Lee Blankenship v. Kimberly Birch

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 4, 2014 *
Decided November 5, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13-3296
LEE BLANKENSHIP,
Plaintiff-Appellant,
v.
KIMBERLY BIRCH,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 10-542-GPM
G. Patrick Murphy,
Judge.
O R D E R
Lee Blankenship, an Illinois state prisoner, challenges the district court’s grant of
summary judgment to Dr. Kimberly Birch. Blankenship sued Dr. Birch under 42 U.S.C.
§ 1983, accusing the physician of deliberate indifference to the pain in his left elbow and
the numbness in his toes. Because no reasonable juror could conclude from the record
that Dr. Birch denied Blankenship constitutionally adequate care, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* This successive appeal was submitted to the original panel under Seventh
Circuit Operating Procedure 6(b). 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. 13-3296 Page 2
We recount the facts in the light most favorable to Blankenship. See Tradesman
Int’l, Inc. v. Black, 724 F.3d 1004, 1009 (7th Cir. 2013). Following an unexplained injury in
2006, Blankenship began to experience chronic pain in his elbow. An orthopedic
surgeon determined in January 2009 that Blankenship had degenerative joint disease
and loose bone fragments in his left elbow and recommended surgery. The surgery,
however, was delayed until July because Blankenship had an abnormal EKG test.
About a week after surgery, the orthopedist wrote that he wanted Blankenship to
stretch, exercise, and see him again in about two months for a follow-up visit.
Dr. Birch, the prison’s medical director, also treated Blankenship. She first saw
Blankenship shortly before his surgery to treat his hypertension and examined him
again after surgery. In a visit the day after the surgery, Dr. Birch prescribed Ultram and
Motrin for his elbow pain. (Blankenship later refused to take these drugs because he
feared stomach damage.) Two months after the surgery, around the time that the
surgeon had recommended a follow-up visit, Blankenship saw Dr. Birch. He reported
no pain, and Dr. Birch advised him to continue to stretch regularly.
Blankenship never saw the orthopedist for follow-up, but he continued to see
Dr. Birch throughout the fall and winter of 2009. When he complained to a nurse in
December that his left toes were numb, the nurse sent him to Dr. Birch. The doctor
examined Blankenship’s toes three days later and found them to have good circulation
with no swelling or discoloration. Dr. Birch assured Blankenship that the numbness in
his toes was not from hypothermia but probably caused by ill-fitting shoes. She advised
Blankenship to wear different shoes and to follow-up with her.
About a year after surgery, in July 2010, Blankenship began to experience
renewed elbow pain and numbness in his left toes. Dr. Birch ordered x-rays of the foot
and elbow joints. The x-rays revealed osteoarthritis, an incurable condition. Two
months later Blankenship reported that several toes were still numb, so Dr. Birch
prescribed him Neurotin (a pain reliever for nerve pain) and recommended that he get
new shoes. The next month, Blankenship reported that the numbness had receded
though he had not gotten the new shoes. Dr. Birch received no more complaints about
Blankenship’s toes, and by November 2010 Blankenship no longer complained to
anyone about his toes or elbow.
In moving for summary judgment, Dr. Birch argued that she was not deliberately
indifferent because she provided Blankenship adequate care, including pain medication
and a stretching regimen following his elbow surgery. She also argued that

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No. 13-3296 Page 3
Blankenship’s numb toes were not a serious medical condition and that, in any event,
she prescribed him Neurotin to deal with that problem. Blankenship responded to the
motion, and the court set a hearing on it. Blankenship did not appear at the hearing, so
the district court granted Dr. Birch’s summary-judgment motion both because of
Blankenship’s absence and because Dr. Birch was not deliberately indifferent.
Blankenship responded with three motions, all of which the court denied. First, he
asked for more time to appeal the grant of summary judgment. He argued that he was
not at the summary-judgment hearing because he was incarcerated, guards would not
take him to court, and he had no money to purchase stamps to contact the court. Second,
after the court refused his request, he asked the court to reconsider it. And third, he later
moved for post-judgment relief under Federal Rule of Civil Procedure 60(b).
These rulings prompted three appeals. We construed the first appeal—the
present one—as challenging both the ruling on summary judgment and the decision to
deny him extra time to appeal that ruling. After a limited remand from us, the district
court gave Blankenship the extra time to appeal, we granted him pauper status, and we
then ordered the parties to brief the merits. Blankenship filed two more appeals, one
(again) challenging summary judgment and another challenging the denial of his
motion under Rule 60(b). We dismissed these for failure to pay the filing fees, but we
refused to collect the fee for the second appeal of the summary-judgment ruling after
observing that we allowed the first appeal to proceed to the merits of that ruling.
Before evaluating the merits of this appeal, we address Dr. Birch’s threshold
contention that this appeal is moot. She argues that Blankenship has already received
the only relief that he requested in this appeal—time to appeal the ruling on summary
judgment, and we dismissed (for failure to pay filing fees) his later appeal of that
summary-judgment ruling. But Blankenship’s challenge to summary judgment is not
moot. First, there remains a live controversy between Blankenship and Dr. Birch over
the adequacy of his medical care. See Aljabri v. Holder, 745 F.3d 816, 820 (7th Cir. 2014).
Second, by refusing to collect a fee for the second appeal of the grant of summary
judgment, we recognized that this first appeal challenged that grant. Third, the
dismissal of the second appeal for failure to pay the filing fee was not a decision on the
merits, so it does not preclude this appeal. See Logan v. Zimmerman Brush Co., 455 U.S.
422, 437 (1982); Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011)
(dismissal for failure to prosecute not a dismissal on the merits of the case). Thus we
proceed to the merits.

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No. 13-3296 Page 4
To defeat Dr. Birch’s motion for summary judgment, Blankenship needed to
provide evidence that his medical needs were serious and that Dr. Birch knew of and
disregarded a substantial risk of harm from these medical needs. See Estelle v. Gamble,
429 U.S. 97 (1976); Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). He has not.
Blanknenship first contends that, by failing to prescribe any pain medication to
him after his surgery, Dr. Birch was indifferent to his elbow pain. But Blankenship
offers no evidence to support this argument. In fact, the record shows that a day after
surgery Dr. Birch prescribed Blankenship two drugs, Ultram and Motrin, for his pain.
Blankenship later refused to take the pain medication, but when a prisoner chooses not
to receive treatment, including pain medicine prescribed by a doctor, the doctor is not
deliberately indifferent. See Pinkston v. Madry, 440 F.3d 879, 892 (7th Cir. 2006) (finding
no deliberate indifference when inmate refused offered medical care); Walker v. Peters,
233 F.3d 494, 500 (7th Cir. 2000) (finding no deliberate indifference when inmate refused
to take preliminary test before beginning treatment).
Blankenship next argues that Dr. Birch failed to provide adequate treatment for
his numb toes, but here too the record compels the opposite conclusion. Over a
six-month period she examined his toes, took x-rays, prescribed another drug for
numbness and pain, and urged him to use different shoes (advice that he ignored). This
combination of treatment refutes any claim of deliberate indifference to his medical
needs. Budd v. Motley, 711 F.3d 840, 844 (7th Cir. 2013); Gutierrez v. Peters, 111 F.3d 1364,
1375 (7th Cir. 1997).
Blankenship also contends that Dr. Birch failed to prescribe physical therapy
after his surgery, but this argument also does not suggest deliberate indifference.
Although Dr. Birch did not prescribe physical therapy, she recommended that
Blankenship complete a stretching routine. The National Institute of Health reports that
stretching is a standard post-operative practice, see Phil Page, Current Concepts in Muscle
Stretching for Exercise and Rehabilitation, INT’ L J OURNAL OF SPORTS P HYSICAL T HERAPY,
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3273886/ (last visited on Oct. 22, 2014),
and Blankenship offers no contrary evidence. In any event, a disagreement over a
reasonable recovery regimen is insufficient to establish an Eighth Amendment
violation. Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (observing that a
disagreement with prison doctors over a reasonable course of treatment is not a
cognizable claim); Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997) (ruling that Eighth
Amendment does not guarantee specific medical treatment).

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No. 13-3296 Page 5
Finally Blankenship argues that Dr. Birch was deliberately indifferent because
she did not advise him to follow-up with the surgeon two months after surgery, as the
orthopedist had recommended. Ignoring a surgeon’s instructions to return an inmate
for follow-up care can support a claim of deliberate indifference. See Arnett v. Webster,
658 F.3d 742, 753 (7th Cir. 2011); Gil v. Reed, 381 F.3d 649, 663–64 (7th Cir. 2004). But to
succeed, Blankenship needed to show that the lack of follow-up visit worsened his
elbow condition. See McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010); Knight v.
Wiseman, 590 F.3d 458, 466 (7th Cir. 2009). And the record does not suggest that
Blankenship’s elbow pain worsened as a result of not visiting the orthopedist two
months after the surgery. To the contrary, his medical records are devoid of any
complaints about elbow pain until July 2010, nearly a year after surgery. At that point
Dr. Birch sent Blankenship for x-rays and diagnosed osteoarthritis, a condition for
which surgery is not a cure. Thus Blankenship failed to show that his condition
worsened because he did not receive more surgical attention. See Estelle, 429 U.S. at 107.
Accordingly, the district court’s judgment is AFFIRMED.

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