McKINLEY KELLY v. Michael Mitcheff

United States Court of Appeals
For the Seventh Circuit*
Chicago, Illinois 60604
Submitted May 28, 2024
Decided May 30, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-1157
McKINLEY KELLY,
Plaintiff-Appellant,
v.
MICHAEL MITCHEFF, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for Southern District of Indiana, Indianapolis
Division.
No. 1:21-CV-01404-JMS-TAB
Jane Magnus-Stinson,
Judge.
O R D E R
McKinley Kelly, an Indiana prisoner, sued three doctors and their employers
(two corporations that provided healthcare at his prison), alleging that they were
* 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. Rule 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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deliberately indifferent to his serious medical condition—gynecomastia—and its
associated pain when they refused to refer him for surgery or prescribe appropriate
pain medication. See 42 U.S.C. § 1983. The district court entered summary judgment for
the defendants because no evidence showed that the doctors failed to exercise
reasonable medical judgment in treating Kelly’s condition, and we affirm.
I. Background
We review the district court’s order granting summary judgment de novo and
recount the facts in the light most favorable to Kelly, the nonmovant. See Smallwood v.
Williams, 59 F.4th 306, 318 (7th Cir. 2023).
Kelly suffers from a condition called gynecomastia. It is a benign condition,
usually caused by a hormonal imbalance, that results in enlarged breasts in men. It can
be painful, particularly during the early stages of the condition. The pain typically
subsides after about twelve months when the breast tissue becomes fibrous. It is
undisputed that during the relevant period, from about January 2020 to November
2022, Kelly’s condition had progressed to the fibrotic stage. According to UpToDate, an
evidence-based medical resource used by Kelly’s doctors, breast pain caused by
gynecomastia is usually treated with Tylenol and avoiding tight clothing, but surgery to
remove the tissue may be appropriate in some cases.
Kelly first exhibited symptoms of gynecomastia in the late 1990s. In the early
2010s, Kelly underwent treatment for testicular cancer. Around the same time, he
reported pain, swelling, and milky discharge from his nipple. Doctors performed CT
scans in 2011 and 2012, which showed “mild” gynecomastia in both breasts. In 2013,
Kelly again complained of pain, swelling, and milky discharge from his nipples. Prison
doctors prescribed Ultram (an opioid analgesic) for pain and ordered a mammogram
and CT scan, which showed “moderately severe” gynecomastia. Although Kelly
testified that he consistently reported breast pain to doctors after 2013, his medical
records reveal no further complaints related to gynecomastia until 2020. Kelly’s
testicular cancer has been in remission since 2013.
From January 2020 to November 2022, Kelly submitted health care request forms
almost monthly complaining of “stabbing” or “burning” breast pain that affected his
ability to sleep, exercise, and shower. Sometimes he reported feeling nodules and
expressed concern that he had cancer. Kelly was treated by two doctors, Dr. Samuel
Byrd and Dr. Naveen Rajoli. Because Kelly had gynecomastia for over twenty years, the
doctors doubted it was the source of his breast pain.

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No. 24-1157 Page 3
From January to March 2020, Dr. Byrd treated Kelly. He responded to Kelly’s
first complaints of pain by ordering a chest x-ray and lab tests to rule out cancer and
other endocrine causes. When the results were normal, Dr. Byrd suggested that the pain
was likely psychosomatic because gynecomastia typically only causes tenderness in its
early stages. Dr. Byrd advised Kelly that given the established nature of Kelly’s
condition and lack of concerning symptoms (such as new lumps or nipple discharge),
performing a biopsy or surgery on Kelly’s breasts was not medically necessary. To
assuage Kelly’s doubts about the treatment plan, Dr. Byrd provided Kelly with a
printout from UpToDate regarding standard medical practices for the treatment of
gynecomastia.
In April 2020, Dr. Rajoli requested approval for an ultrasound after Kelly
reported a “very painful” nodule in his right breast. After Dr. Rajoli discussed Kelly’s
condition with Dr. Michael Mitcheff, Wexford’s Regional Medical director, the doctors
agreed that an ultrasound was not warranted at that time because most nodules caused
by gynecomastia go away on their own, and Kelly’s recent labs showed no cause for
concern. They instead ordered nurses to monitor Kelly’s breasts monthly for three
months—although Kelly claims that these checkups did not occur. Regardless, Dr.
Rajoli evaluated Kelly twice in May 2020, noted no change in symptoms, and prescribed
Tylenol for pain.
In June 2020, Kelly complained that the Tylenol was ineffective to treat his pain,
which caused “sleepless nights,” and expressed concern that the nodule in his breast
was growing. Dr. Rajoli observed that his breasts were “symmetrical,” but prescribed a
three-month course of Tamoxifen, a type of hormone therapy that is sometimes
successful in reversing enlarged breast tissue and alleviating pain. Although Tamoxifen
is most effective in reversing breast growth during the early stages of gynecomastia, Dr.
Rajoli believed that it might alleviate some of Kelly’s discomfort.
In September 2020, Dr. Byrd evaluated Kelly after he complained that Tamoxifen
and Tylenol failed to treat his pain. Dr. Byrd ordered another chest x-ray to screen for
cancer. The x-ray showed nothing concerning. Because Dr. Byrd believed Kelly’s
complaints of breast pain were new, despite his longstanding gynecomastia, Dr. Byrd
did not think gynecomastia was causing Kelly’s pain. So Dr. Byrd prescribed an anti-
inflammatory medicine (Mobic), which he thought might be more effective than Tylenol
and Tamoxifen.
Dr. Byrd evaluated Kelly again in November as part of his follow-up care for
testicular cancer. Kelly reported abdominal and chest pain that he was concerned was

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associated with cancer. Kelly told Dr. Byrd that the anti-inflammatory had not helped
with his pain and expressed concern that the Tamoxifen had caused pain around his
belly button. Based on Kelly’s description of his pain, Dr. Byrd suspected it might be
heartburn or esophageal ulcers caused by the Mobic, so he prescribed medication to
treat heartburn. He also ordered bloodwork and a urinalysis to screen for cancer.
In 2021, Dr. Rajoli took over Kelly’s care. In February, Kelly complained that his
prescribed medications were ineffective to treat his breast pain. Dr. Rajoli evaluated
Kelly and found “no discrete swellings” or lumps in Kelly’s breasts and noted no nipple
discharge. Dr. Rajoli prescribed a higher dose of Tylenol and ordered a nurse to
evaluate Kelly’s breasts monthly. Dr. Rajoli also told Kelly he would evaluate him every
90 days. (Kelly disputes that these evaluations occurred as scheduled.)
In May, Kelly requested a surgery referral because his breasts were sensitive, and
he was unable to sleep on his chest or shower properly. Dr. Rajoli evaluated him in
early August and determined that he would not refer Kelly to surgery because Kelly’s
breasts had no masses, there was no medical evidence that surgery would completely
resolve the pain, and the risks of surgery outweighed its benefits. Although Kelly
reported that the extra-strength Tylenol was ineffective for his pain, Dr. Rajoli did not
alter Kelly’s prescription because Kelly admitted that he had not refrained from
wearing tight clothing. Dr. Rajoli renewed the prescription for extra-strength Tylenol
and advised Kelly to avoid tight clothing and to lose weight.
Throughout 2022, Kelly sent eight health care request forms requesting an
outside consultation with a specialist or surgeon because medication had been
ineffective to treat his breast pain. To most of these requests, health care staff responded
that Kelly would be reevaluated every 30 days by nursing and every 90 days by a
doctor. He had several visits with Dr. Byrd; at each appointment, Kelly described his
pain as “burning” or “sharp” or an “aching throb.” Dr. Byrd expressed doubt about
Kelly’s pain because he “never saw him for [breast pain] until following the breast
reduction” surgery of another inmate at the prison. Dr. Byrd explained to Kelly that
such surgeries are appropriate to resolve “atypical gynecomastia,” but would only have
a cosmetic effect for Kelly’s typical gynecomastia. Dr. Byrd eventually ordered a breast
ultrasound, mammogram, and lab tests to confirm that Kelly’s condition had “no
atypical feature.” The results were normal. Although he doubted that Kelly was
suffering from severe pain, Dr. Byrd continued to prescribe Tylenol and Mobic.
Dr. Byrd’s notes reflect that he considered consulting with a specialist but concluded
that it was unnecessary because the need for surgery was only cosmetic.

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Kelly sued Dr. Byrd, Dr. Rajoli, and Dr. Mitcheff, alleging that they were
deliberately indifferent to his gynecomastia and breast pain. He also sued the prison’s
corporate health care providers, alleging that they maintained a policy of
unconstitutionally delaying or denying a specialist or surgery referral to save money.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978). (On appeal, Kelly does not
address the dismissal at screening of several other defendants.)
To establish deliberate indifference, Kelly must show that he had an objectively
serious medical condition that doctors knew about and intentionally disregarded.
See Farmer v. Brennan, 511 U.S. 825, 835–37 (1994); Munson v. Newbold, 46 F.4th 678, 681
(7th Cir. 2022). This standard “mirrors the recklessness standard of the criminal law,”
and requires more than a showing of mere negligence. Brown v. LaVoie, 90 F.4th 1206,
1212 (7th Cir. 2024). Instead, the evidence must permit a finding that the treatment
decisions were “so far afield of accepted professional standards as to raise the inference
that [they were] not actually based on a medical judgment.” Johnson v. Dominguez,
5 F.4th 818, 825 (7th Cir. 2021). Disagreements between Kelly and the doctors—or even
medical professionals—about the proper course of treatment do not on their own raise
an inference that a decision was not based on medical judgment. See Pyles v. Fahim,
771 F.3d 403, 409 (7th Cir. 2014).
The defendants moved for summary judgment, which the district court granted.
First, the court concluded that a reasonable juror could find that Kelly suffered from a
serious medical condition. But the doctors were not deliberately indifferent to it because
they responded to Kelly’s reports of pain by exercising their medical judgment to
ensure that he received proper diagnosis and treatment. Although Kelly argued that the
printout from UpToDate showed that surgery was an appropriate treatment for his
condition, it represented a mere difference of medical opinion, which could not support
a finding of deliberate indifference. The court then concluded that Wexford and
Centurion were also entitled to summary judgment because there was no underlying
constitutional violation.
II. Discussion
On appeal, Kelly primarily argues that the district court construed his allegations
too narrowly by focusing only on his request for surgery, rather than on his primary
complaint: unresolved pain. He argues that the doctors recklessly dismissed his
complaints of pain by persisting for years in prescribing ineffective medication and
refusing to order a specialist referral. Kelly also argues that the district court improperly

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discounted his medical evidence from UpToDate—given to him by Dr. Byrd—which
showed that the doctors knew surgery was the proper course of action.
We agree with the district court that the undisputed evidence shows that
Dr. Rajoli and Dr. Byrd did not ignore Kelly’s gynecomastia and associated pain and
exercised reasonable judgment in treating him. When Kelly first expressed concern in
2020 about painful lumps in his breast, Dr. Byrd ordered x-rays and labs to rule out
cancer and hormonal abnormalities that would cause Kelly’s existing gynecomastia to
flare up. Because the test results were normal, Dr. Byrd and Dr. Rajoli doubted that
gynecomastia was causing the pain, but they prescribed pain medication of differing
types and dosages, recommended behavioral modifications, and even attempted a
course of hormonal therapy. When Kelly’s pain persisted months later despite these
treatments, Dr. Byrd ordered another round of tests and imaging to uncover the source
of the pain. When those tests revealed nothing abnormal, Dr. Byrd continued
prescribing Tylenol and concluded that, in his medical judgment, nothing stronger was
appropriate for Kelly’s pain. Although Kelly points out that doctors prescribed a
stronger pain reliever (Ultram) in 2013 for his gynecomastia pain, he had different
symptoms in 2020. For example, imaging scans revealed that in 2013 his gynecomastia
was “moderately severe,” whereas it was only “mild” in 2020. Further, Kelly had nipple
discharge in 2013 that was not present in 2020. In any event, Kelly’s desire for different
pain medication does not mean that the doctors’ chosen treatment plan was objectively
unreasonable. See Williams v. Ortiz, 937 F.3d 936, 944 (7th Cir. 2019).
Kelly argues that the doctors knew their treatments would not treat his pain
because the print-out from UpToDate explains that the appropriate intervention for
late-stage gynecomastia is surgery. But this misreads the article. It states only that
surgery “should be considered in men whose gynecomastia does not regress
spontaneously; is causing considerable discomfort or psychological distress or is
longstanding.” And the doctors did consider surgery. But they exercised their medical
judgment to determine that surgery was inappropriate based on Kelly’s typical
presentation of gynecomastia, lack of concerning findings on imaging and in lab tests,
and their conclusion that the gynecomastia was not likely causing Kelly’s pain.
Kelly next argues that the district court overlooked critical evidence that
Dr. Mitcheff denied Dr. Rajoli’s request for an ultrasound to assess a nodule in Kelly’s
breast in April 2020. Kelly argues that the decision to monitor the nodule was
inconsistent with reasonable medical judgment because the UpToDate article states that
monitoring is appropriate only during the earliest stages of gynecomastia. Dr. Mitcheff,
on the other hand, testified that he believed monitoring was more appropriate than an

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ultrasound because localized swelling caused by gynecomastia often resolves on its
own, and an ultrasound is unnecessary unless there are other concerning symptoms.
Although this assessment differed from the information in the UpToDate article, Kelly
has not shown that the assessment was “so significant a departure from accepted
professional standards … that it calls into question whether the doctor actually was
exercising his professional judgment.” See Pyles, 771 F.3d at 409. Regardless, Kelly can
prove no injury from the denial of the ultrasound—the nodule went away on its own
within a matter of months.
Finally, Kelly does not address on appeal whether the district court erred in its
determination that the corporate health care providers were entitled to summary
judgment. Therefore, any argument along those lines is waived. Shipley v. Chi. Bd. of
Election Comm’rs, 947 F.3d 1056, 1062–63 (7th Cir. 2020).
AFFIRMED

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