Hoyt Ray v. WEXFORD HEALTH SOURCES, INC., and VIPIN K. SHAH

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1774
HOYT RAY,
Plaintiff-Appellant,
v.
WEXFORD HEALTH SOURCES, INC., and
VIPIN K. SHAH,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-CV-3071—Sue E. Myerscough, Judge.
SUBMITTED JANUARY 23, 2013—DECIDED FEBRUARY 7, 2013
Before EASTERBROOK, Chief Judge, and ROVNER and
TINDER, Circuit Judges.
PER CURIAM. Since July 2006 Hoyt Ray has experienced
pain in one of his shoulders. He contends that the pain
stems from an injury and that an MRI scan would point
the way toward successful treatment; Dr. Vipin K. Shah,
Ray’s treating physician at Western Illinois Correctional
Center, believes that the pain stems from arthritis and

-- 1 of 5 --

2 No. 12-1774
that a scan would not help in diagnosis and treatment.
Ray contends in this suit under 42 U.S.C. §1983 that
Dr. Shah is wrong—so far wrong that he has violated the
Constitution’s cruel and unusual punishments clause.
See Farmer v. Brennan, 511 U.S. 825 (1994); Estelle v.
Gamble, 429 U.S. 97 (1976). The district court granted
summary judgment to Shah, concluding that, right or
wrong about the source of Ray’s pain or the best
diagnostic tools, Shah had not displayed deliberate in-
difference toward Ray’s serious medical condition.
That Ray’s pain is a serious condition is common
ground among the litigants. For his part, Ray concedes
that he has received medical treatment from several
physicians. He has been examined often, x-rays have
been taken, and physicians have prescribed painkillers—
principally Ultram, a synthetic analgesic often used in
the treatment of arthritis. The medical staff also has
arranged for Ray to be assigned a lower bunk, so that he
can avoid arm motions that he has found painful. Ray is
sure that, with the assistance of an MRI scan, physicians
could do better. But both Farmer and Gamble observe
that medical malpractice is not actionable under §1983.
511 U.S. at 835; 429 U.S. at 106. The district court con-
cluded that even a conclusion of malpractice would be
unwarranted. Ray does not deny that, if his pain stems
from arthritis, his treatment is appropriate. And he has
not produced evidence that norms of professional
conduct call for using an MRI to determine whether
a diagnosis of arthritis based on x-ray films may be mis-
taken.

-- 2 of 5 --

No. 12-1774 3
Because Ray’s claim fails the objective component of
cruel-and-unusual-punishments analysis, we need not
consider his contention that Dr. Shah displayed subjec-
tive antipathy. According to Ray, Shah once stated that
“he didn’t care how much pain I was in or how bad
my shoulder hurt, he wasn’t sending me for an MRI . . . so
I was going to have to live with it.” Ray calls this state-
ment callous, and perhaps it was—though it may have
been just an effort to get across Shah’s view that a
patient’s level of pain does not affect the proper use of
MRI scans to verify or refute a diagnosis of arthritis. The
fact remains that, far from ignoring Ray’s pain, Shah
treated him for arthritis.
Ray has sued Shah’s employer, Wexford Health
Sources, which holds a contract to provide medical care
in Illinois’s prisons. Section 1983 does not create
vicarious liability. See Monell v. New York City Dep’t of
Social Services, 436 U.S. 658 (1978). An organization is
answerable for its own policies, but if a given policy
causes no harm to the plaintiff there is no possible re-
lief. Ray contends that Wexford has a no-MRI policy;
Wexford denies this and maintains that its staff can
order MRI scans when medically appropriate. It is unnec-
essary to decide what the firm’s policy may be, since
Ray has not established a constitutional problem with
his treatment and thus did not suffer actionable injury
from the policy he attributes to the corporation.
We conclude with a discussion of Ray’s request that
the district court assist him in recruiting counsel.
Before this case was assigned to Judge Myerscough,

-- 3 of 5 --

4 No. 12-1774
Judge Baker denied Ray’s motion for “appointment” of
counsel. That word is imprecise; there is no statutory
authority to “appoint” counsel in litigation under §1983.
See Mallard v. United States District Court for Southern
District of Iowa, 490 U.S. 296 (1989); Pruitt v. Mote, 503
F.3d 647, 653 (7th Cir. 2007) (en banc). All a district court
can do is seek a volunteer. The reason Ray asked the
judge to “appoint” counsel, however, is that this is
the word used in forms the district court supplies
for the purpose. The United States District Court for
the Central District of Illinois could head off potential
misunderstanding by revising its forms.
Judge Baker gave as one reason for denying Ray’s
motion his failure to submit proof that he had sought
legal assistance. Here, too, the district court’s form
may be doing litigants a disservice. Ray stated on the
form that he had contacted three lawyers; he gave
their names and addresses, though he did not attach
correspondence. If the district court believes that proof
in the form of letters written, and answers received,
is essential, it should tell litigants so. All the form
demands is a statement that an effort has been made.
The form used by the United States District Court for
the Southern District of Illinois calls for evidentiary
support; the form used by the Central District does not.
District courts should ensure that forms written by the
court’s staff (and approved by the judges) do not
mislead litigants about the criteria the court actually
applies to their requests.
We do not see any need for a remand in this case,
however. Ray has demonstrated an ability to litigate his

-- 4 of 5 --

No. 12-1774 5
case to the degree contemplated in Pruitt. He was able
to compel the defendants to produce evidence in dis-
covery, and he submitted legal memoranda and affida-
vits. He asked for the appointment of a medical
expert under Fed. R. Evid. 706(a); the district judge said
no, and Ray does not contest that decision. A lawyer
would have encountered the same obstacle.
AFFIRMED
2-7-13

-- 5 of 5 --