Joshua Kaszuba v. Parthasarth Ghosh

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 21, 2014 *
Decided October 22, 2014
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐3807
JOSHUA KASZUBA,
Plaintiff‐Appellant,
v.
PARTHASARTH GHOSH,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 11 C 7631
Harry D. Leinenweber,
Judge.
O R D E R
Joshua Kaszuba, an Illinois inmate who developed a benign mass on his neck,
appeals the grant of summary judgment against him in his lawsuit asserting deliberate
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
*After examining the parties’ 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)(C).

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indifference by Parthasarth Ghosh, the former medical director of the Stateville
Correctional Center. See 42 U.S.C. § 1983. We affirm.
Kaszuba noticed a mass on his neck in 2008 while at Stateville. Over the next year
he transferred to two other prisons where he also sought treatment for the mass, which
was soft and approximately 3 cm by 2 cm. The medical director at Menard Correctional
Center determined that the mass was probably a lipoma (a benign tumor composed of
adipose fatty tissue). Kaszuba was transferred back to Stateville in late 2009 and was
examined by a doctor about the mass. The doctor offered him pain medication, which
Kaszuba declined, but did not give him other treatments. Kaszuba maintains that he
made several requests to see Ghosh during this time by filing grievances, writing letters,
and having friends and family call the prison.
After six months at Stateville, Kaszuba finally met with Ghosh, a licensed
physician. Ghosh examined the mass and then referred Kaszuba for a consultation with
an outside specialist, who in turn recommended a CT scan and noted that surgery
would likely be needed. Ghosh authorized the scan, which Kaszuba received a month
later, and based on the results Ghosh determined that Kaszuba did not require
immediate surgery or further evaluation.
Four months later Kaszuba complained to Ghosh that the mass was causing him
pain. Ghosh examined Kaszuba and noted that the mass was enlarged, so he again
referred Kaszuba to an outside specialist. Based on that consultation, Ghosh approved
Kaszuba for surgery, and three weeks later doctors removed the mass (which was
confirmed to be benign). Around this same time Ghosh retired.
Kaszuba sued Ghosh and the medical directors of both Pontiac and Menard
Correctional Centers, alleging that they violated the Eighth Amendment by deliberately
disregarding his serious medical condition despite being aware of the risk of harm,
causing him “extreme emotional and physical pain.” The district court screened the
complaint and dismissed Kaszuba’s claims against the Pontiac and Menard medical
directors as time‐barred, but allowed the claim against Ghosh to proceed to discovery.
After further proceedings the court ultimately granted Ghosh’s motion for
summary judgment. The court noted that a genuine fact question existed about whether
Kaszuba exhausted his administrative remedies, but went on to conclude that no
rational jury could find that Ghosh was deliberately indifferent to Kaszuba’s medical
condition. The court found that Ghosh did not know about the lipoma until he first

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No. 13‐3807 Page 3
examined Kaszuba (in April 2010), and so could not have been deliberately indifferent
before that time; and Ghosh had provided adequate treatment after becoming involved
in Kaszuba’s care.
On appeal Kaszuba first argues that the district court erroneously concluded that
Ghosh was not responsible for any delay in treatment because he did not know about
the lipoma for six months. Ghosh must have known earlier about the mass, he contends,
because he wrote to Ghosh, and had friends and family call on his behalf, begging
Ghosh to evaluate the mass.
But as the district court properly explained, Kaszuba did not present evidence
showing that Ghosh had actual knowledge of a risk to his health. See Farmer v. Brennan,
511 U.S. 825, 829 (1994); Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Kaszuba did
not produce, for examples, copies of the letters he wrote to Ghosh about his condition.
An affidavit shows that a friend did call the prison about Kaszuba’s condition, and
requested medical assistance for him, but states that she did not actually talk to Ghosh,
just other “medical staff.” And although Kaszuba submitted a declaration asserting that
he spoke to Ghosh during his first six months at Stateville, he does not specify the
contents of that conversation. Also, to the extent Kaszuba thinks that Ghosh in his
capacity as medical director should be personally responsible for patient care, the
evidence does not support an inference that Ghosh condoned any unconstitutional
practice by other prison employees. See Minix v. Canarecci, 597 F.3d 824, 833–34 (7th Cir.
2010).
Next Kaszuba argues that the district court wrongly determined that he was
adequately treated by Ghosh, because Ghosh’s year‐long delay in scheduling an
operation caused him unnecessary pain. But we agree with the district court that
Kaszuba’s claim shows at most a disagreement over the choice of treatment, not its
constitutional inadequacy. See Budd v. Motley, 711 F.3d 840, 844 (7th Cir. 2013) (affirming
dismissal of deliberate‐indifference claim because plaintiff, although dissatisfied with
treatment, “received medical attention, medication, testing, and ongoing observation”).
The district court also correctly explained that the evidence of isolated incidents of
delay did not rise to the level of deliberate indifference. See Gutierrez v. Peters, 111 F.3d
1364, 1375 (7th Cir. 1997) (affirming dismissal of deliberate‐indifference claim because
prison physician provided almost continuous care despite some isolated delays). The
evidence here shows that Ghosh evaluated Kaszuba multiple times, sent him for
consultations with specialists and for a CT scan, prescribed pain medication, and

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No. 13‐3807 Page 4
eventually approved surgery to remove the mass after he complained it was enlarging
and causing him pain.
AFFIRMED.

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