Keith Blackwell v. Elizabeth Trueblood

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 2, 2021 *
Decided September 2, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 20-3345
KEITH BLACKWELL,
Plaintiff-Appellant,
v.
ELIZABETH TRUEBLOOD, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana,
Terre Haute Division.
No. 2:17-cv-00407-JPH-DLP
James Patrick Hanlon,
Judge.
* 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NONPRECEDENTIAL DISPOSITION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

-- 1 of 4 --

No. 20-3345 Page 2
O R D E R
Keith Blackwell, a former federal inmate, maintains that the officials and medical
staff at Federal Correctional Center Terre Haute withheld effective treatment for his
chronic obstructive pulmonary disease (COPD) and ignored unsafe living conditions
that exacerbated his symptoms. He brought this action for deliberate indifference under
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
The district court entered summary judgment for the defendants. Because no reasonable
factfinder could find that the defendants ignored Blackwell’s serious medical needs or
living conditions, we affirm.
The claims at issue in this appeal relate to the brief time Blackwell spent at FCI
Terre Haute (a facility within the FCC Terre Haute complex) from January 11, 2016,
through February 2016. Blackwell had been transferred there to receive a higher level of
medical care for his COPD than was available at his former facility. On January 14,
three days after his arrival, a prison doctor, Elizabeth Trueblood, evaluated the severity
of Blackwell’s COPD, as well as other medical conditions. Dr. Trueblood opined that
Blackwell’s COPD symptoms would improve with increased activity, and Blackwell
agreed to transition from a wheelchair to a walker.
On February 1, Blackwell filed an administrative grievance alleging that his
COPD was exacerbated by conditions at the facility, including an insect infestation,
black mold and mildew, fiberglass dust, and a lack of ventilation. The next day, he
reported to Health Services that he was having a COPD flare. A physician’s assistant
promptly ordered a chest x-ray; diagnosed Blackwell with a respiratory infection; and
prescribed the antibiotic azithromycin, which Blackwell had taken the previous month
at his prior facility. Blackwell filed another administrative grievance over the medical
staff’s treatment of his COPD and respiratory infection.
Several days later, another physician’s assistant, Heather Mata, reviewed the
results of a sputum culture that had been performed at Blackwell’s prior facility and
changed his antibiotic to Bactrim. The infection cleared up.
Blackwell brought this Bivens action asserting deliberate indifference to his
serious medical needs. He argued that (1) Jesse Bell, warden of FCI Terre Haute,
deliberately disregarded environmental dangers at the facility, (2) Dr. Trueblood, his

-- 2 of 4 --

No. 20-3345 Page 3
doctor there, and Dr. William Wilson, clinical director of the FCC Terre Haute complex,
refused to process a pulmonology referral from his previous facility, and (3) Physician’s
Assistant Mata delayed treating his respiratory infection with appropriate medication.
The district court granted the defendants’ motion for summary judgment. The
court concluded, first, that Blackwell failed to present any evidence that Warden Bell
was aware of—or disregarded—a substantial risk of harm to his health. Blackwell also
did not provide evidence to suggest that Dr. Trueblood refused to authorize referrals or
that Dr. Wilson prevented her from scheduling outside-specialist consultations. As for
Physician’s Assistant Mata, the court concluded that there was insufficient evidence
that she supported the decision to prescribe azithromycin over Bactrim without
reviewing the sputum culture results. And even if she had, her involvement might
show at most negligence.
On appeal Blackwell argues that a factual question exists over whether Warden
Bell willfully ignored dangerous conditions at FCI Terre Haute. But the warden could
be liable for damages under Bivens only if he was personally responsible for the
deprivation of a constitutional right, meaning that the deprivation occurred at his
behest or with his knowledge and consent. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009);
Williams v. Shah, 927 F.3d 476, 482 (7th Cir. 2019). Blackwell provided no evidence from
which a jury could infer that Warden Bell was personally involved in any decisions
regarding the facility’s ventilation or Blackwell’s living conditions.
Blackwell also asserts that there is a fact question over Dr. Trueblood’s and
Dr. Wilson’s roles in the denial of his pulmonology referral. But here too he presented
no evidence of either doctor’s personal involvement in that decision. As the district
court found, the undisputed evidence showed that any decisions regarding Blackwell’s
outside medical consultations were made by the Utilization Review Committee, and
none of the individual defendants had the authority to overrule those decisions.
Lastly, Blackwell argues that the district court disregarded a fact question about
Physician Assistant Mata’s role in treating his respiratory infection initially with
azithromycin rather than Bactrim. But even if we assume—as did the district court—
that Mata supported the decision to prescribe one antibiotic over another without
reviewing the culture results, her actions show at most negligence. “[M]edical
malpractice, negligence, or even gross negligence does not equate to deliberate
indifference.” Johnson v. Dominguez, 5 F.4th 818, 825 (7th Cir. 2021) (citations and
internal quotation omitted). Deliberate indifference requires that a defendant knows of

-- 3 of 4 --

No. 20-3345 Page 4
and disregards an excessive risk to an inmate’s health. See Farmer v. Brennan, 511 U.S.
825, 837 (1994). Blackwell presented no evidence that Mata was aware of any risk when
the azithromycin was prescribed, let alone that she knew the results of the sputum
culture at the time.
We have considered Blackwell’s remaining arguments, and none has merit.
AFFIRMED

-- 4 of 4 --