Larry R. Holman v. Elsa Horn, Roman Kaplan, James Greer

* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2006*
Decided February 6, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-3824
LARRY R. HOLMAN,
Plaintiff-Appellant,
v.
ELSA HORN, ROMAN KAPLAN,
JAMES GREER, et al.,
Defendants-Appellees.
Appeal from the United States
District Court for the Eastern
District of Wisconsin.
Nos. 04 C 792 & 05 C 9
William C. Griesbach,
Judge.
O R D E R
In these consolidated cases under 42 U.S.C. § 1983 and Wisconsin state law,
inmate Larry Holman claimed that he had been denied proper medical care while
housed at Kettle Morraine and Oshkosh Correctional Institutions (“KMCI” and
“OCI”). Specifically, Holman claimed that prison physicians violated the Eighth
Amendment and state law when they ignored gastrointestinal bleeding caused by
prescribed medicines. He also claimed that he had been denied treatment for
Hepatitis C in violation of the Eighth Amendment and the Equal Protection Clause.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-3824 Page 2
The district court granted summary judgment for the defendants. For the reasons
set forth in this order, we affirm the judgment of the district court.
The district court accepted the following facts from the defendants’ proposed
factual findings because Holman had failed to conform his fact statements to Local
Rule 56.2. Holman suffers from Hepatitis C, peptic ulcers, and asthma. A year after
he arrived at KMCI, his ulcers caused gastrointestinal bleeding that required
hospitalization. A hospital physician recommended that he stop taking theophylline,
an asthma medication, “given its association with his upper GI bleed.” Dr. Horn, an
internist and gastroenterologist at KMCI, immediately prescribed a different inhaler
for Holman.
About a year later, Holman submitted a request for medical services; he
complained of light red blood in his stool and expressed concern that his ulcers were
again causing gastrointestinal bleeding. Dr. Horn responded to the request, thought
the cause of the bleeding might be hemorrhoids and instructed a nurse to examine
Holman. Dr. Horn determined that his ulcers could not have caused the bleeding
because they would produce, not red, but black blood in the stool. A month later
Holman complained of an upset stomach that he feared was due to gastrointestinal
bleeding, but a prison physician examined him and found nothing unusual.
A short time later, Holman was transferred to OCI. During the 17 months of
his confinement there, he was seen by medical staff more than 60 times. Medical staff
also arranged for the evaluation of his hepatitis C condition at the University of
Wisconsin Hospital. X-rays taken at the hospital revealed that Holman had lesions on
his liver, which Dr. Horn believed to be consistent with his history of alcohol and drug
abuse while suffering from hepatitis C. Deanna Nakada, a physicians assistant at the
hospital, recommended a liver biopsy to assess the severity of the lesions. OCI doctors
approved the procedure, which revealed minimal inflation and “stage 0 fibrosis”--a
rating that indicates a complete absence of liver scarring. Nakada recommended
against hepatitis C treatment because, for patients whose biopsies reveal fibrosis less
advanced than stage 2, she considered the potential benefits outweighed by the high
cost and toxic side-effects which are similar to those from chemotherapy. The
Wisconsin Department of Corrections (“WDOC”) guidelines likewise provide for
hepatitis C treatment only for patients with fibrosis of stage-2 or greater. In
accordance with DOC’s guidelines, Holman’s request for some form of hepatitis C
treatment was denied by OCI’s medical director.
Holman then sued Dr. Horn, Nakada, the OCI physicians, nurses, and
administrators. Alleging violations of the Eighth Amendment and state malpractice
law, he claimed that these individuals had ignored the gastrointestinal bleeding
caused by medications which they had prescribed. He also claimed that the

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No. 05-3824 Page 3
defendants’ refusal to treat his hepatitis C condition constituted deliberate
indifference and denied him equal protection because white inmates with comparably
advanced hepatitis C had received treatment, while he, a black inmate, had not.
The court granted summary judgment for the defendants. It determined that
Holman lacked any evidence that the defendants were deliberately indifferent to his
medical needs. The court acknowledged that Holman had serious health problems,
but these ailments resulted from his preexisting physical condition rather than from
the defendants’ treatment. Indeed, the court observed that the record reflected
“great solicitude” for Holman’s needs on the part of the defendants. As for Holman’s
equal protection claim, the court stated that “[n]ot one shred of evidence suggested
that race played any role in Holman’s treatment.” Finally, the court concluded that
Holman could not establish medical malpractice because he offered no medical
expert’s opinion, which is necessary in Wisconsin to establish the requisite standard
of care.
On appeal, Holman first contends that the district court erred in granting
summary judgment on his claim that the defendants were deliberately indifferent in
prescribing medication that caused gastrointestinal bleeding. He submits that there
was evidence that theophylline caused him gastrointestinal bleeding and should never
have been prescribed. He points to the attending physician’s note during his
hospitalization. That note recommended that theophylline be discontinued “given its
association with his upper GI bleed.” Holman admits that he was immediately taken
off theophylline, but believes that the note establishes that theophylline should never
have been prescribed. However, even if, as Holman believes, this clinical note could
establish that he should never have received theophylline due to the risk of
gastrointestinal bleeding, he lacked any evidence that the defendants knew of an
unacceptable risk and consciously disregarded it. See Estate of Cole Pardue v. Fromm,
94 F.3d 254, 259 (7th Cir. 1996) (deliberate indifference requires more than a showing
of medical malpractice).
Second, Holman submits that summary judgment was improper on his claim
that Dr. Horn was deliberately indifferent when she was told that his ulcers were
bleeding again. Dr. Horn thought the bleeding was hemorrhoidal, given the color of
the discharge, and accordingly ordered a nurse to examine him for hemorrhoids.
Holman admits that Dr. Horn thought the bleeding was hemorrhoidal and thus
cannot show that she acted with deliberate indifference. See Gil v. Reed, 381 F.3d
649, 661 (7th Cir. 2004).
Third, Holman contends that the court erred in granting summary judgment
on his claim that Dr. Horn committed medical malpractice in prescribing
theophylline. Pointing to a letter from Mary Powers, he disputes the court’s finding

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that he lacked a medical expert’s opinion, as required in Wisconsin, see Gil, 381 F.3d
at 659. Powers identifies herself as “Poison Control Supervisor” for Children’s
Hospital of Wisconsin and states that long-term usage of Theophylline can cause the
stomach lining to bleed. Even if this letter qualified as expert testimony, it gives no
opinion related to Dr. Horn’s standard of care in prescribing theophylline for a patient
in Holman’s circumstances. See id. at 659.
Finally, Holman generally contends that the court abused its discretion in
denying his motion to serve the defendants with 25 additional interrogatories which,
he believes, would have allowed him to establish his equal protection claim. The
district court denied the motion, finding the proposed questions unreasonably
cumulative. See Fed. R. Civ. P. 26(b)(2). Holman does not dispute that
determination. Moreover, he has not shown actual prejudice from his inability to
serve the additional questions. See Packman v. Chicago Tribune Co., 267 F.3d 628,
646 (7th Cir. 2001).
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED

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