Arnett v. Webster

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3280

K EVIN B. A RNETT,

Plaintiff-Appellant,

v.

T HOMAS A. W EBSTER, M.D., et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 2:08-cv-099-WTL-WGH—William T. Lawrence, Judge.

A RGUED M ARCH 30, 2011—D ECIDED S EPTEMBER 12, 2011

Before F LAUM, W OOD , and T INDER, Circuit Judges.

T INDER, Circuit Judge. Kevin Arnett, a former prisoner

at the Bureau of Prisons Federal Correctional Complex in

Terre Haute, Indiana, brought this Bivens action, see

Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), for cruel and unusual punish-

ment under the Eighth Amendment against a number of

prison officials for violations he alleged occurred during

his ten month stay there. When Arnett arrived at the

2 No. 09-3280

Terre Haute facility in November 2006, he was seen by

Thomas Webster, M.D., prison clinical director. Arnett

informed Dr. Webster that he had rheumatoid arthritis

(RA), a severe and debilitating form of arthritis which

is progressive and causes painful inflammation of the

joints and surrounding tissues, and asked for Enbrel

(etanercept), a medication Arnett had been taking

before arriving at the prison that had been successful in

controlling his condition.

Because Enbrel wasn’t on the prison’s approved formu-

lary, prison medical personnel had to seek prior ap-

proval to prescribe the medication by submitting a non-

formulary drug authorization request to the Central

Office of the Bureau of Prisons in Washington, D.C. (BOP)

Dr. Webster submitted a request for Arnett to receive

Gabapentin, used to treat nerve pain, but not Enbrel, and

also submitted approval for a consultation with an

outside rheumatologist. W. Eric Wilson, M.D., staff physi-

cian at Terre Haute, became Arnett’s primary care physi-

cian on December 28, 2006. An outside rheumatologist

examined Arnett in February 2007, and it can be inferred

that he directed Dr. Wilson to place Arnett back on Enbrel.

Despite the rheumatologist’s instruction and Arnett’s

repeated pleas for the medication and complaints of

continued pain and swelling, he didn’t receive Enbrel

until October 5, 2007, eleven days before he was trans-

ferred from the facility to a halfway house. Arnett was

told by the defendants during the more than ten months

he waited for the drug that the non-formulary request

had been submitted, they were waiting for a response

from the BOP, and were otherwise “working on it.” In the

No. 09-3280 3

meantime, Arnett was prescribed pain medicine, but

nothing to treat the inflammation and deterioration of

his joints.

Because Arnett sought leave to proceed in forma

pauperis, the district court screened his complaint pursu-

ant to 28 U.S.C. § 1915(e)(2)(B), and in so doing, dismissed

all the defendants, except Dr. Webster, on the basis that

Arnett failed to state a claim upon which relief could

be granted. (Shortly after screening, Arnett’s case was

transferred from Judge Richard L. Young to Judge

William T. Lawrence.) Dr. Webster then filed a summary

judgment motion and the district court granted that

motion. The district court entered judgment, directing

that plaintiff take nothing by his complaint. Arnett

appeals both rulings and we affirm in part and reverse

in part. We affirm dismissal of the non-medical de-

fendants on the pleadings, but find that Arnett properly

stated a claim against the medical defendants. We, how-

ever, affirm the district court’s grant of summary judg-

ment in favor of Dr. Webster because Arnett failed to

meet his burden to submit evidence upon which a rea-

sonable jury could find that Dr. Webster acted with

deliberate indifference.

I. Facts

Arnett brought this suit against the following Terre

Haute prison employees for violation of his Eighth Amend-

ment rights: Warden Richard Veach, Health Services

Administrator Julia Beighley, Case Manager David

Parker, Staff Physician W. Eric Wilson, M.D., Physician’s

4 No. 09-3280

Assistant Yves A. Paul-Blanc, and Clinical Director

Thomas A. Webster, M.D. (Arnett also sued the Federal

Bureau of Prisons, but recognizing that dismissal of the

BOP was proper, he has not appealed that ruling.) Because

we are reviewing a dismissal at both the pleading and

summary judgment stage, we begin by setting forth the

allegations and facts in Arnett’s complaint and docu-

ments attached thereto. See Reger Dev., LLC v. Nat’l City

Bank, 592 F.3d 759, 764 (7th Cir. 2010) (On a motion to

dismiss “[w]e consider documents attached to the com-

plaint as part of the complaint itself.”)

In 2001, Arnett was diagnosed with RA by his treating

physician, Steven R. Bergquist, M.D. RA involves autoim-

mune reactions and is a progressive disease that causes

pain and inflammation in the joints.1 After other medica-

tions proved unsuccessful in controlling his condition,

Dr. Bergquist placed Arnett on the drug Enbrel in

January 2004. Enbrel reduces joint swelling, helps prevent

1

The defendants argue that there is nothing in the record to

support these facts, but they can be found in Dr. Bergquist’s

September 5, 2007, letter that was attached to Arnett’s com-

plaint. We also note that several authoritative sources

support this description of the disease. See The Merck Manual

of Diagnosis and Therapy 283-89 (18th ed. 2006) (stating that RA

is a chronic autoimmune disease resulting in progressive

destruction of the joints). While Arnett will need to present

admissible evidence to substantiate such facts for purposes

of summary judgment, he does not need to do so at the

pleading stage.

No. 09-3280 5

damage to the joints,2 and was effective in decreasing

Arnett’s inflammation and accompanying pain. Enbrel is

a protein that inhibits inflammation in the body by sup-

pressing a substance produced by the immune system

known as tumor necrosis factor (TNF).3 Subsequently,

Arnett was convicted of a federal criminal offense and

sentenced to imprisonment. He self-surrendered at the

Terre Haute prison on November 1, 2006, and when he

arrived, he brought his Enbrel medication, but prison

officials confiscated it upon arrival.

2

Enbrel is used to reduce the progression of RA. See The Merck

Manual of Diagnosis and Therapy 289; see also Physicians’ Desk

Reference 631 (65th ed. 2011) (“Enbrel is indicated for

reducing signs and symptoms, . . . inhibiting the progression

of structural damage, and improving physical function in

patients with moderately or severely active [RA].”). The de-

fendants’ characterization of Enbrel as “pain medication” is

a misnomer.

3

This fact isn’t found in Arnett’s complaint or attached docu-

ments, but we state it here to provide relevant background

information. It can be found in the summary judgment record

in a letter from Dr. Bergquist dated April 20, 2009. This infor-

mation is supported by Enbrel’s website and authoritative text.

See http://www.enbrel.com/what-is-ENBREL.jspx (last visited

Sept. 7, 2011) (“People with inflammatory diseases such as

rheumatoid arthritis . . . have too much TNF in their bodies.

Enbrel reduces levels of the active form of TNF.”); see also

Mosby’s Nursing Drug Reference 491-92 (25th ed. 2012) (stating

that Enbrel “[b]inds [TNF], which is involved in immune

and inflammatory reactions.”); Physicians’ Desk Reference 639

(“Enbrel can reduce the effect of TNF in the body and block

the damage that too much TNF can cause . . . .”).

6 No. 09-3280

During the next ten months, Arnett lodged numerous

oral and written complaints to the defendants for Enbrel,

but to no avail. Dr. Webster examined Arnett twice

in November 2006. During both exams, Arnett told

Dr. Webster that he needed Enbrel to control his RA

and that because he didn’t have the medication, his

joints were swollen, especially his knees, and he was

in intense pain; this resulted in Arnett having to walk with

a cane. Dr. Webster agreed that Arnett’s joints were

swollen. In response to his requests for Enbrel, Dr. Webster

said, “We’ll work on it.” Dr. Webster attested that he

has no recollection of meeting with Arnett or discussing

his request for Enbrel. Arnett also informed Warden

Veach in December 2006 that his Enbrel had been con-

fiscated by prison employees and that he needed it to

control his RA. Veach told Arnett to talk to Health

Services Administrator Beighley. Arnett complained to

Beighley and she told him to put his request in writing,

which he did.

Dr. Wilson became Arnett’s primary physician at the

prison beginning December 28, 2006; he saw Arnett every

other month until his transfer from the facility in

October 2007. Each time he met with Dr. Wilson, Arnett

informed him he needed Enbrel and without it, he

suffered from joint swelling, particularly in his knees.

Dr. Wilson examined Arnett’s knees and other joints

and agreed they were swollen. In response to Arnett’s

request, Dr. Wilson stated that he had filled out new

forms to get Enbrel that had to be sent to the BOP in

Washington, D.C.

No. 09-3280 7

Arnett’s medical file was presented to the prison’s

utilization review committee on November 16, 2006, for

consideration of Dr. Webster’s recommendation that

Arnett receive a consultation with a rheumatologist for

his RA; the committee concurred that review of Arnett’s

condition by an outside consultant was warranted. Arnett

was seen by Dr. Henry Davis, a rheumatologist, on Febru-

ary 7, 2007. Dr. Davis wrote a letter to Dr. Wilson that

Arnett attached to his complaint. The letter explained

that Arnett’s RA had caused him “acute swelling and

pain in his hands, wrists, knees, and neck” and that when

he started on Enbrel, he did “fairly well,” but has been

without it for the last four months. Dr. Davis noted

that Arnett had “been taking Percocet and Norco with-

out any benefit.” During his examination, Dr. Davis

noted swelling and tenderness in different areas of

Arnett’s body and gave him an injection of Depo-Medrol

(medication used to treat joint pain and swelling that

occurs with arthritis) in his right shoulder. He stated to

Dr. Wilson, “I would like for [Arnett] to resume Enbrel

15 mg once a week.” (More will be said about Dr. Davis’

comment later.) Arnett still did not receive Enbrel, so in

April 2007, he again informed Veach that he needed

the drug to control his RA. Veach again told Arnett to

talk to Beighley. Arnett’s medical chart dated April 4

noted that Arnett was having pain in his right knee

and that he received “Enbrel injections, but that was

stopped when he arrived here.”

Between February and July 2007, Arnett directed two

more oral requests to Beighley for Enbrel. Beighley stated

that a request for the medication had been submitted,

8 No. 09-3280

but it had not arrived. On June 28, 2007, Arnett filed a

written request with Beighley for Enbrel, and stated that

he was in intense pain from his joints swelling (he de-

scribed his pain, “I’m walking on bone on bone and have

a lot of pain in my knee”), had not been provided a substi-

tute for Enbrel, and had not been seen by the orthopedic

specialist as promised. He requested that he be seen by

either a rheumatologist or an orthopedic specialist so he

could get an injection in his knee to relieve the pain.

Beighley responded, “You are on the list to be seen by

the ortho.” On July 26, Arnett was evaluated by an ortho-

pedic surgeon for complaints of right knee pain related

to his RA condition and the surgeon injected Arnett’s

knee with Depo-Medrol.

Arnett began seeing Physician’s Assistant Paul-Blanc on

a daily basis beginning in May 2007. Each time he saw

Paul-Blanc, Arnett reiterated his plea for Enbrel and stated

that because he had not been taking the drug, his joints

were swollen and he was in intense pain. Paul-Blanc

agreed that Arnett’s joints were swollen. In response to

Arnett’s requests, Paul-Blanc stated that a request for

the drug had been made but that he had not yet heard

anything from Washington, D.C. Starting in May 2007,

Arnett also went to Case Manager Parker two to three

times a week and requested that he be placed on Enbrel.

Parker told him to “talk to Blanc.” Arnett also filed an

administrative claim for damages with Parker, which

Parker denied. Arnett appealed to Veach, who also

denied the claim.

On September 5, 2007, upon Arnett’s request, Dr. Berg-

quist (Arnett’s former physician) wrote a letter to the

No. 09-3280 9

prison (“To Whom it May Concern”) that Arnett at-

tached to his complaint. Dr. Bergquist stated that Arnett

had been under his care for RA since June 2001, that he

had been on numerous medications and either did not

tolerate the medications or did not show improvement,

and that when taking Enbrel, his joint pain and swelling

decreased. Dr. Bergquist pointed out that RA is a pro-

gressive disease and if the pain and swelling of the

joints is not controlled, further joint damage can occur.

He concluded that he thought it “appropriate for

Mr. Arnett to be reevaluated by a rheumatologist to

help make the decision as to the best treatment for

Mr. Arnett’s rheumatoid arthritis.” Apparently in

response to Dr. Bergquist’s letter, the prison finally gave

Arnett an injection of Enbrel. He was released from

prison eleven days later on October 16.

Arnett alleged that the “intentional refusal by the

Federal Bureau of Prison’s personnel to give [him] the

medication Enbrel . . . constitute[d] a deliberate indiffer-

ence to [his] obvious medical condition by those defen-

dants, thereby resulting in substantial pain and

suffering . . . and irreversible physical damage and defor-

mity of his joints.” He asserted that he was simply left

untreated during this ten-month plus delay while he

“unnecessarily suffered from continual and ongoing

pain and advancing physical deterioration” in violation

of the Eighth Amendment.

We now turn to the summary judgment record, supple-

menting the facts set forth above only where necessary

and construing those facts in light most favorable to

10 No. 09-3280

Arnett. When Arnett arrived at Terre Haute, he had

several medical problems in addition to RA, including

chronic Hepatitis C, which resulted in over twenty-two

encounters with the medical department or medical

consultations with specialists during his stay at Terre

Haute. Dr. Webster did a full physical exam on Arnett a

few days after he self-surrendered at the prison and

again on November 16. Dr. Webster reviewed Arnett’s

medical records, and Arnett informed him that he was

previously prescribed Enbrel and that this drug was

effective in controlling his RA and alleviating the pain

and swelling in his joints. (Dr. Webster disputes any

awareness that Arnett was taking Enbrel before his

arrival at the prison, but Arnett has presented evidence

supporting this fact, and we must accept it as true.)

Dr. Webster was also aware that Arnett had been

taking the drug Gabapentin to treat neuropathy (nerve

damage) and resulting nerve pain. Gabapentin, like

Enbrel, was not on the prison’s approved formulary.

When a drug is not on the approved list, a physician

wanting to prescribe the medication must submit a non-

formulary drug authorization request to the BOP for

approval. Dr. Webster completed such a request for

Gabapentin and authorized Arnett’s temporary con-

tinued use of the drug for fourteen days, pending the

decision of the non-formulary request. Dr. Webster did

not submit a request for Enbrel. He issued Arnett a pass

for a lower bunk, renewed his pain medication Percocet,

ordered x-rays, and submitted an approval for a con-

sultation with a rheumatologist to the prison review

committee.

No. 09-3280 11

Arnett was then assigned to Dr. Wilson. Arnett’s

medical chart on December 28, 2006, indicates: “RA;

referral to rheumatology pending, trying to get Enbrel but

need this consult first as central office requires it (it is

obvious he has RA).” As discussed above, the request for

an outside consultation was approved and Arnett saw

Dr. Davis in February 2007. Dr. Webster averred that he

was not Arnett’s primary care physician and “had no

personal involvement with Plaintiff’s medical care other

than reviewing his chart and medications when he first

arrived at FCC Terre Haute.” He reiterated, “I was not

Plaintiff’s primary care physician and had no involve-

ment with the request for Enbrel.”A few weeks after his

February 2007 exam by Dr. Davis, however, Arnett saw

Dr. Webster in the medical unit and pointed out that

Dr. Davis stated he should be placed back on Enbrel.

Arnett asked Dr. Webster what he had done about getting

approval for Enbrel and Dr. Webster responded, “We’re

working on it.”

Arnett’s prescription for Percocet continued to be

renewed. The non-formulary request for Gabapentin

was denied, so he was instead prescribed a new pain

medication, Topamax, in December 2006. These drugs

were prescribed for their use in alleviating pain, not

reducing inflammation or slowing the progression of RA.

In April 2007, Arnett was seen during sick call for com-

plaints of right knee pain; x-rays were ordered and a

consent for orthopedic consultation was completed. On

July 9, Arnett was evaluated during a chronic care clinic

visit. The record indicates that he continued to complain

of joint pain and pressure in his knees and that he “[w]as

12 No. 09-3280

to receive Enbrel but hasn’t. Never heard back from

the non-formulary request.” The record further in-

dicates “Request Enbrel again” and “Request follow up

with rheumatology.” It then reads, “Start: Enbrel 15 mg sq

per week (non formulary submitted).” In July, Dr. Webster

also signed a record of medical care stating that

the utilization review committee approved a follow-up

appointment with Dr. Davis to consult for RA “ASAP.” A

consultation sheet that same day states “Schedule

follow up consult for [RA] . . . Advised to start Enbrel.”

Dr. Wilson submitted a request for a follow up consulta-

tion with Dr. Davis. Arnett’s medical charts indicate

that he was finally given Enbrel on October 5, 2007. He

was transferred to a half-way house on October 16.

II. Discussion

The district court dismissed Warden Veach from this

action on the basis that he only had an administrative

role and dismissed all the other defendants, except

Dr. Webster, on the basis that there was no allegation

in the complaint suggestive that these defendants acted

with the requisite mental state of deliberate indifference

to support a claim under the Eighth Amendment. The

district court (after the case was transferred to a dif-

ferent judge) then granted summary judgment in favor of

Dr. Webster reasoning that Arnett failed to submit evi-

dence showing a genuine issue of material fact that

Dr. Webster was deliberately indifferent to his serious

medical needs. We agree that Arnett failed to state a

claim against the non-medical defendants, Veach and

No. 09-3280 13

Parker, but disagree that Arnett’s allegations were insuf-

ficient to state a claim against the medical defendants,

Dr. Wilson, Beighley, and Paul-Blanc. We agree, however,

that the record on summary judgment is insufficient to

allow a reasonable jury to infer that Dr. Webster acted

with deliberate indifference.

“The Eighth Amendment safeguards the prisoner

against a lack of medical care that ‘may result in pain

and suffering which no one suggests would serve any

penological purpose.’” Rodriguez v. Plymouth Ambulance

Serv., 577 F.3d 816, 828 (7th Cir. 2009) (quoting Estelle v.

Gamble, 429 U.S. 97, 103 (1976)).4 Prison officials violate

the Constitution if they are deliberately indifferent to

prisoners’ serious medical needs. Estelle, 429 U.S. at 104.

Accordingly, 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. See Johnson v. Snyder, 444

F.3d 579, 584 (7th Cir. 2006); see also Roe v. Elyea, 631

F.3d 843, 857 (7th Cir. 2011). “Deliberate indifference to

serious medical needs of a prisoner constitutes the unnec-

essary and wanton infliction of pain forbidden by the

4

Many of the cases cited in this opinion arose under 42 U.S.C.

§ 1983. Bivens authorizes the filing of constitutional tort suits

against federal officers in much the same way that 42 U.S.C.

§ 1983 authorizes such suits against state officers. Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1948 (2009) (stating that a Bivens action

is the federal analog to suits brought against state officials

under § 1983); see also King v. Fed. Bureau of Prisons, 415 F.3d

634, 636 (7th Cir. 2005) (same).

14 No. 09-3280

Constitution.” Rodriguez, 577 F.3d at 828 (quoting

Estelle, 429 U.S. at 103).

The defendants don’t disagree that Arnett suffered

from a serious medical condition. See Norfleet v. Webster,

439 F.3d 392, 395 (7th Cir. 2006) (finding that rheumatoid

arthritis is a serious medical need). And because it is

undisputed that the defendants were aware of this

serious medical need, our focus is on whether they

acted with deliberate indifference in their response.

Deliberate indifference is a subjective standard. Johnson,

444 F.3d at 585. To demonstrate deliberate indifference,

a plaintiff must show that the defendant “acted with a

sufficiently culpable state of mind,” something akin to

recklessness. Id. A prison official acts with a sufficiently

culpable state of mind when he knows of a substantial

risk of harm to an inmate and either acts or fails to act

in disregard of that risk. Roe, 631 F.3d at 857. Deliberate

indifference “is more than negligence and approaches

intentional wrongdoing.” Collignon v. Milwaukee Cnty.,

163 F.3d 982, 988 (7th Cir. 1998). In other words, “[d]eli-

berate indifference is not medical malpractice; the

Eighth Amendment does not codify common law torts.”

Duckworth v. Ahmed, 532 F.3d 675, 679 (7th Cir. 2008). “A

jury can infer deliberate indifference on the basis of a

physician’s treatment decision [when] the decision [is]

so far afield of accepted professional standards as to

raise the inference that it was not actually based on a

medical judgment.” Id. (quotation marks omitted). A

plaintiff can show that the professional disregarded

the need only if the professional’s subjective response

was so inadequate that it demonstrated an absence

No. 09-3280 15

of professional judgment, that is, that “no minimally

competent professional would have so responded

under those circumstances.” Roe, 631 F.3d at 857 (quotation

marks omitted).

A prisoner, however, “need not prove that the prison

officials intended, hoped for, or desired the harm that

transpired.” Walker v. Benjamin, 293 F.3d 1030, 1037 (7th

Cir. 2002); see also Duckworth, 532 F.3d at 679 (“[A]lthough

deliberate means more than negligen[ce], it is some-

thing less than purposeful.”). Nor does a prisoner need

to show that he was literally ignored. Greeno v. Daley,

414 F.3d 645, 653 (7th Cir. 2005). That the prisoner

received some treatment does not foreclose his deliberate

indifference claim if the treatment received was “so

blatantly inappropriate as to evidence intentional mis-

treatment likely to seriously aggravate his condition.”

Id. (quotation marks omitted).

A. Section 1915(e)(2) Screening of Complaint

Our review of a dismissal under § 1915(e)(2)(B) for

failure to state a claim is de novo. DeWalt v. Carter, 224

F.3d 607, 611 (7th Cir. 2000). We apply the same

standard used for evaluating dismissals under Rule

12(b)(6) of the Federal Rules of Civil Procedure, “taking

all well-pleaded allegations of the complaint as true

and viewing them in the light most favorable to the

plaintiff.” Santiago v. Walls, 599 F.3d 749, 756 (7th Cir.

2010). To satisfy the notice-pleading standard of Rule 8

of the Federal Rules of Civil Procedure, a complaint

must provide a “short and plain statement of the claim

16 No. 09-3280

showing that the pleader is entitled to relief,” which

is sufficient to provide the defendant with “fair notice” of

the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93

(2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) and quoting Fed. R. Civ. P. 8(a)(2)). We

must however construe pro se complaints liberally

and hold them to a less stringent standard than formal

pleadings drafted by lawyers. Erickson, 551 U.S. at 94

(citation omitted); Obriecht v. Raemisch, 517 F.3d 489, 491

n.2 (7th Cir. 2008).

Recent cases instruct us to examine whether the allega-

tions in the complaint state a “plausible” claim for

relief. Iqbal, 129 S. Ct. at 1949. To survive a motion to

dismiss, the complaint “must contain sufficient factual

matter, accepted as true, to state a claim to relief that

is plausible on its face. . . . A claim has facial

plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Id. The complaint “must actually suggest that the plain-

tiff has a right to relief, by providing allegations that

raise a right to relief above the speculative level.” Windy

City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs.,

536 F.3d 663, 668 (7th Cir. 2008) (quoting Tamayo v.

Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)). This

doesn’t impose a probability requirement on plaintiffs:

“a well-pleaded complaint may proceed even if it

strikes a savvy judge that actual proof of those facts is

improbable, and that a recovery is very remote and un-

likely.” Twombly, 550 U.S. at 556. The complaint must

instead call for “enough fact to raise a reasonable ex-

No. 09-3280 17

pectation that discovery will reveal evidence” supporting

the plaintiff’s allegations. Id.

Based on a review of Arnett’s complaint and attached

documents we have no trouble finding that he stated

a claim against medical defendants, Dr. Wilson,

Beighley, and Paul-Blanc, for violations under the

Eighth Amendment. The defendants knew that Arnett

had RA and was in continuous pain as a result of the

inflammation in his joints; yet, they didn’t provide him

medication to treat his underlying condition, not Enbrel

as he requested and Dr. Davis instructed, nor any other

substitute medication. (In his appellate brief, Arnett

describes Dr. Davis’ comment as a “recommendation,” but

construing the facts in light most favorable to Arnett,

we prefer to refer to it as an “instruction.” After all,

Dr. Davis is a RA specialist who Arnett specifically went

to see for a consultation. When Dr. Davis said “I would

like” for Arnett to resume a specific dosage of Enbrel

once a week, that can reasonably be inferred to be an

instruction.) Arnett was not provided effective treat-

ment of his RA until October 2007, over ten months after

he arrived at Terre Haute and first sought treatment.

The summary judgment record indicates that Arnett

was given pain medication, but he was reasonably

seeking medication to treat, not simply mask, his condi-

tion.5 Even though he informed prison officials that the

5

The goal in treating RA “is to reduce inflammation as a means

of preventing erosion and progressive deformity.” See The Merck

(continued...)

18 No. 09-3280

pain medication was not working, they persisted in a

course of treatment, according to Arnett’s allegations,

known to be ineffective. Arnett alleged that the de-

fendants intentionally refused to provide him with

Enbrel and their refusal to treat him caused him

substantial pain and suffering, including irreversible

physical damage and deformity of his joints. These facts

are sufficient to state a claim.

It is not clear why the complaint was allowed to go

forward against Dr. Webster but not the other medical

5

(...continued)

Manual of Diagnosis and Therapy 283-89. Drug therapy for RA

usually combines non-steroidal anti-inflammatory drugs

(NSAIDs), which help reduce symptoms, and disease modifying

antirheumatic drugs (DMARDs), which slow disease progres-

sion. See id. NSAIDs are used to control the symptoms and

signs of the local inflammatory process, and DMARDS are

used to modify the inflammatory component of RA and its

destructive capacity. See Harrison’s Principles of Internal Medicine

2089-90 (17th ed. 2008). Enbrel is a more recent type of drug

that is aligned with DMARDS, but is classified as a “biological

response modifier”; it is a TNF-neutralizing agent that has

been shown to have a “major impact on the signs and symp-

toms of RA and also to slow progressive damage to articular

structures.” See Harrison’s Principles of Internal Medicine 2090

(stating that TNF-neutralizing agents have been “shown to

slow the rate of progression of joint damage . . . and to improve

disability.”). We express no opinion on the appropriate treat-

ment for Arnett, but we cite these authoritative sources

to illustrate commonly accepted treatment options for indi-

viduals with RA.

No. 09-3280 19

defendants. We are particularly curious about the district

court’s reasoning for dismissing Dr. Wilson, Arnett’s

primary care physician at the prison. Dr. Wilson was

aware of Arnett’s condition, his need for treatment, and

his pleas for Enbrel. In fact, Dr. Davis wrote a letter

addressed to Dr. Wilson in February 2007 instructing

that Arnett be placed back on Enbrel. The letter ex-

plained the severity of Arnett’s condition, the associated

pain, and the need for treatment to prevent permanent

joint damage. After receiving this letter, Dr. Wilson still

did nothing to treat Arnett’s RA with effective medica-

tion. As to Beighley and Paul-Blanc, Arnett asked them

repeatedly for Enbrel, but they simply told him that the

request had been submitted to the BOP and they were

waiting for a response.

Arnett has a serious medical condition and his pleas

for treatment and medication were ignored for over ten

months while he suffered intense pain. It appears that a

request for Enbrel was made to the BOP, but then lan-

guished. It is unclear who caused the delay or who was

responsible for following-up with the request, but what

we do know is that Arnett didn’t receive an Enbrel injec-

tion until October 2007. Deliberate indifference can

include the intentional delay in access to medical care.

Rodriguez, 577 F.3d at 828. A delay in treating non-life-

threatening but painful conditions may constitute de-

liberate indifference if the delay exacerbated the injury

or unnecessarily prolonged an inmate’s pain. McGowan

v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). “[T]he length

of delay that is tolerable depends on the seriousness

of the condition and the ease of providing treatment.” Id.

20 No. 09-3280

Compare id. at 640-41 (delays in referring inmate to

dentist, to oral surgeon, and ENT specialist over the

course of several months while inmate continued to

suffer significant pain and his condition deteriorated

was sufficient to state a claim of deliberate indifference),

and Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007)

(guards could be liable for delaying treatment for

painful broken nose by at least a day-and-a-half), with

Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1991)

(dismissal for failure to state a claim proper because six-

day wait to see a doctor was not unreasonably long

for infected cyst deemed not that severe). Arnett’s steady

complaints of escalating pain indicate that the delay of

ten months unreasonably prolonged his suffering. See

Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).

Allegations of refusal to provide an inmate with pre-

scribed medication or to follow the advice of a specialist

can also state an Eighth Amendment claim. See Wynn v.

Southward, 251 F.3d 588, 594 (7th Cir. 2001) (failure to

respond to inmate’s request for prescribed heart medica-

tion); see also Ralston v. McGovern, 167 F.3d 1160, 1162

(7th Cir. 1999) (refusal to administer prescribed pain

medication); Jones v. Simek, 193 F.3d 485, 490-91 (7th Cir.

1999) (failure to follow advice of specialists). Arnett had

been prescribed Enbrel for his RA before his arrival at

Terre Haute, repeatedly asked for the medication after

his arrival, and obtained a letter from Dr. Davis

informing Dr. Wilson to place him back on the medica-

tion. Even if the prison couldn’t get Enbrel because it

wasn’t on the formulary, medical personnel cannot stand

idly by for more than ten months while Arnett’s RA

No. 09-3280 21

progressively worsened and caused permanent damage

to his joints;6 they must explore alternative treatments

that are available. See, e.g., Norfleet, 439 F.3d at 395

(inmate treated by Dr. Webster received Naprosyn

(a NSAID) for his RA).

Although the defendants provided him pain medicine,

a medical professional’s actions may reflect deliberate

indifference if he “chooses an easier and less efficacious

treatment without exercising professional judgment.” See

McGowan, 612 F.3d at 641 (quotation marks omitted); see

also Gil v. Reed, 381 F.3d 649, 663 (7th Cir. 2004) (where

outside doctor prescribed prisoner Vicodin, but it was

not on the prison formulary, the prison doctor couldn’t

simply substitute with an ineffective alternative med-

ication; he needed to consider other more effective sub-

stitutes); Kelley v. McGinnis, 899 F.2d 612, 616 (7th Cir.

1990) (complaint sufficient to state claim where plain-

tiff alleged that clinic personnel deliberately gave him

certain kind of treatment knowing that it was ineffective).

A prison physician cannot simply continue with a

course of treatment that he knows is ineffective in

treating the inmate’s condition. See Greeno, 414 F.3d at 655.

6

The defendants point out that Arnett didn’t submit expert

opinion testimony on the damaging effects of RA and treat-

ment options, but Arnett did attach Dr. Davis’ February 2007

letter and Dr. Bergquist’s September 2007 letter to his com-

plaint, and while we agree that expert opinion testimony may

be necessary to survive summary judgment, it is not necessary

at the pleading stage.

22 No. 09-3280

Arnett has an inflammatory condition, yet he was

never provided anti-inflammatory medication, not even

aspirin, a well-known and readily available NSAID.

Arnett wasn’t seeking an unconventional treatment;

he sought medication that would reduce his pain and

swelling and slow the progression of his RA. Although an

inmate is not entitled to demand specific care and is not

entitled to the best care possible, he is entitled to reason-

able measures to meet a substantial risk of serious harm.

Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Arnett

alleges that the medical defendants, despite their knowl-

edge of his serious medical condition, ignored his

request for effective treatment for over ten months.

Arnett’s allegations that the medical defendants

knowingly ignored his complaints of pain by continuing

with a course of treatment that was ineffective and less

efficacious without exercising professional judgment are

sufficient to state a claim. See Berry, 604 F.3d at 441-42

(“Where [inmate] made a modest request for treatment . . .,

Dr. Butler’s obdurate refusal to alter [inmate’s] course

of treatment despite his repeated reports that the med-

ication was not working and his condition was getting

worse, is sufficient to defeat her motion for summary

judgment.”) (internal citations and quotation marks

omitted). At this stage, we cannot say that Arnett’s al-

legations describe only simple negligence, as opposed

to deliberate indifference to a worsening medical condi-

tion. See, e.g., Simek, 193 F.3d at 490 (plaintiff stated a

claim where prison doctor delayed arranging appoint-

ments for inmate to see specialists and then failed to

follow the specialists’ advice, during which time in-

mate’s condition continued to worsen).

No. 09-3280 23

Maybe Arnett will be unable to support his factual

allegations with admissible evidence. Maybe Beighley

and Paul-Blanc properly relied on the advice of

Dr. Wilson. Maybe Dr. Wilson can show that he legiti-

mately explored alternative options and rejected them

for valid reasons or that his treatment decisions were

otherwise based on his medical judgment. These, and

other questions, will need to be explored through dis-

covery. Whether Arnett can support his allegations that

the medical defendants were deliberately indifferent

remains to be seen. The district court was too hasty in

dismissing his claims against the medical defendants,

especially given its duty to construe pro se complaints

liberally. See McGowan, 612 F.3d at 640 (inmate stated

a claim where he set forth a “plausible account of the

facts showing how much delay he experienced, how

often he and others asked [the defendant] to act, and

what the consequences were of inaction.”). We do not

make any determination about the ultimate merits of

the allegations contained in the complaint, nor should

our decision today be read as suggesting an ultimate

outcome. We only conclude that Arnett has stated a

claim “plausible on its face” that the medical defendants

acted with deliberate indifference to his serious medical

condition in violation of the Eighth Amendment.

We come to a different conclusion with respect to

the non-medical defendants, Warden Veach and Case

Manager Parker. Arnett conceded at oral argument that

Veach was properly dismissed, so we limit our discussion

to Parker. Arnett didn’t go so far as to say that Parker

was properly dismissed, but he did concede that Parker

24 No. 09-3280

was in a similar situation to Veach. We agree. Arnett’s

allegations against Parker are minimal. He alleges that

starting in May 2007, he went to Parker two to three

times a week and requested that he be placed back on

Enbrel. In response, Parker merely said, “Go talk to Blanc.”

Parker cannot be held liable on the basis of respondeat

superior; to be liable, he must be personally liable for

Arnett’s injury. See Iqbal, 129 S. Ct. at 1948; see also Vance

v. Rumsfeld, Nos. 10-1687 & 10-2442, 2011 WL 3437511, *6

(7th Cir. Aug. 8, 2011).

Non-medical defendants, such as Parker, can rely on

the expertise of medical personnel. We have previously

stated that if a prisoner is under the care of medical

experts, a non-medical prison official will generally be

justified in believing that the prisoner is in capable

hands. Greeno, 414 F.3d at 656. We find the following

passage from Spruill v. Gills, 372 F.3d 218, 236 (3d Cir.

2004), particularly instructive here:

[I]f a prisoner is under the care of medical experts

. . . a non-medical prison official will generally

be justified in believing that the prisoner is in

capable hands. This follows naturally from the

division of labor within a prison. Inmate health

and safety is promoted by dividing responsibility

for various aspects of inmate life among guards,

administrators, physicians, and so on. Holding a

non-medical prison official liable in a case where

a prisoner was under a physician’s care would

strain this division of labor.

See also Greeno, 414 F.3d at 656 (adopting reasoning in

Spruill). However, “nonmedical officials can ‘be chargeable

No. 09-3280 25

with . . . deliberate indifference’ where they have ‘a reason

to believe (or actual knowledge) that prison doctors or

their assistants are mistreating (or not treating) a pris-

oner.’ ” Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008)

(quoting Spruill, 372 F.3d at 236). Non-medical defendants

cannot simply ignore an inmate’s plight. See Greeno, 414

F.3d at 656 (stating that “[p]erhaps it would be a different

matter if [the non-medical defendant] had ignored

Greeno’s complaints entirely, but we can see no deliberate

indifference given that he investigated the complaints

and referred them to the medical providers who could

be expected to address Greeno’s concerns.”); see also

Berry, 604 F.3d at 440 (“As a nonmedical administrator,

[defendant] was entitled to defer to the judgment of jail

health professionals so long as he did not ignore [the

inmate].”). However, mere negligence in failing to detect

and prevent subordinates’ misconduct is not sufficient.

See Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996).

The plaintiff must demonstrate that “the communica-

tion, in its content and manner of transmission, gave the

prison official sufficient notice to alert him or her to ‘an

excessive risk to inmate health or safety.’” Id. (quoting

Farmers v. Brennan, 511 U.S. 825, 837 (1979)). Once an

official is alerted of such a risk, the “refusal or declination

to exercise the authority of his or her office may reflect

deliberate disregard.” Id.

The allegations in Arnett’s complaint are insufficient

to state a claim that Parker acted with deliberate indif-

ference in referring Arnett to medical personnel who

were treating Arnett on a regular basis. This is not a case

where Arnett was being completely ignored by medical

26 No. 09-3280

staff. Although Parker was aware, based on Arnett’s

complaints, that he wasn’t receiving the specific medica-

tion he sought, Arnett doesn’t allege that Parker condoned

or approved the medical staff’s alleged refusal to

provide him medical care, impeded their ability to

provide effective treatment, or was in a position to take

corrective action. Parker was able to relegate to the

prison’s medical staff the provision of good medical care.

See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009)

(“[Inmate’s] contention that any public employee who

knows (or should know) about a wrong must do some-

thing to fix it is just an effort to evade, by indirection,

Monell’s rule that public employees are responsible for

their own misdeeds but not for anyone else’s.”). “A

layperson’s failure to tell the medical staff how to do its

job cannot be called deliberate indifference; it is just a

form of failing to supply a gratuitous rescue service.” Id.

Arnett’s allegations against Parker are simply too

meager to state a claim of deliberate indifference against

a non-medical defendant who referred Arnett to his

treating physician’s assistant.

Maybe Arnett could have corrected the deficiencies in

his complaint against Parker. Although the district court’s

dismissal of Parker doesn’t indicate if it was with or

without prejudice, generally, an involuntary dismissal

operates as an adjudication on the merits if not other-

wise indicated. See Fed. R. Civ. P. 41(b). But given Arnett’s

pro se status and the fact that he may have been able to

cure the deficiencies in his claim against Parker, the

dismissal should have been without prejudice with

leave to amend. See Glandey v. Pendleton Corr. Facility, 302

No. 09-3280 27

F.3d 773, 775 (7th Cir. 2002) (claims dismissed pursuant

to § 1915(e) generally should be allowed to proceed

if plaintiff pays filing fee); see also Vance, 2011 WL 3437511,

at *14 n.7 (“A reversal for inadequate pleading would

require an opportunity to cure the defect unless it were

clear that the defect could not be cured.”); EEOC v.

Concentra Health Servs., Inc., 496 F.3d 773, 778 (7th Cir.

2007) (failure to provide notice under Fed. R. Civ. P. 8

“should not normally warrant dismissal with prejudice”);

Donald v. Cook Cnty. Sheriff’s Dep’t, 95 F.3d 548, 555 (7th

Cir. 1996) (“[D]istrict courts have a special responsibility

to construe pro se complaints liberally and to allow

ample opportunity for amending the complaint when

it appears that by so doing the pro se litigant would be

able to state a meritorious claim.”).

Arnett, however, never sought to amend his complaint

or re-file upon paying the filing fee and the district

court was not required to inform him that he should.

“District judges have no obligation to act as counsel or

paralegal to pro se litigants.” Myles v. United States, 416

F.3d 551, 552 (7th Cir. 2005) (quotation marks omitted)

(noting that plaintiff could have amended the com-

plaint pursuant to Rule 15(a) of the Federal Rules of

Civil Procedure after the district judge dismissed it pur-

suant to 28 U.S.C. § 1915A, but he didn’t seek to amend,

and the judge had no obligation to inform plaintiff

that he should). “Fomenting litigation is not part of the

judicial function,” id, and “district judges are not

required to solicit more litigation spontaneously,” Burks,

555 F.3d at 596. Because Arnett hasn’t suggested any way

he might have amended his complaint to state a claim

28 No. 09-3280

against Parker, we affirm the district court’s dismissal

of him. See Leavell v. Ill. Dep’t of Natural Res., 600 F.3d 798,

808 (7th Cir. 2010) (finding that dismissal with prejudice

was warranted where plaintiff didn’t explain how she

could amend her complaint to state a claim).

B. Summary Judgment as to Dr. Webster

We review a district court’s grant of summary judg-

ment de novo, construing all facts and reasonable infer-

ences in the light most favorable to the non-moving

party. Spivey v. Adaptive Mktg. LLC, 622 F.3d 816, 822 (7th

Cir. 2010). Summary judgment is appropriate only if “the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a).

As we indicated above, a defendant cannot be liable

under Bivens on the basis of respondeat superior or super-

visory liability, rather, there must be individual partic-

ipation and involvement by the defendant. See Iqbal, 129

S. Ct. at 1948-49; see also Vance, 2011 WL 3437511, at *6.

“Absent vicarious liability, each Government official, his

or her title notwithstanding, is only liable for his or

her own misconduct.” Iqbal, 129 S. Ct. at 1949. As such,

Dr. Webster cannot be held liable merely due to his

supervisory capacity as clinical director.7 The test for

7

As clinical director, Dr. Webster presumably had supervisory

authority over Dr. Wilson. See Norfleet, 439 F.3d at 394 (stating

(continued...)

No. 09-3280 29

establishing personal responsibility was set forth in

Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995):

Of course, [the defendant prison official] cannot be

personally liable under a theory of respondeat superior.

However, an official satisfies the personal responsibil-

ity requirement of section 1983 if the conduct

causing the constitutional deprivation occurs at his

direction or with his knowledge and consent. That

is, he must know about the conduct and facilitate it,

approve it, condone it, or turn a blind eye. In short,

some causal connection or affirmative link between

the action complained about and the official sued is

necessary for § 1983 recovery.

Id. (internal citations, quotation marks, brackets, and

ellipses omitted); see also Chavez v. Ill. State Police, 251

F.3d 612, 651 (7th Cir. 2001). The Supreme Court recently

stated that “purpose rather than knowledge is required

to impose Bivens liability.” Iqbal, 129 S. Ct. at 1949. Al-

though Iqbal was a discrimination case involving dis-

criminatory purpose, the Court’s reasoning in that case

has raised questions about whether a stricter standard

of personal liability for supervisors applies in delib-

erate indifference suits. We recently indicated that “mere

‘knowledge and acquiescence’ is not sufficient to impose”

such liability, but that “Iqbal did not disturb the . . . princi-

7

(...continued)

that Dr. Webster, as clinical director, was “in charge of the

medical care and treatment of all inmates.”). We say presumably

because this is not clear from the record.

30 No. 09-3280

ples holding that a supervisor may be liable as an individ-

ual for wrongs he personally directed or authorized his

subordinates to inflict,” Vance, 2011 WL 3437511, at *6 &

n.5; see also Starr v. Baca, No. 09-55233, 2011 WL 2988827,

at *4 (9th Cir. July 25, 2011) (“We see nothing in Iqbal

indicating that the Supreme Court intended to overturn

longstanding case law on deliberate indifference claims

against supervisors in conditions of confinement cases.”).

The landscape of such claims after Iqbal remains murky,

but we need not clear the waters here because the

record doesn’t show that Dr. Webster was personally

involved in the alleged constitutional violations under

the standard set forth in Gentry.

Dr. Webster examined Arnett on two occasions in

November 2006 at which time, Arnett informed him of his

RA and need for Enbrel. Enbrel wasn’t on the prison’s

formulary, so before Arnett could receive it, Dr. Webster

would have had to request authorization from the BOP.

Dr. Webster put in a non-formulary request for

Gabapentin—a pain medication that Arnett had been

taking before his arrival at Terre Haute—and continued

Arnett on Gabapentin temporarily pending a decision

on the non-formulary request. Dr. Webster didn’t

similarly put in a request for Enbrel or continue Arnett

on Enbrel temporarily. (Webster contends that’s because

he wasn’t aware that Arnett had previously been pre-

scribed Enbrel.) However, Dr. Webster did take further

steps to treat Arnett: he issued him a bottom bunk pass

(presumably because of his joint pain), prescribed pain

medication, ordered x-rays, and submitted approval for

consultation with a rheumatologist. Arnett’s medical

No. 09-3280 31

records indicate that he needed a consultation with an

outside rheumatologist before receiving Enbrel. Arnett was

seen by Dr. Davis in February 2007, during which time,

Dr. Wilson was his primary care physician. Arnett’s last

interaction with Dr. Webster was a few weeks after

his appointment with Dr. Davis when he asked Dr. Web-

ster for Enbrel pursuant to Dr. Davis’ instructions.

Dr. Webster responded, “We’re working on it.” At this

time, Dr. Webster’s involvement with Arnett’s care was

a passing conversation in the medical unit.8

This record doesn’t allow for a reasonable jury to infer

that Dr. Webster acted with deliberate indifference.

It seems Dr. Webster may have thought a request for

Enbrel had been submitted and prison medical staff

were waiting for a response from the BOP after Arnett’s

appointment with the rheumatologist. Dr. Webster failed

8

Dr. Webster’s name does appear on Arnett’s medical charts

dated March 19 and April 14, which indicated that Arnett’s pain

medications were renewed. Also on July 9, the entry that

indicates Arnett was to receive Enbrel, but hadn’t because the

prison never heard back from the non-formulary request,

indicates that labs had been requested by Dr. Webster. On

July 11, Dr. Webster further signed a record of medical

care stating that the utilization review committee approved

a follow-up appointment with Dr. Davis to consult for RA.

Arnett doesn’t indicate that he saw Dr. Webster on any of

these occasions or discussed his condition with Dr. Webster

and there is no evidence (other than Dr. Webster’s name

appearing on these documents) that he was personally in-

volved in Arnett’s care on such dates.

32 No. 09-3280

to investigate further when Arnett informed him he still

had not received the medication in February 2007.

Given Arnett’s condition and repeated pleas for Enbrel,

Dr. Webster should have investigated further. Although

his failure to do so may amount to negligence, the sum-

mary judgment record does not lead to the conclusion

that it rose to the level of deliberate indifference. “Deliber-

ate indifference is not medical malpractice; the

Eighth Amendment doesn’t codify common law torts.” See

Duckworth, 532 F.3d at 679. Arnett’s communication to

Dr. Webster was simply not sufficient, without addi-

tional evidence, to show that he failed to act despite

knowledge of a substantial risk of serious harm to

Arnett. See Vance, 97 F.3d at 993-94.

Dr. Webster provided treatment to Arnett when he

first arrived at the Terre Haute facility. It may not have

been the most appropriate treatment, but a prisoner is

only entitled to reasonable measures to meet a sub-

stantial risk of serious harm. Forbes, 112 F.3d at 267.

During Dr. Webster’s brief care of Arnett, his treatment

wasn’t so far afield of accepted professional standards

as to raise the inference that it was not actually based on

medical judgment. See Duckworth, 532 F.3d at 679; cf.

Gil, 381 F.3d at 663 & n.3 (finding deliberate indif-

ference where the prison doctor prescribed a drug that

worsened inmate’s condition because the appropriate

drug was not part of the BOP’s formulary); Greeno, 414

F.3d at 654 (finding deliberate indifference where

medical defendants would not alter Greeno’s course

of treatment over a two year period even though his

condition was getting worse and he was vomiting on a

No. 09-3280 33

regular basis and the defendants nevertheless persisted

in a course of treatment known to be ineffective).

Dr. Webster took measures to address Arnett’s pain,

and although prescribing pain medication may not have

been effective in treating Arnett’s RA, the summary

judgment record doesn’t reveal that no minimally compe-

tent professional would have provided this regime of

treatment in the short term, at least until Arnett could

be seen by a rheumatologist. See, e.g., Gayton v. McCoy,

593 F.3d 610, 622-23 (7th Cir. 2010) (nurse wasn’t deliber-

ately indifferent to inmate’s medical needs where she

took reasonable measures to ensure that inmate would

get medication). Without some evidence, such as

expert opinion testimony, creating a reasonable in-

ference that Dr. Webster’s treatment during this time

frame was so inadequate that it demonstrated an

absence of professional judgment, Arnett cannot succeed

against him on summary judgment. Dr. Wilson took over

as Arnett’s primary care physician on December 28, and

he was Arnett’s treating physician when Dr. Davis in-

structed that Arnett be placed back on Enbrel. Arnett’s

complaints are more appropriately directed toward

Dr. Wilson.

Arnett also hasn’t presented facts showing that Dr.

Webster was aware that the continued treatment Arnett

received for his RA was ineffective. Arnett offers no

evidence that Dr. Webster directly oversaw or approved

Dr. Wilson’s individualized treatment decisions or in

any way impeded Dr. Wilson’s ability to effectively treat

Arnett. Nor is there evidence that Dr. Webster examined

Arnett or reviewed his chart after November 2006 or was

34 No. 09-3280

otherwise involved with Dr. Wilson’s medical decisions

as to Arnett’s treatment regime. Compare Minix v.

Canarecci, 597 F.3d 824, 834 (7th Cir. 2010) (affirming

grant of summary judgment in favor of director of

medical services at jail because missing from the record

was “evidence suggesting that [he] was aware that [nurses

were] performing incompetent assessments of suicidal

inmates but nevertheless acquiesced in that practice”), with

Ortiz v. Webster, No. 10-2012, 2011 WL 3691437 (7th Cir.

Aug. 24, 2011) (reversing summary judgment in favor

of Dr. Webster where he was personally involved in

inmate’s care and the evidence showed that he substan-

tially and unreasonably delayed necessary treatment)

and Hayes, 546 F.3d at 524-26 (reversing summary judg-

ment in favor of the defendant where he continued to

monitor the inmate’s treatment after the initial in-person

examinations).

There must be a causal connection or affirmative link

between the action complained about and the official

sued and that connection is missing with respect to

Dr. Webster. This isn’t a case where Dr. Webster simply

walked away from the situation and left Arnett without

medical care. A review of Arnett’s prison medical

records indicates that he was being seen regularly

by medical staff, his pain medications were being

renewed, x-rays were performed, and he was examined

by an outside rheumatologist and an orthopedic surgeon.

Dr. Webster left Arnett in the care of other medical person-

nel, including a staff physician. Whether the care he

received was so far afield of accepted professional stan-

dards as to raise the inference that it was not actually

No. 09-3280 35

based on medical judgment remains to be seen. But the

defendants whose medical judgment is properly being

questioned is Dr. Wilson’s, and possibly Beighley’s and

Paul-Blanc’s depending on their involvement in Arnett’s

treatment—individuals who continued to see Arnett on

a regular basis after Dr. Davis instructed that he be

placed back on Enbrel.

Arnett had the burden to come forth with evidence to

show that Dr. Webster was personally liable for his alleged

inadequate medical treatment after December 2006, and

he has failed to do so. See Johnson v. Cambridge Indus., Inc.,

325 F.3d 892, 901 (7th Cir. 2003) (“[S]ummary judgment

is the ‘put up or shut up’ moment in a lawsuit, when

a party must show what evidence it has that would

convince a trier of fact to accept its version of events.”)

(quotation marks omitted). We realize that this may be

the result of Arnett’s pro se status and lack of legal skills

in conducting discovery, but Arnett’s pro se status

doesn’t alleviate his burden on summary judgment. See

Marion v. Radtke, 641 F.3d 874, 876-77 (7th Cir. 2011)

(“[W]hen a plaintiff fails to produce evidence, the defen-

dant is entitled to judgment; a defendant moving for

summary judgment need not produce evidence of its

own.”).

III. Conclusion

For the foregoing reasons, we A FFIRM dismissal of

Richard Veach and David Parker for failure to state a

claim, A FFIRM the grant of summary judgment in

favor of Dr. Thomas Webster, but R EVERSE dismissal of

36 No. 09-3280

Dr. Eric Wilson, Yves Paul-Blanc, and Julia Beighley, and

R EMAND for further proceedings.

9-12-11