Michael J. Zuege, Jr. v. Daniel Knoch, et. al.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2011 *
Decided May 20, 2011
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10-3373
MICHAEL J. ZUEGE, JR.,
Plaintiff-Appellant,
v.
DANIEL KNOCH, et. al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 09-cv-451-wmc
William M. Conley,
Chief Judge.
O R D E R
Michael Zuege, a former Wisconsin inmate, appeals from the district court’s grant of
summary judgment on his claim under 42 U.S.C. § 1983 that prison officials were
deliberately indifferent to his medical needs when they failed to properly diagnose and treat
his vision problems. Because he cannot show that the defendants acted with the required
mental state, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. A PP. P.
34(a)(2)(C).

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No. 10-3373 Page 2
In 2007 an ophthalmologist who examined Zuege at the Oakhill Correctional
Institution suspected that he might have Keratoconus or Fuchs’ dystrophy. Keratoconus is a
deterioration in the shape of the cornea that causes blurred vision. See Mayo Clinic,
Keratoconus, www.mayoclinic.com/health/keratoconus/DS01116 (last visited April 4, 2011).
Fuchs’ dystrophy causes the cells that line the cornea to die off, leading to fluid build-up
and blurred vision. See Mayo Clinic, Fuchs’ dystrophy, www.mayoclinic.com/health/
fuchs-dystrophy/DS01147 (last visited April 4, 2011). The ophthalmologist referred Zuege to
Dr. Daniel Knoch, an ophthalmologist at the University of Wisconsin School of Medicine
and Public Health.
Dr. Knoch determined that Zuege had uncorrected vision of 20/150 in his right eye
and 20/400 in his left eye and diagnosed him with Keratoconus. Dr. Knoch referred Zuege to
Robert Lazorik, coordinator of the university’s contact lens clinic, for a fitting for rigid
contact lenses—the primary treatment for Keratoconus. That same day Lazorik fitted Zuege
with rigid contact lenses that improved his vision to 20/40 in each eye. Lazorik examined
Zuege one month later to check the fit of the lenses and to ensure that there was no corneal
strain.
Zuege returned to Dr. Knoch two months later and confirmed that he was seeing
better, but complained that his contacts were uncomfortable and that his eyes were drying
out. Dr. Knoch recommended that he use artificial tears four times a day. At an
appointment three months later, Zuege complained that his eyes were still drying out and
Dr. Knoch advised using artificial tears six times a day. During this appointment Zuege
overheard a resident ask Dr. Knoch if Zuege had Fuchs’ dystrophy, but Dr. Knoch
explained to the resident that it was not Fuchs’ dystrophy because there were no corneal
clefts. Dr. Knoch also ordered an MRI and other tests, all of which came back with normal
results. Dr. Knoch then referred Zuege to Lazorik to try a “piggyback” lens—a soft lens
worn under the rigid contact lens—to improve the fit of the rigid lenses. The piggyback
lenses, however, did not make the rigid lenses more comfortable.
Zuege complained that his vision was still deteriorating when he was transferred to
Prairie du Chien Correctional Institute in the fall of 2008. Dr. Donna Higgins, an
ophthalmologist, confirmed the diagnosis of Keratoconus and fitted Zuege with new hard
contact lenses. Dr. Higgins noted that Zuege’s corneas were “warped” and “mangled,”
possibly from wearing contact lenses that were too tight. Dr. Higgins also diagnosed Zuege
with Fuchs’ dystrophy and prescribed eye drops and ointment. Dr. Higgins noted that the
only other treatment option was a cornea transplant but did not recommend this procedure
because it involves high risks.

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No. 10-3373 Page 3
Zuege sued Dr. Knoch, Lazorik, and the University of Wisconsin Hospitals and
Clinics Authority claiming that they violated the Eighth Amendment by failing to diagnose
and treat his Fuchs’ dystrophy. Zuege also claimed that their negligent treatment damaged
his vision and caused him emotional harm, and sued for medical malpractice under state
law.
The district court granted summary judgment on the deliberate-indifference claim,
finding that Zuege did not show that Dr. Knoch and Lazorik failed to take reasonable
measures to provide him with necessary treatment. The court pointed out that Dr. Knoch
and Lazorik examined Zuege seven times over the course of nine months and
responded—by trying piggyback lenses and a regiment of artificial tears—when Zuege
complained that the lenses they prescribed were painful. The court concluded that even if
Dr. Knoch and Lazorik failed to diagnose and treat Zuege for Fuchs’ dystrophy, Zuege had
not shown that they deliberately disregarded his eye condition. The district court also noted
that it was undisputed that there is no treatment for Fuchs’ dystrophy that would have
delayed its onset or progression. The district court declined to exercise supplemental
jurisdiction over Zuege’s state-law malpractice claims.
On appeal Zuege argues that the district court erred when it granted summary
judgment on his deliberate-indifference claim because the court should have found that
failing to treat him for Fuchs’ dystrophy violated the Eighth Amendment. Zuege relies on
his referral to Dr. Knoch from the ophthalmologist at Oakhill Correctional Institution, which
suggested Zuege may have Fuchs’ dystrophy, and Dr. Knoch’s conversation about Fuchs’
dystrophy with a resident at one of Zuege’s appointments to argue that Dr. Knoch was
aware of a serious medical condition and disregarded it.
To show that Dr. Knoch and Lazorik were deliberately indifferent to a serious
medical condition, Zuege must establish that they were aware of a medical need and
disregarded it. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994); Hayes v. Snyder, 546 F.3d
516, 522 (7th Cir. 2008). Even gross negligence is insufficient to establish a constitutional
violation if the defendants are not subjectively aware of a risk of harm from their
inadequate treatment. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). Thus neither an
incorrect diagnosis nor a disagreement about the proper course of treatment alone is
sufficient to show deliberate indifference. Mingus v. Butler, 591 F.3d 474, 480 (6th Cir. 2010);
Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010); Norfleet v. Webster, 439 F.3d 392, 396 (7th
Cir. 2006); Johnson v. Doughty, 433 F.3d 1001, 1012-13 (7th Cir 2006).
The record does not support Zuege’s contention that Dr. Knoch and Lazorik
disregarded a serious medical need. As the district court noted, Dr. Knoch and Lazorik
repeatedly examined Zuege and responded to his complaints of eye pain by recommending

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No. 10-3373 Page 4
piggyback lenses and artificial tears. Dr. Knoch’s discussion of Fuchs’ dystrophy with a
resident at one of Zuege’s appointments shows that he considered Fuchs’ dystrophy but did
not think it was the proper diagnosis for Zuege’s symptoms. The district court properly
concluded that since Zuege had not shown that Dr. Knoch’s diagnosis was “so far afield of
accepted professional standards as to raise the inference that it was not actually based on a
medical judgment,” there is no basis to infer deliberate indifference to Zuege’s eye
condition. Norfleet, 439 F.3d at 396.
Zuege also generally challenges the district court’s refusal to exercise supplemental
jurisdiction over his state-law malpractice claims. The district court dismissed these claims
because they implicated unsettled issues of Wisconsin law that the court thought were
better handled by state courts.
Having granted summary judgment on Zuege’s federal claim, the district court did
not abuse its discretion by dismissing the state-law claims. When all federal claims are
dismissed before trial, a district court should relinquish jurisdiction over pendant state-law
claims unless the statute of limitations has run, substantial judicial resources have already
been committed to resolving the pendant claims, or it is absolutely clear how the claims will
be decided. See 28 U.S.C. § 1367(c)(3); Sharp Elec. Corp. v. Metro. Life Ins. Co., 578 F.3d 505,
514-15 (7th Cir. 2009).
Accordingly, we AFFIRM the judgment of the district court.

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