Daniel Crone v. Bruce Ippel

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 16, 2023 *
Decided August 16, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1387
DANIEL CRONE,
Plaintiff-Appellant,
v.
BRUCE IPPEL, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:21-cv-00232-JMS-TAB
Jane Magnus-Stinson,
Judge.
O R D E R
Daniel Crone, a former Indiana prisoner, appeals summary judgment on his
claims that prison physicians and Wexford of Indiana, LLC, the prison’s private health
care provider, were deliberately indifferent to his knee injury. We affirm the judgment.
* 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NONPRECEDENTIAL DISPOSITION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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We present the facts in the light most favorable to Crone, the nonmoving party.
See Hackett v. City of South Bend, 956 F.3d 504, 506 (7th Cir. 2020). While at New Castle
Correctional Facility in October 2017, Crone injured his left knee after a fall in the
shower. He complained of pain and swelling, and a nurse recommended
acetaminophen (and later ibuprofen), heat, and ice after reviewing an x-ray that showed
no fractures. About two months after the fall, Crone saw prison physician Dr. Bruce
Ippel. Crone reported that his knee pain was similar to a previous shoulder injury that
had healed after a cortisone shot. Dr. Ippel advised Crone to use an elastic bandage,
cautioned him against additional falls, and prescribed him meloxicam, an anti-
inflammatory pain medication. Crone returned to Dr. Ippel two months later, reporting
his pain was worse, he had difficulty walking, and the meloxicam was ineffective.
Dr. Ippel now gave Crone a cortisone shot, ordered a more substantial knee brace, and
prescribed acetaminophen (a pain reliever but not an anti-inflammatory) and a home
exercise plan. Dr. Ippel retired in 2019 and had no further involvement in treating
Crone’s injury.
Crone continued to suffer knee pain, and the prison designated him as needing
chronic care. In September 2020, he reported worsening pain in both knees to another
prison physician, who was dismissed from the case at screening. 28 U.S.C. § 1915A.
(Crone does not contest that dismissal.) After evaluating Crone, the physician asked
Wexford to consider referring Crone to physical therapy. Requests for offsite care were
reviewed by Wexford’s regional medical directors, who included director Dr. Michael
Mitcheff (who is a defendant) and associate director Dr. Duan Pierce (who is not).
Dr. Pierce reviewed and denied the request, recommending that Crone continue his
home exercise plan instead. Dr. Mitcheff recalled no involvement in Crone’s care.
About two months later, Crone had an appointment with another prison
physician, Dr. Erick Falconer. Dr. Falconer assessed Crone’s symptoms, later attesting
that Crone “did not appear to have a significant abnormality that significantly impacted
his normal activities.” Crone informed Dr. Falconer that he had been performing home
exercises for three years and that they had not helped alleviate his pain. But based on
Dr. Pierce’s recommendation, Dr. Falconer reviewed the plan again and identified
specific exercises Crone could try to target his pain. Dr. Falconer also continued Crone’s
acetaminophen prescription and instructed him to return if his knee pain worsened.
Crone did not submit any further health care request forms concerning his knee pain.
Crone next turned to federal court for relief. As relevant to this appeal, he alleged
that Dr. Ippel, Dr. Falconer, Dr. Mitcheff, and Wexford were deliberately indifferent to

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No. 23-1387 Page 3
his knee injury. See 42 U.S.C. § 1983. He asserted that the doctors denied him necessary
care by declining to refer him to physical therapy or to perform diagnostic testing (like
an MRI) to assess his condition more accurately. He also alleged that Wexford had an
unconstitutional policy of refusing to provide these sorts of treatments and tests to
prisoners in order to reduce health care costs.
The district court entered summary judgment for the defendants. With respect to
Dr. Ippel, the court concluded that Crone failed to present evidence from which a jury
could find that he ignored Crone’s needs, considering that he administered a cortisone
shot and prescribed Crone various pain medications, a knee brace, and a home exercise
plan to mitigate his pain. The court also ruled that no reasonable jury could conclude
that Dr. Falconer was deliberately indifferent to Crone’s condition, because Dr. Falconer
was not the one responsible for denying the physical therapy request and his decision
not to perform an MRI was a reasonable exercise of medical judgment. Additionally, the
court determined that Dr. Mitcheff was entitled to summary judgment because there
was no evidence that he was personally involved in Crone’s medical care. As for
Wexford, the court concluded that there was no evidence that the company had an
unconstitutional policy, let alone one that was a moving force behind any constitutional
violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978); Shields v. Ill. Dep't
of Corr., 746 F.3d 782, 789 (7th Cir. 2014) (applying Monell to private corporation).
On appeal, Crone first argues that a jury could infer that the doctors were
deliberately indifferent because they persisted in his course of treatment (pain
medication and home exercises) despite a lack of improvement in his knee pain. He
maintains that the doctors were obligated to perform an MRI, or other diagnostic tests,
when his symptoms did not improve. To avoid summary judgment, Crone needed to
furnish evidence from which a reasonable jury could find that the physicians were
aware of, and recklessly disregarded, a serious risk to his health. See Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir. 2014).
We agree with the district court that Crone did not produce the necessary
evidence to allow an inference that any of the doctors were indifferent to his pain. The
record shows that Dr. Ippel altered his approach in response to Crone’s feedback,
offering various painkillers and a cortisone shot, prescribing a home exercise plan, and
ordering him a more substantial brace. These steps are inconsistent with an inference of
deliberate indifference. See Arce v. Wexford Health Sources, Inc., No. 22-1694, 2023 WL
4781490, at *6 (7th Cir. July 27, 2023). Further, while neither Dr. Ippel nor Dr. Falconer
ordered Crone an MRI as he would have preferred, the decision to forego diagnostic

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No. 23-1387 Page 4
tests is a matter for medical judgment, and no evidence would allow a jury to find that
the doctors “departed significantly from accepted professional norms” here. Pyles,
771 F.3d at 411. Crone maintains the doctors were acting blindly without these tests, but
their own observations and the x-rays were sufficient for them to reasonably conclude
that further testing was unnecessary. See Ray v. Wexford Health Sources, Inc., 706 F.3d
864, 866 (7th Cir. 2013). Dr. Mitcheff was not involved with treating Crone’s knee injury,
and Crone does not argue otherwise on appeal, so summary judgment was appropriate
for him, too. See Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010) (“[I]ndividual
liability under § 1983 requires ‘personal involvement in the alleged constitutional
deprivation.’”).
Crone primarily challenges the district court’s entry of summary judgment for
Wexford. He argues that Wexford’s systematic denial of treatments to prisoners is
illustrated by the high volume of deliberate-indifference lawsuits against it, many of
which were dismissed for failure to provide evidence of a widespread custom.
We agree with the district court that Crone failed to present a triable issue of fact
whether Wexford maintained an official policy, practice, or custom that caused a
constitutional violation that harmed Crone. Monell, 436 U.S. at 690–91; Whiting v.
Wexford Health Sources, Inc., 839 F.3d 658, 664 (7th Cir. 2016). The mere fact that many
prisoners (often unsuccessfully) bring lawsuits against Wexford, for various unrelated
problems, does not suggest that constitutional violations were happening “with such
frequency that it ignored an obvious risk of serious harm.” Walker v. Wexford Health
Sources, Inc., 940 F.3d 954, 967 (7th Cir. 2019). Indeed, we have said that unrelated
prisoners’ own assessments of their care may not even be relevant to establishing a
corporate policy. Howell v. Wexford Health Sources, Inc., 987 F.3d 647, 658 (7th Cir. 2021)
(upholding exclusion of prisoners’ testimony about Wexford doctors denying physical
therapy).
Recognizing the currently bare record, Crone maintains that he needed a trial to
procure the evidence necessary to prove his Monell claim, because he was denied access
to other prisoners’ medical files and other records to help illustrate an unconstitutional
policy. Because the defendants did not fully answer his interrogatories, he argues, cross-
examining defense witnesses was the only means for him to prove his claim. He
otherwise suggests that the Monell standard affords private companies like Wexford a
loophole to provide substandard care by dividing responsibilities between members of
their staff, so that none is individually aware of a risk of harm.

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But Crone does not substantiate his assertion that he was incapable of obtaining
any necessary evidence through the discovery process. Though he maintains that the
defendants did not respond adequately to his interrogatories, he never moved to
compel, nor engaged in other efforts to have the district court order production of any
missing evidence prior to summary judgment. And although we have acknowledged
criticism of our application of Monell’s standards to private companies like Wexford, see
Shields, 746 F.3d at 795, we see nothing in the record that would permit a reasonable
jury to find the company was deliberately indifferent to his pain, even if it were
vicariously liable for all its employees' actions, and so there is no reason to revisit the
question in the present case. See Collins v. Al-Shami, 851 F.3d 727, 734 (7th Cir. 2017).
Finally, Crone objects to the district court’s denial of his motion for recruitment
of counsel, arguing that he needed a lawyer to help him obtain the discovery he says he
was lacking. But the court acted within its discretion denying Crone’s request. See Pruitt
v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). The court appropriately determined
that Crone appeared competent to litigate his relatively straightforward claims on his
own, based on his ability to read and write in English as demonstrated by his court
filings, his education level (a G.E.D.), and his absence of physical disabilities or mental-
health issues that would affect his ability to continue pro se. His claims failed not for
lack of his own abilities, but because the evidence did not demonstrate deliberate
indifference to his pain. See Jackson v. Kotter, 541 F.3d 688, 700 (7th Cir. 2008).
AFFIRMED

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