McGowan v. Hulick

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2991

M ICHAEL M C G OWAN,

Plaintiff-Appellant,

v.

D ONALD A. H ULICK, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09-cv-017-DRH—David R. Herndon, Chief Judge.

S UBMITTED M AY 26, 2010 Œ —D ECIDED JULY 20, 2010

Before E ASTERBROOK, Chief Judge, and P OSNER and

W OOD , Circuit Judges.

Œ

The defendants were not served with process in the district

court and are not participating in this appeal. After examining

the appellant’s brief and the record, we have concluded that

oral argument is unnecessary. The appeal is therefore sub-

mitted on the appellant’s brief and the record. See F ED . R. A PP .

P. 34(a)(2)(C).

2 No. 09-2991

W OOD , Circuit Judge. Michael McGowan had an upper

molar extracted in January 2007 while he was impris-

oned at Illinois’s Menard Correctional Center, but the

extraction site did not heal and became infected. He

was still suffering from complications in November 2007,

when a specialist performed the second of two surgeries

to close the hole left by the extraction. McGowan then

brought this pro se lawsuit under 42 U.S.C. § 1983 and

Illinois law, claiming that the dentist who performed the

extraction, the prison’s dental director, the regular

prison physician, and the prison warden were all

negligent and deliberately indifferent to his plight. At

screening the district court dismissed the complaint

with prejudice for failure to state a claim, see 28 U.S.C.

§ 1915A(b)(1), reasoning that McGowan’s allegations

could not support a finding of deliberate indifference, as

opposed to negligence. McGowan moved for reconsid-

eration, but only with respect to Dr. John Gardner, the

dentist who extracted his tooth, and Dr. Chapman, the

prison’s dental director. The district court denied the

motion and allowed the dismissal to stand for all four

defendants. McGowan’s appeal concerns only Drs.

Gardner and Chapman.

The complaint, supplemented by medical and dental

records, provides the information on which we must rely

at this stage; we accept its factual allegations as true

and draw all reasonable inferences in McGowan’s favor.

See Erickson v. Pardus, 551 U.S. 89, 90 (2007). McGowan’s

molar began hurting in early November 2006, when he

began filing almost-weekly sick-call requests describing

his increasing pain. His pleas went unanswered until

No. 09-2991 3

he saw Gardner on January 30, 2007. McGowan asked

Gardner to provide a filling for the tooth, but Gardner

told him the tooth would have to be extracted because

“Menard doesn’t do fillings.” That statement, says

McGowan, was a lie, but he agreed to the extraction

rather than endure the pain any longer. The procedure

went badly. Although Gardner administered two shots

of a local anesthetic, McGowan nonetheless experienced

excruciating pain. The tooth fragmented during the

extraction, and, McGowan believes, Gardner used non-

dental instruments, including an ice pick, to dig the

splinters from his gums. McGowan has no other com-

plaints against Gardner. His follow-up care was pro-

vided by another prison dentist, who is not a defendant.

In the month following the procedure, McGowan’s

pain increased. He was given aspirin, but the medication

provided no relief. On February 28, 2007, he awoke to

find that a mass of tissue the size of a golf ball had

broken through the stitches; it was so large that he could

not close his mouth. He saw his treating dentist, who

excised some of the tissue, gave him Tylenol and salt, and

recommended to the prison dental director, Chapman,

that McGowan see an oral surgeon. But the Tylenol

was also ineffective in reducing his pain, and the visit

to the oral surgeon was not forthcoming. Chapman still

had not approved that consultation by March 28 when

McGowan’s prison dentist saw him on an emergency

basis for more pain and swelling at the extraction site

and diagnosed him with a “sinus perforation with

fistula tract.” (This is no laughing matter: a sinus perfora-

tion is a complication that may occur during the extraction

4 No. 09-2991

of an upper molar. See Wikipedia, Dental Extraction,

http://en.wikipedia.org/wiki/Dental_extraction (last visited

July 15, 2010). A fistula is basically a passageway—in

this case, one that connected McGowan’s mouth to his

sinus cavity. See Medline Plus, Fistula, http://www.

nlm.nih.gov/medlineplus/ency/article/002365.htm (last vis-

ited July 15, 2010). See also S TEDMAN ’S M EDICAL D ICTIO -

NARY 736 (28th ed. 2006) (noting that a pathologic con-

nection between mouth and maxillary sinus is called an

oroantral fistula and is most commonly a complication

of removing an upper molar). McGowan alleges that he

continued to be in pain as the infection spread up his

face and that the mass in his mouth and the foul-tasting

discharge kept him from eating, causing him to lose

weight.

By April 9, 2007, McGowan had received Chapman’s

approval to see the contract oral surgeon on the

surgeon’s next regular visit to Menard. That visit was

scheduled for the week of April 23, nearly two months

after McGowan’s treating dentist had sought approval

for intervention by an oral surgeon. But the surgeon

cancelled his visit, and McGowan was told he would

have to wait another three months until the surgeon

came again. Unwilling to postpone treatment for so

long, McGowan filed an emergency grievance on April 30.

That grievance prompted the treating dentist to request

a referral to an oral surgeon at an outside hospital and

to prescribe a splint to cover the hole in McGowan’s

mouth so that he could eat. But when McGowan re-

ceived the splint two weeks later, the protrusion—now

about the size of a large marble—prevented the splint

No. 09-2991 5

from fitting properly and without pain, and so he was

unable to use it.

Around this time, Chapman approved the outside

referral, and McGowan finally saw an oral surgeon on

May 25, 2007. But the surgeon announced that he was not

qualified to treat McGowan’s injury and recommended

that McGowan see an ear, nose, and throat (“ENT”)

specialist. That recommendation did not reach Menard

for another two weeks, apparently because the oral sur-

geon’s office had the wrong fax number. This meant

that the new request for the ENT specialist was not sub-

mitted for approval until June 11. Dental records docu-

ment that earlier, on June 6, McGowan’s treating dentist

had personally advised Chapman of the need to expedite

the referral, but Chapman waited until June 20 to give

his approval. By then, McGowan alleges, nasal mucus

was draining out of the extraction site instead of his

nose, and the prison doctor had begun treating him for

a sinus infection.

Finally, on June 29, 2007, McGowan was evaluated by

an ENT specialist, who ordered a CT scan of McGowan’s

sinuses before proceeding with treatment. The CT scan

was approved the next day but did not occur until July 16.

On August 3 the ENT specialist performed a sinus endos-

copy, which is a procedure to remove blockages from the

sinuses. See eHealthMD, What Is Endoscopic Sinus Sur-

gery?, http://www.ehealthmd.com/library/endosinus/ess_

whatis.html (last visited July 15, 2010). Unfortunately,

McGowan’s pain continued, the extraction site did not

heal, and the hole from his mouth to his sinus allowed

6 No. 09-2991

food to enter his nose when he ate. The ENT specialist

performed another surgery on November 2 to remove

the tissue mass and close the hole.

At screening the district court concluded that

McGowan’s allegations did not describe deliberate indif-

ference on the part of either Gardner or Chapman; it

therefore dismissed the case. The court did not mention

the negligence allegations. It is possible that it implicitly

declined to exercise its supplemental jurisdiction, see

28 U.S.C. § 1367(c), but the dismissal apparently addressed

the entire complaint and was with prejudice. The court

reasoned that McGowan’s allegations about the tooth

extraction described only negligence by Gardner and

not deliberate indifference. The court then concluded

that the May 2007 referral to an outside oral surgeon and

the June 2007 referral to an ENT specialist negated the

possibility that any of the remaining defendants with-

held medical care from McGowan. The court acknowl-

edged that McGowan’s treatment had been dragged out

over a long time, but it thought that “a delay in process

does not constitute deliberate indifference.”

McGowan maintains that his complaint states a claim

against Gardner and Chapman for deliberate indiffer-

ence. He stresses that Gardner essentially forced him to

have the molar extracted by falsely stating that fillings

are not available to Menard inmates and then performed

a “grossly deficient procedure.” Chapman, he continues,

purposely delayed his treatment solely for economic

reasons, leaving him now with permanent structural

damage to his oral and nasal cavity. Our review of a

No. 09-2991 7

dismissal under § 1915A for failure to state a claim is

de novo. Santiago v. Walls, 599 F.3d 749, 755-56 (7th

Cir. 2010).

The Eighth Amendment prohibits cruel and unusual

punishment; that guarantee encompasses a prisoner’s

right to medical care. It is well established that

“deliberate indifference to serious medical needs of

prisoners constitutes the unnecessary and wanton inflic-

tion of pain proscribed by the Eighth Amendment.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quotation marks

and citation omitted). This principle applies equally to

dental care. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir.

2010). But negligence, even gross negligence, does not

violate the Constitution. Estelle, 429 U.S. at 105-06;

Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). Only

deliberate indifference or worse in the face of a serious

medical need will do. Estelle, 429 U.S. at 103-04; Hayes v.

Snyder, 546 F.3d 516, 522 (7th Cir. 2008). A delay in treat-

ment may constitute deliberate indifference if the delay

exacerbated the injury or unnecessarily prolonged an

inmate’s pain. Estelle, 429 U.S. at 104-05; Gayton v. McCoy,

593 F.3d 610, 619 (7th Cir. 2010); Edwards v. Snyder, 478

F.3d 827, 832 (7th Cir. 2007). There is no question that

McGowan’s complaint sufficiently alleges a serious

medical need. The issue here is whether the complaint

also plausibly suggests that either Gardner or Chapman

or both were deliberately indifferent to that need.

We conclude that the district court was too hasty in

dismissing the claim against Chapman, especially given

its duty to construe McGowan’s pro se complaint lib-

8 No. 09-2991

erally. See Erickson, 551 U.S. at 94; Haines v. Kerner, 404 U.S.

519, 520 (1972). McGowan set forth a plausible account of

the facts showing how much delay he experienced,

how often he and others asked Chapman to act, and

what the consequences were of inaction. Delay is not a

factor that is either always, or never, significant.

Instead, the length of delay that is tolerable depends on

the seriousness of the condition and the ease of providing

treatment. See Grieveson v. Anderson, 538 F.3d 763, 778-

80 (7th Cir. 2008) (guards could be liable for delaying

treatment for painful broken nose by at least a day-and-a-

half); Edwards, supra, 478 F.3d at 831 (two-day delay

in treatment for open dislocated finger for no medical

reason stated a claim against prison doctor for deliberate

indifference); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th

Cir. 1997) (dismissal for failure to state a claim proper

because six-day wait to see a doctor was not unrea-

sonably long for infected cyst deemed not that severe);

Cooper v. Casey, 97 F.3d 914, 916-17 (7th Cir. 1996) (pre-

sented jury question “whether the plaintiffs were in

sufficient pain to entitle them to pain medication with-

in the first 48 hours after the beating”).

McGowan’s complaint alleges with specificity a

number of troubling delays in his treatment. He was

forced to wait three months to see a dentist after he

first complained of dental pain. That unexplained delay

could support a deliberate-indifference claim if Chapman

was aware of the severity of McGowan’s dental problems

yet refused to approve a dental visit. See Hartsfield v.

Colburn, 371 F.3d 454, 457 (8th Cir. 2004); Boyd v. Knox, 47

F.3d 966, 969 (8th Cir. 1995). And McGowan has alleged

No. 09-2991 9

that Chapman knew as early as February 28, 2007, that

McGowan needed to see an oral surgeon after the

botched extraction, yet Chapman required McGowan

to wait until April, when the contract oral surgeon

was scheduled to come to the prison. The symptoms

McGowan describes—painful swelling at the extraction

site coupled with discharge—could support a finding that

two months was too long to wait. Even when it was

clear that the extraction had led to a sinus perforation,

Chapman stalled in authorizing a referral to an outside

surgeon after the contract surgeon had cancelled his

planned April visit and was not expected back for

another three months. It took a grievance from McGowan

to secure the new referral to the oral surgeon, but still

Chapman waited two weeks before acting on the

prison dentist’s request to expedite the referral to an

ENT specialist. Finally, the complaint recounts several

instances of delayed scheduling with the ENT specialist,

including a missed appointment.

We recognize that a more complete examination of the

facts may show that McGowan’s condition did not need

immediate treatment, that Chapman was not aware of the

need for more urgent care, or that someone else was

responsible for the delay. But those are details to be

explored during discovery. At this stage, McGowan has

stated a claim for such serious delay in his treatment that

the Eighth Amendment may have been violated. His

allegations suffice to put Chapman on notice of what he

is accused of doing wrong: that is, he allegedly delayed

approval for McGowan to see a dentist, an oral surgeon,

and an ENT specialist, and these delays both caused

10 No. 09-2991

McGowan to suffer unnecessary pain and made his

condition deteriorate. This is enough. See Erickson, 551

U.S. at 93-94; Burks v. Raemisch, 555 F.3d 592, 594 (7th

Cir. 2009).

McGowan’s case against Gardner is a different matter.

His complaint focuses only on Gardner’s decision to

extract the tooth rather than to fill it and on the way

that Gardner allegedly proceeded. According to

McGowan, Gardner lied when he said that “Menard

doesn’t do fillings,” and the purpose of the lie was to

obtain permission to perform the extraction. But in the

end, this dispute is over nothing but the choice of one

routine medical procedure versus another, and that

is not enough to state an Eighth Amendment claim. See

Berry, supra, 604 F.3d at 441; Ciarpaglini v. Saini, 352 F.3d

328, 331 (7th Cir. 2003). Although a medical professional’s

actions may reflect deliberate indifference if he or she

chooses an “easier and less efficacious treatment” without

exercising professional judgment, Estelle, 429 U.S. at 104

n.10; Johnson v. Doughty, 433 F.3d 1001, 1018-19 (7th

Cir. 2006), that is not what McGowan accuses Gardner of

doing. He also asserts that Gardner botched the extrac-

tion, but his allegations describe only negligence,

perhaps gross negligence, without suggesting that

Gardner maliciously intended to cause McGowan pain

or otherwise performed the procedure in a way that he

knew would create a substantial risk of complications. See

Farmer v. Brennan, 511 U.S. 825, 842-45 (1994). The

closest McGowan comes to an Eighth Amendment claim

is when he says that Gardner used an ice pick to extract

the tooth. All McGowan can be saying, however, is that

No. 09-2991 11

he saw Gardner use something that looked to him like an

ice pick; that much is possible, because some dental

instruments may resemble an ice pick to an untrained

eye. There is nothing in the complaint supporting the

highly unlikely possibility that the set of tools available

to the prison dentists at Menard included a common ice

pick. We conclude, therefore, that the district court cor-

rectly dismissed McGowan’s claims against Gardner. See

generally Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).

Because we have concluded that it was error to dismiss

McGowan’s complaint against Chapman, we vacate the

order dismissing the action to that extent and remand

for further proceedings consistent with this opinion.

McGowan is also entitled to have his supplemental state-

law claim against Chapman for negligence reinstated. We

affirm the dismissal of the federal claim against Gardner.

Because we understand the district court to have recog-

nized that McGowan’s complaint against Gardner

might have stated a state-law claim for negligence, how-

ever, we also order that the dismissal of that claim be

modified to show that it is without prejudice. See 28

U.S.C. § 1367(c).

V ACATED AND R EMANDED.

7-20-10