Menes Weightman v Ellen O'Brien, No. 24-1543 (7th Cir. 2025)

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED. R. APP. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted February 13, 2025 * Decided February 13, 2025 Before FRANK H. EASTERBROOK, Circuit Judge AMY J. ST. EVE, Circuit Judge JOHN Z. LEE, Circuit Judge No. 24-1543 MENES ALEXANDER WEIGHTMAN, Plaintiff-Appellant, v. Appeal from the United States District Court for the Eastern District of Wisconsin. No. 22-cv-1447-bhl ELLEN O’BRIEN, et al., Defendants-Appellees. Brett H. Ludwig, Judge. ORDER Menes Weightman, a Wisconsin prisoner, appeals the grant of summary judgment for the defendants on his claims that prison medical staff were deliberately 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. FED. R. APP. P. 34(a)(2)(C). * No. 24-1543 Page 2 indifferent to his broken foot, in violation of his Eighth Amendment rights. Because no reasonable jury could find that medical staff were deliberately indifferent, we affirm. We construe the record in favor of Weightman, the party opposing summary judgment. See Arce v. Wexford Health Sources Inc., 75 F.4th 673, 678 (7th Cir. 2023). On July 13, 2022, Weightman fractured a bone on the top of his foot while playing basketball at Oshkosh Correctional Institution. A nurse saw him the next day, provided first aid, and ordered x-rays and an ibuprofen prescription. Dr. Cherryl Jeanpierre approved both orders and, after reviewing the x-rays, confirmed that the foot was broken. She issued Weightman crutches and referred him to physical therapy to be fitted for an immobilizing boot. She also ordered that he be restricted to a lower bunk, but correctional officers did not move him. Upon learning of this, Dr. Jeanpierre re-issued the order, which was this time implemented. She later resigned from the prison, and Dr. Ellen O’Brien (an orthopedic specialist) and Dana Simmons (a nurse practitioner) took over Weightman’s care, along with an outside orthopedic specialist. The outside specialist saw Weightman a week after his injury. The specialist concluded that Weightman’s foot was healing and recommended continuing the treatment plan and attending a follow-up appointment three weeks later. Four weeks passed without another appointment, and so on August 18, Weightman complained to the medical staff. Still nothing happened, and a week later, he filed a grievance about the quality and timeliness of his treatment. On September 2, Simmons learned that the follow-up appointment had not happened, and she scheduled one with the outside specialist for a week later (seven weeks after the first appointment). The specialist was unsatisfied with the rate of healing. He recommended surgery and treatment with a bone stimulator. Dr. O’Brien reviewed the specialist’s report and the x-rays and concluded that the foot was healing appropriately, and so surgery was unnecessary. Still, Weightman wanted the surgery, and Simmons submitted a request for authorization to the Class III Committee, the group of medical and corrections staff who authorize non-routine medical treatments. The Committee denied the request on October 12, and Weightman did not file a grievance about the denial. Simmons met with Weightman at least once per month after his injury to monitor his healing progress. Weightman repeatedly expressed concerns about swelling and the ineffectiveness of ibuprofen to address his pain. Simmons informed him that the swelling could be a side effect of his blood pressure medication and denied his requests for other pain medication. She explained that ibuprofen was the prison’s preferred medication for swelling and pain, and she observed that his pain did not No. 24-1543 Page 3 impede his ability to walk. Simmons scheduled regular follow-up x-rays, which, according to the radiologists, showed continued healing. To encourage further healing, the medical staff provided Weightman with daily bone-stimulator treatment from December 2022 through February 2023. The treatment was delayed in early December because the device did not work, but Simmons attested that the device was fixed by late December and that treatment proceeded without issue. Weightman disagrees, maintaining that the machine never worked and that the supposed treatment was a placebo. Ultimately, the prison’s medical unit issued a letter stating that the fracture had fully healed. Weightman, however, asserts that it did not heal properly; he says his foot is now malformed and that he is still in pain. Weightman sued many providers involved in his treatment, alleging that they displayed deliberate indifference to his serious injury, in violation of the Eighth Amendment, see 42 U.S.C. § 1983, and state law. The district court screened his complaint, see 28 U.S.C. § 1915A, and allowed him to proceed on claims against Dr. Jeanpierre, Dr. O’Brien, Simmons, and five members of the Class III Committee. On the defendants’ motions, the district court disposed of Weightman’s claims in two rulings. The district court first entered summary judgment for the Committee members on Weightman’s claim arising from the denial of a surgery referral in October. The court concluded that Weightman never filed a grievance about the denial and therefore, under the Prison Litigation Reform Act, had not properly exhausted his administrative remedies before suing. See 42 U.S.C. § 1997e(a). The district court then entered summary judgment on the merits for Dr. Jeanpierre, Dr. O’Brien, and Simmons on Weightman’s Eighth Amendment claim. Although Weightman produced evidence that medical professionals disagreed about the proper treatment plan, the court concluded that he produced no evidence that the treatment he received was below the standard of a “minimally competent professional.” See Arce, 75 F.4th at 681 (quoting Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)). With no federal claims remaining, the court relinquished supplemental jurisdiction over the state-law claims. Weightman appeals both summary-judgment decisions, which we review de novo, construing all facts and inferences in his favor. Id. at 678. Weightman first contests the ruling that he failed to properly exhaust his administrative remedies with respect to his claim against the Committee members. No. 24-1543 Page 4 Under 42 U.S.C. § 1997e(a), no complaint about prison conditions can be brought unless there is “proper” exhaustion of administrative remedies, Woodford v. Ngo, 548 U.S. 81, 93 (2006), which means that prisoners must follow the procedures that state law requires, Jones v. Bock, 549 U.S. 199, 218 (2007). Here, Weightman argues that the grievance he filed in August—and pursued through each level of review—was sufficient to exhaust his administrative remedies regarding the Committee’s October denial of a referral for surgery. In Weightman’s view, the earlier grievance, alleging that prison staff were not properly treating his foot, covers the denial of surgery because that decision was part of a continuing violation. See Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013). Weightman is mistaken. Prisoners need not file multiple grievances raising the same issue if the objectionable condition is continuing, but they must file separate grievances when the underlying facts or the complaints are different. Id. Although Weightman’s treatment and his pain continued from August to October, a delayed appointment (August) and a denied surgery (October) are qualitatively different. And different actors were involved in these challenged decisions. Weightman presents what is better referred to as a “continuing injury”; the Committee’s denial constituted a new alleged violation while the injury might have persisted. See id. at 654 (Easterbrook, C.J., concurring). Because the denial of surgery was a discrete act, a separate grievance was needed, and so Weightman failed to exhaust his administrative remedies with respect to the claim against the Committee members. See id. Regarding his claim against Dr. Jeanpierre, Dr. O’Brien, and Simmons, Weightman contends that their inadequate care and delayed treatment demonstrated deliberate indifference to his injury and ongoing suffering. The Eighth Amendment prohibits prison medical staff from being deliberately indifferent toward a serious medical condition. Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). The parties agree that a broken foot is a serious medical condition, and so the question is whether Weightman presented enough evidence to allow a reasonable jury to conclude that the defendants were deliberately indifferent. See Arce, 75 F.4th at 679. He did not. Deliberate indifference consists of more than negligence or malpractice; the defendant must know of and disregard an excessive risk to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Because the defendants here made efforts to treat Weightman’s foot, he needs evidence that the treatment was “such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not No. 24-1543 Page 5 base the decision on such a judgment.” Johnson v. Rimmer, 936 F.3d 695, 707 (7th Cir. 2019) (quoting Youngberg v. Romeo, 457 U.S. 307, 323 (1982)). Weightman contends that Dr. O’Brien and Simmons fell short of even the minimally professional standard. He first argues that Dr. O’Brien’s disagreement with the outside specialist’s surgery recommendation would allow a jury to infer deliberate indifference. But disagreement between doctors about a treatment plan does not show a substantial departure from accepted medical judgment unless the disagreement is based on non-medical reasons. McDaniel v. Syed, 115 F.4th 805, 833 (7th Cir. 2024). Dr. O’Brien, an orthopedic specialist herself, disagreed with the outside specialist about the need for surgery because her independent review showed that Weightman’s foot was healing adequately. See id. Weightman provides no evidence that her decision was based on non-medical reasons, and so the medical judgment rule applies. Weightman also cites Simmons’s refusal to prescribe him pain medication stronger than ibuprofen—he mentions opioids—as evidence of deliberate indifference towards his pain, but again he establishes no more than an exercise of medical judgment. The Eighth Amendment does not guarantee a patient his preferred medication or a pain-free recovery. Arce, 75 F.4th at 681. The pain must still be addressed, because a provider cannot knowingly persist with ineffective treatment if a known and effective alternative is readily available, but the measures taken to alleviate it need only be reasonable. Id. Although Weightman often told Simmons that he was in pain despite the ibuprofen, his complaints were not ignored. Simmons considered the issue and observed that his pain was not severe enough to impair his walking, that he had a boot to help stabilize his foot, and that ibuprofen was appropriate for the swelling. Weightman provides no evidence that Simmons’s decision not to prescribe stronger pain medication was unmoored from her medical judgment or “blatantly inappropriate.” See id. (quoting Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)). Weightman next argues that a jury could infer deliberate indifference based on delays in treatment. He points to the 24-hour delay between his injury and being seen by the medical team, the days-long delay before receiving a low bunk, and the four-week delay before a follow-up appointment with the specialist. But a delay in treatment can show deliberate indifference only when the defendant knows of the delay and disregards it, see Cesal v. Moats, 851 F.3d 714, 722–23 (7th Cir. 2017), and the undisputed evidence shows that did not happen here. Starting with the initial 24-hour delay in being seen, Dr. Jeanpierre did not know about his injury until the next day, and then, once she was informed, she took action and approved an order for x-rays and No. 24-1543 Page 6 medication. And when Dr. Jeanpierre learned that her low-bunk order had not been followed, she reissued it. As for the follow-up appointment, the record does not explain the delay. But Weightman lacks evidence that any defendant was responsible for scheduling it and failed to do so. When Simmons learned about the delay, she immediately scheduled an appointment to take place within the week. None of these delays reflect a culpable state of mind of any defendant; further, Weightman’s evidence does not support an inference that these delays themselves, not his underlying injury, caused him harm. See Arce, 75 F.4th at 680. Weightman’s last example of deliberate indifference is the use of an allegedly broken, ineffectual bone stimulator on his foot for two months. But there is no admissible evidence in the record that the bone stimulator was broken throughout the treatment period. See FED. R. CIV. P. 56(c)(1). The medical records show only what the defendants concede—that the prison’s bone stimulator was not operational when the staff first tried to use it. But Simmons, despite her notes doubting that the device could be salvaged, attests that it was eventually fixed and applied daily for over two months, which daily entries in Weightman’s patient records confirm. Weightman’s only evidence that it was not repaired comes from his declaration, submitted under 28 U.S.C. § 1746. But to be admissible at summary judgment, the declaration must be signed under penalty of perjury. § 1746(2); Roy v. Ivy, 53 F.4th 1338, 1348 (11th Cir. 2022). This declaration was not signed at all, and so Weightman lacks admissible evidence to create a genuine dispute of fact (his verified complaint does not address this issue). FED. R. CIV. P. 56(c). Lastly, Weightman argues that the district court should have retained supplemental jurisdiction over his state-law claims. See 28 U.S.C. § 1367(c). But once all federal claims are resolved, and there is no jurisdiction under 28 U.S.C. § 1332, a court has broad discretion to decide how to proceed, and there is a presumption that it will relinquish supplemental jurisdiction. RWJ Mgmt. Co. v. BP Prods. N.A., Inc., 672 F.3d 476, 478 (7th Cir. 2012). Weightman does not contend that he cannot refile his case in state court because the statute of limitations expired, that proceeding in state court would cause a substantial duplication of effort, or that the claims’ resolution is clear. See id. at 480. So the district court did not abuse its discretion in following the presumption. AFFIRMED

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