos’s affidavit testimony that he never received
the letter. The HSU may have forwarded one of Earl’s prior letters to Dr. Panos, but
nothing in the record reflects that the September 12 letter was similarly forwarded.
Indeed, the Health Services Manager who began work on September 16 testified that
she was the person who reviewed the letter, and four days later she responded to it. A
defendant is liable for damages under § 1983 only if he was personally responsible for a
constitutional violation, Stockton v. Milwaukee Cnty., 44 F.4th 605, 619 (7th Cir. 2022), and
on this record no reasonable jury could conclude that Dr. Panos bore personal
responsibility for any delay caused by his untimely receipt of the September 12 letter.
Earl argues, alternatively, that even if Dr. Panos did not receive the September 12
letter, a jury still could find the doctor deliberately indifferent. Earl relies on our
decision in Dobbey v. Mitchell-Lawshea, in which we vacated summary judgment in favor
of a prisoner who was not examined until 21 days after a painful abscessed tooth had
been confirmed by a medical technician. See 806 F.3d at 940–41. In determining that
there was a genuine fact question, we noted that the district judge “failed to appreciate
the gravity of a tooth abscess or attach sufficient weight to the slack response of prison
staff to Dobbey’s medical problem.” Id. at 940. Earl maintains that Dr. Panos had to
know that his abscessed tooth would not resolve itself and yet still did nothing.
This case is distinguishable from Dobbey. Dr. Panos did not disregard Earl’s
complaints. Unlike Dobbey’s dentist, Dr. Panos arranged to extract Earl’s abscessed
tooth. But the extraction did not take place as scheduled because Earl did not show up.
If a prisoner passes up an opportunity to receive treatment, a medical provider
generally is not deliberately indifferent for construing the prisoner’s ongoing medical
need as non-urgent. See Munson v. Newbold, 46 F.4th 678, 681–82 (7th Cir. 2022) (no
deliberate indifference where prisoner abandoned medical appointment to answer legal
phone call). Even if we assume that Dr. Panos should have known—even after the
missed appointment—that Earl’s abscessed tooth would not resolve on its own, Earl’s
treatment needs did not go unheeded. In an entry made to Earl’s dental records on
September 12, Dr. Panos noted the cancellation and resolved to “reschedule one more
time according to policy.” Unlike Dobbey, there was no unexplainable delay or complete
lack of treatment.

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Earl next argues that the district judge overlooked evidence that he had
submitted the DSR on September 14 and that Dr. Panos received it the following day.
The evidence Earl refers to is a copy of Earl’s dated and stamped DSR, which appears in
his dental records. This dated and stamped DSR, Earl says, undermines the judge’s
finding that Dr. Panos did not receive the DSR until September 17. Because his tooth
was extracted on September 19, Earl maintains that the additional two days that Dr.
Panos knew of his condition (from September 15 to 17) render inexplicable the delay in
treatment.
But no evidence shows that Dr. Panos received the DSR before September 17.
That is the date on which Dr. Panos testified he received the request, and he
memorialized his receipt of it that same day in an entry he placed in Earl’s dental
records. Further, the “09 15 19” time stamp suggests that the request was processed by
an HSU staff member, and not Dr. Panos. The stamp appears alongside a notation on
the form that says, “Triage By HSU When Dental Staff Not On Site”—an indication that
HSU handled the matter because no dentist was present that day.
Lastly, Earl asserts that the district judge wrongly discounted his notarized
amended complaint as unverified because it lacked any indication that it was signed
under penalty of perjury. See 28 U.S.C. § 1746. Although we construe pro se briefs
generously, an appellant must make a discernable argument challenging the judge’s
ruling. See F ED. R. A PP . P. 28(a)(8)(A); Anderson v. Hardman, 241 F.3d 544, 545–46 (7th Cir.
2001). Because Earl fails to tell us, for instance, which statements in his complaint would
have precluded summary judgment for Dr. Panos, he supplies no reason to disturb the
entry of summary judgment.
AFFIRMED

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