NONPRECEDENTIAL DISPOSITION
To be cited accordance Fed. R. App. P. 32.1 United States Court of Appeals
For Seventh Circuit
Chicago, Illinois Submitted December [*] Decided December Before
DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No.
HECTOR R. DeJESUS, Appeal United States District
Plaintiff Appellant Court Central District Illinois. v . 1:14 cv
SALVADOR A. GODINEZ, et al., Sara L. Darrow,
Defendants Appellees . .
O R D E R
Hector Illinois prisoner Hill Correctional Center, brought this lawsuit under U.S.C. § beaten cellmate. asserted placement its provide adequate demonstrated officials’ deliberate indifference harm. further claimed Health Sources, Inc. its provide services Hill, cost cutting indifferent injuries. Ultimately, Darrow entered for the defendants, and DeJesus appeals. We affirm recite facts in light most favorable DeJesus, non movant. Proctor Beginning May 2012, started pilot program serve two meals per day—brunch and dinner—instead three. The
menu was adjusted each inmate received same number calories, eight ounces protein (up six), at least five fruit vegetable options day (a new requirement). The IDOC’s dietician attested two meals day three adequate otherwise healthy person. DeJesus testified practice, starting portion sizes were continually reduced, several items on menus made it prisoners inedible. At times meal trays were nearly empty, once heard kitchen manager admonishing give out “little bits.” As result, says, inmates who afford commissary items starving. included cellmate, attacked commissary money.
As placements, at IDOC intake, inmates initially screened determine whether can have cellmate. Then, upon arriving at Hill, each inmate interviewed by learn more specific him. Afterwards, Placement Office assigns cells, requires assess two will get along. They consider, things, each inmate’s age, size, gang affiliation, release date, history violence as well as possible racial tension. An inmate can housing concerns time moved only if investigation reveals problem. Puerto Rican, July years old
gang affiliated. His cellmate time, Jamie Evans, African American, years younger, bigger size physically stronger than recorded gang affiliated. They flagged incompatible. while sitting toilet, unexpectedly attacked, punching, kicking, choking The beating ended when give money. passing guard took prison’s clinic.
At clinic, showered own, then examined nurses, Sarah Faetanini Lorna Stokes. nurses recorded suffered “superficial laceration” forehead abrasions body. injury states trouble talking, sitting, walking, nor shortness breath or bruising. DeJesus says he worse shape—he barely talk or breathe and had bruises over his body. nurses did refer him see doctor; cleaned his wounds and gave him ibuprofen before taken investigative segregation. week later, Stokes and a different nurse saw DeJesus sick call complaining back pain. They did any swelling, bruising, difficulty with walking, standing, sitting. Once again gave him pain medication and refer him a doctor. DeJesus testified Stokes accused him “bullshitting” nurses broken bones, explaining just had sore muscles needed exercise instead.
On reviewing earlier notes, Dr. Kul Sood examined DeJesus, finding no tenderness bruising his back normal range motion vitals. DeJesus asked Dr. Sood rays, but Dr. Sood refused, saying x rays cancer. Instead, Dr. Sood prescribed Naprosyn, anti inflammatory, pain ordered a follow up appointment August 1. day too, his exam unremarkable, although still complained little tenderness his back. Dr. extended his Naprosyn prescription five days.
After that, complaints related assault became sporadic. In late August complained back rib cage had hurting since attack. had no visible signs discomfort, but nurse gave him ibuprofen pain. repeated May August observed no objective signs discomfort gave him pain medication anyway. In March nurse gave him ibuprofen ordered thoracic lumbar spine chest. results revealed had pectus excavatum deformity thoracic wall, congenital defect, spine had spurring slight scoliosis, which outside radiologist said both degenerative changes. hand, believes attack injured back, causing continuing pain.
Two weeks before Evans attacked, had sent transfer defendant Shawn Gibbs, one correctional officers assigned cellmates; said Evans “too loud” “aggressive day one.” received no response. Gibbs attested never got letter any “problem cell.” admits threatened had reason believe physically filed suit June In amended complaint, alleges intentionally celling vulnerable “dangerous ‐
predators” while also reducing the food served to starve the “predators” into being violent. According to these policies led directly to Evans’s order to money. further alleges Wexford providing inadequate to save money. policy, alleges, the medical ignore requests for an x just give medicine, ineffective.
During discovery filed several motions compel, asking Judge Darrow order the defendants turn over, things, records all violent activity the (or least data summarizing activity) cellmates’ (including Evans’s) rap sheets. The defendants objected grounds, requests were overly burdensome because spanned years the defendants monthly reports; covered information confidential files; disclosure create “safety security” risks. The judge the defendants could produce nonexistent (such the summaries wanted) some the documents involve risks, she denied motion.
Throughout the litigation, keen getting testimony expert. moved for the recruitment counsel part thought counsel could obtain an expert witness review rays. (The court specifically addressed issue denying the motion generally competently litigate claims.) also separately requested twice court appoint independent expert examine rays. Although believed showed degenerative changes congenital defect, thought abnormalities cellmate’s assault. Judge Darrow denied grounds need expert appeared want own, partial expert witness, independent expert Rule contemplates. denied second motion moot upon entering summary judgment for defendants. Darrow granted motions judgment state (IDOC)
defendants (Wexford) defendants claims. understood claims (1) defendants indifferent injuries cellmate inflicted; (2) prison’s brunch system unconstitutional condition confinement; (3) alleged placement unconstitutional. She also posited intended protect theory relief. After granting certain individual lack personal involvement Wexford DeJesus’s to there policy in play (the only way hold liable), offered enough evidence genuine issue material fact remaining defendant’s culpability. appeal, argues district wrongly construed
contentions inadequate food as freestanding claim. Instead, says, challenged policy part claim prison created substantial harm older, weaker inmates placing them in cells with starving “predators.” word do consider brunch system provided inadequate violation Eighth Amendment.
As interrelated contentions supposed policies— intentionally pairing stronger cellmates with weaker ones starving them spark conflict—violate Eighth Amendment, they are unfounded. says Hill celled him with “large, younger predators” who part gangs used “food rations which stimulated them into robbing threatening” IDOC defendants’ motivation policies, contends, use “predators” “a form [ ] discipline,” making inmates “co operate” with increase profits, “pay fat pay checks commissary kitchen staff” help “feed [IDOC] lavish meals separate kitchens.” And thinks targeted him specifically, using dangerous cellmates punish left job kitchen attend school instead. Once plan worked, then “conspired staff” “to conceal evidence” injuries.
At stage, evidentiary burden meet, fell short. IDOC set forth evidence showing policy house compatible inmates together, policy required consider different factors, size differences gang affiliation. Affidavits correctional officers assigned cells stated followed case. has contrary evidence; simply infers experiences, those few inmates, Hill there housing older, weaker younger, stronger, gang affiliated ones. suspicions, when expressed under oath, evidence creates genuine issue material fact. Aguilar Gaston Camara 16 3664 6 same true of DeJesus’s claim that officials had of starving cause prey weaker cellmates so that both had job gained profits fund their paychecks kitchen. testify about what personally experienced, but his belief that his experiences stemmed from policy, again, pure speculation. See Consolino v. Towne , 872 F.3d 825, 830 (7th Cir. 2017); McGee v. Adams , 721 F.3d 474, (7th Cir. 2013) Not that, his theories simply do not make sense.
Aside from claims unlawful policies, also, at times, seems argue that defendant Gibbs (who was responsible placement) or others knew about, yet failed protect from, “a substantial risk serious harm” Evans. See Farmer v. Brennan , 511 U.S. 825, 847 (1994). For example, emphasizes that reported that Evans “aggressive” before attacked. Gibbs, part, denies ever receiving request moved. Assuming version true, however, transfer referring “aggressive” falls short being “a specific, credible, imminent serious harm” would sufficiently put Gibbs notice, especially since admits idea attack. See Gevas v. McLaughlin , 798 F.3d 481 (7th Cir. 2015).
Regarding defendants, maintains entitled claim ignored undertreated injuries attack. points certain parts testimony recount, such own description injuries, Stokes’s comment lying broken bones, Dr. Sood’s statement rays cause cancer. Assuming condition objectively (which contest), none statements, alone combination, allow reasonable jury conclude staff’s behavior fell outside applicable standard care basing See Proctor , F.3d at 568; Pyles v. Fahim , F.3d 409 (7th Cir. 2014). reflects “active treatment” multiple examinations, dispensing medication, eventually, diagnostic ray. See Cesal v. Moats , F.3d (7th Cir. 2017). kind “meaningful ongoing assessment patient ʹ s condition antithesis ‘deliberate indifference.’” McGee , F.3d
Plainly, disagrees Dr. Sood’s decision order shortly attack, dissatisfaction choice does not, more, Dr. indifferent. Pyles F.3d Johnson Doughty , Moreover, “the question X 16 3664 7 additional diagnostic techniques forms is indicated is classic example matter judgment.” Estelle v. Gamble , U.S. 107 (1976). And although believes back problems, is not competent deliver opinion has evidence support it.
To end, argues district judge abused her discretion denying motions court appointed expert would examine back spine. See F ED . R. E VID . 706(a). But Rule used appoint neutral expert interpret complex information trier fact, not represent interests one party, appears think. See Kennedy v. Huibregtse , F.3d (7th Cir. 2016). district reasonably here expert would not have helpful. See F ED R. E VID . Gil v. Reed , F.3d (7th Cir. 2004). And if appointed expert disagreed what showed respect cause pain, disagreement doctors, evidence one not exercising judgment, not evidence deliberate indifference. See Pyles , F.3d
Finally, we will disturb district court’s discovery rulings. contends records other violent incidents prison cellmates’ rap sheets confidential would help polices pervasive violence. violence would say nothing its cause, data assist proving supposed policies existed. Further, accepted defendants’ objection giving cause privacy concerns risks. abuse her considerable discretion over discovery matters. Jones City Elkhart, Ind. reviewed remaining contentions, those regarding
Wexford’s purported cost cutting individual defendants’ personal involvement, none has merit. Accordingly, we AFFIRM
[*] decide case oral argument briefs adequately present facts legal arguments, oral argument significantly aid court. F ED R. PP . P. 34(a)(2)(C).