The opinion
NONPRECEDENTIAL DISPOSITION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 October 21, 2010*
Decided November 3, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09-3575 Appeal from the United
States District Court for the
C ARL GALLO, Southern District of Illinois.
Plaintiff-Appellant,
No. 07-cv-32-MJR
v. Michael J. Reagan, Judge.
ADRIAN FEINERMAN and FAISAL AHMED,
Defendants-Appellees.
Order
Carl Gallo contends that two doctors violated his right under the eighth amendment
to be free of cruel and unusual punishment. The district court dismissed Gallo’s com-
plaint under 28 U.S.C. §1915A before it had been served on the defendants.
According to the complaint and its attachments, Gallo suffers from ulcerative colitis
and gastroesophageal reflux disease. For current purposes we must assume that both
conditions are serious, so that deliberate indifference to them (and their symptoms)
would violate the Constitution. See Farmer v. Brennan, 511 U.S. 825 (1994). Gallo con-
tends that Faisal Ahmed, his prison physician through summer 2005, compelled him to
take Sulfasalazine, a drug for his colitis, on an empty stomach, causing discomfort and
reducing the drug’s efficacy. He also contends that Ahmed substituted Prilosec for
Prevacid as the drug to treat the reflux disease. Another physician had prescribed
Prevacid; Ahmed overrode this and, according to Gallo, stated: “I don’t care what an-
* The defendants were not served with process and have elected not to participate in the appeal. After
examining appellant’s brief and the record, we have concluded that oral argument is unnecessary. See Fed.
R. App. P. 34(a); Cir. R. 34(f).
No. 09-3575 Page 2
other doctor ordered”. The complaint’s final allegation with respect to Ahmed is that in
November 2004 he cancelled an appointment for a colonoscopy that a specialist had or-
dered. Three months later a colonoscopy was performed.
Adrian Feinerman took over as Gallo’s doctor in August 2005. By then Gallo was
back on Prevacid, which an outside physician had prescribed. Feinerman cancelled this
prescription and told Gallo to take Prilosec. Gallo told Feinerman that Prilosec made
him nauseous; caused chest pain, rash and a swollen tongue; and led to excessive bowel
movements containing blood and mucus. Medical notes in Gallo’s file confirmed these
statements; the adverse reactions to Prilosec were why the outside physician had pre-
scribed Prevacid. The complaint alleges that Feinerman was indifferent to the suffering
that Prilosec caused Gallo—who refused to take Prilosec and then had to endure the
consequences of gastroesophageal reflux disease, which Gallo deemed more bearable
than the consequences of Prilosec. (A victim of gastroesophageal reflux disease brings
stomach acids into the esophagus, which causes physical damage to the throat’s lining;
the condition is experienced as heartburn and pain when swallowing. Gallo alleges that
he suffered from an additional, though less common, symptom: asthma attacks caused
by inflammation of the bronchial tubes.)
Gallo sued Ahmed more than two years after the prison’s administrative-review
process rejected his complaints about Ahmed’s decisions concerning the drugs. The dis-
trict court concluded that the suit was untimely with respect to these claims. Gallo con-
tends that the suit is timely because the decisions of Ahmed and Feinerman together
constitute a “continuing violation.” He misunderstands that doctrine, which does not
extend the period of limitations for discrete wrongs. See National Railroad Passenger Corp.
v. Morgan, 536 U.S. 101 (2002).
The district court dismissed Gallo’s claim concerning the colonoscopy because Ah-
med’s decision reflected a disagreement within the medical profession about optimal
timing, rather than inattention to Gallo’s medical condition. It would therefore not be
possible for Gallo to establish the mental state required by Farmer, the court concluded.
Gallo disputes that conclusion on appeal. It is unnecessary for us to address the subject,
because the complaint does not allege that the three-month delay caused him any in-
jury. Non-injurious medical decisions do not violate the eighth amendment.
Gallo’s claims against Feinerman are timely and materially stronger than those
against Ahmed. By mid-2005, medical records established that Gallo does not tolerate
Prilosec, while Prevacid treats his condition. Feinerman had a choice: give Gallo a drug
that helps him, or give Gallo a drug that harms him. Fully realizing what the choice
meant, Feinerman prescribed the harmful drug—and, when Gallo predictably refused
to take it, effectively left him to suffer despite the availability of an effective treatment.
That is, at least, what the complaint alleges, and for current purposes we must assume
that the allegations are correct. Feinerman’s statement (to Gallo) that Prilosec was in the
prison’s formulary, and Prevacid wasn’t, is no excuse for giving a prisoner a drug
known to cause harm, while effectively leaving a serious medical condition untreated.
The complaint states a constitutional claim against Feinerman. Whether the facts will
back up Gallo’s allegations remains to be seen. Whether limitations in the formulary
could support a defense of qualified immunity also may be an issue on remand. Cf. Gil
v. Reed, 381 F.3d 649, 663 n.3 (7th Cir. 2004).
The judgment is affirmed with respect to Ahmed and reversed with respect to Fein-
erman, and the case is remanded for further proceedings consistent with this order.