Willie C. Simpson v. DALIA SULIENE and LORI ALSUM

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 July 15, 2009*
Decided July 29, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-1047
WILLIE C. SIMPSON,
Plaintiff-Appellant,
v.
DALIA SULIENE and LORI ALSUM,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 08-cv-54-bbc
Barbara B. Crabb,
Chief Judge.
O R D E R
Wisconsin inmate Willie Simpson, who is HIV positive, filed suit under 42 U.S.C.
§ 1983 claiming that Dalia Suliene, a prison physician, and Lori Alsum, the manager of the
Health Services Unit at the facility where Simpson is housed, violated the Eighth
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09-1047 Page 2
Amendment by refusing to treat him for a blood condition known as pancytopenia. The
district court granted summary judgment in favor of the defendants because Simpson
lacked evidence to establish that Dr. Suliene had disregarded a serious medical need or that
Alsum had participated in any decisions regarding his health care. We affirm the
judgment.
Except as noted, the facts are not in dispute. Simpson was thought to have
pancytopenia in December 2006 when prison doctors sent him to consult with Dr. Andrew
Urban, an infectious disease specialist at the University of Wisconsin Hospital.
Pancytopenia is the name given to a pronounced reduction in the number of red and white
blood cells and platelets, a condition that can have myriad causes. STEDMAN'S MEDICAL
DICTIONARY 1303 (28th ed. 2006)). Urban speculated that the symptoms might be related to
Simpson’s HIV, a common trigger for pancytopenia, but recommended a hematology
evaluation to rule out other potential causes for his reduced blood cell levels. In August
2007, Suliene ordered a hematology evaluation and requested additional lab work. Two
months later, before that evaluation was scheduled to be performed, Simpson had his
blood tested while being seen for a different condition; those tests did not support a current
finding of pancytopenia. In an affidavit Suliene submitted at summary judgment, she
avers that in January 2008 she also consulted by email with a hematologist, Dr. Elliot
Williams, and the two agreed that Simpson did not have pancytopenia. As a result, Suliene
cancelled the hematology evaluation. Simpson, however, offered his own affidavit
asserting that Williams told him the email exchange never occurred. He also produced a
letter Alsum wrote him saying that she could not provide copies of the emails exchanged
by Suliene and Williams because there were no such emails. Suliene reviewed additional
blood tests in May, June, and July of 2008, and concluded that none of them indicated
pancytopenia. She also stated in her affidavit that Simpson continued to receive regular
blood tests.
In August 2008, after filing suit, Simpson finally saw Dr. Williams for a hematology
evaluation. Williams diagnosed chronic mild pancytopenia but, like Dr. Urban, noted that
the cause for Simpson’s reduced blood cell levels was unclear and the condition could be
due to his HIV. Williams doubted, but could not rule out, the possibility that Simpson’s
blood levels suggested an underlying bone marrow disorder such as leukemia. Williams
told Simpson that he could perform a bone marrow biopsy to investigate further what had
triggered the pancytopenia, but advised him that the chances of finding a treatable cause
for his blood levels were low. Simpson chose to forgo the biopsy and instead opted to wait
and see if his condition worsened. Williams recommended that Simpson reconsider the
biopsy option if there was a substantial downward movement in his blood counts.

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No. 09-1047 Page 3
On appeal Simpson principally argues that the district court erred in granting
summary judgment for the defendants, a decision we review de novo. See Teague v. Mayo,
553 F.3d 1068, 1073 (7th Cir. 2009). He emphasizes that Suliene did not obtain a
hematology evaluation until 2008 even though Dr. Urban had recommended that step in
2006. Delay in medical treatment can be the basis of an Eighth Amendment claim. See, e.g.,
Walker v. Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002); Langston v. Peters, 100 F.3d 1235, 1240
(7th Cir. 1996). But here the delay was in getting a diagnostic test. Simpson did not show
that he was actually denied treatment or even that a treatment for pancytopenia exists. The
record shows that pancytopenia is merely an indicator that something else is awry: it is not
treated directly but is resolved by addressing the underlying illness that caused it. And
Simpson never alleged that his HIV went untreated. Nor did he contend that he has
another disease that might cause pancytopenia, such as leukemia, for which he did not
receive treatment because his hematology evaluation was delayed. Indeed, when
presented with the option of investigating further what had triggered his pancytopenia,
Simpson opted to take a wait-and-see approach precisely because the likelihood of finding
a treatable cause for the symptom was low. Yet to succeed on his Eighth Amendment
claim, Simpson had to establish with evidence that he had an objectively serious medical
need, which in a case like this means that he had a diagnosed condition requiring
treatment. See Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir. 2007); Williams v. Liefer, 491
F.3d 710, 714-15 (7th Cir. 2007). His failure to show that he needed any treatment at all
(beyond the regular blood tests he already receives) therefore dooms his suit.
Simpson next contends that the district court wrongly excluded as hearsay Suliene’s
statement in an affidavit that she had consulted with Dr. Williams by email and he agreed
with her that Simpson did not have pancytopenia. We review claims of evidentiary error
for an abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); Cody v. Harris, 409
F.3d 853, 860 (7th Cir. 2005). According to Simpson, had the statement been admitted, he
would have been able to present a question of material fact because, he says, Williams
denied the exchange and Alsum stated that there were no emails between Suliene and
Williams.
Simpson is right that the district court should have met his demand to admit at least
Suliene’s representation about her side of the purported conversation, since it is a
nonhearsay statement of a party opponent if offered against her. See FED. R. EVID.
801(d)(2)(D); Germano v. Int’l Profit Ass'n, Inc., 544 F.3d 798, 801 (7th Cir. 2008). And the
statement had relevance if shown to be false, since a lie about consulting with Williams
might indicate that Suliene did ignore Simpson’s condition until he filed suit and was
trying to cover. The problem for Simpson, however, is that he himself failed to produce
admissible evidence that Dr. Williams denied exchanging emails with Suliene. Simpson’s

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No. 09-1047 Page 4
account of what Williams purportedly told him is hearsay, and the letter from Alsum does
not rule out that an exchange occurred (it could have been deleted or misplaced). In the
end, though, even if the evidence had unfolded as Simpson envisioned, all he would have
shown is that Suliene had failed to investigate whether he had pancytopenia—not that the
condition required treatment he did not receive. Excluding the statement was therefore
harmless. See Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004) (applying
harmless error analysis to evidentiary ruling).
Simpson also challenges the district court’s grant of summary judgment in favor of
Alsum. He contends that Alsum was “at all times” involved in his health care and cites her
job description, which provides that she “works with the primary care physician.” Alsum’s
primary role at the prison was administrative, not providing health care, but even if she
had participated in Suliene’s treatment decisions, Simpson did not establish any Eighth
Amendment violation by Suliene. That failure of proof likewise ends the case as to Alsum.
Finally, Simpson argues that the district court erred in denying his motion to
sanction Suliene and her counsel, a decision we review for an abuse of discretion. See
Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008). Simpson believes
that Suliene should be sanctioned because he thinks she perjured herself in the affidavit
statement that the court excluded. The court reasoned that sanctions would be
inappropriate because Simpson had not shown that the inconsistency between the affidavit
and Alsum’s and Williams’s statements rose to the level of perjury, defined as giving “false
testimony concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.” United States v. Bermea-
Boone, 563 F.3d 621, 626-27 (7th Cir. 2009) (quotations omitted). As we have noted already,
Simpson did not even establish through admissible evidence that Suliene’s affidavit is
untrue; Simpson could be the one who has misrepresented the content of a communication
with Williams. And if Simpson’s representation is truthful, it is possible that Suliene
deliberately lied, but it is also possible that she misremembered, that the email exchange
had been deleted, or that Williams and Alsum were wrong. Cf. Allen v. Chi. Transit Auth.,
317 F.3d 696, 702 (7th Cir. 2003) (finding perjury where plaintiff admitted he lied at
deposition). The district court’s decision was not an abuse of discretion. See Montano v.
City of Chi., 535 F.3d 558, 564 (7th Cir. 2008) (holding that discrepancies in testimony do not
amount to perjury).
AFFIRMED.

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