Judges: Per Curiam
Filed: Jun. 01, 2016
Latest Update: Mar. 02, 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Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 May 31, 2016* Decided June 1, 2016 Before FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 15-2855 LARRY EUGENE LATHAM, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:14-cv-607-SE
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 May 31, 2016* Decided June 1, 2016 Before FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 15-2855 LARRY EUGENE LATHAM, Appeal from the United States District Plaintiff-Appellant, Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:14-cv-607-SEB..
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NONPRECEDENTIAL DISPOSITION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 May 31, 2016*
Decided June 1, 2016
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 15‐2855
LARRY EUGENE LATHAM, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:14‐cv‐607‐SEB‐DML
MICHAEL MITCHEFF and
WILLIAM WOLFE, Sara Evans Barker,
Defendants‐Appellees. Judge.
O R D E R
Larry Latham, an Indiana prisoner at Pendleton Correctional Facility, brought
this action under 42 U.S.C. § 1983 after the defendants, prison physicians William Wolfe
and Michael Mitcheff, did not immediately meet his demand to see a cardiologist and
also briefly delayed prescribing a medication recommended by one of the cardiologists
who eventually treated him. (Rose Vaisvilas, a healthcare administrator for the
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15‐2855 Page 2
Department of Corrections, also was named as a defendant, but she died while the case
was pending in the district court, and Latham made no effort to substitute an estate
representative after being notified of her death. See FED. R. CIV. P. 25(a)(1); Atkins v. City
of Chicago, 547 F.3d 869, 870 (7th Cir. 2008); Steffey v. Orman, 461 F.3d 1218, 1220 n.2 (10th
Cir. 2006).) Latham claimed that the doctors had been deliberately indifferent to his heart
disease in violation of the Eighth Amendment. The district court granted summary
judgment for the doctors, and Latham appeals. We affirm the judgment.
The pertinent facts are not in dispute, and we recount them in the light most
favorable to Latham, as the opponent of summary judgment. See Dewitt v. Corizon, Inc.,
760 F.3d 654, 655–56 (7th Cir. 2014). Latham, who is now 62 years old, had suffered
multiple heart attacks and twice had heart surgery before going to prison in 1997. He
also has a family history of heart problems (his mother had heart disease, and four
siblings had heart attacks). Dr. Wolfe treated Latham’s heart disease in Pendleton’s
chronic care clinic 11 times from 2010 through 2013. He prescribed nitroglycerin to treat
Latham’s chest pain, a blood thinner, and medications to lower his cholesterol. Dr. Wolfe
also monitored Latham’s condition with routine blood tests, which Latham refused on
one occasion.
When Latham had an appointment with Dr. Wolfe, he generally reported that his
medication regimen was succeeding in keeping his episodes of chest pain to a minimum,
and that the nitroglycerin would relieve the pain that he did experience. When Latham
reported periodic left‐side numbness that lasted a few minutes in June 2010, Dr. Wolfe
responded by ordering more blood work, prescribing an additional medication for his
diabetes, increasing his blood glucose monitoring, and discussing with Latham the
importance of taking his medications.
Over time Latham became increasingly insistent that he should see a cardiologist,
but then in August 2011 he refused his appointment with Dr. Wolfe because he did not
want to wait for the doctor during clinic hours. Other medical staff saw Latham during
the next several months, but Dr. Wolfe again took charge in August 2012 when Latham
temporarily experienced greater chest pain. Dr. Wolfe ordered aspirin, another
over‐the‐counter pain medication, and an EKG, which showed normal results. Dr. Wolfe
met with Latham and explained that the EKG results were consistent with previous
results.
Latham returned to the health unit in October 2012 complaining that the
nitroglycerin was not controlling his chest pain. This time an EKG showed abnormal
results, and infirmary staff sent Latham to a local hospital, where doctors performed a
No. 15‐2855 Page 3
heart catheterization to examine the blockages in his arteries and then placed a stent to
treat narrowing in his left coronary artery. After the stent placement, Dr. Mitcheff, the
medical director for the private company that provides healthcare in Indiana prisons,
authorized a referral to a cardiologist. The cardiologist concluded that Latham’s heart
disease was stable and suggested increasing the dosage of one of his medications for
chest pain to better manage his symptoms. Dr. Wolfe followed this recommendation. Six
months later, in June 2013, Latham had his final appointment with Dr. Wolfe, who was
leaving his job, Latham complained of increased chest pain, so Dr. Wolfe ordered
another EKG and more blood work. Two months later Latham complained to a guard
about chest pain but refused to go to the health unit.
After this Latham was treated by a different physician. When Latham’s chest pain
increased in November 2013, the new physician recommended another cardiology
consultation, which Dr. Mitcheff approved. The new cardiologist recommended adding
another medication for chest pain to Latham’s regimen, but Dr. Mitcheff was suspicious
that Latham had not been taking his current medication properly. Dr. Mitcheff
suggested to the prison physician that he should change Latham’s prescriptions from
“keep on person” to “direct observation therapy” before adding the new medication.
When Latham’s symptoms had not improved a few weeks after this change, Dr. Mitcheff
authorized a prescription for the new medication.
At summary judgment the two doctors argued that Latham simply disagreed
with their treatment decisions and that, contrary to Latham’s assertion that poor
treatment by Dr. Wolfe had resulted in emergency surgery to insert the stent, the
evidence shows that Dr. Wolfe routinely monitored his heart condition and acted
promptly when he reported increased chest pain. Dr. Wolfe had prescribed medication
to reduce the risk of blockage in his arteries, and Dr. Mitcheff, again contrary to
Latham’s allegations, had approved sending Latham to a cardiologist. And, the
defendants argued, Dr. Mitcheff’s suggestion to change the delivery method of Latham’s
medications for chest pain before adding an additional drug was an acceptable exercise
of medical judgment, not deliberate indifference. In response Latham argued that, as
neither Dr. Wolfe nor Dr. Mitcheff were heart specialists, they were unqualified to treat
his heart condition and should have brought in a specialist when he continued to have
chest pains. The district court agreed with the doctors that Latham had not presented
evidence from which a jury reasonably could find deliberate indifference. The only
conclusion to be drawn from the evidence, the court reasoned, is that Dr. Wolfe and Dr.
Mitcheff had exercised medical judgment in treating Latham’s heart disease.
No. 15‐2855 Page 4
On appeal Latham reasserts that Dr. Wolfe and Dr. Mitcheff were deliberately
indifferent, but he does not point to evidence that could create a triable issue of fact. See
FED. R. CIV. P. 56(c), (e); Knight v. Wiseman, 590 F.3d 458, 463–64 (7th Cir. 2009). He
introduced no evidence that his condition required intervention by a specialist before his
hospitalization and the stent placement. See Pyles v. Fahim, 771 F.3d 403, 411–12
(7th Cir. 2014); Jackson v. Kotter, 541 F.3d 688, 697–98 (7th Cir. 2008). Before that Dr. Wolfe
had been routinely monitoring his symptoms and prescribing appropriate medications.
And Dr. Mitcheff never denied a request for a cardiology referral after Latham’s
condition required a specialist’s input. As for Dr. Mitcheff’s suggestion that a switch to
“direct observation therapy” should be made before introducing another medication for
Latham’s chest pain, Latham does not point to any evidence suggesting that that
Dr. Mitcheff had failed to exercise medical judgment. See Holloway v. Delaware Cty.
Sheriff, 700 F.3d 1063, 1073–75 (7th Cir. 2012); Norfleet v. Webster, 439 F.3d 392, 396 (7th
Cir. 2006).
Latham’s two remaining arguments are equally meritless. First, Latham argues
that the grant of summary judgment deprived him of his Seventh Amendment right to a
jury trial. But where there are no disputes of material fact, as here, a grant of summary
judgment is consistent with the Seventh Amendment. See Hanners v. Trent, 674 F.3d 683,
691 n.12 (7th Cir. 2012); BMG Music v. Gonzalez, 430 F.3d 888, 892–93 (7th Cir. 2005).
Second, Latham says that the district court denied his “right to call witnesses to testify
on his behalf” because it did not issue subpoenas for his written depositions. Latham is
incorrect on the facts; there was no denial by the district court. His request was granted
with the explanation that he would have to pay the cost of making a recording and the
court sent him blank subpoena forms. Latham then withdrew his request because he
could not pay and said that he would submit additional interrogatories instead.
AFFIRMED.