Menes Alexander Weightman v. Ellen O’brien

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 13, 2025*
Decided February 13, 2025
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 24-1543
MENES ALEXANDER WEIGHTMAN,
Plaintiff-Appellant,
v.
ELLEN O’BRIEN, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 22-cv-1447-bhl
Brett H. Ludwig,
Judge.
O R D E R
Menes Weightman, a Wisconsin prisoner, appeals the grant of summary
judgment for the defendants on his claims that prison medical staff were deliberately
* 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NONPRECEDENTIAL DISPOSITION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

-- 1 of 6 --

No. 24-1543 Page 2
indifferent to his broken foot, in violation of his Eighth Amendment rights. Because no
reasonable jury could find that medical staff were deliberately indifferent, we affirm.
We construe the record in favor of Weightman, the party opposing summary
judgment. See Arce v. Wexford Health Sources Inc., 75 F.4th 673, 678 (7th Cir. 2023). On
July 13, 2022, Weightman fractured a bone on the top of his foot while playing
basketball at Oshkosh Correctional Institution. A nurse saw him the next day, provided
first aid, and ordered x-rays and an ibuprofen prescription. Dr. Cherryl Jeanpierre
approved both orders and, after reviewing the x-rays, confirmed that the foot was
broken. She issued Weightman crutches and referred him to physical therapy to be
fitted for an immobilizing boot. She also ordered that he be restricted to a lower bunk,
but correctional officers did not move him. Upon learning of this, Dr. Jeanpierre
re-issued the order, which was this time implemented. She later resigned from the
prison, and Dr. Ellen O’Brien (an orthopedic specialist) and Dana Simmons (a nurse
practitioner) took over Weightman’s care, along with an outside orthopedic specialist.
The outside specialist saw Weightman a week after his injury. The specialist
concluded that Weightman’s foot was healing and recommended continuing the
treatment plan and attending a follow-up appointment three weeks later. Four weeks
passed without another appointment, and so on August 18, Weightman complained to
the medical staff. Still nothing happened, and a week later, he filed a grievance about
the quality and timeliness of his treatment. On September 2, Simmons learned that the
follow-up appointment had not happened, and she scheduled one with the outside
specialist for a week later (seven weeks after the first appointment).
The specialist was unsatisfied with the rate of healing. He recommended surgery
and treatment with a bone stimulator. Dr. O’Brien reviewed the specialist’s report and
the x-rays and concluded that the foot was healing appropriately, and so surgery was
unnecessary. Still, Weightman wanted the surgery, and Simmons submitted a request
for authorization to the Class III Committee, the group of medical and corrections staff
who authorize non-routine medical treatments. The Committee denied the request on
October 12, and Weightman did not file a grievance about the denial.
Simmons met with Weightman at least once per month after his injury to
monitor his healing progress. Weightman repeatedly expressed concerns about swelling
and the ineffectiveness of ibuprofen to address his pain. Simmons informed him that
the swelling could be a side effect of his blood pressure medication and denied his
requests for other pain medication. She explained that ibuprofen was the prison’s
preferred medication for swelling and pain, and she observed that his pain did not

-- 2 of 6 --

No. 24-1543 Page 3
impede his ability to walk. Simmons scheduled regular follow-up x-rays, which,
according to the radiologists, showed continued healing.
To encourage further healing, the medical staff provided Weightman with daily
bone-stimulator treatment from December 2022 through February 2023. The treatment
was delayed in early December because the device did not work, but Simmons attested
that the device was fixed by late December and that treatment proceeded without issue.
Weightman disagrees, maintaining that the machine never worked and that the
supposed treatment was a placebo. Ultimately, the prison’s medical unit issued a letter
stating that the fracture had fully healed. Weightman, however, asserts that it did not
heal properly; he says his foot is now malformed and that he is still in pain.
Weightman sued many providers involved in his treatment, alleging that they
displayed deliberate indifference to his serious injury, in violation of the Eighth
Amendment, see 42 U.S.C. § 1983, and state law. The district court screened his
complaint, see 28 U.S.C. § 1915A, and allowed him to proceed on claims against
Dr. Jeanpierre, Dr. O’Brien, Simmons, and five members of the Class III Committee.
On the defendants’ motions, the district court disposed of Weightman’s claims in
two rulings. The district court first entered summary judgment for the Committee
members on Weightman’s claim arising from the denial of a surgery referral in October.
The court concluded that Weightman never filed a grievance about the denial and
therefore, under the Prison Litigation Reform Act, had not properly exhausted his
administrative remedies before suing. See 42 U.S.C. § 1997e(a).
The district court then entered summary judgment on the merits for Dr.
Jeanpierre, Dr. O’Brien, and Simmons on Weightman’s Eighth Amendment claim.
Although Weightman produced evidence that medical professionals disagreed about
the proper treatment plan, the court concluded that he produced no evidence that the
treatment he received was below the standard of a “minimally competent professional.”
See Arce, 75 F.4th at 681 (quoting Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)). With no
federal claims remaining, the court relinquished supplemental jurisdiction over the
state-law claims.
Weightman appeals both summary-judgment decisions, which we review de
novo, construing all facts and inferences in his favor. Id. at 678.
Weightman first contests the ruling that he failed to properly exhaust his
administrative remedies with respect to his claim against the Committee members.

-- 3 of 6 --

No. 24-1543 Page 4
Under 42 U.S.C. § 1997e(a), no complaint about prison conditions can be brought unless
there is “proper” exhaustion of administrative remedies, Woodford v. Ngo, 548 U.S. 81, 93
(2006), which means that prisoners must follow the procedures that state law requires,
Jones v. Bock, 549 U.S. 199, 218 (2007). Here, Weightman argues that the grievance he
filed in August—and pursued through each level of review—was sufficient to exhaust
his administrative remedies regarding the Committee’s October denial of a referral for
surgery. In Weightman’s view, the earlier grievance, alleging that prison staff were not
properly treating his foot, covers the denial of surgery because that decision was part of
a continuing violation. See Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013).
Weightman is mistaken. Prisoners need not file multiple grievances raising the
same issue if the objectionable condition is continuing, but they must file separate
grievances when the underlying facts or the complaints are different. Id. Although
Weightman’s treatment and his pain continued from August to October, a delayed
appointment (August) and a denied surgery (October) are qualitatively different. And
different actors were involved in these challenged decisions. Weightman presents what
is better referred to as a “continuing injury”; the Committee’s denial constituted a new
alleged violation while the injury might have persisted. See id. at 654 (Easterbrook, C.J.,
concurring). Because the denial of surgery was a discrete act, a separate grievance was
needed, and so Weightman failed to exhaust his administrative remedies with respect
to the claim against the Committee members. See id.
Regarding his claim against Dr. Jeanpierre, Dr. O’Brien, and Simmons,
Weightman contends that their inadequate care and delayed treatment demonstrated
deliberate indifference to his injury and ongoing suffering. The Eighth Amendment
prohibits prison medical staff from being deliberately indifferent toward a serious
medical condition. Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). The parties agree that a
broken foot is a serious medical condition, and so the question is whether Weightman
presented enough evidence to allow a reasonable jury to conclude that the defendants
were deliberately indifferent. See Arce, 75 F.4th at 679.
He did not. Deliberate indifference consists of more than negligence or
malpractice; the defendant must know of and disregard an excessive risk to the
prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Because the
defendants here made efforts to treat Weightman’s foot, he needs evidence that the
treatment was “such a substantial departure from accepted professional judgment,
practice, or standards, as to demonstrate that the person responsible actually did not

-- 4 of 6 --

No. 24-1543 Page 5
base the decision on such a judgment.” Johnson v. Rimmer, 936 F.3d 695, 707 (7th Cir.
2019) (quoting Youngberg v. Romeo, 457 U.S. 307, 323 (1982)).
Weightman contends that Dr. O’Brien and Simmons fell short of even the
minimally professional standard. He first argues that Dr. O’Brien’s disagreement with
the outside specialist’s surgery recommendation would allow a jury to infer deliberate
indifference. But disagreement between doctors about a treatment plan does not show a
substantial departure from accepted medical judgment unless the disagreement is based
on non-medical reasons. McDaniel v. Syed, 115 F.4th 805, 833 (7th Cir. 2024). Dr. O’Brien,
an orthopedic specialist herself, disagreed with the outside specialist about the need for
surgery because her independent review showed that Weightman’s foot was healing
adequately. See id. Weightman provides no evidence that her decision was based on
non-medical reasons, and so the medical judgment rule applies.
Weightman also cites Simmons’s refusal to prescribe him pain medication
stronger than ibuprofen—he mentions opioids—as evidence of deliberate indifference
towards his pain, but again he establishes no more than an exercise of medical
judgment. The Eighth Amendment does not guarantee a patient his preferred
medication or a pain-free recovery. Arce, 75 F.4th at 681. The pain must still be
addressed, because a provider cannot knowingly persist with ineffective treatment if a
known and effective alternative is readily available, but the measures taken to alleviate
it need only be reasonable. Id. Although Weightman often told Simmons that he was in
pain despite the ibuprofen, his complaints were not ignored. Simmons considered the
issue and observed that his pain was not severe enough to impair his walking, that he
had a boot to help stabilize his foot, and that ibuprofen was appropriate for the
swelling. Weightman provides no evidence that Simmons’s decision not to prescribe
stronger pain medication was unmoored from her medical judgment or “blatantly
inappropriate.” See id. (quoting Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)).
Weightman next argues that a jury could infer deliberate indifference based on
delays in treatment. He points to the 24-hour delay between his injury and being seen
by the medical team, the days-long delay before receiving a low bunk, and the
four-week delay before a follow-up appointment with the specialist. But a delay in
treatment can show deliberate indifference only when the defendant knows of the delay
and disregards it, see Cesal v. Moats, 851 F.3d 714, 722–23 (7th Cir. 2017), and the
undisputed evidence shows that did not happen here. Starting with the initial 24-hour
delay in being seen, Dr. Jeanpierre did not know about his injury until the next day, and
then, once she was informed, she took action and approved an order for x-rays and

-- 5 of 6 --

No. 24-1543 Page 6
medication. And when Dr. Jeanpierre learned that her low-bunk order had not been
followed, she reissued it. As for the follow-up appointment, the record does not explain
the delay. But Weightman lacks evidence that any defendant was responsible for
scheduling it and failed to do so. When Simmons learned about the delay, she
immediately scheduled an appointment to take place within the week. None of these
delays reflect a culpable state of mind of any defendant; further, Weightman’s evidence
does not support an inference that these delays themselves, not his underlying injury,
caused him harm. See Arce, 75 F.4th at 680.
Weightman’s last example of deliberate indifference is the use of an allegedly
broken, ineffectual bone stimulator on his foot for two months. But there is no
admissible evidence in the record that the bone stimulator was broken throughout the
treatment period. See FED. R. C IV. P. 56(c)(1). The medical records show only what the
defendants concede—that the prison’s bone stimulator was not operational when the
staff first tried to use it. But Simmons, despite her notes doubting that the device could
be salvaged, attests that it was eventually fixed and applied daily for over two months,
which daily entries in Weightman’s patient records confirm. Weightman’s only
evidence that it was not repaired comes from his declaration, submitted under 28 U.S.C.
§ 1746. But to be admissible at summary judgment, the declaration must be signed
under penalty of perjury. § 1746(2); Roy v. Ivy, 53 F.4th 1338, 1348 (11th Cir. 2022). This
declaration was not signed at all, and so Weightman lacks admissible evidence to create
a genuine dispute of fact (his verified complaint does not address this issue). F ED. R.
C IV. P. 56(c).
Lastly, Weightman argues that the district court should have retained
supplemental jurisdiction over his state-law claims. See 28 U.S.C. § 1367(c). But once all
federal claims are resolved, and there is no jurisdiction under 28 U.S.C. § 1332, a court
has broad discretion to decide how to proceed, and there is a presumption that it will
relinquish supplemental jurisdiction. RWJ Mgmt. Co. v. BP Prods. N.A., Inc., 672 F.3d 476,
478 (7th Cir. 2012). Weightman does not contend that he cannot refile his case in state
court because the statute of limitations expired, that proceeding in state court would
cause a substantial duplication of effort, or that the claims’ resolution is clear. See id.
at 480. So the district court did not abuse its discretion in following the presumption.
AFFIRMED

-- 6 of 6 --