Jeffrey D. Leiser v. Karl Hoffmann

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 16, 2021*
Decided July 19, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-2908
JEFFREY D. LEISER,
Plaintiff-Appellant,
v.
KARL HOFFMANN, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 18-cv-277-slc
Stephen L. Crocker,
Magistrate Judge.
O R D E R
Jeffrey Leiser filed a federal lawsuit claiming that, between 2016 and 2018,
medical care providers at New Lisbon Correctional Institution in Wisconsin were
deliberately indifferent to his chronic back pain and chest pains, violating his Eighth
Amendment rights. See 42 U.S.C. § 1983. The district court entered summary judgment
for the defendants, concluding that no reasonable jury could find that any defendant
* 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NONPRECEDENTIAL DISPOSITION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
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-2908 Page 2
showed deliberate indifference. Leiser appeals, but we agree with the district court that
he did not raise a genuine issue of material fact, and so we affirm.
Because Leiser appeals the entry of summary judgment, we recount the record in
the light most favorable to him. See Woodring v. Jackson Cty., 986 F.3d 979, 984 (7th Cir.
2021). Since at least 2011, Leiser has suffered from a degenerative disc disease causing
chronic back pain. In this case, Leiser’s complaints about his medical treatment began
on November 24, 2016, when he reported severe back pain to a nurse, Toni Johnson.
After examining him, Johnson noted that he said his pain was “12/10” and that he could
not find a comfortable position. She also observed that he was alert and oriented, he
had no deformities or swelling, he leaned forward “very easily, with no grimacing or
guarded movements,” and he sat back without difficulty. Further, staff in Leiser’s
housing unit informed Johnson that Leiser had used the stairs frequently that day.
Johnson determined that she did not need to notify the on-call doctor and that Lesier
should continue his medication (Tylenol), apply ice and heat to his back, and use a cane,
which she fitted him for that day. She also scheduled a nurse visit for the next day.
At that visit, Leiser reported continuing pain to nurse Koreen Frisk. Frisk
contacted the on-call doctor, a non-defendant, who ordered a transcutaneous electrical
nerve stimulation (TENS) unit, ibuprofen, a topical pain-relief cream, and a warm
compress, as well as an appointment with a doctor for the next week. Leiser told Frisk
that ibuprofen and the cream would be ineffective for his kind of pain.
Leiser next saw Dr. Karl Hoffmann. Suspecting that Leiser’s disc disease was
flaring up, Dr. Hoffmann referred Leiser for an MRI and a consultation with a
neurosurgeon. He also prescribed tramadol, a narcotic. Concerned about the addictive
effects of narcotics, which he believed were ill-suited for chronic pain, Dr. Hoffmann
made the prescription short-term (three weeks) and declined to renew it, despite
Leiser’s continuing pain. Leiser’s MRI showed severe issues, but the neurosurgeon
concluded that, although Leiser needed surgery, it was not feasible because he was
severely obese. Leiser told Dr. Hoffmann that his pain prevented him from exercising,
so the doctor decided to prescribe tramadol again while Leiser tried to lose weight.
About a year later, Dr. Hoffmann discontinued the tramadol prescription after
receiving a conduct report that Leiser was suspected of “cheeking” a pill—putting it in
his mouth without swallowing it. (The suspicion could not be confirmed because Leiser
was uncooperative, the report said.) The next day, Leiser complained to a nurse, Nicole
Krahenbuhl, of withdrawal symptoms; he said he had chills, could not eat, was

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sweating, and had a sharp pain in his chest. Krahenbuhl consulted with the on-call
doctor, who ordered naproxen (a non-narcotic pain reliever) and increased Tylenol.
Leiser sent a health services request to Jamie Barker, the Health Services
Manager, reporting that he was suffering withdrawal symptoms, including chest pain,
because his tramadol prescription was discontinued. The request was not routed to
Barker; rather, a nurse triaged it and responded within 24 hours that the prescription
would not be renewed. Barker does not recall ever seeing the complaint.
Leiser also had heart problems. After complaining of chest pains on March 1,
2017, he had exploratory heart surgery (cardiac catheterization) followed by an
angioplasty and stenting of two narrowed vessels on April 20. The surgeon prescribed,
among other medications, clopidogrel, to help with blood flow. Leiser did not receive
those medications immediately, as intended. According to Krahenbuhl, the order likely
was not marked “STAT,” and so it was transcribed on a non-emergency basis. Leiser
says that when he returned from surgery (that same day) Krahenbuhl said she did not
know anything about his medications. Three days later, Leiser told Dr. Hoffmann that
he had not received any post-surgery medications. Dr. Hoffmann ordered, and Leiser
received, clopidogrel that day. After Leiser reported chest pains throughout the week,
Dr. Hoffmann followed up with the heart surgeon, who determined that Leiser’s delay
in taking clopidogrel warranted another cardiac catheterization. The next day, Leiser
had the procedure, which showed no further heart problems.
Leiser filed this lawsuit in April 2018. The district court granted him leave to
proceed on Eighth Amendment claims based on: (1) Johnson’s and Frisk’s responses to
his back pain in November 2016; (2) Dr. Hoffmann’s two discontinuations of tramadol;
(3) Krahenbuhl’s treatment of his withdrawal symptoms and failure to give him
clopidogrel after his surgery; and (4) Barker’s failure to respond to his health services
request. Ultimately, the district court granted summary judgment for all defendants,
concluding that the evidence did not permit a reasonable finding that any defendant
violated Leiser’s constitutional rights.
Leiser appeals. The parties agree that Leiser had serious medical conditions, and
so, for his claim to survive summary judgment, he needed evidence that the defendants
were deliberately indifferent to those conditions. See Farmer v. Brennan, 511 U.S. 825, 834
(1994). “[S]howing mere negligence is not enough”; deliberate indifference means that
the defendants “actually knew of and disregarded a substantial risk of harm.” Petties
v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc) (emphasis in original).

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Leiser first asserts that the district court overlooked multiple factual disputes
with respect to how Johnson responded to his reports of severe back pain. But none of
the disputes he highlights is material to the question of Johnson’s state of mind.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). First, there is no dispute that
Johnson decided how to treat Leiser’s back pain based on her examination of his vital
signs, her observations of his physical abilities, and her consideration of his unit staff’s
reports (which, even if untrue, as Leiser contends, were nonetheless conveyed to
Johnson). These undisputed facts show that Johnson exercised her medical judgment, to
which we must defer unless her decisions were a “substantial departure from accepted
professional judgment, practice, or standards,” or there is evidence of ill intent. Petties,
836 F.3d at 729 (quoting Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261–62 (7th Cir.
1996)). Leiser’s disagreement with Johnson’s assessment is insufficient to overcome this
deference. See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). Rather, Leiser needed to,
but failed to, point to evidence from which a jury could reasonably conclude that no
“minimally competent professional” would respond the same way under the
circumstances. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (quoting Sain v. Wood, 512
F.3d 886, 894–95 (7th Cir. 2008)).
Leiser’s arguments about Frisk are similar: He questions the truthfulness of
Frisk’s declaration, but his accusations do not cast doubt on the fact that Frisk
responded to his complaints of ongoing pain by seeking advice from the on-call doctor.
That doctor ordered a TENS unit, ibuprofen, muscle rub, a warm compress, and a
follow-up appointment. Nurses are entitled to rely on a doctor’s instructions unless it is
obvious that the doctor’s advice will result in harm. See Holloway v. Delaware Cty. Sheriff,
700 F.3d 1063, 1076 (7th Cir. 2012). To the extent Leiser complains that he told Frisk that
some of the treatments would be ineffective, he does not suggest that he told her the
basis for his opinion (such as, whether or for how long he had previously tried those
treatments). And Leiser did not have the right to direct his own treatment. See Burton
v. Downey, 805 F.3d 776, 785 (7th Cir. 2015).
As to Leiser’s claims against Dr. Hoffmann, Leiser argues that the conservative
use of tramadol left him in persistent pain. But doctors are not deliberately indifferent
when they are unable to eliminate completely a patient’s pain. See Snipes v. DeTella,
95 F.3d 586, 592 (7th Cir. 1996). And Dr. Hoffmann’s decisions to prescribe tramadol on
a short-term basis at first and later to terminate it after reported “cheeking” were both
based on concerns about the risks of dependency or abuse, so those decisions are
entitled to deference. See Burton, 805 F.3d at 786. Leiser contends that his neurosurgeon
wanted him to stay on tramadol longer than the initial three-week prescription, but he

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has no evidence that the surgeon conveyed that opinion to anyone else. He also insists
that the report about his hoarding pills was false and that Dr. Hoffmann should have
weaned him off the drug. But Leiser did not provide evidence that Dr. Hoffmann had
reason to doubt the report. And Dr. Hoffmann testified that the risks of substance abuse
outweighed the risks of withdrawal, again demonstrating his use of medical judgment.
Next, Leiser challenges the entry of summary judgment for Krahenbuhl, the
nurse who saw him for withdrawal symptoms and whom he spoke to about medication
after surgery. He first argues that when he had withdrawal symptoms including chest
pains, she should have sent him to the hospital because his chart showed that he was
scheduled for a heart procedure in short order. But Krahenbuhl believed that the
discontinuation of his tramadol prescription, not cardiac distress, accounted for his
symptoms, and she responded by calling the on-call doctor and following his orders.
See Holloway, 700 F.3d at 106. As for Krahenbuhl’s failure to provide Leiser with
clopidogrel after surgery, Leiser has no evidence to contradict the testimony that the
delay resulted from improper categorization of the prescription, which might be
negligent, but does not support an Eighth Amendment claim. See Petties, 836 F.3d at 728.
Finally, the district court correctly entered summary judgment for Barker, the
manager of the health services unit, because she did not have any personal knowledge
of Leiser’s complaint. Leiser contends that Barker should be held responsible anyway,
because an unspecified prison policy required her to personally respond and because
she is responsible for her staff’s training. Even if Leiser had evidence that Barker
violated prison policy by delegating her duties, that alone would not establish a
constitutional violation. See Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). And even
if the nurse who responded to the complaint somehow violated his constitutional
rights, a “supervisor can be liable only if [s]he wants the unconstitutional or illegal
conduct to occur.” Vance v. Rumsfield, 701 F.3d 193, 203 (7th Cir. 2012) (en banc). And it
is undisputed here that Barker was not aware of Leiser’s complaint or the response to it.
AFFIRMED

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