Fairly W. Earls v. Salam Syed

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 11, 2023 *
Decided July 12, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-2409
FAIRLY W. EARLS,
Plaintiff-Appellant,
v.
SALAM SYED, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
Nos. 18-cv-332-wmc & 19-cv-117-wmc
William M. Conley,
Judge.
O R D E R
In quick succession, Fairly Earls developed a skin infection and injured his ankle
while incarcerated at Columbia Correctional Institution in Portage, Wisconsin. Earls
alleged in two lawsuits that members of the prison’s medical staff were deliberately
indifferent to his serious medical needs under 42 U.S.C. § 1983, and negligent. The
* 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NONPRECEDENTIAL DISPOSITION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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district judge consolidated the cases for briefing and disposition and entered summary
judgment against Earls. We affirm.
Background
Because this appeal challenges a summary judgment, we recount evidence in the
light most favorable to Earls, the non-movant, and give him the benefit of reasonable
inferences. See Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020).
1. Earls’s Impetigo
On August 2, 2017, Earls reported significant chest and back pain, so staff in
Columbia’s Health Services Unit sent Earls to the emergency department of a nearby
hospital. Records from this visit describe his skin as “normal” and “[n]egative for
injury, rash, and discoloration.” He was soon discharged with instructions to take
ibuprofen for his pain and return if his symptoms worsened. Back at Columbia that
day, nurse Timothy Deters evaluated Earls twice. The first time, Deters told Earls to rest
for the day; the second, they discussed Earls’s continuing lower back pain and apparent
heartburn. Deters gave Earls ibuprofen and an antacid. Deters’s notes from these
meetings do not reflect any complaints from Earls about his skin. And, at a follow-up
visit to the health unit two days later, a different nurse noted that Earls’s skin was
“intact[,] warm, dry, [and] normal in color.”
Earls submitted health services requests reporting a skin problem on August 6
and again the next day. In both requests, he mentioned that he was developing “blood
blisters” on his hands. Salam Syed, a prison doctor, examined him on August 9. Syed
diagnosed scabies, an itchy skin condition caused by burrowing, parasitic mites. Syed
prescribed antibiotics to kill the mites and acetaminophen for pain.
Days later, on August 14, Earls returned to the Health Services Unit. A nurse
observed that his hands were red, warm, scabbed, and had white spots. The nurse sent
Earls to the hospital, where staff noted “bites” around his fingers. He was diagnosed
with bullous impetigo—a bacterial infection that affects the skin and causes blisters.
(Syed later attested that scratching scabies-infected skin can cause impetigo.) A hospital
physician listed “parasite infection” in the possible causes of Earls’s condition. Earls
received an antibiotic injection and a prescription for oral antibiotics.

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That treatment regimen worked. At consecutive visits over the next three days,
Syed noted improvement in Earls’s skin. Syed met with Earls on August 23 and
reported that his skin condition was resolving with no signs of cellulitis or swelling. On
September 6, Syed concluded that Earls’s skin condition was essentially resolved.
2. Earls’s Ankle Injury
In his verified complaint, Earls asserted that his left ankle was broken while he
was being transported “to and from” the hospital on August 2. The hospital records do
not mention an ankle injury; they reflect that Earls had “no difficulty” walking. Earls
swears that he told Deters of the ankle injury during both of their meetings on
August 2, and further that he sent a health services request about it on August 3. No
records corroborate these statements.
A nurse who evaluated Earls on August 4 recorded nothing about an ankle
injury. In a health services request from later that day, Earls said that he was, “[s]till in
severe pain, can’t walk. Haven’t been able to eat in dining room in three day[s], fever
and sweats. (Follow up on emergency trip to hospital).” Nurse Teresa Gaier responded
that Earls had just been evaluated, that he had an upcoming doctor visit, and that he
should tell medical staff if his condition worsened. Gaier later attested that, based on
the request, which did not refer to an ankle injury, she believed that Earls was having
the same chest or back pain that had prompted his recent emergency room visit.
Over the next few days, Earls submitted two health services requests reporting
chronic chest and back pain; he did not mention an ankle issue. Earls also met with
Syed and Gaier on August 9 about his skin condition. There is no evidence that he
complained about his ankle then, and Syed and Gaier both attest that he did not.
Earls’s first documented complaint of a “broken leg/ankle” appears in a health
services request from August 11. Nurse Denise Valerius responded that Earls did not
need to be seen because he had been to the Health Services Unit two days earlier, a
corrections officer saw him walking around, and he had a medical visit scheduled for
August 14 (the visit that prompted a nurse to send Earls to the emergency room for his
blistering skin). Neither the prison nurse’s notes nor the hospital records from
August 14 mention an ankle injury, and the latter note that Earls had a steady gait,
“intact” range of motion “in all extremities[,]” and “[n]o other complaints at this time.”

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On August 16, Earls again returned to the Health Services Unit, where Deters
saw that Earls’s ankle was wrapped in an ace bandage. Deters examined the ankle and
saw some swelling but no discoloration or deformity. Deters also noted that Earls was
bearing weight and walking well. So, Deters believed that no further treatment was
necessary. Earls had several follow-up appointments over the next few days for his skin
condition; the records from these visits do not mention any ankle problems.
Syed, the doctor, first learned of Earls’s ankle problem during a visit on
August 23. He examined the ankle, noting a full range of motion and minimal swelling.
He did not think that the ankle was seriously injured, but he prescribed ibuprofen.
Records show that Gaier next saw Earls on September 1 regarding a knee injury.
The records do not mention Earls’s ankle. Later that day, Gaier responded to another
health services request from Earls, this time about the ankle, and she stated simply that
he had been seen already. Earls swears that the earlier interaction never occurred.
When Syed next saw Earls on September 6, Earls complained again about his
ankle, and Syed referred him for X-rays. The outside radiologist took images on
September 12, and concluded that they showed no sign of a break. Syed reviewed the
radiology report and, trusting that the radiologist had correctly read the X-rays as
normal, concluded that no follow-up was needed. Earls says that the images
conspicuously show a broken ankle and that they are clearer on the DVD that the
defendants failed to submit than on the printouts in the record.
Earls filed separate lawsuits about the treatment of his skin and ankle problems.
After screening the complaints under 28 U.S.C. § 1915A, the district judge allowed
Earls’s deliberate indifference and medical negligence claims about Syed’s and Deters’s
responses to his impetigo, as well as deliberate indifference and medical negligence
claims against Syed, Deters, Gaier, and Valerius for their treatment of his ankle.
Because of the overlapping defendants and facts, the judge granted the
defendants’ motion to consolidate the cases for discovery and disposition. Eventually,
the judge entered summary judgment for the defendants, concluding that Earls
presented insufficient evidence to raise a genuine dispute of material fact on any claim.
Discussion

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Earls argues that, in granting summary judgment for the defendants, the district
judge impermissibly assessed his credibility and ignored genuine disputes of material
fact. We review a summary judgment decision de novo. Donald, 982 F.3d at 457.
As an initial matter, Earls suggests that the judge ruled against him after
determining that he was not credible, in violation of summary-judgment standards. But
the judge did no such thing. In a footnote, the judge restated—and rejected—defendant
Deters’s argument that Earls made up an ankle injury. Earls cites “other credibility
determinations” but these are merely the judge’s descriptions of the medical records. To
the extent Earls did not call the records into dispute with admissible evidence, but only
with his disagreements, the judge’s descriptions of their contents were appropriate.
See McGee v. Adams, 721 F.3d 474, 482 (7th Cir. 2013).
Substantively, Earls first contends that he raised genuine disputes of material fact
on his Eighth Amendment claims. To support those claims, Earls needed evidence that
the defendants were “deliberately indifferent” to an “objectively serious medical
condition.” See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Whiting v. Wexford Health
Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016). Medical personnel are deliberately
indifferent if their treatment departs so substantially from accepted professional
standards as to demonstrate that they did not exercise professional judgment at all.
Brown v. Osmundson, 38 F.4th 545, 551 (7th Cir. 2022).
Earls contends that the district judge impermissibly weighed evidence to
conclude that Syed did not misdiagnose his skin condition. He relies on the records
from his August 14 hospital visit, which refer to his previous diagnosis of, and
unsuccessful treatment for, scabies—not impetigo. But the judge recognized that Syed
first diagnosed scabies and concluded that this evidence was insufficient to raise a
dispute about the doctor’s deliberate indifference to Earls’s condition. No evidence
impugns the initial scabies diagnosis nor Syed’s opinion that Earls’s impetigo likely
developed from infected scabies blisters. The hospital physician did not disagree,
noting that a “parasite” could have led to the impetigo, and the nurse observed “bites”
around Earls’s thumbs, which is also consistent with Syed’s view. In any event,
evidence of a misdiagnosis, were there any, would not support Earls’s contention that
Syed was deliberately indifferent. Nothing suggests that Syed’s diagnosis and treatment
plan were “such a substantial departure from accepted professional judgment” that no
reasonable doctor would have thought Earls had scabies. See Donald, 982 F.3d at 457.

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With respect to his claims about his ankle injury, Earls contends that the judge
should not have inferred from the August 2 hospital records, which do not mention an
ankle injury, that he didn’t break his ankle on August 2. He now says that those records
could not have corroborated his ankle injury because he incurred it on his way back
from the hospital. This contradicts his sworn response to the defendants’ proposed
statement of material facts, which said that he reported the ankle injury at the hospital.
Regardless, Earls never pointed to evidence that he told any defendant except
Deters and Gaier about an ankle injury before his August 11 health services request. So,
before then, no one else could have disregarded a known risk of substantial harm.
See Farmer v. Brennan, 511 U.S. 825, 837 (1994). As to Gaier, Earls’s August 4 health
services request said only that he couldn’t walk and was “[f]ollow[ing] up on [his] trip
to [the] hospital” (which was for chest pain). Earls has no evidence to dispute that Gaier
understood his request to concern chest pain, and Gaier could not be deliberately
indifferent to an ankle injury of which she was unaware. See id. Moreover, Gaier’s
response did not demonstrate “a total unconcern” for Earls’s pain, see Rosario v. Brawn,
670 F.3d 816, 821 (7th Cir. 2012), because she confirmed that he had just been seen by
medical staff and had been prescribed pain medication.
As to Deters, there is no evidence that this nurse consciously disregarded a need
for treatment, even if Earls told him about the ankle on August 2, because the record
contains no evidence of an objectively serious ankle injury. See id. at 834. All the
evidence is to the contrary: The X-rays were negative, he was repeatedly seen walking
without difficulty, and no one who examined his ankle saw signs of serious injury. This
also dooms any claim based on Gaier’s response to the September 1 health services
request, as well as any claim against Valerius, if we construe Earls to argue that her
reliance on the report that he had been seen walking amounted to conscious disregard.
To respond to the dearth of evidence of a serious injury, Earls asks us to review
the X-rays and reject the radiologist’s opinion that they show no break or injury. But
only the competing opinion of a medical professional could raise a factual dispute about
whether Earls had a broken ankle. See Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
(Certainly the images do not show a condition “so obvious that even a lay person
would perceive the need for a doctor’s attention.” See id.) And Syed was entitled to rely
on the specialist’s expertise. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006).
Finally, regarding his negligence claims, Earls again argues generally that the
district judge impermissibly weighed evidence. But he failed to offer any evidence

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establishing the medical standard of care, without which he cannot show that any
defendant breached that standard. See Carney-Hayes v. Nw. Wis. Home Care, Inc.,
699 N.W.2d 524, 537 (Wis. 2005). Nor did Earls offer evidence that any defendant’s
action or inaction, as opposed to his medical issues themselves, caused him harm.
We have considered Earls’s remaining arguments, but none has merit.
AFFIRMED

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