Patrick J. Fitzgerald v. 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. A PP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2009 *
Decided May 6, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐2627
PATRICK J. FITZGERALD,
Plaintiff‐Appellant,
v.
JAMES GREER, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 07‐cv‐061‐bbc
Barbara B. Crabb,
Chief Judge.
O R D E R
Wisconsin inmate Patrick Fitzgerald filed suit under 42 U.S.C. § 1983 claiming as
relevant here that three prison doctors were deliberately indifferent to his complaints of
chronic pain. The district court granted summary judgment for the defendants, and we
affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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We construe the facts in the light most favorable to Fitzgerald. See Greeno v. Daley,
414 F.3d 645, 648 (7th Cir. 2005). In October 2003 Fitzgerald was in a car accident that left
him with a brain contusion, punctured lung, dislocated shoulder, shattered ankle, and
fractures in his spine, humerus, and ribs. He remained hospitalized until March 2004 and
afterward was referred to a pain specialist who diagnosed him with chronic pain syndrome
and prescribed opioids for pain management. Fitzgerald was later convicted on an
unrelated drunk‐driving charge, his ninth conviction for that offense. He was also
convicted of marijuana possession and bail jumping. At his sentencing in March 2005,
Fitzgerald, through counsel, represented to the court that he was HIV‐positive and taking
an expensive “cocktail” of drugs, but medical records confirm that Fitzgerald had
previously told his pain specialist that he was not HIV‐positive. Fitzgerald entered Dodge
Correctional Facility in April 2005 to begin a four‐year prison sentence.
At intake Fitzgerald was examined by Dr. Timothy Correll. The prison had not yet
received any medical records from outside sources, but Fitzgerald reported that he was
taking Naprosyn, a nonsteroidal anti‐inflammatory, for chronic pain in his arms, legs, and
shoulders but getting little relief. He also reported, according to Dr. Correll, that he had
been HIV‐positive since 1993, but Fitzgerald insists that he simply told the doctor that he
once received a false‐positive result on an HIV test. In any event, Dr. Correll placed
Fitzgerald on the prison’s chronic‐disease list and ordered that he be scheduled to visit an
immunology clinic and receive a bottom‐bunk restriction, multivitamins, double meal
portions, and monthly nurse visits—all standard orders for HIV‐positive inmates.
Dr. Correll also authorized Fitzgerald to wear sneakers instead of standard‐issue work
boots and prescribed Amitriptyline, which Dr. Correll describes as an anti‐depressant used
in low doses to manage pain, including pain associated with HIV‐related peripheral
neuropathy.
Dr. Correll had also ordered an HIV test, and when the result came back negative a
few days later, he rescinded his earlier orders, including the Amitriptyline prescription and
sneaker accommodation. Dr. Correll insists that he did so because all of his orders had been
responsive to Fitzgerald’s purported HIV status. Fitzgerald counters that Dr. Correll’s
motive was retaliatory; the two men argued, he says, about whether Fitzgerald had
misrepresented his HIV status, and Dr. Correll had ended the discussion by saying, “I could
care less about your chronic pain.” Fitzgerald received no medication for eight weeks until
June 17, when he was prescribed Ibuprofen, a nonsteroidal anti‐inflammatory. Three days
later, Fitzgerald was transferred to Kettle Moraine Correctional Institution, where a prison
doctor prescribed Tylenol, Vicodin, and Ketoprofen, another nonsteroidal anti‐
inflammatory, for his pain.

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No. 08‐2627 Page 3
In November 2005 Fitzgerald was transferred again, to Oshkosh Correctional
Institution, where he immediately complained of chronic pain in his back, left shoulder, and
neck and asked for medical attention. About a month later, in early January 2006,
Fitzgerald met with Dr. Roman Kaplan and requested medication stronger than Vicodin
because, he said, it had become ineffective. Dr. Kaplan instead gradually decreased the
Vicodin and then discontinued it, substituting a prescription for Ibuprofen. Fitzgerald
insists that he told Dr. Kaplan that Ibuprofen was inappropriate because he suffers from
stomach ulcers and that Dr. Kaplan said he did not care. Dr. Kaplan, of course, denies this
statement. He also denies knowing about Fitzgerald having ulcers, and at summary
judgment Fitzgerald produced no medical evidence to corroborate his assertion that he
does. Dr. Kaplan insists that he switched the prescription since Fitzgerald exhibited a
normal gait and full range of motion and there were no objective findings to support his
self‐reported pain. The doctor also insists that Vicodin was inappropriate for Fitzgerald,
whom he suspected was drug dependent, because it is best reserved for short‐term pain
treatment and has a high risk of abuse. The proper course of treatment, in Dr. Kaplan’s
opinion, was a moderate dose of a nonsteroidal drug coupled with a lower bunk and an
extra mattress and pillow. Over the following week, Fitzgerald filed Health Service
requests almost daily, complaining that he was in chronic pain and that the Ibuprofen was
causing intestinal bleeding. He asked to see a doctor other than Kaplan, but Kaplan was the
only physician on staff at that time.
The following month Fitzgerald saw a nurse for an unrelated condition and reported
that he had blood in his stool and was suffering from abdominal pain. The parties dispute
whether Fitzgerald ever provided the stool sample requested by the nurse, and it is unclear
what tests, if any, were performed at that time. But in April he was seen by Dr. Deb Lemke,
who replaced Dr. Kaplan. Fitzgerald complained of diarrhea, and Dr. Lemke prescribed
medication for gastroesophageal reflux disease and ordered stool tests, which came back
negative for occult blood. Although denied by Fitzgerald, Dr. Lemke also insists that he
reported having HIV, for which he was treated at a Milwaukee hospital. At summary
judgment Fitzgerald did not dispute that he signed a release giving Dr. Lemke permission
to obtain his hospital records, or that the records identify him as being HIV‐positive since
1992 and on an “HIV cocktail” until April 2005 when he entered the Department of
Corrections. Fitzgerald insists that during this visit he also complained about chronic pain,
but Dr. Lemke denies this and her treatment notes support her version of events.
Fitzgerald saw Dr. Lemke again in early September when, they both agree, he
reported chronic pain. In her treatment notes for this appointment, Dr. Lemke noted that
Fitzgerald had misrepresented his HIV status and the recency of his car accident to
department medical staff, and that his medical records reflected a history of drug and
alcohol abuse. She declined to place Fitzgerald on any additional medication because, in

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addition to her concern about those issues, she had not observed any physical signs that
Fitzgerald was in pain, the treating physician before her had not prescribed narcotic pain
medication, and Fitzgerald had recently requested that his medical classification be changed
to “any activity,” a fact that Fitzgerald does not dispute.
Fitzgerald filed this action pro se in February 2007, and the district court appointed
counsel. His amended complaint, filed by counsel, named as defendants Drs. Correll,
Kaplan, and Lemke, along with several other defendants who are mentioned only in
passing or not at all in Fitzgerald’s appellate brief. After filing suit Fitzgerald was
transferred twice more to other prisons, where doctors prescribed physical therapy and
Gabapentin, an anticonvulsant used in treating neuropathic pain. He was also referred
eventually to Dr. Sara Holz, a chronic‐pain specialist, who, based on a single physical
examination and a review of Fitzgerald’s medical records, agreed that Gabapentin was
appropriate but recommended increasing the dose. She also recommended “considering”
methadone, an opioid. Dr. Holz later testified, however, that Fitzgerald’s treating physician
was better situated to assess whether Fitzgerald was actually suffering from the levels of
pain he reported. Dr. Marco Araujo, a pain‐management specialist retained by Fitzgerald
during the litigation, opined that Ibuprofen would be ineffective for long‐term use because
it would not adequately treat Fitzgerald’s pain. In Dr. Araujo’s view, giving Fitzgerald
methadone and steroid injections along with the physical therapy and Gabapentin would be
the best course of treatment.
At a hearing on Fitzgerald’s request for a preliminary injunction, both pain
specialists watched footage that prison guards had surreptitiously captured of Fitzgerald
packing his belongings while preparing to be transferred. The video shows him over an
extended period laughing, lifting objects, leaning under a guardrail, and bending at the
waist up to 90 degrees with no apparent difficulty. Dr. Holz testified that, after seeing the
video, she would “possibly change” her methadone recommendation because Fitzgerald
demonstrated a greater range of motion and an ability to sustain a flexed posture longer
than he had during her examination. Dr. Araujo, however, testified that the video had no
effect on his recommendation. The district court also heard testimony from two prison
doctors who had treated Fitzgerald after he filed suit, and both opined, based on their own
surreptitious observations, that he was malingering and embellishing his pain.
The district court issued a comprehensive decision denying Fitzgerald’s request for a
preliminary injunction and granting summary judgment for all defendants. The court
concluded that Fitzgerald, who has since been released from prison, produced insufficient
evidence for a jury to find that any defendant had been deliberately indifferent to his
complaints of pain. We focus here on Drs. Correll, Kaplan, and Lemke, the only defendants
given significant mention in Fitzgerald’s brief. We review the court’s decision de novo,

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construing all inferences in Fitzgerald’s favor. See Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir.
2008).
To survive summary judgment on his claim of deliberate indifference, Fitzgerald
needed to produce enough evidence for a reasonable jury to conclude that at least one of the
doctors knew about but consciously disregarded a serious medical condition. See Johnson v.
Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006). The Eighth Amendment does not require
prison doctors to treat inmates in the exact manner they demand, Jackson v. Kotter, 541 F.3d
688, 697 (7th Cir. 2008); Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996), but a prisoner can
establish deliberate indifference by proving that doctors let him suffer pain needlessly when
they could “readily and inexpensively” have alleviated it, Ralston v. McGovern, 167 F.3d
1160, 1162 (7th Cir. 1999).
We conclude, first, that Fitzgerald failed to present sufficient evidence to survive
summary judgment on his claim against Dr. Correll. We accept, as we must, Fitzgerald’s
version of events, which is that Dr. Correll became angry when he learned that Fitzgerald
did not have HIV and, when the two men argued, told Fitzgerald that he did not care about
his pain. But that is where Fitzgerald’s evidence ends, and a jury could not reasonably infer
from it that Dr. Correll then cancelled the Amitriptyline prescription and rescinded
Fitzgerald’s authority to wear sneakers in order to retaliate for Fitzgerald’s apparent
misrepresentation of his HIV status. Dr. Correll testified at his deposition that both the
prescription and the sneaker accommodation were responsive to his belief that Fitzgerald
had HIV, and there is no evidence that the doctor was aware that cancelling either would
cause Fitzgerald to experience increased pain. Indeed, Dr. Correll testified that if he
thought Fitzgerald had ankle pain, he would not have prescribed sneakers because they
provide less support than the standard work boots. Moreover, Dr. Correll had observed no
objective indications to support Fitzgerald’s subjective reports of pain and had yet to receive
Fitzgerald’s pre‐incarceration medical records. Finally, Fitzgerald presented no evidence
that, after the two men argued, Dr. Correll was ever aware that Fitzgerald was in pain. In
fact, Fitzgerald presented no evidence of any contact whatsoever with Dr. Correll following
their alleged argument. No jury could conclude on this evidence alone that Dr. Correll’s
behavior rose to the level of a constitutional violation.
Next, we also agree with the district court that Fitzgerald failed to present evidence
that Drs. Kaplan and Lemke were deliberately indifferent to his pain by failing to prescribe
something stronger than Ibuprofen. Relying on the opinions of Dr. Araujo and Dr. Holz
that methadone might be useful in treating Fitzgerald, he asserts that prescribing Ibuprofen
was such a substantial departure from accepted professional judgment as to raise an
inference of deliberate indifference. See Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008). But
rarely will a disagreement with a doctor’s course of treatment give rise to a constitutional

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claim, Johnson, 433 F.3d at 1013, especially in a situation like this one. This is not a case of
prison officials withholding pain medication as a “gratuitous cruelty.” See Ralston, 167 F.3d
at 1162; Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002); Murphy v. Walker, 51 F.3d 714,
720 (7th Cir. 1995). Rather, Drs. Kaplan and Lemke concluded after multiple physical
examinations that Fitzgerald did not warrant anything stronger than Ibuprofen because he
did not demonstrate any objective indications of pain, he had a history of substance abuse
and of misrepresenting his HIV status, and he recently had asked that his work
classification be changed to “any activity,” indicating that he was exaggerating the extent of
his pain. Indeed, two other prison doctors who later treated Fitzgerald independently
concluded that he was embellishing his symptoms. And although Dr. Holz later suggested
that she would “consider” methadone, she also agreed that Fitzgerald’s treating physician
would be in a better position to assess the credibility of his complaints. We must give
deference to a doctor’s treatment decisions unless “no minimally competent professional
would have so responded under those circumstances.” Sain, 512 F.3d at 894‐95. The
evidence here establishes that Drs. Kaplan and Lemke decided to treat Fitzgerald with
Ibuprofen based on their professional assessment of his medical history and the lack of
objective indications of pain, and we will not second‐guess their decisions. See Steele v. Choi,
82 F.3d 175, 179 (7th Cir. 1996) (explaining that constitutional claim cannot be established
simply by offering evidence that another medical professional would have chosen a
different course of treatment).
What might have been a closer question is whether Drs. Kaplan and Lemke should
have been treating Fitzgerald with Ibuprofen, a drug that can aggravate gastrointestinal
problems, if he was suffering from stomach ulcers. Fitzgerald, though, simply presented
evidence that he complained about stomach ulcers to each doctor on at least one occasion,
but he produced no medical evidence to corroborate what appears to be a self‐diagnosis.
Fitzgerald’s medical expert, Dr. Araujo, conducted an exhaustive review of his medical
records and afterward never mentioned stomach problems. Dr. Araujo instead said that
Ibuprofen was inappropriate for long‐term use because it would not adequately treat
Fitzgerald’s pain. Further, Dr. Lemke tested Fitzgerald’s stool for occult blood with
negative results. Although Fitzgerald complained of bleeding and pain associated with
Ibuprofen, objective medical results undermined his complaints, and we therefore cannot
conclude that the doctors deliberately ignored a serious risk of harm.
Finally, Fitzgerald challenges the district court’s decision to consider the prison’s
video footage when ruling on the defendants’ motion for summary judgment. The district
court was entitled to consider any admissible evidence offered in support of the motion, see
Stinnett v. Iron Works Gym/Exec. Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002), and we
review decisions on admissibility only for abuse of discretion, see Estate of Moreland v. Dieter,
395 F.3d 747, 753 (7th Cir. 2005). Although Fitzgerald now describes the footage as “heavily

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edited and fraudulently altered,” his only objection in the district court was that the video
appeared to play back at a speed faster than real time and was therefore misleading; that
objection is thus the only one preserved on appeal. Naeem v. McKesson Drug Co., 444 F.3d
593, 610 (7th Cir. 2006). A viewing of the video indicates that it appears to play back at a
slightly accelerated speed, but we disagree that this undermines its relevance. See FED. R.
E VID. 402. Dr. Holz testified that she could not tell whether the video played in real time
but that it nevertheless might affect her assessment of Fitzgerald because he exhibited a
greater range of motion and ability to maintain a flexed posture in the footage than he had
in her office. Regardless of the video’s speed, then, it is relevant to Fitzgerald’s range of
motion, and we therefore conclude that the district court’s decision to admit the video was
not an abuse of discretion.
AFFIRMED.

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