Gregorio Colin v. GARY GERST and HECTOR GARCIA

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 16, 2023*
Decided October 17, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-2669
GREGORIO COLIN,
Plaintiff-Appellant,
v.
GARY GERST and HECTOR GARCIA,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 19-cv-494-DWD
David W. Dugan,
Judge.
O R D E R
Gregorio Colin, an Illinois state prisoner who injured his left foot, appeals from a
summary judgment rejecting his claims of medical deliberate indifference. See 42 U.S.C.
* 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NONPRECEDENTIAL DISPOSITION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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No. 22-2669 Page 2
§ 1983. Because the evidence undisputedly shows that the defendants did not
deliberately disregard Colin’s need for care, we affirm.
In July 2018, Colin twisted his left ankle playing soccer. A nurse promptly gave
him pain medication, ice, and crutches. Three days later, Colin complained that the
swelling and pain had worsened and that he could not walk. Physician’s assistant Gary
Gerst, noting that Colin was in no apparent distress, ordered X-rays of the left foot and
ankle, prescribed ibuprofen, and instructed Colin to refrain from placing weight on his
left leg and to continue using crutches. According to Colin, Gerst told him that the foot
would heal on its own.
The X-rays, taken two days later, revealed that Colin had a broken bone behind
the smallest toe on his left foot. A doctor ordered a splint and then referred a request for
an orthopedic evaluation to collegial review—the process through which treating
doctors consult with non-examining physicians from the prison’s healthcare services
contractor (Wexford Health Sources, Inc.). During that review, Dr. Hector Garcia, then
Wexford’s National Medical Director, denied the referral. Dr. Garcia opined that
(1) fractures like Colin’s typically heal on their own with conservative treatment,
including over-the-counter pain medications; (2) any damage the fracture causes to
surrounding soft tissues, like tendons, is typically also resolved without surgical
intervention; (3) Colin did not need to see a specialist, given that the broken bone
appeared to be in good alignment and he was already receiving the necessary
treatment; and (4) a repeat X-ray in a week would nevertheless be warranted. An X-ray
was taken and revealed no significant change.
Colin continued to complain of pain over the next month, and Dr. Garcia—after
another collegial review—approved the referral to an orthopedic surgeon. Colin saw a
specialist who opined that the fracture should heal with conservative treatment in about
four weeks. When the fracture healed, Colin still had some tenderness in his foot, so the
specialist recommended that an MRI be taken. The MRI revealed that Colin had a split
tendon tear. (The record does not reflect whether the fracture and the tendon injury
were related.) The specialist later suggested seeking a second opinion. Colin then saw a
second specialist, who repaired his torn tendon surgically.
Colin sued Gerst, Dr. Garcia, and other prison staff for delaying treatment after
he complained of severe pain and then denying the initial referral to a specialist. The
district court screened Colin’s complaint, see 28 U.S.C. § 1915A, allowed him to proceed
on a deliberate indifference claim against only Gerst and Dr. Garcia, and recruited
counsel for him.

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No. 22-2669 Page 3
The court granted the defendants’ motion for summary judgment, explaining
that no reasonable jury could conclude that either Gerst or Dr. Garcia was deliberately
indifferent to Colin’s medical needs. The court noted that Gerst, who did not perceive
Colin to be in any apparent distress, ordered X-rays, prescribed medication to Colin,
and instructed Colin not to bear any weight on his left leg and to continue using
crutches. The court found no indication that Colin suffered any additional harm by
waiting two days after his visit with Gerst to have X-rays taken. The court also found no
disputed facts over Dr. Garcia’s conduct. According to the court, Colin introduced no
evidence that Dr. Garcia delayed access to initial treatment, continued a course of
inappropriate treatment, or denied the initial referral out of any intent to cause harm or
delay necessary treatment.
On appeal, Colin insists that delays in treatment exacerbated his pain and
amounted to deliberate indifference. But no reasonable jury could, on this record,
conclude that Gerst or Dr. Garcia was deliberately indifferent to an excessive risk to
Colin’s health. See Farmer v. Brennan, 511 U.S. 825, 847 (1994). Colin needed to provide
evidence that these defendants knew of but deliberately disregarded his serious
medical needs. See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). Regarding Gerst,
there is no indication that he ignored Colin’s complaints of pain, that he could have
seen Colin or scheduled the X-rays sooner, or that any delay in the X-rays harmed
Colin. Instead, the record reflects that Gerst promptly administered conservative
medical treatment, which later was confirmed by Dr. Garcia and the first specialist to be
appropriate for this type of injury. (When deposed, the specialist explained that injuries
like Colin’s tend to get better on their own with reduced activity and that a delay in
doing an initial X-ray would not likely lead to complications.)
As for Dr. Garcia, we “defer to a medical professional’s treatment decision
‘unless no minimally competent professional would have so responded under those
circumstances.’” Lockett v. Bonson, 937 F.3d 1016, 1023 (7th Cir. 2019) (internal
quotations omitted). Here, no reasonable factfinder could infer that Dr. Garcia acted
outside the bounds of accepted medical standards: He denied the request for a referral
to a specialist only after he determined that Colin’s fracture was in good alignment and
that Colin was receiving the necessary treatment.
Colin also asserts that his appointed counsel was ineffective. He argues that
counsel should have bolstered his case by filing a supplemental complaint under
Federal Rule of Civil Procedure 15(d) or marshaling the opinion of the second specialist,
who, Colin asserts, told him that the delay in treatment left his foot deformed. But there
is no Sixth Amendment right to effective assistance of counsel in civil cases. Diggs v.
Ghosh, 850 F.3d 905, 911 (7th Cir. 2017).

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No. 22-2669 Page 4
AFFIRMED

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