Terry Wagner v. Thomas Baker

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 2, 2021*
Decided September 3, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 19-1468
TERRY WAGNER,
Plaintiff-Appellant,
v.
THOMAS BAKER,
Defendant-Appellee.
Appeal from the United States District
Court for the Central District of Illinois.
No. 14-3393
Harold A. Baker,
Judge.
O R D E R
Terry Wagner, an Illinois inmate, believes that his doctor, Thomas Baker, was
deliberately indifferent to his sleep apnea, gastroesophageal reflux disease (GERD),
constipation, and frequent urination. The district court entered summary judgment for
Dr. Baker on most of these claims, and a jury later found in the doctor’s favor on the one
* We have agreed to decide this 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NONPRECEDENTIAL DISPOSITION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. App. P. 32.1

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claim—concerning Wagner’s sleep apnea—upon which the case proceeded to trial. We
affirm.
I. Background
This appeal concerns the treatment that Wagner received from Dr. Baker
between 2012 (when Wagner was transferred to the Western Illinois Correctional
Facility in Mount Sterling, Illinois) and 2015 (when Dr. Baker left his position as medical
director). Because Wagner challenges the district court’s summary-judgment ruling and
the jury’s verdict for Dr. Baker, we report the facts in the light most favorable to Wagner
and in a manner that is consistent with the jury’s verdict. See Frey v. Coleman, 903 F.3d
671, 674 (7th Cir. 2018). At Wagner’s first visit in August 2012, Dr. Baker noted his
history of GERD, hypertension, and benign prostatic hyperplasia (an enlarged prostate).
Dr. Baker also noted that Wagner reported that he was coughing or spitting up blood
because of his GERD and needed to see a gastroenterologist, but no doctor at his prior
prison had recommended or approved a referral. To treat Wagner’s GERD, Dr. Baker
prescribed pantoprazole (a proton-pump inhibitor). He also ordered a chest x-ray and
ran tests to check for blood loss or the presence of blood in Wagner’s lungs. Based on
repeated rounds of those tests, Dr. Baker concluded two months later—as had the
doctors at Wagner’s previous prison—that Wagner was not actually coughing or
spitting up blood.
In early 2013, Wagner told Dr. Baker that he was experiencing additional
problems related to his GERD. He said he again was coughing or spitting up blood and
now complained of difficulty swallowing. Dr. Baker repeated the earlier tests, which
came back normal. Attributing Wagner’s swallowing troubles to a sinus problem,
Dr. Baker prescribed a mucus thinner and an antihistamine. After Wagner said that the
medication was not working, Dr. Baker ordered a swallow study, which turned out
normal. Two months later, Wagner again reported coughing up blood, prompting more
tests. These too were unremarkable, so Dr. Baker concluded that no further testing or
treatment was needed. Wagner continued to receive pantoprazole for his GERD.
Wagner also complained of constipation. In 2012, Dr. Baker told him to raise the
issue first at sick call. Wagner did and was prescribed a fiber supplement and stool
softeners. Two years later, when Wagner reported continuing constipation, Dr. Baker
renewed those prescriptions and ordered lactulose (a laxative). Three times over the
next year, Wagner reported that these measures were not working. Dr. Baker responded
by ordering additional x-rays (which showed constipation but no cause), adjusting the
timing and dosage of the lactulose, prescribing another laxative and a medication to

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No. 19-1468 Page 3
reduce gas, and discontinuing one of the stool softeners. A CT-scan ordered by
Dr. Baker in August 2015 detected no sign of constipation.
Wagner also dealt with frequent urination. In fall 2014, Dr. Baker prescribed
finasteride (a medication used to shrink an enlarged prostate) and ordered a battery of
tests and x-rays that all came back normal. After Wagner reported no improvement,
Dr. Baker prescribed an antibiotic for a possible prostate infection. In spring 2015,
Dr. Baker referred Wagner to a urologist, who opined that Wagner’s frequent urination
was related to his constipation and might warrant a visit to a gastroenterologist for
laxatives. At his last visit with Williams that August, Dr. Baker prescribed a bladder
relaxant recommended by the urologist.
Wagner further suffers from sleep apnea. At summary judgment and at trial, the
parties presented conflicting testimony and evidence on the treatment Wagner received
for this condition. Wagner asserted that he was diagnosed with sleep apnea in 2010 and
told Dr. Baker upon his arrival at Western that he would stop breathing at night, but
Dr. Baker refused to treat him for over a year. For his part, Dr. Baker asserted that
Wagner’s medical records contained no sleep-apnea diagnosis. Further, Dr. Baker
asserted that Wagner first complained to Western staff about difficulty breathing at
night in late 2013, at which point Dr. Baker ordered a sleep study that diagnosed
Wagner with the condition and then ordered Wagner a continuous positive airway
pressure (CPAP) machine.
Wagner sued Dr. Baker (along with other prison officials and staff and several
Illinois elected officials) for deliberate indifference to his serious medical needs, in
violation of his rights under the Eighth Amendment.
The district court granted in part and denied in part the defendants’ motions for
summary judgment. The court entered summary judgment against Wagner on his
claims relating to the treatment of his GERD, constipation, and frequent urination. The
court explained that no rational juror could find that the defendants were deliberately
indifferent to these issues, given the extensive array of tests, x-rays, and medicines that
they ordered in response to Wagner’s reports of ongoing symptoms. And, though
Wagner insisted that his symptoms persisted and that he needed to see a
gastroenterologist, he provided no evidence that the defendants’ determinations about
his treatment departed from accepted professional judgment. But the court denied
summary judgment on Wagner’s claim concerning his sleep apnea. Noting that
Dr. Baker had not addressed Wagner’s assertions that he told the doctor of his trouble

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sleeping for a year before he received treatment, the court determined that a reasonable
juror could find that Dr. Baker deliberately delayed the sleep study and later treatment.
The case proceeded to trial on the sleep-apnea claim. Wagner testified that he
had reported sleep troubles to Dr. Baker as soon as he arrived at Western and that he
had submitted several grievances on the issue before fall 2013. Dr. Baker also testified,
pointing out that there was no record that Wagner reported sleep issues to him or to
anyone else at Western through the grievance process before September 2013. The jury
found for Dr. Baker, and the court entered judgment in his favor.
Wagner proceeded to file several post-trial motions. Within a month of the entry
of judgment, he filed two motions that requested copies of the trial transcripts and
expressed an intent to appeal the jury’s verdict and the court’s summary-judgment
ruling. He also moved for a new trial, contending that the evidence did not support the
jury’s verdict because Dr. Baker had lied. He argued that he could contradict Dr.
Baker’s testimony through newly discovered evidence—encyclopedia entries on sleep
apnea and a note from a correctional officer at his current prison (not Western) that
stated that grievances there were not recorded in the way that Dr. Baker testified. The
court denied Wagner’s motion, concluding that the jury was entitled to credit
Dr. Baker’s testimony. Wagner then sought reconsideration of the denial of his motion
for a new trial; the court denied that motion on January 30.
II. Discussion
We first address the scope of our jurisdiction. Wagner’s notice of appeal, mailed
on February 28, 2019, was timely to appeal only the denial of reconsideration of the
denial of his motion for a new trial. He mailed the notice more than 30 days after the
denial of his motion for a new trial on December 17, 2018, and the time for appealing
that denial was not tolled by his later motion for reconsideration. See F ED. R.
A PP . P. 4(a)(1)(A), (a)(4)(A)(v), (c); Armstrong v. Louden, 834 F.3d 767, 769 (7th Cir. 2016).
We therefore ordered the parties to file supplemental briefs addressing whether our
jurisdiction extended over only the denial of his motion for reconsideration.
We are satisfied that our jurisdiction is not so limited, however, because
Wagner’s motions for transcripts provided notice of his intent to appeal the jury’s
verdict and the district court’s order entering summary judgment. A filing that does not
meet the technical requirements of Rule 3 of the Federal Rules of Appellate Procedure
may nonetheless provide adequate notice of a litigant’s intent to appeal if it includes
“the functional equivalent” of what the rule requires. Smith v. Barry, 502 U.S. 244, 248

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(1992). Here, both of Wagner’s motions were timely filed within 30 days of the
judgment. See F ED. R. A PP . P. 4(a)(1)(A), (a)(4)(B)(i). The first motion said he was “going
to appeal the jury verdict to the Seventh Circuit of Appeals,” and the second elaborated
that “even if the motion for a new trial is denied … it is the Plaintiff’s intent to appeal
the Defense counsel’s motion for summary judgment being granted as well as the jury’s
verdict in favor of Dr. Thomas Baker.” Because they contain the name of the party
taking the appeal, designate the jury verdict and the summary-judgment order as the
rulings being appealed, and name this court, these filings are functional equivalents of a
notice of appeal under Rule 3. See F ED. R. A PP . P. 3(c)(1); Smith, 502 U.S. at 248; Smith v.
Grams, 565 F.3d 1037, 1041–42 (7th Cir. 2009). But Wagner did not submit any timely
filing that reflected an intent to appeal the court’s order denying his motion for a new
trial, so we may not review that decision. See F ED. R. A PP . P. 4(a)(4)(B)(ii).
As for the merits, Wagner first challenges the district court’s decision to enter
summary judgment for Dr. Baker on his claims that he was deliberately indifferent to
his GERD. He argues that he had identified a fact dispute based on his testimony that
Dr. Baker ignored his complaints of coughing or spitting up blood. He also contends
that the court overlooked evidence that Dr. Baker refused to follow through on referrals
made by his former prison doctors and urologist for him to see a gastroenterologist.
But the record does not support Wagner’s version of events, and no reasonable
jury could find that Dr. Baker deliberately disregarded this serious medical condition.
See Farmer v. Brennan, 511 U.S. 825, 837, 846 (1994); Petties v. Carter, 836 F.3d 722, 728
(7th Cir. 2016) (en banc). First, Dr. Baker did not ignore Wagner’s complaints about his
GERD or coughing or spitting up blood. Instead, the record shows that Dr. Baker
prescribed medication to reduce stomach acid and relied on extensive testing to
determine that Wagner did not require other treatment. Wagner cannot point to any
evidence showing that Dr. Baker’s treatment decisions departed from professional
standards to such an extent that they demonstrated an absence of professional
judgment. See Johnson v. Dominguez, 5 F.4th 818, 826 (7th Cir. 2021). Second, the record
does not reflect that any doctor referred Wagner to a gastroenterologist. And even if one
had, Dr. Baker’s disagreement with another physician does not show that he provided
constitutionally inadequate care. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006).
Wagner next argues that the district court improperly entered summary
judgment on his claims that Dr. Baker was deliberately indifferent to his complaints of
constipation and need to urinate frequently. He contends that the evidence showed that
Dr. Baker persisted with ineffective treatment for those problems and ignored the

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advice of specialists—for instance, by not treating his constipation before his urinary
frequency, as recommended by the urologist.
Here too, the district court correctly concluded that Wagner had not produced
evidence supporting his claims. He does not identify any evidence that questions the
changes in treatment (i.e., alterations in his medication) that Dr. Baker made in response
to his complaints. Cf. Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005) (jury could find
deliberate indifference where defendants continued with ineffective treatment). Indeed,
the last scans reviewed by Dr. Baker showed that Wagner was not constipated. Wagner
also produced no evidence suggesting that Dr. Baker ignored a specialist’s advice.
See Harper v. Santos, 847 F.3d 923, 927 (7th Cir. 2017). Rather, Dr. Baker followed the
urologist’s instruction that, once he was no longer constipated, Wagner’s urinary
frequency could be treated with a bladder relaxant.
Wagner next raises two challenges to the jury’s verdict. First, he takes issue with
defense counsel’s statement at closing argument that he lied when he testified that he
complained about his sleep apnea before 2013. But Wagner waived this argument when
he failed to object at trial to counsel’s closing remarks. See Black v. Wrigley, 997 F.3d 702,
710–11 (7th Cir. 2021). Second, Wagner challenges defense counsel’s introduction of
certain medical records (pertaining to his prior drug addiction and sexually transmitted
disease) that he regards as prejudicial. But the introduction of these records could not
have been plain error, given that Wagner posed no objection and used them himself at
trial. See id. at 709; United States v. Addison, 803 F.3d 916, 919 (7th Cir. 2015).
Finally, Wagner argues that the district court erred in refusing to reconsider the
denial of his motion for a new trial. The court appropriately exercised its discretion to
deny that motion. See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir. 2013).
The evidence Wagner purported to be newly discovered—the encyclopedia entry on
sleep apnea and the note from the correctional officer about the grievances process—
did not contradict Dr. Baker’s testimony or warrant a new trial. See id at 955.
We have considered Wagner’s other arguments, and none has merit.
AFFIRMED

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