Judges: Per Curiam
Filed: Aug. 16, 2018
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 August 15, 2018* Decided August 16, 2018 Before MICHAEL S. KANNE, Circuit Judge AMY C. BARRETT, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge Nos. 17-2430, 17-3603, & 17-3640 LESTER DOBBEY, Appeals from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 1:1
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 August 15, 2018* Decided August 16, 2018 Before MICHAEL S. KANNE, Circuit Judge AMY C. BARRETT, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge Nos. 17-2430, 17-3603, & 17-3640 LESTER DOBBEY, Appeals from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 1:12..
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NONPRECEDENTIAL DISPOSITION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 August 15, 2018*
Decided August 16, 2018
Before
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
Nos. 17‐2430, 17‐3603, & 17‐3640
LESTER DOBBEY, Appeals from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:12‐cv‐09223
IMHOTEP CARTER, Robert M. Dow, Jr.,
Defendant‐Appellee. Judge.
O R D E R
Illinois inmate Lester Dobbey sued prison doctor Imhotep Carter for deliberate
indifference toward his knee pain, contending that the doctor needlessly delayed his
receipt of a knee sleeve and failed to follow up with him after administering a steroid
injection. The district court entered summary judgment for the doctor, concluding that
* 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).
Nos. 17‐2430, 17‐3603, & 17‐3640 Page 2
he was not responsible for the delays in treatment that Dobbey experienced. We agree
and affirm the judgment.
Dobbey first saw Dr. Carter for pain in his knees on October 7, 2011. Dr. Carter
diagnosed tendonitis and recommended two treatments: a knee sleeve, and an injection
of a steroid into Dobbey’s left knee.
Dr. Carter administered the steroid injection on October 27. He noted that he
planned to follow up with Dobbey in three weeks to consider whether Dobbey should
receive an injection in his right knee. But the nursing staff, which was responsible for
scheduling appointments, did not schedule this follow‐up. An appointment eventually
was made for Dobbey to see Dr. Carter on January 24, 2012, but that appointment had
to be cancelled because the prison was on lockdown. Not until March 20 did Dobbey
finally see Dr. Carter, who then diagnosed mild degenerative‐joint disease and
tendonitis, and prescribed Naproxen.
Dobbey also experienced a long delay waiting for the knee sleeve. At the
October 7 appointment, Dr. Carter had filled out a “medical permit” authorizing the
sleeve, and the permit was approved two weeks later by Wexford Health Sources, the
medical provider for Stateville Correctional Center in Illinois. Months went by, and in
February 2012 Dr. Carter signed a “prescription order” for a knee sleeve (how this order
differed from the medical permit he filled out four months earlier is not explained in the
record). But Dobbey still did not receive a knee sleeve, and he filed grievances about the
delay in his treatment. On March 20, when he again saw Dr. Carter, the doctor filled out
a new medical permit authorizing a knee sleeve, which Dobbey soon received.
Dobbey filed suit under 42 U.S.C. § 1983, asserting that Dr. Carter was
deliberately indifferent to his knee pain by failing to ensure he received the knee sleeve
in a timely manner and by failing to follow up with him after the steroid injection.1 The
district judge entered summary judgment for Dr. Carter. The judge concluded that
Dr. Carter could not have been deliberately indifferent to Dobbey’s needs, as there was
1 Dobbey also sued a nursing supervisor who reviewed several grievances he
filed about the treatment of his knee pain. The district court determined that fact
questions existed over the degree of her personal involvement in Dobbey’s medical
care, and declined to enter summary judgment in her favor. She later settled with
Dobbey.
Nos. 17‐2430, 17‐3603, & 17‐3640 Page 3
no evidence that he had any control over the delays Dobbey experienced in receiving a
knee sleeve or scheduling a follow‐up appointment after his steroid injection.
On appeal, Dobbey first contends that a material dispute exists over whether
Dr. Carter timely filed the necessary paperwork to allow him to receive a knee sleeve. If
he did not, he may be liable for causing a delay in Dobbey’s treatment that “exacerbated
the injury or unnecessarily prolonged [his] pain.” Arnett v. Webster, 658 F.3d 742, 753
(7th Cir. 2011). But the record shows that Dr. Carter followed all the steps required to
assist Dobbey to obtain the knee sleeve. Prison policy allows an inmate to receive
medical equipment once (1) a physician orders it, (2) the medical director approves the
order, and (3) in some cases, a “collegial review” approves it as well. At Dobbey’s first
appointment on October 7, Dr. Carter wrote that Dobbey should wear a knee sleeve and
filled out a medical permit authorizing one. He did not learn that Dobbey had not
received a knee sleeve until their next visit, on March 20, at which time he filled out
another medical permit to help Dobbey receive one. Prison policy provides that other
employees are responsible for actually securing and issuing medical equipment to
inmates, so Dr. Carter could have done no more without usurping another employee’s
job duties (which is not required, see Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009)).
Dobbey seems to argue, however, that the record also raises a question about
whether Dr. Carter was obligated to fill out another document, besides a medical
permit, for him to receive a knee sleeve. He appears to rely on a statement Dr. Carter
made during discovery: that an inmate cannot receive a knee sleeve until a physician
“prescribes” one, and then fills out a medical permit authorizing it. Dobbey
understands this statement to mean that the “prescription order” Dr. Carter signed in
February 2012 was a necessary prerequisite to a medical permit. Because Dr. Carter
signed this document four months after filling out the medical permit, Dobbey contends
that the doctor deliberately ignored and prolonged his knee pain.
But Dr. Carter’s statement that a physician must “prescribe” a knee sleeve does
not necessarily mean that a doctor must fill out a “prescription order” form of the sort
that Dobbey identifies. As Dr. Carter explained, he “prescribed” a knee sleeve for
Dobbey on October 7, when he noted Dobbey’s need for the sleeve and filled out a
medical permit. Prison policy does not contradict Dr. Carter’s understanding of what it
means to “prescribe” medical equipment, and there is no evidence—beyond Dobbey’s
speculation—that the “prescription order” form is a required component of the policy.
Next, Dobbey contends that a dispute of fact exists about Dr. Carter’s obligation
to make sure he received a follow‐up appointment after the steroid injection. Dobbey
Nos. 17‐2430, 17‐3603, & 17‐3640 Page 4
points to Dr. Carter’s statement during discovery that he had a “general practice” of
following up with inmates after administering steroid injections. In Dobbey’s view,
Dr. Carter did not follow his own “general practice” because he did not follow up with
Dobbey until nearly five months after the steroid injection, despite writing in his notes
that he intended to follow up with Dobbey after just three weeks.
But Dobbey cannot point to any evidence that Dr. Carter was obliged to ensure
that he received a follow‐up appointment within three weeks. The record shows that
Dr. Carter could not be personally responsible for scheduling any appointments with
inmates because appointments were scheduled by the nursing staff. “[N]o prisoner is
entitled to insist that one employee do another’s job,” Burks, 555 F.3d at 595, so
Dr. Carter’s reliance on the nursing staff to schedule his follow‐up appointment with
Dobbey was justified. Further, even if Dr. Carter had responsibility for scheduling
appointments, his statement about his “general practice” did not describe any time
constraints; Dobbey’s five‐month follow‐up may well have been consistent with the
doctor’s general practice.
Dobbey next argues that the district court erred by declining his request early in
the proceedings to recruit a lawyer to assist him with his case. But the court correctly
denied the request because Dobbey did not assert that he had made a “reasonable
attempt” to secure counsel on his own. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)
(en banc). Dobbey is a seasoned litigator who has successfully prosecuted at least two
appeals in this court, see, e.g., Dobbey v. Mitchell‐Lawshea, 806 F.3d 938 (7th Cir. 2015);
Dobbey v. Ill. Dep’t of Corr., 574 F.3d 443 (7th Cir. 2009), so the court’s insistence that he
follow the requirements of Pruitt was not unreasonable.
Finally, Dobbey contends that the district court erred when it denied his request
to recruit an orthopedic expert to opine about the severity of his knee problems. But
Federal Rule of Evidence 706 allows appointment of an expert witness if necessary to
help the court understand the issues, not to assist a party in preparing his case.
See Ledford v. Sullivan, 105 F.3d 354, 358–59 (7th Cir. 1997). The court reasonably
concluded that this case—which hinged on Dr. Carter’s knowledge and personal
involvement rather than a medical issue—was comprehensible to a layperson. See Gil
v. Reed, 381 F.3d 649, 659 (7th Cir. 2004); Ledford, 105 F.3d at 359–60.
We have considered Dobbey’s remaining arguments, but none merits further
discussion.
AFFIRMED