Roger Allen Cose v. Mary Gorske

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 19, 2019*
Decided February 28, 2019
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 18-1550 & 18-1810
ROGER ALLEN COSE,
Plaintiff-Appellant,
v.
MARY GORSKE, et al.,
Defendants-Appellees.
Appeals from the United States District
Court for the Western District of Wisconsin.
No. 14-cv-540-jdp
James D. Peterson,
Chief Judge.
O R D E R
Roger Cose, a Wisconsin prisoner, brings two sets of claims under the Eighth
Amendment against medical officers. The district court dismissed his first claim, which
alleges that a nurse denied Cose’s request for a lower bunk, despite knowing that his
safety depended on granting it. Later, the court entered summary judgment against
* Defendant Belinda Schrubbe was not served in the district court and is not
participating in this appeal. 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. FED. 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NONPRECEDENTIAL DISPOSITION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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Nos. 18-1550 & 18-1810 Page 2
Cose on his second set of claims, which he brought against his treating nurse and
physician. We agree with the district court that Cose failed to establish a triable dispute
on those claims, but because Cose sufficiently alleged that the nurse deliberately
ignored his need for a lower bunk, we vacate the dismissal of that claim.
Cose broke his left leg in a motorcycle accident years ago, and as a result his legs
have differing lengths. An X-ray taken when Cose was first incarcerated reveals some
fractures. After transferring prisons in 2003, he told his treating nurse, Mary Gorske,
about ongoing pain in his left leg. She reviewed his old X-ray, referred him to an
orthopedic specialist, and prescribed ibuprofen. (Cose never received the drug; six
months later, Gorske changed Cose’s prescription to require him to buy it.) He saw the
orthopedic specialist eight months later, a month after he complained to Gorske about
the delayed appointment. The specialist ordered an updated X-ray of Cose’s left leg.
That X-ray was not taken until after they met. The specialist received and examined
Cose’s old X-ray.
After that exam, the specialist ordered certain follow-up measures. First, she
wanted Cose to see an orthotist for modified shoes to treat his leg-length discrepancy.
Second, she wanted Cose’s treating physician, Dr. Charles Larson, to have Cose return
to see her for another appointment after he received his orthotic footwear. Dr. Larson
noted and agreed with these instructions. Cose saw the orthotist and was fitted for a
modified shoe, but he never had a follow-up appointment with the specialist.
Dr. Larson reviewed the radiology report of the new X-ray that the specialist had
ordered but not seen. Comparing the new X-ray to the old one, the report observed that
Cose’s previous breaks were “unchanged.” It also noted that an “overriding” fibular
fracture, which the old X-ray report had not mentioned, was “unchanged.” Based on his
review, Dr. Larson did not provide more treatment for Cose’s left leg. He said that Cose
“was already receiving the necessary medical treatment for a pre-existing condition
with no recommendation from his orthopedist … to treat differently on the basis of the
x-ray report.”
Ten years later, Cose received more treatment for his left leg. When he
complained to a prison nurse about leg pain in 2013, a prison nurse reviewed the old X-
rays. She told him that the second X-ray revealed that his left leg had an untreated

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Nos. 18-1550 & 18-1810 Page 3
break (the fibular fracture) that was at least 10 years old. Cose promptly saw an
orthopedist and was “casted for a solid ankle [ankle-foot orthotic] to the left leg.”
During this time, Cose had sought—and for years received—a lower-bunk pass
because he could not safely reach an upper bunk. In 2011, Belinda Schrubbe, a nurse,
decided requests for lower-bunk passes. (Cose alleged this in his initial complaint, and
we construe his later complaint as incorporating that earlier allegation because this was
Cose’s “clear intention, prompted by statements in a prior order of the district court” to
add specific facts. See Otis v. Demarasse, 886 F.3d 639, 644–45 (7th Cir. 2018)). Cose
alleges that when he asked Schrubbe to renew his pass that year, she read his medical
record. It states that he is “unable to run, jump or climb without great difficulties” and
had received a lower-bunk accommodation for the last eight years. Based on these
records, Schrubbe had approved his previous request for the pass. Yet, with the record
unchanged, Schrubbe denied his latest request for a pass. As a result, Cose fell while
trying to climb into an upper bunk, seriously injuring himself.
Cose sued Schrubbe, Gorske, and Larson for deliberate indifference to his
medical condition in violation of the Eighth Amendment. The district court screened
and dismissed his claim against Schrubbe, see 28 U.S.C. § 1915A, because he did not
allege that she knew about his fractured fibula when she denied him a lower-bunk pass.
The court later entered summary judgment for the defendants, concluding that a
reasonable jury could not find that either defendant knew about his broken fibula and
deliberately disregarded it. Cose moved to alter or amend the judgment under
Rule 59(e), citing “new evidence”: his medical file contained other inmates’ records and
other errors, suggesting that summary judgment was improper because the defendants
relied on evidence that was “corrupt.” The judge denied his motion, reasoning that the
evidence Cose cited was not “new” (because Cose had received it months earlier) and
not material (because he had not shown that the errors affected the court’s analysis).
On appeal, Cose first challenges the dismissal of his claim against Schrubbe. He
argues that, because he alleged that Schrubbe reviewed his medical records, she knew
that he needed a lower bunk for his safety; her refusal to allow that accommodation
therefore reflected deliberate indifference to his medical needs. To state a claim that a
prison official violated the Eighth Amendment through deliberate indifference to
medical needs, Cose must allege that (1) an objectively serious medical condition

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created a substantial risk of harm, and (2) the official knew about the risk but recklessly
disregarded it. See Farmer v. Brennan, 511 U.S. 825, 834, 839–40 (1994); Perez v. Fenoglio,
792 F.3d 768, 776 (7th Cir. 2015). Cose did so. He alleged that Schrubbe knew that he
was unable to reach a top bunk safely and that requiring him to do so risked “great
difficulties.” This is sufficient. See Powers v. Snyder, 484 F.3d 929, 931–32 (7th Cir. 2007);
see also Estelle v. Gamble, 429 U.S. 97, 103 (1976). The district court’s rationale for
dismissing the claim focused on whether Cose had pleaded Schrubbe’s knowledge of a
particular fracture in his left leg. That’s not the point of Cose’s claim, however. He
alleged that Schrubbe knew from his medical records that he could not safely use an
upper bunk but assigned him one anyway. That states a plausible claim, and no more is
required at the outset of a suit.
We may remand the case as to Schrubbe, though she was not served in the
district court and did not participate in this appeal. See Beal v. Foster, 803 F.3d 356, 357
(7th Cir. 2015). The screening provision in 28 U.S.C. § 1915A required the district court
at the outset of the litigation to review Cose’s complaint to identify whether Cose had
stated a claim against Schrubbe. Thus, any determination before service of process was
necessarily provisional, and when Schrubbe is served, she will retain all of her
substantive and procedural rights, including the right to move for dismissal under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Cf. Murphy Bros., Inc.
v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350–51, 356 (1999) (rejecting interpretation of
28 U.S.C. § 1446 that would “render removal the sole instance in which one’s
procedural rights slip away before service of a summons”).
Cose next challenges the entry of summary judgment for Dr. Larson. He first
argues that the evidence suggests that Dr. Larson recklessly failed to seek a follow-up
meeting with the orthopedic specialist who had treated Cose before the new X-ray was
taken and therefore needed to see the new X-ray to provide proper treatment. But only
an “‘obdurate refusal’ to engage specialists” allows an inference of reckless indifference.
Pyles v. Fahim, 771 F.3d 403, 412 (7th Cir. 2014) (quoting Greeno v. Daley, 414 F.3d 645,
654 (7th Cir. 2005)); Ortiz v. Webster, 655 F.3d 731, 735 (7th Cir. 2011). The record shows
that Dr. Larson reviewed and agreed with the specialist’s recommendations, studied the
new X-ray report, and fulfilled the specialist’s instructions for orthotic footwear. The
only failure was that a second meeting with the specialist was not scheduled. But even if
we assume that Dr. Larson was responsible for scheduling that appointment or

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mistakenly thought that the specialist had already seen the new X-ray, nothing suggests
that this failure was deliberate, and negligence “does not give rise to a constitutional
violation.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006).
Cose’s two other accusations of Dr. Larson’s shortcomings are also unavailing.
He contends that Dr. Larson recklessly read only the X-ray report and not the actual X-
rays. But Cose has not offered evidence suggesting that relying on X-ray reports
departed so far from accepted medical standards that it reflected an absence of
professional judgment. See Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir. 2008). The court
also correctly determined that Cose offered no evidence that Dr. Larson ignored Cose’s
complaints of pain. See Palmer v. Marion Cty., 327 F.3d 588, 596 (7th Cir. 2003).
That brings us to Cose’s argument that the district court erroneously entered
summary judgment for Gorske. He first argues that for seven months Gorske delayed
scheduling his appointment with the orthopedic specialist, but Cose has not furnished
evidence that Gorske was responsible for that delay. See Mitchell v. Kallas, 895 F.3d 492,
498–99 (7th Cir. 2018). And even if she were responsible, the record suggests at worst
negligence because she acted promptly once Cose told her that he had not yet had an
appointment. See Giles v. Tobeck, 895 F.3d 510, 513–14 (7th Cir. 2018). Cose also blames
Gorske for not scheduling the follow-up appointment with the specialist, but nothing
suggests that Gorske even knew that he was supposed to have a second appointment.
Cose next argues that Gorske showed deliberate indifference to his need for pain
medication. He first observes that after Gorske prescribed ibuprofen to him for pain, he
did not receive the medication for six months. But he concedes that she prescribed pain
medication to him, so she was not ignoring his complaints of pain, and no evidence
suggests that she was responsible for bringing the drugs to him or that she prevented
others from doing so. Therefore, no jury could find her deliberately indifferent.
Cose also contends that Gorske’s decision to change his ibuprofen prescription to “buy
own” was itself deliberate indifference. But he submitted no evidence that requiring
him to buy his own pain medicine was inconsistent with a reasonable treatment plan.
We close with two procedural matters. First, Cose challenges the denial of his
motion under Federal Rule of Civil Procedure 59(e) to amend the judgment in light of
the evidence of errors in his medical file. We review that ruling for abuse of discretion.

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Lightspeed Media Corp. v. Smith, 830 F.3d 500, 505 (7th Cir. 2016). Because Cose had
access to these records when the defendants moved for summary judgment, he
presented no “newly discovered evidence” that required the district court to grant his
motion. See Sigsworth v. City of Aurora, III, 487 F.3d 506, 511–12 (7th Cir. 2007). Second,
Cose asserts that the district court should have sanctioned the defendants for allowing
the destruction of the original X-rays. Even if we assume that the defendants possessed
the X-rays during the litigation (the record suggests otherwise), Cose has presented no
evidence that the X-rays were destroyed in bad faith. Without such evidence, the denial
of sanctions was not an abuse of discretion. See Bracey v. Grondin, 712 F.3d 1012, 1019
(7th Cir. 2013).
We VACATE the dismissal of Cose’s claim against Schrubbe and REMAND that
claim for further proceedings; we AFFIRM in all other respects.

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