Leroy R. Whittenberger v. Daniel L. La Voie

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 13, 2026*
Decided January 13, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 25-1506
LEROY R. WHITTENBERGER,
Plaintiff-Appellant,
v.
DANIEL L. LA VOIE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 2:23-cv-01589-BHL
Brett H. Ludwig,
Judge.
O R D E R
Leroy Whittenberger, a Wisconsin prisoner, asserts that two prison doctors and
three prison nurses violated his rights under the Eighth Amendment by delaying his
treatment for a knee injury. See 42 U.S.C. § 1983. The district court entered summary
* 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NONPRECEDENTIAL DISPOSITION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 FED. R. A PP. P. 32.1

-- 1 of 3 --

No. 25-1506 Page 2
judgment against him after concluding that no jury could reasonably find that any
defendant was deliberately indifferent to his medical condition. We affirm.
We recount the facts in the light most favorable to Whittenberger, the party
opposing summary judgment. See Sanders v. Moss, 153 F.4th 557, 561 (7th Cir. 2025).
Whittenberger was housed at New Lisbon Correctional Institution in New Lisbon,
Wisconsin, when, in May 2021, he injured his right knee while exercising. Five days
later, a nondefendant nurse examined Whittenberger’s knee and left a message
summarizing the injury for Dr. Daniel La Voie, the Wisconsin Department of
Corrections’ Medical Director who at the time was serving as an off-site doctor for the
prison. Based on the information provided to him, Dr. La Voie believed that
Whittenberger injured the soft tissue of his knee, which would heal with ice and rest.
About four weeks later, another nondefendant nurse reported to Dr. La Voie that
Whittenberger’s condition had not improved and asked him to order an x-ray and
physical therapy. Dr. La Voie ordered physical therapy but not an x-ray, explaining
later in a declaration that the nurse did not describe any functional limitation to
Whittenberger’s knee.
But Whittenberger’s pain persisted, so he submitted another request to the health
services unit. Whittenberger saw Nurse Lisa Payne, who looked at his knee, conveyed
word of Dr. La Voie’s treatment plan, and referred him to an on-site doctor.
Whittenberger’s physical therapy proved ineffective, and he soon was evaluated
by Dr. Barry Daughtry, who became his primary-care provider for the next seven
months. Dr. Daughtry ordered an x-ray and reported that it showed an “uncertain or
old fracture.” He then ordered an MRI of Whittenberger’s knee and referred him to an
off-site surgeon, who requested a bone-density study. Several months later
Whittenberger, having yet to receive the MRI, submitted a health-service request to
Dr. Daughtry. The doctor then inquired about the status of the MRI and learned that
one had been scheduled. Soon thereafter, in March 2022, Whittenberger received the
MRI, which revealed a slight fracture. (That same day, unrelatedly, Dr. Daughtry
stopped working at the prison and provided no further care to Whittenberger.)
A few weeks later, in April 2022, Whittenberger was evaluated by an orthopedic
surgeon. After other care proved ineffective, Whittenberger received surgery for a
partial knee replacement in January 2024.
Whittenberger filed this medical deliberate-indifference suit under 42 U.S.C.
§ 1983. Whittenberger asserted that Dr. La Voie delayed treatment by misdiagnosing his

-- 2 of 3 --

No. 25-1506 Page 3
knee injury as a soft tissue injury; that Nurse Payne delayed his treatment by failing to
schedule his appointment with an on-site doctor; and that Dr. Daughtry and
Nurses Melissa McFarlane and Koreen Frisk (both of whom responded to his health-
service requests about the wait time to receive the MRI and bone-density study)
delayed his treatment because they did not schedule his diagnostic tests.
The district court concluded that no reasonable jury could find that the
defendants were deliberately indifferent and granted the defendants’ motions for
summary judgment. Regarding Dr. La Voie, the court explained that his involvement
was minimal—he only made a diagnosis based on information given to him and
formulated a treatment plan—and any misdiagnosis was, at most, non-actionable
negligence because there was no evidence that he knew Whittenberger’s knee injury
was not a soft-tissue injury. As to Dr. Daughtry, the court determined that his
responsiveness to Whittenberger’s concerns—ordering diagnostic tests, referring
Whittenberger to an offsite specialist, and even contacting others on the progress of an
MRI that had yet to be administered—was inconsistent with deliberate indifference. As
for Nurse Payne (who evaluated Whittenberger in July 2021 in response to his
complaints of continued knee pain, explained to Whittenberger why Dr. La Voie did not
think an x-ray was needed, and placed an order for him to be seen by an onsite
provider), the court concluded that no reasonable jury could find that she acted with
deliberate indifference by deferring to Dr. La Voie’s plan of care. And regarding Nurses
McFarlane and Frisk, the court determined that no jury could reasonably find that they
were deliberately indifferent simply because they communicated information sought by
Whittenberger about scheduled appointments or tests.
On appeal, Whittenberger does not engage with the district court’s reasons for
granting summary judgment and, instead, simply recites the facts that he says took
place. But the district court wrote a thorough opinion addressing Whittenberger’s
claims under the correct legal standards, and we have little to add. We have reviewed
the record and affirm the judgment substantially for the district court’s reasons.
“Deliberate indifference occurs when a defendant realizes that a substantial risk of
serious harm to a prisoner exists, but then disregards that risk,” and the standard
“reflects a mental state … properly equated with reckless disregard.” Perez v. Fenoglio,
792 F.3d 768, 776–77 (7th Cir. 2015) (citations omitted). As the court explained,
Whittenberger failed to provide evidence from which a jury could reasonably conclude
that any defendant was deliberately indifferent to his knee injury.
AFFIRMED

-- 3 of 3 --