concluding that fact-finder could reasonably infer deliberate indifference from doctors’ refusal to authorize hernia surgery despite almost two years of worsening pain: “While surgery can be postponed, delay is recommended only for patients with minimal or no symptoms-”
How later courts described this case
- concluding that fact-finder could reasonably infer deliberate indifference from doctors’ refusal to authorize hernia surgery despite almost two years of worsening pain: “While surgery can be postponed, delay is recommended only for patients with minimal or no symptoms-”
- finding prisoner stated deliberate indifference claim where he alleged that prison physicians, who were “obligated not to persist in ineffective treatment,” “never altered their response” to his hernia and associated pain, which “worsened over time”
- holding that the plaintiff's "physicians were obligated not to persist in ineffective treatment" and that "[d]elay in treating a condition that is painful even if not life-threatening may well constitute deliberate indifference ...."
- explaining that the warden of an IDOC institution is a proper defendant in a claim for injunctive relief to the extent that he “would be responsible for ensuring that any injunctive relief is carried out”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1804
A NGEL G ONZALEZ,
Plaintiff-Appellant,
v.
D R. A DRIAN F EINERMAN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:11-cv-00170-GPM—G. Patrick Murphy, Judge.
S UBMITTED N OVEMBER 16, 2011—D ECIDED D ECEMBER 2, 2011
Before C OFFEY, FLAUM and R IPPLE, Circuit Judges.
P ER C URIAM. Angel Gonzalez, an inmate at Menard
Correctional Center in Illinois, filed suit under 42 U.S.C.
§ 1983 claiming that two prison physicians and the
warden failed to provide adequate care for a hernia. At
screening the district court dismissed the complaint for
failure to state a claim. See 28 U.S.C. § 1915A(b)(1). Gonza-
lez appeals, and at this stage we accept as true the allega-
tions in his complaint and attachments. See Smith v.
Peters, 631 F.3d 418, 419 (7th Cir. 2011).
2 No. 11-1804
Gonzalez began suffering from pain in his groin after
sustaining an injury in 2004. Staff at Menard’s health
unit immediately recognized that his pain was caused by
an inguinal hernia but gave him only mild pain medica-
tion. Gonzalez regularly complained as his pain in-
creased over time. He saw Dr. Adrian Feinerman for
his condition in March 2009. Gonzalez lay on the exam-
ination table while Dr. Feinerman pushed his hernia
back into his lower abdomen, causing Gonzalez more
pain. On that occasion Dr. Feinerman refused Gonzalez’s
request for surgery and told him that he would be “okay”
as long as the hernia could recede into his abdomen.
But when Gonzalez came off the examining table, the
bulge returned. He showed Dr. Feinerman and ex-
pressed concern about the hernia becoming strangulated,
but Dr. Feinerman repeated that Gonzalez did not need
surgery.
Gonzalez’s condition continued to worsen. From April
to December 2009 the bulge was consistently visible and
caused abdominal pain and numbness in his leg.
Gonzalez tried to reduce the hernia by pushing it back in
on his own. During these months he saw other prison
medical staff at least three times and saw Dr. Feinerman
again at least once. Gonzalez’s symptoms continued
into 2010, causing stiffness in his legs and discomfort
that led to trouble sleeping. He continued to see medical
staff, but no one would authorize surgery. Dr. Magid
Fahim kept Gonzalez in the health unit for eight days
in June 2010 while treating him for a rash but ignored
his complaints about the hernia.
No. 11-1804 3
Gonzalez filed his complaint in March 2011. He claims
that by refusing to authorize surgery Dr. Feinerman
and Dr. Fahim have been deliberately indifferent to his
medical condition. He also claims that the defendants’
actions have denied him equal protection of the laws.
Gonzalez alleges that his hernia is getting worse and
causing constant pain for which he is not receiving suf-
ficient pain medication. He fears that his worsening
condition could lead to strangulation. Gonzalez wants
damages and an injunction requiring that the Menard
staff provide him with surgery.
In dismissing Gonzalez’s complaint prior to service,
the district court concluded that his allegations, for the
most part, amount to disagreement with Dr. Feinerman’s
and Dr. Fahim’s assessments that a conservative course
of treatment is appropriate for his condition. Though
acknowledging Gonzalez’s assertion that the actions
taken by the defendants have not helped, the court rea-
soned that the ongoing refusal to authorize surgery
could not constitute a substantial departure from
accepted professional standards since it is “clear from
Gonzalez’s allegations” that his hernia has not yet
become incarcerated or strangulated. Gonzalez did not
state an equal-protection claim, the court added, because
he did not allege that other inmates with hernias were
receiving better care. Moreover, the court stated, Warden
Donald Gaetz was not personally involved in Gonzalez’s
medical care and thus could not be “liable” to him.
On appeal Gonzalez argues that the physicians have
been deliberately indifferent to his medical condition by
4 No. 11-1804
pursuing a standard of care that they know to be ineffec-
tive. Prison physicians will be liable under the Eighth
Amendment if they intentionally disregard a known,
objectively serious medical condition that poses an exces-
sive risk to an inmate’s health. Farmer v. Brennan, 511
U.S. 825, 837 (1994); Lee v. Young, 533 F.3d 505, 509-10
(7th Cir. 2008). As we have acknowledged on previous
occasions, a hernia can be an objectively serious medical
problem. See Johnson v. Doughty, 433 F.3d 1001, 1010, 1012-
14 (7th Cir. 2006); Heard v. Sheahan, 253 F.3d 316,
317-18 (7th Cir. 2001); Chapman v. Keltner, 241 F.3d 842, 846-
47 (7th Cir. 2001). Gonzalez’s chronic pain presents
a separate objectively serious condition. See Grieveson v.
Anderson, 538 F.3d 763, 779 (7th Cir. 2008); Gutierrez
v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
The claim against the physicians comes down to
whether Gonzalez has adequately alleged the subjective
element of his deliberate-indifference claim. That Gonzalez
saw a doctor does not foreclose his claim. See Arnett
v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Hayes v.
Snyder, 546 F.3d 516, 524 (7th Cir. 2008); Greeno v. Daley,
414 F.3d 645, 653-54 (7th Cir. 2005). Gonzalez can prevail
if the defendants’ response to more than two years of
complaints has been blatantly inappropriate in the face
of his pain and the risk the worsening hernia poses to his
present and future health. See Roe v. Elyea, 631 F.3d
843, 857-58 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance
Servs., 577 F.3d 816, 830 (7th Cir. 2009); Reed v. McBride,
178 F.3d 849, 852-53 (7th Cir. 1999). The defendants’
response, says Gonzalez, has been to give him minimal
or no medication for the ongoing pain, which is so debili-
No. 11-1804 5
tating that he cannot carry on his daily activities or
sleep comfortably.
If what Gonzalez says is true, we conclude that a
factfinder reasonably could infer that Dr. Feinerman and
Dr. Fahim substantially departed from professional
judgment by refusing to authorize surgical repair for
Gonzalez’s painful hernia. See McGowan v. Hulick, 612
F.3d 636, 640 (7th Cir. 2010); Edwards v. Snyder, 478 F.3d
827, 831-32 (7th Cir. 2007). Inguinal hernias are common
among men, and approximately 750,000 surgical repairs
are performed each year in the United States. See
Andrew Kingsnorth, Treating Inguinal Hernias, 328 Brit.
Med. J. 59 (2004). According to the National Institutes
of Health, “surgery will usually be used for hernias that
are getting larger or are painful” and is the only treat-
ment that can permanently fix a hernia. See Medline Plus,
Hernia, http://www.nlm.nih.gov/medlineplus/ency/ article/
000960.htm (last visited Nov. 29, 2011); see also Robert J.
Fitzgibbons & Anita Giobbe-Hurder, Watchful Waiting vs
Repair of Inguinal Hernia in Minimally Symptomatic Men, 295
J. Am. Med. Assoc. 285 (2006); Mayo Clinic, Inguinal Hernia,
http://w w w .m ayoclinic.com/health/inguinal-hernia/
DS00364 (last visited Nov. 29, 2011). While surgery can
be postponed, delay is recommended only for patients
with minimal or no symptoms, and then “only if the
hernia can be reduced readily and completely and will
remain in position despite physical activity.” Kingsnorth,
supra at 59. At the time of his complaint Gonzalez had
been suffering from his hernia for almost seven years,
and during the last two of those years his hernia con-
6 No. 11-1804
tinued to worsen, was constantly protruding, and was
causing extreme pain.
As Gonzalez argues, he does not disagree with the
initial course of treatment he received at Menard, and in
fact he does not claim deliberate indifference by any of
the Menard medical staff who treated him during the
first five years after his diagnosis. Rather, Gonzalez
points out that Dr. Feinerman and Dr. Fahim never
altered their response to his hernia as the condition and
associated pain worsened over time. His physicians
were obligated not to persist in ineffective treatment.
See Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010);
Johnson, 433 F.3d at 1013; Greeno, 414 F.3d at 655. Delay
in treating a condition that is painful even if not
life-threatening may well constitute deliberate indif-
ference, particularly for someone like Gonzalez who has
22 years until his projected parole date. See Arnett, 658
F.3d at 753; McGowan, 612 F.3d at 640; Grieveson, 538 F.3d
at 779. Gonzalez thus presents a plausible account that, if
true, would establish that Dr. Feinerman and Dr. Fahim
demonstrated deliberate indifference to his need for
medical care.
Though Gonzalez does not allege any specific involve-
ment by Gaetz in the treatment of his hernia, the warden
of Menard is a proper defendant since Gonzalez seeks
injunctive relief. Gaetz is no longer the warden, how-
ever, so we substitute current Warden Dave Rednour
as defendant because he would be responsible for
ensuring that any injunctive relief is carried out. See Feit
v. Ward, 886 F.2d 848, 858 (7th Cir. 1989). If Gonzalez
No. 11-1804 7
was seeking only damages, the warden’s lack of
personal involvement would be conclusive, see Johnson v.
Snyder, 444 F.3d 579, 583 (7th Cir. 2006); Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995), but since
Gonzalez also seeks injunctive relief it is irrelevant
whether the warden participated in the alleged violations,
see Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995);
Ogden v. United States, 758 F.2d 1168, 1177 (7th Cir. 1985).
Finally, the district court understood Gonzalez to
include a separate equal-protection claim in his com-
plaint. The court dismissed that claim because Gonzalez
failed to allege that he was treated less favorably than
other prisoners. On appeal Gonzalez asks that we
permit him to amend his equal-protection claim to
allege that other inmates with hernias were approved for
surgery but that he was not due to budget constraints.
Gonzalez cannot amend his complaint on appeal, Joyce v.
Morgan Stanley & Co., 538 F.3d 797, 801-02 (7th Cir. 2008);
Cody v. Harris, 409 F.3d 853, 859 (7th Cir. 2005), but since
we are vacating the dismissal of his complaint, Gonzalez
will be free to amend his complaint on remand.
Accordingly, we affirm the dismissal of Gonzalez’s
claim against Gaetz and substitute Warden Dave
Rednour, in his official capacity, as a defendant. In all
other respects the judgment of the district court is re-
versed, and the case is remanded for further proceedings.
A FFIRMED in part,
R EVERSED and R EMANDED in part
12-2-11