CRAIG J. CESAL, Plаintiff-Appellant, v. SCOTT MOATS, Defendant-Appellee.
No. 15-2562
United States Court of Appeals, Seventh Circuit
Argued November 8, 2016 — Decided March 20, 2017
United States Court of Appeals
For the Seventh Circuit
No. 15-2562
CRAIG J. CESAL,
Plaintiff-Appellant,
v.
SCOTT MOATS,
Defendant-Appellee.
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:12-cv-01524-SLD — Sara Darrow, Judge.
ARGUED NOVEMBER 8, 2016 — DECIDED MARCH 20, 2017
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.
WOOD, Chief Judge. While lifting a heavy door at his prison
job at the Pekin Correctional Institution on March 21, 2008,
Craig J. Cesal heard a “snap” in his back and felt pain in his
leg and hip. He promptly sought treatment from the prison’s
medical staff, but he was dissatisfied with their response. He
alleges that he received only a three-year long medical runa-
kin’s Clinical Director, Dr. Scott Moats, canceled Cesal’s insu-
lin prescription in retaliation for Cesal’s filing of a complaint
about the inadequate care for his back. Without the prescrip-
tion, Cesal—an insulin-dependent diabetic—was unable to
control his blood sugar and consequently suffered additional
unnecessary pain and physical harm. He filed a second com-
plaint with the prison about the insulin deprivation.
Cesal ultimately sued Dr. Moats and Dr. Andreas Molina,
another Pekin physician, alleging that they еxhibited deliber-
ate indifference in the care they gave him. At the screening
phase, see
claims in Cesal’s pro se complaint: an
liberate-indifference claim regarding his back treatment, and
a
ing of insulin. The district court granted summary judgment
for the defendants on both issues, reasoning that the statute
of limitations on his complaints had run and that, in any
event, there was no question of material fact that would jus-
tify allowing his case to move forward. Cesal apрeals only the
judgment in favor of Dr. Moats, and so we largely disregard
Dr. Molina’s role in these events. Although Cesal’s allegations
are troublesome, we conclude in the end that the district
court’s judgment must be affirmed.
I
Because this is an appeal from the grant of summary judg-
ment, our review is de novo. Conley v. Birch, 796 F.3d 742, 746
(7th Cir. 2015). At this stage of the litigation, we assume that
the facts alleged by Cesal are true, and we draw all reasonable
inferences in his favor. Dixon v. Cnty. of Cook, 819 F.3d 343, 346
(7th Cir. 2015). Summary judgment is appropriate when there
titled to judgment as a matter of law.
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Between March 21, 2006, and March 28, 2011, Cesal was
serving a life sentence at the Pekin Federal Correсtional Insti-
tution, which is run by the Bureau of Prisons (BOP). There, he
worked as a welder—a physically demanding job that re-
quired him to move 320-pound doors. He was lifting one such
door on Friday, March 21, 2008, when he heard a “snap” in
his back and felt sharp pain in his left hip and knee. He im-
mediately sought care at the medical unit, but was told that
the facility was closing and instead to report to sick-call on
Monday, March 24. He did so, meeting with a nurse that day.
By then, Cesal had been given a wheelchair and was tempo-
rarily excused from his job. Dr. Moats gave him a verbal order
for Motrin (the active ingredient of which is ibuprofen) but
was not otherwise involved in his treatment that day.
Cesal was next seen by a physician assistant on March 27.
Cesal reiterated his report of pain and numbness in his leg
and hip. Although he still was using the wheelchair, the phy-
sician assistant noted that Cesal had “no difficulties getting
up to sit on exam table” and that Cesal displayed normal gait
and posture. During the exam, the physician assistant re-
viewed x-rays of Cesal’s back. These x-rays had been taken on
March 12, 2008—before Cesal’s lifting accident—in response
to his earlier reports of hip pain and numbness in his knee and
thigh. The physiсian assistant prescribed Cesal ibuprofen for
another ten days.
Dr. Molina saw Cesal at a follow-up appointment on
March 31, when Cesal reported having moderate low-back
pain and some numbness in his leg. Four days later, on
spine, which is the area between the rib cage and pelvis. That
x-ray showed that Cesal had degenerative joint disease and
disc disease, a diagnosis which previously had shown up in a
different x-ray. Otherwise it revealed no problems.
The very next day Cesal filed an informal complaint—the
first step in the administrative grievance process—about the
treatment he was receiving for his back. In this complaint,
Cesal reported that he had “acute pain in my hip and knee,
also numbness along the front of my thigh” and that he could
not “stand or walk for a worthwhile duration.” He said that
he “ha[d] been to Medical Dept. repeatedly, but examination
or care have bеen denied.” Cesal asked for a medical evalua-
tion and appropriate treatment.
His complaint was rejected. On May 6, 2008, Cesal ap-
pealed this denial to the Warden—the proper next step for an
inmate who is unsatisfied by the response to an informal com-
plaint. Cesal alleged that he had been evaluated only superfi-
cially and never seen by a doctor for acute pain in his left hip
and knee and numbness in his left thigh. He did not allege
back pain. The Warden rejected Cesal’s appeal on June 9, 2008,
noting that Cesal’s medical records indicated that he was re-
ceiving appropriate care.
The Warden’s denial also noted that medical officials were
awaiting the results of a June 4, 2008, MRI of Cesal’s lumbar
spine. This scan had been requested on April 15, and was ap-
proved sometime in the interim. By June 16, 2008, the results
were in. The MRI revealed a few problems—mild stenosis
(narrowing of the spinal canal) in one spot, and disc degener-
ation with mild bulging elsewhere without major stenosis.
pealed the denial of his grievance on June 25, 2008, moving
up another rung on BOP’s grievance ladder.
Two days after Cesal filed that appeal, on June 27, Dr.
Moats saw him in the prison’s chronic care clinic for what
Cesal describes as a “non-routine visit.” As Cesal tells it, Dr.
Moats had learned of Cesal’s grievance for the treatment of
his back issue and was angry. Dr. Moats told Cesal that he
would “show him” what providing no medical care looked
like, and then abruptly terminated Cesal’s prescription for in-
sulin for no medical reason. Cesal is an insulin-dependent
Type II diabetic; he had been taking sliding scale insulin.
Without insulin, Cesal was left to manage his blood sugar
through diet, exercise, and metformin, a prescription drug
that Dr. Moats did not cancel, which is commonly used for
type II diabetes to control high blood sugar. Metformin,
WEBMD, http://www.webmd.com/drugs/2/drug-11285-
7061/metformin-oral/metformin---oral/details (last visited
March 20, 2017). “Metformin works by helping to restore your
body’s proper response to the insulin you naturally produce.
It also decreases the amount of sugar that your liver makes
and that your stomach/intestines absorb.” Id. Cesal skipped
meals or went for runs when his blood sugar level got too
high. But despite these efforts, Cesal’s blood sugar soared. As
a result, he felt dizzy and saw stars, and his toenails fell off.
Cesal’s back pain also continued to bother him. Dr. Moats
requested a consultation for a “back specialist” for Cesal on
October 6, 2008; his request was approved about a month
later. In the meantime, Cesal appealed his back-pain griev-
ance in accordance with BOP rules; he exhausted this process
on November 25, 2008, when his last appeal was denied. He
after the visit had been approved. Cesal told the consulting
neurologist that his pain was moderate, but he also reported
that he usually jogged two or three miles a day. The neurolo-
gist recommended no major changes to Cesal’s current “con-
servative” treatment plan and indicated that he did not be-
lieve that surgery or steroid injections would help.
On December 23, 2008, after nearly six months without his
sliding scale insulin, Cesal filed a second administrative
grievance concerning his diabetes treatment. He specifically
requested the restoration of his insulin prescription. Again,
his grievance and relаted appeals were denied at each level of
the BOP administrative process. The denial dated January 21,
2009, noted that Pekin’s clinical director (presumably Dr.
Moats) had discussed with Cesal a different diabetes manage-
ment program that was “tailored to prevent hyperglycemia,
not to treat it after it occurs.” A subsequent denial from March
6, 2009, noted that Cesal still had oral medication for his dia-
betes and concluded that “sound clinical judgment is being
demonstrated” in Cesal’s treatment. Cesal exhausted the
prison grievance process for this claim on May 26, 2009, when
his final appeal was denied.
Medical records show that Cesal had several visits with
Dr. Moats in 2009 and 2010, but Dr. Moats did not re-prescribe
him insulin until October 29, 2010. On that date, Dr. Moats
prescribed Cesal five units of insulin—half the dosage he had
been receiving in June 2008, when his prescription had been
cancelled. In the months following the insulin renewal, Dr.
Moats stepped up Cesal’s dosage incrementally. By February
22, 2011, Cesal was back on the same ten-unit dosage he had
received in June 2008.
the Federal Correctional Institution in Greenville, Illinois. His
back pain worsened, and so he sought treatment there. An Oc-
tober 9, 2012 x-ray of Cesal’s middle back revealed an old, par-
tial fracture of a vertebra. Cesal attributes this injury to his
March 2008 lifting accident, although his medical records
show this was just his guess—no medical professional ever
concluded as much.
Cesal filed a suit against Drs. Moats and Molina on De-
cember 20, 2012,1 invoking the doctrine of Bivens v. Six Un-
known Named Agents, 403 U.S. 388 (1971); he amended his
complaint three months later. (His suit included other claims
against different Pekin officials; because they are not relevant
to this appeal, we do not discuss them.) His amended com-
plaint alleged, in relevant part, that Drs. Moats and Molina
refused to provide care for his fractured vertebra and that
they terminated his insulin prescription after he complainеd
about their lack of care for his back. At screening, see
two counts: an
ference to the back injury, and a
claim for withholding the insulin prescription.
The district court granted summary judgment for both de-
fendants on March 24, 2015, reasoning that Cesal filed his law-
suit after the two-year statute of limitations had run—a de-
fense that the defendants promptly raised in that court. It
others indicate that it was December 20, 2012. The difference, we assume,
is attributable to the mailbox rule. We use December 20, 2012, because it
is the date that appears in the district court’s docket, and the thrеe-day
difference is immaterial for present purposes.
ment was also appropriate because Cesal’s evidence showed
that at most the defendants were negligent in misdiagnosing
his back injury, and there was no evidence supporting his re-
taliation argument.
II
Cesal appeals the judgment in favor of Dr. Moats (only) on
the two theories the district court identified. He also asserts
that the court, on screening, improperly failed to recognize
that he had alleged a deliberate-indifference claim regarding
his insulin prescription.
A
We begin with Cesal’s challenge to the district court’s
sсreening of his pro se complaint because that affects the scope
of the case that is before us. Cesal argues that the district court
erred in the initial screening of his complaint, see
lin cancellation, in addition to the retaliation claim. We review
a dismissal under
plies to ordinary
intendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012). We
construe pro se complaints liberally, holding them to a less
stringent standard than pleadings drafted by lawyers. Perez v.
Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015).
Cesal’s amended complaint alleged, in relevant part:
When Cesal complained, through the Ad-
ministrative Remedy Procedure, about the lack
of care, the requisite policy makers would nei-
ment. Angry regarding the complaint against
them, Moats and Molina terminated Cesal’s in-
sulin prescription even though Cesal is an insu-
lin-dependent diabetic. …
Cesal continues to endure middle back pain,
pain in his hip area, and numbness in his left leg
from the spinal injury. His feet are swollen and
numb, his vision blurred, and he experiences
kidney pain from the lack of adequate diabetes
therapy. Moats and Molina violated Cesal’s
and unusual punishment when Defendants
knew their actions would both inflict pain and
cause permanent physical harm. Cesal’s
erate retaliation and lack of due process regard-
ing his loss.
Prison officials violate the
tion against cruel and unusual punishment when they act
with deliberate indifferеnce to the serious medical needs of
prisoners. Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). To state
a claim for deliberate indifference for deficient medical care,
the plaintiff “must allege an objectively serious medical con-
dition and an official’s deliberate indifference to that condi-
tion.” Perez, 792 F.3d at 776.
Objectively serious medical needs are those that have ei-
ther been diagnosed by a physician and demand treatment,
or are “so obvious that even a lay pеrson would easily recog-
nize the necessity for a doctor’s attention.” King v. Kramer, 680
F.3d 1013, 1018 (7th Cir. 2012). For present purposes, Dr.
blurriness, and numbness meet this standard.
The complaint also alleges that Dr. Moats had a suffi-
ciently culpable state of mind. See Farmer v. Brennan, 511 U.S.
825, 834, 839–40 (1994). The subjective component requires the
plaintiff to allege that the official actually knew of, but disre-
garded, a substantial risk to the inmate’s health. Id. at 836–38;
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A failure to
act in the face of an obvious risk of which the official should
have known is insufficient to make out a claim. Farmer, 511
U.S. at 836–38. Cesal’s allegation clears that bar because he al-
leges that Dr. Moats knew that terminating Cesal’s insulin
would cause him pain, but that he took that step anyway.
Dr. Moats argues that Cesal has failed to state a claim un-
der the
Cesal’s allegation as one of subjective inadequacy. Dr. Moats is
correct that the
concerning the exercise of a professional’s medical judgment,
such as disagreement over whether one course of treatment is
preferable to another. Snipes v. DeTella, 95 F.3d 586, 591 (7th
Cir. 1996); see Estelle, 429 U.S. at 107. But Cesal has alleged
more than this. His complaint accused Dr. Moats of abusing
his position as Cesal’s care-provider by adjusting his treat-
ment plan with the knowledge that doing so would result in
unnecessary pain. This allegation, if true, constitutes deliber-
ate indifference for purposes of the
Having concluded that Cesal properly alleged a deliber-
ate-indifference claim for the insulin withholding, we move
to the question whether Dr. Moats was entitled to summary
judgment on all three theories.
We begin with Cesal’s back pain. The district court
granted summary judgment for Dr. Moats on this part of the
case for two reasons: first, because the statute of limitations
had run; and second, because Cesal failed to present facts that
would have permitted a jury to find in his favor. We may af-
firm based on any properly preserved ground. Hester v. Ind.
State Dep’t of Health, 726 F.3d 942, 946 (7th Cir. 2013).
1
We begin with the statute of limitations. Cesal argues that
the district court miscalculated the date by which he needed
to file his Bivens action against Dr. Moats because it failed to
appreciate the ongoing nature of his injury. He is correct.
The statute of limitations for Bivens claims against federal
officers is the same as for
both periods are borrowed from the state in which the alleged
injury occurred. King v. One Unknown Fed. Corr. Officer, 201
F.3d 910, 913 (7th Cir. 2000). In this case, Cesal’s injury took
place in Illinois, which has a two-year statute of limitations.
21, 2008, he could not bring suit until he exhausted the prison
grievance process.
Nussle, 534 U.S. 516, 524 (2002) (noting that federal prisoners
suing under Bivens, like state prisoners suing under
must exhaust inmate grievance procedures before they can
file their suit). The district court concluded that the limitations
period was tolled while Cesal pursued the grievance. See
Walker v. Sheahan, 526 F.3d 973, 978 (7th Cir. 2008) (limitations
period for a
pletes the administrative grievance process). And so, by the
November 25, 2010, two years after his back grievance was fi-
nally denied.
But this calculation does not take into account the ongoing
nature of Cesal’s injury. When a plaintiff alleges that inaction
is leading to an ongoing harm, he can “reach back to its be-
ginning even if that beginning lies outside the statutory limi-
tations period, when it would be unreasonable to require or
even permit him to sue separately over every incident of the
defendant’s unlawful conduct.” Heard v. Sheahan, 253 F.3d
316, 319 (7th Cir. 2001). In these cases, “it would be unreason-
able to require or even permit [the prisoner] to sue seрarately
over every incident of the defendant’s unlawful conduct.” Id.
The statute of limitations thus “starts to run (that is, the cause
of action accrues) from the date of the last incidence of that
violation, not the first.” Turley v. Rednour, 729 F.3d 645, 651
(7th Cir. 2013); see also id. at 654 (Easterbrook, J., concurring).
Cesal was not required to sue until after the unlawful con-
duct ended. But Cesal says it never ended while he was at Pe-
kin; he alleges that Dr. Moats’s deliberate indifference ended
only on March 28, 2011, when Cesal was transferred to Green-
ville and thus out of Dr. Moats’s care. We conclude that sum-
mary judgment on statute of limitations grounds for Cesal’s
back claim was not appropriate.
2
Next is the question whether Cesal presented enough to
raise a genuine issue of material fact, again with respect to his
back injury. Cesal contends that a reasonable jury could find
that Dr. Moats was deliberately indifferent to his back injury
from the facts he was able to collect. A prison official acts with
excessive risk to inmate health or safety. Farmer, 511 U.S. at
837. The plaintiff must show that the defendant acted or failed
to act in a way that disregarded an excessive risk of harm to
the inmate; he does not need to show that the defendant in-
tended or desired to cause harm. Walker v. Benjamin, 293 F.3d
1030, 1037 (7th Cir. 2002). Intentional delays in medical care
may constitute deliberate indifference, even if the inmate’s
medical condition is non-life threatening. Arnett v. Webster,
658 F.3d 742, 753 (7th Cir. 2011). A doctor’s choice of “easier
and less efficacious treatment” for an objectively serious med-
ical condition also may be sufficient. Estelle, 429 U.S. at 104 &
n. 10. But “mere disagreement with a doctor’s medical judg-
ment” is not enough to support an
tion. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).
Our review of the undisputed facts in the record convinces
us that no reasonable trier of fact could find that Dr. Moats
was deliberately indifferent to Cesal’s back pain. Although no
doctor examined Cesal on the afternoon of the accident, he
was excused from his job and was given a wheelchair after he
reported that his pain was getting worse. Cesal saw a nurse
on Monday, March 24, and he then saw a physician assistant
on March 27. He also received medication for his pain. In
other words, he was under active treatment; no one was ig-
noring him. See Perez, 792 F.3d at 777 (“Prison officials must
provide inmates with medical care that is adequate in light of
the severity of the condition and professional norms.”).
Importantly, there is no indication that Dr. Moats was per-
sonally involved in Cesal’s early care. Dr. Moats could not
have acted with the subjective intent that a deliberate indiffer-
ence claim requires if he was not aware of a risk of a harm to
Dr. Moats refused to see him in the days immediately follow-
ing his March 21, 2008 accident, no evidence substantiates
that allegation, nor is there any reason in this record to think
that starting with the physician assistant and nurse was not a
reasonable step. Cesal acknowledges that Dr. Moats never
treated him before June 27, 2008, the day the doctor termi-
nated Cesal’s insulin prescription. In any event, a prison offi-
cial’s refusal to indulge an inmate’s request to see a specific
staff member, when the prisoner is receiving care from other
members of the medical staff, is not deliberate indifference.
Cesal continued to receive appropriate care in the months
that followed his accident. This care included an x-ray of his
back, taken just two weeks after his lifting accident, and an
MRI of his lumbar spine on June 16, 2008. Dr. Moats also suc-
cessfully arranged for an outside consult. Cesal writes off
these measures because they did not target his middle back,
where his fractured vertebra was located, but he ignores the
fact that he failed for many months to identify his middle back
as the source of his pain. Initially Cesal complained only of
pain in his left hip, knee, and thigh. His initial prison griev-
ance said nothing about back pain. Cesal also denied having
any back pain in a September 17, 2008 appeal of his grievance
in which he questioned the reason for the MRI. As he con-
cedes in his brief to this court, Dr. Moats may not have been
aware of any middle back pain until November 29, 2009, the
date on which Dr. Moats’s exam notes reflect that Cesal had
reported middle back pain. Although Cesal’s leg and hip pain
may have stemmed from a spinal injury, Cesal’s inability to
provide any relevant details precludes a factfinder from con-
cluding that Dr. Moats was deliberately indifferent. Dr. Moats
was not aware of it.
To be sure, the rendering of some medical care does not
necessarily disprove deliberate indifference; the treatment
rendered may be so blatantly inappropriate that it can sup-
port an inference of intentional mistreatment. See Petties v.
Carter, 836 F.3d 722, 731 (7th Cir. 2016) (en banc); Edwards v.
Snyder, 478 F.3d 827, 831 (7th Cir. 2007). Continuing an inef-
fective treatment plan also may evidence deliberate indiffer-
ence. See Berry, 604 F.3d at 441–42. But no trier of fact could
find that Dr. Moats’s treatment of Cesal was blatantly inap-
propriate. The consulting neurologist recommended that the
Pekin staff continue Cesal’s “conservative” treatment; he be-
lieved that more extreme measures, such as steroids or sur-
gery, would be ineffective. Cesal also told the consulting phy-
sician that he was jogging two or three miles a day, despite
his report of moderate pain. That is a marked improvement
from the days after Cesаl’s accident, when he needed a wheel-
chair.
The fact that Dr. Moats “never diagnosed Mr. Cesal’s bro-
ken spine,” as Cesal argues, does not push this over the line.
Deliberate indifference requires more than evidence of negli-
gence or medical malpractice. See Estelle, 429 U.S. at 106;
McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013). Cesal’s dis-
satisfaction with Dr. Moats’s medical judgment and care is in-
sufficient to survive summary judgment. See Whiting v. Wex-
ford Health Sources, Inc., 839 F.3d 658, 662–63 (7th Cir. 2016).
C
That brings us to Dr. Moats’s withholding of insulin,
which forms the basis for both Cesal’s retaliation theory and
the district court assumed that the withholding of insulin de-
scribed a violation that existed as long as the medication was
withheld. (This was not a single injury that accrued when
Cesal first lost his insulin; each new day brought with it new
injury, and a new violation.) Accordingly, the court con-
cluded that the limitations period began to run on October 29,
2010, the day when Dr. Moats restored the prescription,
though at the reduced, five-unit, level. Cesal filed his suit on
Decembеr 20, 2012, well more than two years after that date,
and this was too late in the court’s view. If October 29, 2010,
is the correct starting point, Cesal cannot prevail. Dr. Moats
did not waive his right to rely on the statute of limitations,
and we are aware of no rule of law that would entitle us to
strip him of that defense on our own. Cesal has not argued
otherwise, either in the district court or in this court. Instead,
he contends that his insulin problem was not solved until Feb-
ruаry 22, 2011, when Dr. Moats finally restored Cesal’s insulin
prescription to ten units—the same amount he had been pre-
scribed back in 2008.
Because we must take Cesal’s allegation as true at the sum-
mary judgment stage, we disregard Dr. Moats’s explanation
of the cancellation as his attempt to manage Cesal’s blood
sugar using a different, proactive method. Indeed, we are
troubled by Dr. Moats’s cancellation of Cesal’s insulin and his
failure to prescribe any insulin—whether sliding scale, or oth-
erwise—for nearly 2 ½ years. We conclude, however, that for
purposes of both retaliation and deliberate indifference, the
critical date is October 29, 2010, when Dr. Moats put Cesal
back on the reduced insulin dose.
a fixed, “correct” dosage of sliding-scale insulin for his diabe-
tes. There is no evidence that this is true, either generally or
for Cesal himself. All he has managed to do is to register dis-
agreement with Dr. Moats’s medical judgment. That is insuf-
ficient to prove deliberate indifference, Berry, 604 F.3d at 441,
or any retaliatory motive.
If Cesal had given us some reason to think that Dr. Moats
knew that the five-unit dosage would be ineffective, we
would have a different case. The
against a physician’s persistence with a course of treatment
that he knows will be ineffective, id. at 441, as well as a treat-
ment decision that is “so far afield of accepted professional
standards” that a jury could find it was not the product of
medical judgment. Duckworth v. Ahmed, 532 F.3d 675, 679 (7th
Cir. 2008). But Cesal has not pointed to any evidence that
would permit a factfinder to conclude that Dr. Moats knew
that five units would be inadequate in controlling Cesal’s
blood sugar or that the prescription was wildly out of line
with professional standards. Indeed, Cesal’s medical records
from Greenville support the opposite inference: officials there
repeatedly adjusted Cesal’s insulin prescription, and at one
point lowered it to five units.
Cesal’s contention that the five-unit prescription was in-
sufficient cannot extend the length of the violation. He needed
to file suit within two years of October 29, 2010—the day Dr.
Moats again prescribed him insulin. Either as of that date or
very shortly aftеrwards, he knew that he was dissatisfied with
the new dose. It is not too much to ask that he file suit within
two years of the date when his insulin was partially restored,
and after filing, ask the district court to appoint the kind of
been recruited. But Cesal did not file until December 20, 2012,
more than two years after the restoration. This was almost
two months too late. Summary judgment in favor of Dr.
Moats was thus proper for both the deliberate indifference
and the retaliation claims based on the insulin deprivation.
III
This casе illustrates yet again the important difference be-
tween ordinary, or even aggravated, medical malpractice, and
an
whether Cesal’s care—especially the cancellation of his insu-
lin—was appropriate. We must instead apply both the stat-
utes of limitations that apply to Bivens claims such as this one
and the underlying constitutional standards. Doing so, we see
no error in the district court’s judgment, and so we AFFIRM.
CRAIG J. CESAL, Plaintiff-Apрellant, v. SCOTT MOATS, Defendant-Appellee.
No. 15-2562
United States Court of Appeals, Seventh Circuit
Argued November 8, 2016 — Decided March 20, 2017
guishable from Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015),
which reversed a grant of summary judgment for the de-
fendants in a state prisoner’s suit for deliberate indifference
to his medical needs and remanded for a closer look, with a
strong exhortation to the district judge to recruit a lawyer for
Rowe and, if necessary by invoking Rule 706 of the Federal
Rules of Evidence, an expert witness for him as well. Lack-
ing these aids, Rowe had been incapable of proving that the
prison medical staff, mainly his treating physician, had
gravely endangered his health by failing, seemingly out of
spite, to provide him with the medicine that he needed for
treatment of his potentially fatal gastroesophageal reflux
disease. This case involves a similar claim of misconduct by
prison medical staff, specifically (as in Rowe) the plaintiff’s
treating physician, Dr. Scott Moats.
To quote from the majority opinion (with minor altera-
tions for clarity):
“As Cesal tells it, Dr. Moats had learned of Cesal’s filing
of a grievance concerning Moats’s treatment of Cesal’s back
injury, and the grievance had made Moats angry with Cesal.
Telling Cesal he’d ‘show him’ what providing no medical
care looked like, Moats terminated Cesal’s prescription for
insulin—seemingly for no medical reason.
“Cesal is an insulin-dependent Type II diabetic who had
been taking sliding-scale insulin [whereby the size of the in-
sulin dose is based on the patient’s blood-sugar level just be-
fore his meal; the higher the level, the more insulin the pa-
tient takes]. Without insulin Cesal was left to try to manage
his blood-sugar level through diet, exercise, and the diabe-
celed. Cesal skipped meals or went for runs when his blood-
sugar level got too high. But despite these efforts and the
metformin, his blood sugar soared. As a result he felt dizzy
and saw stars and his toenails fell off. …
“On December 23, 2008, after nearly six months without
insulin, Cesal filed a second administrative grievance con-
cerning his diabetes treatment, specifically requesting the
restoration of his sliding-scale insulin prescription. Again his
grievance and related appeals were denied at each level of
the BOP [Bureau of Prisons] administrative process. A denial
dated January 21, 2009, noted that the clinical director (Dr.
Moats) of the prison [Pekin Correctional Institution] had dis-
cussed with Cesal a different diabetes-management pro-
gram, one ‘tailored to prevent hyperglycemia [high blood
sugar—a hallmark sign of diabetes], not to treat it after it oc-
curs.’” This meant that rather than following a sliding-scale
insulin regime, in which Cesal would check his blood sugar
before meals and take insulin if his blood sugar had risen to
a high level, he would once or twice each day at the same
time or times take a long-lasting fоrm of insulin that would
prevent his blood-sugar level from rising throughout the
day.
But were prison officials—Moats in particular—really
putting Cesal on that program, given the sudden cancella-
tion of his old prescription, the delay in writing him a new
one, and his allegation that Moats was retaliating against
him? Although a subsequent denial of his grievance, on
March 6, 2009, noted that he was taking oral medications
(but not insulin) for his diabetes, and concluded that “sound
clinical judgment is being demonstrated” in his treatment,
“sound clinical judgment”? The doctor’s anger, the sudden
withdrawal of all insulin, and the long delay before its resto-
ration, make this case sound a lot like Rowe v. Gibson.
Even the judges in the majority in this case acknowledge
being “troubled by Dr. Moats’s cancellation of Cesal’s insu-
lin and his failure to prescribe any insulin—whether sliding
scale, or otherwise—for nearly 2 ½ years.” Yet the majority
retract their concern, dismissively, with the remark that
“Cesal’s argument assumes, without any basis, that there is a
fixed, ‘correct’ dosage of sliding-scale insulin for his diabe-
tes. There is no evidence, however, that this is true, either
generally or for Cesal himself. All he has managed to do is to
register disagreement with Dr. Moats’s medical judgment.
That is insufficient to prove deliberate indifference.”
But what does the majority expect of Cesal, a prisoner
who had no lawyer and no witnesses, let alone an expert
witness? What more could he do than “register disagree-
ment”?
The majority opinion attaches decisive significance to the
two-year statute of limitations applicable to the case, which
according to the opinion expired before Cesal filed his suit.
The purpose of statutes of limitations is to protect defend-
ants from being sued after the evidence on which their de-
fense would depend has disappeared, and there is no indica-
tion that the government would be prejudiced in this case by
our waiving the statute of limitations. Cesal argues plausibly
that Dr. Moats’ deliberately indifferent treatment of his dia-
betes continued until February 22, 2011, the date on which
Moats restored the full insulin prescription—and that was a
date within the statute of limitations. Although Moats had
tober 29, 2010 (almost two years after Cesal had filed his
grievance complaining about the cancellation of his insulin),
Cesal argues that Moats must have known that the reduced
dose was inadequate, because Cesal’s blood-sugar levels had
become severely elevated, probably as a result of Moats’
having withheld insulin from Cesal for that long period.
The argument for waiving the statute of limitations is
strengthened by the faсt that Cesal was unrepresented in the
district court. For all we know, he’s never heard of statutes
of limitations. He has made a plausible case of deliberate in-
difference by Dr. Moats to an acute medical need. I would
reverse the judgment in favor of the defendant and remand
the case for an evidentiary hearing, with a strong suggestion
that the district judge recruit a lawyer for Cesal and, pursu-
ant to
neutral expert witness—a specialist in diabetes and its
treatment—as well.