Gospodinov v. Hudson

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

EMIL DIMITROV GOSPODINOV,

Plaintiff,

Case No. 3:18-cv-50314

v.

Honorable Iain D. Johnston

DONALD HUDSON, DR. ZORAN

VUKCEVIC, and MICHAEL KRUGER,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Emil Gospodinov brings this Bivens action against prison medical

doctor Dr. Vukcevic, Warden Hudson, and Health Services Administrator Krueger.

All three defendants were employed by USP Thomson when Gospodinov was an

inmate there. He alleges that the Defendants violated his Eighth Amendment

rights by failing to provide him adequate medical care while he was in prison. The

Defendants brought this motion for summary judgment arguing that Gospodinov’s

claims are an impermissible extension of Bivens. The Defendants also assert that

Gospodinov failed to provide sufficient evidence to support a constitutional claim of

deliberate indifference. Alternatively, they argue qualified immunity shields them

from liability. For the reasons explained below, the Defendants’ motion for

summary judgment is granted.

I. Background

Chronic Neck and Back Pain

The following facts are taken from the parties’ joint statement of facts, which

are undisputed. SOF, Dkt. 117. In September 2016, Emil Gospodinov pled guilty to

conspiracy to commit wire fraud. SOF ¶ 4. Before his self-surrender date in March

2017, Gospodinov was involved in a serious motor vehicle accident and suffered

physical injuries that delayed his surrender date. Id. On October 31, 2017,

Gospodinov surrendered to USP Thomson and arrived with his medical file that

detailed his injuries from the accident, and the file incorporated into his Bureau of

Prisons (BOP) records. SOF ¶ 6. The records indicated that he had cervical disc

protrusions and a lumbar spine herniation. SOF ¶ 5. Gospodinov’s pre-incarceration

doctor ruled out surgical treatment, but recommended physical therapy, and

naproxen and cyclobenzaprine for pain medications. Id. At his initial health

screening at USP Thomson, Gospodinov was prescribed naproxen, but not

cyclobenzaprine because it was not part of the BOP’s national formulary list that

guides medications prescribed and administered to inmates. SOF ¶ 8. Gospodinov

was willing to consider alternative medications, and the BOP pharmacist

recommended formulary alternatives for cyclobenzaprine. Id. Gospodinov could also

purchase other prescription and non-prescription pain medications at the prison

commissary on a weekly basis. SOF ¶ 9.

On November 8, 2017, Dr. Vukcevic documented Gospodinov’s health

problems after performing an admissions history and physical examination on him.

SOF ¶ 11. At this appointment, Dr. Vukcevic referred Gospodinov for an offsite

radiology exam, offsite physical therapy consultation, ordered a low bunk

assignment, and restricted the types of work he was permitted to perform. Id.

Gospodinov had five medical appointments in December 2017 to address continued

complaints of low back pain, receiving x-ray imaging and a physical therapy

consultation that recommended a home exercise program. SOF ¶¶ 13–17. Dr.

Vukcevic also prescribed acetaminophen with codeine, but Gospodinov did not take

the medication. SOF ¶ 17. In addition, Dr. Vukcevic enrolled Gospodinov in an

orthopedic chronic care clinic and attempted to order cyclobenzaprine but it was

again disapproved as a non-formulary medication. Id. Gospodinov’s low bunk

assignment, restrictions on work and physical activities, and use of a double

mattress pad were continued throughout Dr. Vukcevic’s employment at USP

Thomson, which ended on June 22, 2018. SOF ¶¶ 18, 32, 33, 45.

Hemorrhoidal Complaints

When Gospodinov first reported blood on his toilet paper and constipation to

a nurse in December 2017, he was instructed to purchase fiber and stool softener

medications from the commissary, adjust his diet, and was provided with cards to

test for occult blood. SOF ¶ 13. On January 9, 2018, Gospodinov reported there was

still blood in his stool and a fecal occult blood test returned positive. SOF ¶¶ 18–19.

On January 11, 2018, Dr. Vukcevic performed a rectal exam that revealed internal

hemorrhoids and recommended a gastroenterology consultation for consideration of

a colonoscopy. SOF ¶ 20. The consultation was approved on February 14, 2018, and

scheduled for June 12, 2018. SOF ¶ 20; Ex. B, Dkt. 117-9 at 82.

Gastroenterological Complaints

Gospodinov also began experiencing epigastric discomfort and pain that he

first reported to Dr. Vukcevic on January 11, 2018, who prescribed medication to

address the pain. SOF ¶ 20. Gospodinov’s next complaint of abdominal pain was on

May 27, 2018, when he reported severe abdominal pain, distention, pressure,

cramping, fullness, nausea, and dizziness. SOF ¶ 34. Gospodinov stated that he had

not taken any over-the-counter medications for his abdominal pain. Id. A nurse’s

examination documented that contrary to Gospodinov’s reported complaints, his

abdomen was soft, not rigid, and not distended. Id. The nurse prescribed pain

medication and scheduled him a follow up exam for the next day, May 28, 2018. Id.

But early in the morning of the following day, instead of a follow up exam,

Gospodinov was transported to an emergency room for abdominal pain. SOF ¶ 35. A

CT scan of his abdomen and pelvis revealed a small kidney stone, gallbladder stone,

and constipation. Id. Gospodinov was not admitted to the hospital and discharged

back to USP Thomson. Id. Dr. Vukcevic reviewed the emergency room physician’s

report, and following the outside physician’s recommendation, prescribed and

recommended various medications, recommended a consultation for a gallbladder

ultrasound, and enrolled him in the prison’s gastrointestinal chronic care clinic.

SOF ¶ 36.

Administrative Review

As part of the administrative remedies process within USP Thomson,

Assistant Health Administrator Kruger and Warden Hudson receive administrative

resolution requests from inmates. SOF ¶¶ 64–65. Neither Kruger or Hudson were

medical providers, so they rely on the clinical staff to make clinical decisions and

therefore would not participate in medical decisions. SOF ¶¶ 64–67. The approval

for any medical decisions, including specialist referrals and consultations, non-

standard medication requests, and outside treatments were made by the Utilization

Review Committee (URC). SOF ¶¶ 23, 39, 40, 67, 68. In response to Gospodinov’s

complaints, Kruger and Hudson testified that there were no reasons to believe that

Gospodinov’s was receiving inadequate medical care because of the multiple

methods and levels of treatment provided to him. SOF ¶ 67.

II. Legal standard

A successful motion for summary judgment demonstrates that there is no

genuine dispute of material fact and judgment is proper as a matter of law. A party

opposing summary judgment must proffer specific evidence to show a genuine

dispute of fact for trial. FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). A genuine dispute of material fact exists if a reasonable jury could return a

verdict for the non–movant when viewing the record and all reasonable inferences

drawn from it in the light most favorable to the non–movant. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). However, the existence of just any disputed

facts will not defeat an otherwise proper motion for summary judgment. Borcky v.

Maytag Corp., 248 F.3d 691, 695 (7th Cir. 2001). Rather, the disputed facts must be

both “genuine” and “material.” Id. A fact is material if it might affect the outcome of

the suit under governing law. Id. Summary judgment is appropriate only when the

court determines that “no jury could reasonably find in the nonmoving party's

favor.” Blasius v. Angel Auto, Inc., 839 F.3d 639, 644 (7th Cir. 2016).

A party opposing summary judgment “is entitled to the benefit of all

favorable inferences that can reasonably be drawn from the underlying facts, but

not every conceivable inference.” De Valk Lincoln Mercury, Inc. v. Ford Motor Co.,

811 F.2d 326, 329 (7th Cir. 1987). The court must construe the “evidence and all

reasonable inferences in favor of the party against whom the motion under

consideration is made.” Rickher v. Home Depot, Inc., 535 F.3d 661, 664 (7th Cir.

2008). But mere speculation or conjecture will not defeat a summary judgment

motion. Boston v. U.S. Steel Corp., 816 F.3d 455, 466 (7th Cir. 2016). If the

nonmoving party fails to establish the existence of an element essential to his case,

summary judgment must be granted for the moving party. Ortiz v. John O. Butler

Co., 94 F.3d 1121, 1124 (7th Cir. 1996); Brazkinski v. Amoco Petroleum Additives

Co., 6 F.3d 1176, 1183 (7th Cir. 1993) (the moving party “can prevail just by

showing that the other party has no evidence on an issue on which that party has

the burden of proof.”)

III. Analysis

The Defendants argue they are entitled to summary judgment based on three

theories. First, Gospodinov’s claims present a new Bivens context that is foreclosed

by the Supreme Court’s decisions in Ziglar v. Abassi, 137 S. Ct. 1843 (2017);

Hernandez v. Mesa, 140 S. Ct. 735 (2020); and Egbert v. Boule, 142 S. Ct. 1793

(2022). Second, no reasonable jury could find that the medical treatment the

Defendants provided Gospodinov amounted to deliberate indifference. Finally, they

are shielded from liability based on the doctrine of qualified immunity.

a. Bivens Claim

Gospodinov brings a Bivens claim against the Defendants, alleging that while

he was an inmate in USP Thomson the Defendants violated his constitutional

rights under the Eighth Amendment by failing to provide him with adequate,

timely, or proper medical care for his preexisting chronic neck and back pain,

hemorrhoids, and gastroenterological issues.

Generally, a plaintiff’s only form of relief for violations of constitutional rights

against federal employees, acting under the color of federal law, is a Bivens claim.

Case v. Milewski, 327 F.3d 564, 567 (7th Cir. 2003) (“[A]n action brought pursuant

to § 1983 cannot lie against federal officers acting under color of federal law. . .”);

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.

388 (1971). In Bivens, the Supreme Court created an implied cause of action under

the Fourth Amendment for constitutional violations committed by federal officials.

Bivens, 403 U.S. 388. The Supreme Court later recognized implied causes of actions

in two other contexts: a gender discrimination claim under the Due Process Clause

of the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 248–49 (1979); and an

Eighth Amendment cruel and unusual punishment claim in the prison context.

Carlson v. Green, 446 U.S. 14, 19 (1980). In Ziglar v. Abbasi, the Supreme Court

curtailed Bivens claims stating that “three cases—Bivens, Davis, and Carlson—

represent the only instances in which the Court has approved of an implied

damages remedy,” and any further expansion of the Bivens remedy beyond existing

Supreme Court precedent constitutes a “disfavored judicial activity.” 137 S. Ct. at

1855–57.

In determining whether to extend Bivens beyond its limited application,

courts must engage in a two-step inquiry. Hernandez, 140 S. Ct. at 743. First, courts

determine whether the claim arises in a new context or involves a new category of

defendants. Id. If the first inquiry is met, then courts must determine whether any

special factors counsel against extending Bivens to cover the new context. Id.

Defendants argue that Gospodinov’s Bivens claim should be dismissed

because it presents a new context and special factors counsel hesitation in creating

a new Bivens remedy. Mot. for Sum. Judg., Dkt. 124.

The first step is not an onerous one. The Court must determine whether

Gospodinov’s claim involves a new context or whether it presents the same context

as one of the three previously recognized Bivens claims. A case presents a new

Bivens context if it is “different in a meaningful way from previous Bivens cases.”

Abbasi, 137 S. Ct. at 1859. In Abbasi, the Supreme Court provided a non-exhaustive

list of meaningful differences that make a given context a new one, such as an

officer’s rank, the constitutional right at issue, the generality or specificity of the

official action, and the statutory or legal mandate under which the officer was

operating. Id. at 1860. A new context includes a new category of defendants.

Hernandez, 140 S. Ct. at 743. If there is even a single “reason to pause before

applying Bivens in a new context” or to a new class of defendant, a court may not

recognize a Bivens remedy. Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (quoting

Hernandez, 140 S. Ct. at 743).

Gospodinov’s claim for inadequate medical care has significant parallels with

the previously recognized Bivens claim raised in Carlson, because they both

implicate the Eighth Amendment for inadequate medical care received by a federal

inmate. 446 U.S. at 19. Yet the Defendants argue that Gospodinov’s claims would be

an unauthorized expansion of Bivens that has been foreclosed by Egbert, 142 S. Ct.

1793. But the claim against Dr. Vukcevic is not a new context and therefore not

foreclosed by Egbert or Abbasi, because of the significant parallels between

Gospodinov’s claim and Carlson. Both claims arise under the Eighth Amendment in

the form of inadequate medical care at a federal prison, and both claims are against

a prison medical official. Thus, Gospodinov’s claim against Dr. Vukcevic does not

implicate a new Bivens context and Dr. Vukcevic is not entitled to summary

judgment on this ground.

Whether a Bivens claim exists against non-medical defendants, such as

Hudson and Kruger in this case, need not be addressed. As Defendants argue both

in the context of Bivens and the underlying merits, Hudson and Kruger lacked the

requisite personal involvement to be liable. Additionally, as discussed later,

Gospodinov was not treated with deliberate indifference, so he has no claim against

these non-medical defendants. As a result, the Court declines to address whether

the special factors counsel against finding a Bivens claim against the non-medical

defendants—Hudson and Kruger.

b. Deliberate Indifference

The Court now turns to the merits of Gospodinov’s claims against the

Defendants. Prisoners have a right to receive adequate medical care under the

Eighth Amendment. Estelle v. Gamble, 429 U.S. 97 (1976). A claim based on

deficient medical care must demonstrate two elements: (1) an objectively serious

medical condition; and (2) an official’s deliberate indifference to that condition. Giles

v. Godinez, 914 F.3d 1040, 1049 (7th Cir. 2019); Arnett v. Webster, 658 F.3d 742, 750

(7th Cir. 2011). As to the first element, the Defendants address the question of

whether Gospodinov’s medical conditions were sufficiently serious with a

perfunctory argument that the Court will not consider, so the Defendants have

waived any argument to the contrary.1 U.S. v. Berkowitz, 927 F.2d 1376, 1383 (7th

Cir. 1991). Therefore, the Court will treat Gospodinov’s medical conditions as

sufficiently serious, and our focus now turns to whether the Defendants were

deliberately indifferent with their response to his serious medical conditions.

A prison official acts with deliberate indifference only when he “actually

[knows] of a substantial risk of harm.” Brown v. Osmundson, 38 F.4th 545, 550 (7th

Cir. 2022) (quoting Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 241

(7th Cir. 2021)). This is a high bar, “because it requires a showing [of] something

1 Iain D. Johnston, Standing Order on Failure to Respond, https://www.ilnd.uscourts.gov/judge-

info.aspx?IuUaWzNcEoPWNpdOx+5lSeRQvpEAF5l/

approaching a total unconcern for the prisoner’s welfare in the face of serious risks.”

Rasho v. Jeffreys, 22 F.4th 703, 710 (7th Cir. 2022) (quoting Rosario v. Brown, 670

F.3d 816, 821 (7th Cir. 2012)). Negligence, gross negligence, or even tortuous

recklessness is not enough. Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016).

Medical malpractice, and merely disagreeing with a doctor’s medical judgment does

not amount to deliberate indifference. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir.

2008). The Constitution does not prescribe any specific course of treatment. Id. at

697. However, if a prison doctor chooses “an easier and less efficacious treatment

without exercising professional judgment, such a decision can also constitute

deliberate indifference.” Petties, 836 F.3d at 720 (quoting Estelle, 429 U.S. at 104

n.10). “But where the evidence shows that a decision was based on medical

judgment, a jury may not find deliberate indifference, even if other professionals

would have handled the situation differently.” Dean, 18 F.4th at 241; Petties, 836

F.3d at 729 (“[E]vidence that some medical professionals would have chosen a

different course of treatment is insufficient to make out a constitutional claim.”).

Deliberate indifference may be inferred when a prison medical provider’s treatment

decisions are “so far afield of accepted professional standards as to raise the

inference that it was not actually based on medical judgment.” Norfleet v. Webster,

439 F.3d 392, 396 (7th Cir. 2006); Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)

(finding deliberate indifference where the evidence showed the treatment was

“blatantly inappropriate.”).

Gospodinov has not provided evidence that would allow a reasonable jury to

infer that he suffered from constitutionally inadequate medical care while in USP

Thomson, or that the Defendants were deliberately indifferent to Gospodinov’s

medical needs. Gospodinov’s medical needs can be categorized in two distinct ways.

First is his chronic neck and back pain that originated from a pre-incarceration

accident. Second are Gospodinov’s gastroenterological pain and hemorrhoids. The

Defendants argue the claims are based Gospodinov’s disagreement with the medical

care he received and a personal preference for a different treatment.

i. Chronic Neck and Back Pain

Gospodinov claims that he experienced additional pain and suffering with his

chronic neck and back issues because the Defendants provided him with inadequate

pain management by only giving him one of his two preferred medications and

failed to provide him with a more comprehensive physical therapy treatment.

Gospodinov also asserts that the Defendants were aware that the treatments he

received were inadequate, and therefore had knowledge of a constitutional violation

and failed to respond appropriately. But Gospodinov does not provide any

evidentiary support to buttress his claims that the course of treatment he received

for his neck and back pain was contrary to accepted professional standards or so

blatantly inappropriate for his needs that it showed a lack of professional judgment.

White v. Woods, 48 F.4th 853, 862 (7th Cir. 2022); Norfleet, 439 F.3d at 396; Pyles,

771 F.3d at 409. In fact, Gospodinov solely relies on his own testimony which is not

sufficient to create a genuine dispute of material fact for trial and defeat a motion

for summary judgment. Ortiz, 94 F.3d at 1124; Grant v. Trustees of Indiana Univ.,

870 F.3d 562, 568 (7th Cir. 2017) (summary judgment is the “put up or shut up

moment in a lawsuit.”).

In contrast, the record is replete with evidence of the abundance of medical

care provided to Gospodinov, including regular medical appointments (39 times

from October 2017 to April 2019), prescription and non-prescription pain

medications, physical therapy exercise programs, low bunk assignments, work

restrictions, x-rays, MRIs, and outside consultations with specialists. Still,

Gospodinov complains that because he did not receive cyclobenzaprine, he received

inadequate treatment. But the record shows that the cyclobenzaprine prescription

was disapproved because it was not on the BOP’s formulary list, and instead he

received formulary alternatives. SOF ¶¶ 8, 10. Dr. Vukcevic, despite knowing

cyclobenzaprine was previously disapproved, tried to order it for Gospodinov three

months later, but it was once again denied as a non-formulary medication. SOF

¶ 18. Dr. Vukcevic’s persistence in attempting to prescribe Gospodinov the

cyclobenzaprine is further evidence that he was not indifferent to Gospodinov’s

medical needs.

No reasonable jury would find that the variety of medical treatment

Gospodinov received throughout his incarceration at USP Thomson “deviated so

substantially from accepted professional judgment that no reasonable physician

would reach the same judgment.” Thomas v. Martija, 991 F.3d 763, 772 (7th Cir.

2021). The comprehensive nature and various degrees of treatment provided to

Gospodinov shows that the Defendants were not indifferent to his pain, but instead

took an alternative treatment approach that Gospodinov felt was not sufficient.

Gospodinov clearly disagrees with the type of treatment he received, but

disagreeing with a treatment plan does not amount to a constitutional violation.

Jackson, 541 F.3d at 697. At most, the Defendants were negligent to the severity of

Gospodinov’s pain, but this too is not a constitutional violation. Petties, 836 F.3d at

728.

ii. Gastroenterological Pain and Hemorrhoids

Next, Gospodinov claims that the delays he experienced in receiving

treatment for his gastroenterological pain and hemorrhoids was inadequate medical

treatment that violated his constitutional rights. Specifically, he takes issue with

the time it took to schedule him for a consultation with an outside specialist. The

sequence of events for his gastroenterological problems is as follows: Gospodinov

first reported blood in his stool to a nurse on December 11, 2017, and was instructed

to take fiber or stool softeners, adjust his diet, and was given stool cards to test for

occult blood. SOF ¶ 13. On January 3, 2018, he saw Dr. Vukcevic who ordered a

fecal occult blood test. SOF ¶ 18. On January 9, 2018, the test returned positive and

Dr. Vukcevic scheduled a follow up appointment with Gospodinov. SOF ¶ 19. On

January 11, 2018, Gospodinov had a follow up appointment where Dr. Vukcevic

performed a rectal examination that revealed internal hemorrhoids and

recommended that a gastroenterology consultation be approved by the URC so that

Gospodinov could be considered for a colonoscopy. SOF ¶ 20. The consultation was

approved on February 14, 2018, approximately one month after Dr. Vukcevic’s

recommendation. After the consultation was approved, Gospodinov was scheduled

to see an outside gastroenterologist on June 12, 2018. SOF ¶ 42.

Gospodinov argues that when a physician delays, even if briefly, in referring

an inmate to a specialist, deliberate indifference may be found. Resp. to Mot. for

Sum. Judg. at 22. Gospodinov admits that “delays in scheduling Plaintiff’s

consultations with specialists were affected by the availability of openings,

limitations set per each provider, and BOP transportation logistics and staffing,”

but argues that “those scheduling delays do not explain why Defendant Vukcevic

took a month to order the consultation.” Id. at 24–25. While it is true that

prolonging an inmate’s suffering by delaying medical treatment can constitute

deliberate indifference, Perez v. Fenoglio, 792 F.3d 768, 777 (7th Cir. 2015),

Gospodinov has not provided any evidence that Dr. Vukcevic’s treatment plan was

inadequate or that it was necessary to refer him to an outside specialist sooner.2

Rather, the record shows that Dr. Vukcevic initially took a conservative treatment

approach with medication, and gradually intensified the treatment and diagnostic

measures by performing a rectal exam, and finally recommending an outside

consultation for a colonoscopy. These steps hardly demonstrate a reckless disregard

for Gospodinov’s well-being, and there is no evidence that Dr. Vukcevic ignored the

gravity of his condition or “slow-walked” his treatment plan. Reck v. Wexford Health

2 Gospodinov points to the fact that he had non-urgent, elective, gallbladder removal on January 3,

2019, as evidence of an improper delay in medical treatment. However, the record shows that Dr.

Vukcevic left employment at USP Thomson on June 22, 2018. SOF ¶45. And there is no evidence

that gallbladder removal was necessary or proper before Dr. Vukcevic’s departure.

Sources, Inc., 27 F.4th 473, 484–85 (7th Cir. 2022) (affirming summary judgment

for defendants on an Eighth Amendment deliberate indifference claim when a

prison doctor initially took a conservative treatment approach before considering a

consultation with a gastroenterologist for a colonoscopy and waited three months to

make a referral to a gastrointestinal specialist). Further demonstrating a lack of

inadequate treatment or indifference to Gospodinov’s medical needs, the outside

gastrointestinal specialist did not make any changes to the medications Dr.

Vukcevic prescribed nor did he criticize the care that was given to Gospodinov. SOF

¶ 42. The absence of evidence provided by Gospodinov would not allow a reasonable

jury to conclude Dr. Vukcevic’s acted with deliberate indifference or that the

treatment plan “deviated so substantially from accepted professional judgment that

no reasonable physician would reach the same judgment” and there was total

unconcern for Gospodinov’s welfare in the face of serious risks. Thomas, 991 F.3d at

772; Rasho, 22 F.4th at 710.

The non-medical Defendants argue that they are also entitled to summary

judgment because they cannot be held liable based on respondeat superior and are

only liable if they were personally responsible for Gospodinov’s injury. Vance v.

Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“[L]iability does not attach unless the

individual defendant caused or participated in a constitutional deprivation.”)

Gospodinov argues that his claim against the non-medical Defendants is not based

solely on their supervisory roles, but also for their own inaction in failing to address

his serious medical needs. But the only evidence that Gospodinov provides to

support his contention is the prison administrative complaints he submitted to the

non-medical Defendants and Gospodinov claims his submission of administrative

complaints satisfies the subjective component of his Eighth Amendment claim that

they intentionally or recklessly disregarded his pain and suffering.3 However, the

record shows that both non-medical Defendants did not ignore Gospodinov’s

administrative complaints, they reviewed them and found no evidence of medical

indifference. SOF ¶¶ 64–66. Therefore, the non-medical Defendants cannot be said

to have acted with deliberate indifference. Greeno v. Daley, 414 F.3d 645, 656 (7th

Cir. 2005) (finding no deliberate indifference when a non-medical professional

investigated complaints). Further, the non-medical Defendants were entitled to

believe that Gospodinov was in capable hands, as he was under the care of medical

experts and therefore deferring to the medical expert’s medical judgment was

proper. Arnett, 658 F.3d at 755–56; Eagan v. Dempsey, 987 F.3d 667, 694 (7th Cir.

2021) (Non-medical professionals may defer to the professional judgment of the

facility’s medical officials on questions of prisoner’s medical care and do not act with

deliberate indifference so long as they did not ignore the prisoner’s complaints).

Because Gospodinov has failed to show that any of the Defendants were

deliberately indifferent to his medical needs, their motion for summary judgment is

granted.

3 Curiously, Gospodinov testified that Hudson was not specifically deliberately different to his

medical conditions. SOF ¶ 69.

c. Qualified Immunity

Alternatively, the Defendants argue that qualified immunity shields them

from liability because the evidence fails to show a constitutional violation for

deliberate indifference to a serious medical need, and it was not clearly established

that Gospodinov had a constitutional right to disagree with the delivery of his

medical care at USP Thomson. Mot. Sum. Judg., at 19. But Gospodinov argues that

the Defendants are not entitled to qualified immunity because the deliberate

indifference standard for medical mistreatment is clearly established, and a

reasonable jury could find that the Defendants were aware that he was receiving

inadequate medical care and nonetheless continued the same treatment.

Qualified immunity shields government officials “from individual liability for

civil damages under 42 U.S.C. §1983 . . . insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Bradley v. Vill. of Univ. Park, No. 22-1903, 2023 U.S. App.

LEXIS 2732, at *29 (7th Cir. Feb. 3, 2023); Figgs v. Dawson, 829 F.3d 895, 905 (7th

Cir. 2016). When presented with a qualified immunity argument, the court “must

address two questions: whether the plaintiff’s allegations make out a deprivation of

a constitutional right, and whether that right was clearly established at the time of

defendant’s alleged misconduct.” McAllister v. Price, 615 F.3d 877, 881 (7th Cir.

2010). “If either inquiry is answered in the negative, the defendant official,” is

protected by qualified immunity. Reed v. Palmer, 906 F.3d 540, 546 (7th Cir. 2018).

Because the Court has concluded that there was no constitutional violation

under the Eighth Amendment, no further analysis of the qualified immunity

argument is necessary. Gatzimos v. Garrett, 431 F. App’x 497, 502 (7th Cir. 2011).

IV. Conclusion

For the above reasons, the Defendants are entitled to summary judgement on

the single count against them. No reasonable jury could find that Dr. Vukcevic

acted with deliberate indifference when treating Gospodinov. Moreover, no

reasonable jury could find that Hudson and Kruger acted with deliberate

indifference to Gospodinov’s medical needs or complaints, or that they even had

sufficient personal involvement. Because there was no constitutional violation, the

Defendants are entitled to qualified immunity.

Date: June 22, 2023 SS.

Honorable Iain D. Johnston

United States District Judge

19