Norris E. Pegues v. Karl Hoffmann

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 22, 2024 *
Decided October 23, 2024
Before
MICHAEL B. BRENNAN, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 24-1366
NORRIS E. PEGUES,
Plaintiff-Appellant,
v.
KARL HOFFMANN, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 22-cv-352-jdp
James D. Peterson,
Chief Judge.
O R D E R
Norris Pegues, a Wisconsin prisoner who is paraplegic, alleges that members of
the healthcare staff at Wisconsin’s New Lisbon Correctional Facility violated his rights
under the Eighth Amendment by failing to provide him with a medical-grade mattress
* 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NONPRECEDENTIAL DISPOSITION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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to address pressure sores. See 42 U.S.C. § 1983. The district court entered summary
judgment for the defendants. Because a reasonable jury could not conclude that any
defendant was deliberately indifferent to Pegues’s serious medical need, we affirm.
We draw our account from the record at summary judgment, which we view in
the light most favorable to Pegues, the nonmoving party. See Thomas v. Blackard, 2 F.4th
716, 720 (7th Cir. 2021). In January 2016, Pegues was transferred to New Lisbon from
another prison. A social worker at New Lisbon emailed Candace Warner, the manager
of the prison’s Health Services Unit, to inform her that Pegues required an “extra
mattress.” Upon learning that Pegues needed the mattress because he was paraplegic,
Warner asked staff from the transferring facility to send Pegues’s mattress along with
him; otherwise, he would receive a standard three-inch single mattress at New Lisbon.
The New Lisbon employee who facilitated the transfer (not a defendant) failed to
ensure that Pegues’s mattress accompanied him.
A few months later, Pegues submitted a health-services request asking for a thick
mattress to help prevent pressure sores. Lynn Dobbert, a nurse, responded that the Unit
does not provide thick mattresses. Pegues renewed his request in July 2017, and
Dobbert again responded that the Unit does not provide special mattresses and that
Pegues would have to stay active and change positions to prevent sores.
On July 24, 2017, health-services staff examined Pegues for an open sore on his
buttocks. A non-defendant nurse encouraged him to stay off his buttocks and to change
positions frequently, provided him with two extra pillows for positioning, and stated
that he should use a “blue/black (thick) mattress.” A few days later, a doctor, Karl
Hoffmann, treated Pegues for a pressure wound. Dr. Hoffmann continued to treat
Pegues over the next month, and Pegues’s wound improved.
On August 4, 2017, Pegues filed an inmate complaint requesting a double or
medical mattress. When an inmate complaint examiner contacted Warner (given her
role as the Unit manager), she stated that the Unit does not provide special mattresses.
Pegues’s complaint was dismissed, but the reviewing authority modified the dismissal
and stated that medical mattresses are available if an inmate meets special qualifications
and it is medically necessary. Medical mattresses must be authorized by an advanced
care provider—a physician, physician’s assistant, or advanced nurse practitioner.
Nearly two years passed after the denial of Pegues’s complaint without Pegues
presenting to the Unit with a pressure wound. Then, in July 2019, Pegues went to the

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emergency room for a possible stage 2 pressure ulcer, and he remained in the hospital
for a week. After his discharge, Pegues was moved to the infirmary at Dodge
Correctional Institution in Waupun—the only hospital-like setting in the Wisconsin
Corrections system—where he received specialized wound care and a therapeutic
mattress to decrease the pressure on his wounds. Pegues received treatment at Dodge
for the next ten months.
Pegues arrived back at New Lisbon on May 12, 2020 (during the COVID-19
pandemic) with a “nearly healed” wound, and during his two-week quarantine in the
Unit, he had a medical mattress. Dr. Hoffmann informed Pegues that he would be
issued a medical mattress when he was released into the general population. Medical
records from Pegues’s quarantine reveal that his wound grew while he was housed in
the Unit and that the wound-care specialist discussed Pegues’s “care and treatment
needs” with Dr. Hoffmann.
Pegues was placed in the general population on May 27, 2020, but he was not
provided with a medical mattress, though one had been ordered for him. The wound-
care specialist examined Pegues on June 2 and charted that his wound had worsened.
Two days later, after additional deterioration, the specialist and Dr. Hoffmann decided
to move Pegues back to the Unit so he could use a hospital bed and mattress. It is not
clear from the record when Dr. Hoffmann first knew that Pegues was using a standard
mattress (despite the district court’s statement that Pegues was returned to the Unit
“when it was discovered” that the prison did not have a medical mattress for him).
Pegues was soon transferred back to the infirmary at Dodge for wound care. A
doctor there recorded that Pegues’s wound had “increased” in size, drainage, and odor
in the short time he had spent back at New Lisbon. Pegues remained at Dodge for five
months for treatment. When he returned to New Lisbon, his medical mattress arrived
with him. Pegues’s problem with pressure wounds persisted, and in 2021 he had
surgery to repair a wound on his buttocks.
In this lawsuit, Pegues alleges that his pressure wound failed to heal and
worsened because, out of deliberate indifference, Dr. Hoffmann, Warner, and Dobbert
failed to ensure that he was provided with the mattress he needed. In his complaint he
alleged that their actions violated the Eighth Amendment, the Americans with
Disabilities Act, and the Rehabilitation Act; he also brought a claim of medical
negligence under Wisconsin law. At screening under 28 U.S.C. § 1915A, the district
court allowed Pegues to proceed with only his Eighth Amendment and negligence

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claims because prisoners cannot challenge a medical treatment decision under
disability-discrimination statutes. See Reed v. Columbia St. Mary’s Hosp., 915 F.3d 473, 486
n.6 (7th Cir. 2019); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996).
The defendants later moved for summary judgment, arguing that they provided
adequate medical care for his wounds and that a medical mattress would not have
prevented Pegues’s pressure sores. The district court ruled that no reasonable jury
could conclude that the defendants knew of and disregarded an excessive risk to
Pegues’s health and therefore ruled for the defendants on the constitutional claim. The
court then relinquished jurisdiction over Pegues’s negligence claim.
On appeal, Pegues argues that the district court did not properly draw inferences
in his favor and that he raised a genuine dispute of material fact as to whether the
defendants were deliberately indifferent. We review the summary judgment decision
de novo. Thomas, 2 F.4th at 720. To establish a violation of his Eighth Amendment
rights, Pegues must demonstrate that: (1) he has an objectively, sufficiently serious
medical condition; and (2) the defendants knew of and disregarded an excessive risk to
his health. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). It is undisputed that Pegues’s
paraplegia and resulting sores are a serious medical condition. But on the second prong,
Pegues bears the burden of showing that his medical treatment was so deficient that it
reflected an absence of professional judgment. See Stewart v. Wexford Health Sources, Inc.,
14 F.4th 757, 763 (7th Cir. 2021). Deliberate indifference requires a showing higher than
negligence or even malpractice. See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014).
As to the claim relating to Pegues’s first stint at New Lisbon from 2016 to 2017,
he has not produced sufficient admissible evidence from which a reasonable jury could
find that Warner or Dobbert was deliberately indifferent to his medical needs. Although
Warner knew Pegues required a special mattress, she did not handle his transfer intake,
and the actions of another staff member cannot be imputed to Warner. See Colbert v. City
of Chi., 851 F.3d 649, 657 (7th Cir. 2017). And although both Warner and Dobbert
incorrectly informed Pegues that thick mattresses were unavailable by New Lisbon
policy, a policy violation is not sufficient to establish a constitutional harm. See Pulera v.
Sarzant, 966 F.3d 540, 551 (7th Cir. 2020). There is no evidence that Warner and Dobbert
were anything but mistaken about whether an inmate could obtain a special mattress
through the medical team. Moreover, an official “cannot be held liable for failing to do
something [s]he had no authority to do,” and neither Warner nor Dobbert had the
authority to order mattresses for prisoners because they are not advanced care
providers. Hunter v. Mueske, 73 F.4th 561, 566 (7th Cir. 2023). The record also shows that

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Dobbert responded to Pegues’s concern about pressure sores and advised him how to
avoid sores; her actions are therefore inconsistent with a conscious disregard for his
medical need. See Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 460 (7th Cir. 2020)
(optometrist, who “appropriately monitored and treated [plaintiff’s] various eye
conditions,” was not deliberately indifferent even though plaintiff was delayed in
receiving contact lenses).
Pegues’s evidence also fails to support an Eighth Amendment claim against
Dr. Hoffmann for the period between Pegues’s hospitalization in 2019 and his transfer
back to Dodge in June 2020. True, Dr. Hoffmann—who supervises “the development
and implementation of treatment protocols” at New Lisbon—promised Pegues a
medical mattress that he did not receive, and there is some evidence that Dr. Hoffmann
was aware that no medical mattress was ready for Pegues when he left quarantine for
the general population in May 2020. But it was only a matter of days before
Dr. Hoffmann agreed that Pegues had to go back to the Unit. Delays in receiving
prescribed treatment can give rise to a deliberate indifference claim, see Reck v. Wexford
Health Sources, Inc., 27 F.4th 473, 489 (7th Cir. 2022), but “delay alone is not enough,”
Clemons v. Wexford Health Sources, Inc., 106 F.4th 628, 636 (7th Cir. 2024) (cleaned up). At
a minimum, Pegues must show that Dr. Hoffmann knew about Pegues’s rapidly
worsening wound without a medical mattress to establish that he acted with deliberate
indifference. See Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010).
Instead, the record shows that Dr. Hoffmann “responded reasonably” to
Pegues’s deteriorating wound after the wound specialist spoke to him on June 4, and
this negates an assertion of deliberate indifference even if the doctor did not
successfully prevent the harm. Reck, 27 F.4th at 483 (citation omitted). There is no
evidence that—even if Dr. Hoffmann knew there was not an appropriate mattress ready
for Pegues yet—he had reason to know the existing wound would worsen so quickly in
the interim. Further, the record as a whole shows that Dr. Hoffmann provided diligent
care to Pegues, treating his wounds and providing advice on how to prevent wounds
from forming. Therefore, a reasonable jury could not conclude that Dr. Hoffmann was
deliberately indifferent to Pegues’s serious medical need. See Pyles, 771 F.3d at 409;
Minix, 597 F.3d at 831.
AFFIRMED

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