Jatavious Webster v. Barry Daughtry

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 1, 2025*
Decided May 7, 2025
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-2779
JATAVIOUS WEBSTER,
Plaintiff-Appellant,
v.
BARRY DAUGHTRY, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 22-cv-353-wmc
William M. Conley,
Judge.
O R D E R
Jatavious Webster, a Wisconsin prisoner, sued medical and dental staff at New
Lisbon Correctional Institution in New Lisbon, Wisconsin, alleging that they violated
his Eighth Amendment rights by failing to sufficiently treat his persistent numbness
and pain from a dental procedure. See 42 U.S.C. § 1983. The district court granted the
* 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NONPRECEDENTIAL DISPOSITION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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defendants’ motions for summary judgment, concluding that no reasonable trier of fact
could find that they were deliberately indifferent to Webster’s condition. We affirm.
We draw our account from the record at summary judgment, which we view in
the light most favorable to Webster, the nonmoving party. See Thomas v. Blackard, 2 F.4th
716, 720 (7th Cir. 2021). In September 2021, Webster saw Dr. Christopher Rauch, a
dentist at New Lisbon, to have cavities filled in three teeth. Before filling the cavities,
Dr. Rauch administered a numbing shot that contained two cartridges of anesthetic to
prevent Webster from feeling pain during the procedure.
The following month, Webster met with Dr. Michael Brown—also a dentist at the
prison—and reported that the left side of his tongue and the floor of his mouth had
remained numb following the procedure, but that he was not experiencing pain or
tongue biting. Dr. Brown diagnosed Webster with “left lingual nerve partial
paresthesia” and gave him two options: He could wait to see if the numbness resolved
on its own or meet with an oral surgeon. Webster opted for the latter option, and
Dr. Brown referred him to see an oral surgeon at Gunderson Health and prescribed a
steroid—taken orally—to promote nerve healing.
Eleven days later, Webster submitted a health service request reporting that he
was experiencing pain on the left side of his face, and the steroid he had been
prescribed did not seem to be working. The next day, a nurse examined Webster and
noted that he did not have facial swelling, oral inflammation, or signs of tongue biting.
The nurse forwarded Webster’s complaints to the dental department.
About a week later, on October 26, 2021, Webster met with an oral surgeon at
Gunderson for a consultation. Webster reported that his numbness persisted but had
improved slightly, and that he had difficulty eating and had been biting his tongue. On
examination, the surgeon determined that Webster could not distinguish dull and sharp
sensations on the left side of his tongue. The surgeon did not recommend additional
treatment but suggested that Webster follow up in a few months. If the condition did
not improve by that time, the surgeon explained, Webster should be considered for a
neurosurgical referral. The surgeon also noted that there was “[n]o utility” for a steroid
at that time.
On October 27, the day after meeting with the surgeon, Webster reported biting
his tongue and saw a nurse. The nurse noted irritation on Webster’s tongue and
forwarded his complaint to the dental department. The nurse also gave Webster

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acetaminophen and ibuprofen, which had been prescribed by Dr. Barry Daughtry, to
help manage any pain.
Dr. Brown met with Webster the following day, October 28. Dr. Brown observed
a small abrasion on the left side of Webster’s tongue, and Webster reported pain.
Webster also disclosed that he had experienced a “pins and needles” sensation, as well
as some pain, after taking the steroid that Dr. Brown prescribed. Webster stated that he
was anxious about continuing to take the steroid. The medical notes from the visit state
that Dr. Brown gave Webster several “options” and that Webster “chose” to take an
additional round of steroids and have a follow-up appointment with the oral surgeon.
Six days later, Dr. Brown discontinued the steroid prescription after Webster reported
that it was not working.
Webster met again with the oral surgeon at Gunderson on November 30, 2021—
about a month after their first meeting—and he reported tongue biting and a burning
sensation in his tongue. The surgeon did not see any visible abrasions from tongue
biting but determined that Webster still could not distinguish between dull and sharp
sensations on the left side of his tongue. As a next step, the surgeon recommended a
neurosurgical referral to Mayo Clinic and completed an “Off-Site Service Request and
Report” the same day. The surgeon’s notes and report were stamped as received by
New Lisbon on January 7, 2022. The record does not clearly identify the reason for the
five-week gap between the completion of the report and its delivery to New Lisbon.
Dr. Daughtry added a handwritten note at the bottom of the surgeon’s report: “Referral
to Mayo Oral Surgery. B.D. 1-7-2022.”
In February 2022, Webster submitted a health service request asking whether he
would need surgery for his left lingual nerve or whether there were other treatment
options. The day after Webster filed the request, the manager of the prison’s health
services unit, Tammy Strumness, responded. She stated that an appointment with Mayo
Clinic was being scheduled.
The following month, Webster met with an oral and maxillofacial surgeon at
Mayo Clinic. The surgeon conducted a “neuropathy cranial” assessment and observed
that Webster felt no pain or touch on the left side of his tongue but that everything else
was normal. Webster reported that his mouth had become less numb, but that he still
lacked feeling, pain, taste, and touch in the left side of his tongue and that he still would
sometimes bite his tongue. The surgeon diagnosed Webster with a “chemotoxic” nerve
injury that was caused by the injection of anesthetic during the earlier dental procedure.

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He did not need surgery, the surgeon explained, because such injuries tend to heal on
their own within six months to a year. Webster was instructed by the surgeon to take
vitamins and maintain a nutritious diet.
When Webster met with the surgeon six months later for a follow-up visit, he
reported no improvement in his symptoms. The surgeon expressed hope that Webster’s
condition would improve over time and did not recommend any further treatment.
Webster then sued Dr. Rauch, Dr. Brown, Dr. Daughtry, and Manager
Strumness, alleging that they were deliberately indifferent to his mouth pain and
numbness. He alleged that Dr. Rauch administered local anesthetic despite a high
likelihood that it could cause nerve damage, and that he did not have the necessary
certification to administer local anesthetic. Webster also alleged that Dr. Brown
improperly continued to prescribe steroid treatment after Webster told him that the
steroid was causing him pain and was not working. Further, Webster alleged that
Dr. Daughtry delayed his referral to Mayo Clinic, prolonging his pain and suffering.
And he alleged that Strumness was aware of his pain and need for surgery but did not
take steps to provide him adequate treatment.
During discovery, Webster filed a motion for default judgment against
Dr. Daughtry and a motion to compel Dr. Daughtry to amend his responses to
Webster’s requests for admission. Both motions concerned two versions of the “Off-Site
Service Request and Report” from Gunderson that recommended a neurosurgical
referral. The first version did not contain any information about when prison doctors
received the November 30, 2021, report from Gunderson. The second version contained
Dr. Daughtry’s handwritten note, dated January 7, 2022, that he had referred Webster to
Mayo Clinic. Webster alleged that Dr. Daughtry added the note in bad faith to cover up
the five-week delay in approving the referral. In response, Dr. Daughtry stated that
both versions were accurate—the first version reflected the document when it was
signed by the oral surgeon at Gunderson on November 30, 2021, and the second version
reflected Dr. Daughtry’s additional notation on January 7, 2022, when he received the
document and referred Webster to Mayo Clinic. The district court denied Webster’s
motions, concluding that Dr. Daughtry did not hide any information, and it reminded
Webster that he was free to make arguments about the authenticity of the handwritten
note at summary judgment.
The defendants then filed motions for summary judgment, which the district
court granted. The court determined that Webster failed to provide any evidence that

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would enable a reasonable jury to conclude that the defendants were deliberately
indifferent to his condition. Specifically, the court stated that Webster presented—at
best—evidence against Dr. Rauch and Dr. Brown that would support a finding of
negligence, which was insufficient to show deliberate indifference. See Farmer v.
Brennan, 511 U.S. 825, 835 (1994). And the court concluded that Dr. Daughtry was not
responsible for any delay in Webster’s referral to Mayo Clinic, and that even if he was,
Webster failed to provide any medical evidence that the delay caused him harm.
See Walker v. Wexford Health Sources, Inc., 940 F.3d 954, 964 (7th Cir. 2019). Finally, the
court determined that Webster’s claim against Strumness fell short because he failed to
present evidence that she was personally involved in his medical and dental care.
See Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir. 2018).
Webster appeals. We review de novo the summary judgment for the defendants.
Thomas, 2 F.4th at 720. To establish a violation of his rights under the Eighth
Amendment, Webster must show that: (1) he had an objectively, sufficiently serious
medical condition; and (2) the defendants knew of and disregarded an excessive risk to
his health. Farmer, 511 U.S. at 834, 837. The defendants do not dispute that Webster’s
nerve injury is a serious medical condition. On the second step, Webster must show 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).
Webster argues that the summary judgment for Dr. Rauch was improper for
three reasons. He contends that Dr. Rauch administered the local anesthetic before
filling Webster’s cavities despite lacking the necessary certification, disregarded a high
risk of nerve damage by administering anesthetic, and admitted to injecting more
anesthetic (two cartridges) than was needed.
But we agree with the district court that these allegations demonstrate—at
most—negligence on Dr. Rauch’s part, which is not sufficient to establish a violation of
Webster’s constitutional rights. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Pyles,
771 F.3d at 409. Indeed, “[d]eliberate indifference is not medical malpractice; the Eighth
Amendment does not codify common law torts.” Duckworth v. Ahmad, 532 F.3d 675, 679
(7th Cir. 2008). And, in any event, as the district court pointed out, Webster’s allegations
are not supported by the record. The evidence shows that administering anesthetic
before filling cavities is a common practice that rarely results in nerve damage, and

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Dr. Rauch, who is a licensed dentist, exercised his reasonable medical judgment in
determining the proper dosage.
Next, Webster argues that summary judgment was improper for Dr. Brown
because he prescribed a second round of steroids despite knowing that it would be
ineffective and could cause Webster pain. Specifically, Webster notes that the oral
surgeon at Gunderson stated that there was “[n]o utility” for further steroid treatment,
and that Webster told Dr. Brown that the first round of steroids had caused him pain.
But “evidence that another doctor would have followed a different course of treatment
is insufficient to sustain a deliberate indifference claim.” Burton v. Downey, 805 F.3d 776,
786 (7th Cir. 2015); see Estate of Cole v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996) (“Mere
differences of opinion among medical personnel regarding a patient’s appropriate
treatment do not give rise to deliberate indifference.”) And, although Webster says the
steroid treatment caused him pain, the medical notes show that Webster opted to
proceed with more steroids after Dr. Brown presented him with options for treatment.
Once it became clear that the steroids were not improving Webster’s condition,
Dr. Brown terminated the prescription. On these facts, no reasonable jury could
conclude that Dr. Brown was criminally reckless in the face of a known risk to
Webster’s health.
Webster also asserts that he raised a triable issue that Strumness did not take
measures to ensure that his appointment at Mayo Clinic would be scheduled, and that
she did not respond to his health service request in a timely manner. But Webster
provides no evidence that Strumness was involved in Webster’s medical and dental
care, and Strumness stated in a declaration that she does not regularly review health
services requests or handle referrals to outside medical facilities. See Mitchell, 895 F.3d at
498. Strumness did review one request from Webster, but she timely responded the day
after he submitted it to inform him that his appointment was being scheduled.
Webster further argues that he presented evidence that Dr. Daughtry delayed the
scheduling of an appointment at Mayo Clinic. But the only evidence that Webster cites
is his own unsupported allegation that Dr. Daughtry received the referral from
Gunderson earlier than he says he did. Without firsthand knowledge or any support in
the record—and with the available evidence pointing to the opposite conclusion—
Webster’s allegation is insufficient to establish a genuine dispute of material fact.
See Weaver v. Speedway, LLC, 28 F.4th 816, 820 (7th Cir. 2022).

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Even if Dr. Daughtry intentionally delayed the scheduling of Webster’s
appointment, however, Webster failed to show that “the delay exacerbated the injury or
unnecessarily prolonged [his] pain.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010); see Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010). The record shows that the
delay did not make Webster’s nerve injury worse or needlessly prolong his pain. At the
Mayo Clinic appointment, the surgeon did not recommend surgery or a different course
of treatment. For the first time on appeal, Webster submits records that, he argues, show
that he suffered psychological harm from the delay. But we will not review this
evidence because it was not first presented to the district court. See Hirmiz v. New
Harrison Hotel Corp., 865 F.3d 475, 476 (7th Cir. 2017).
Finally, Webster challenges the denials of his motion to compel and his motion
for default judgment against Dr. Daughtry. He argues that the district court denied him
the opportunity to show that Dr. Daughtry falsified the note on the second version of
the “Off-Site Service Request and Report.” We disagree. The court told Webster that he
was free to make arguments about the authenticity of the note at summary judgment.
And Webster did not present any evidence at summary judgment to support his
contention that the note was falsified. Webster thus has failed to show that the district
court abused its discretion in denying the motion to compel. See Gonzalez v. City of
Milwaukee, 791 F.3d 709, 713–14 (7th Cir. 2015) (no abuse of discretion in denying
plaintiff’s motion to compel because he failed to show he was prejudiced). Webster also
did not provide any evidence that Dr. Daughtry acted in bad faith during discovery
such that the court abused its discretion in denying the motion for default judgment.
Cf. Brown v. Columbia Sussex Corp., 664 F.3d 182, 190–91 (7th Cir. 2011) (no abuse of
discretion for dismissing case as a discovery sanction where party’s counsel violated a
discovery order in bad faith by lying to the court).
AFFIRMED

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