Jovan Daniels v. Aletha Harper

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 22, 2016 *
Decided February 23, 2016
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15-1724
JOVAN DANIELS,
Plaintiff-Appellant,
v.
ALETHA HARPER,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:14-cv-01654
James F. Holderman,
Judge.
O R D E R
Jovan Daniels, an Illinois inmate, suffered an asthma attack. In his suit under 42
U.S.C. § 1983, Daniels accuses a prison nurse, Aletha Harper, of ignoring it. (Daniels also
sued a prison doctor, but he no longer pursues that claim). The district court granted
Harper’s motion for summary judgment. Because no evidence suggests that Harper was
aware that Daniels had an urgent, serious medical need, we affirm.
* 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)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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We construe the record in Daniels’s favor. Daniels suffers from asthma and has
been hospitalized in the past for it. He awoke in his cell one morning with difficulty
breathing. He alerted a sergeant, who told him to write a request for treatment. (The
protocol for non-emergency treatment is for an inmate to fill out a form and place it in a
box in the cellblock for pickup by a medical technician; in a medical emergency, the
inmate can bypass the form and ask a medical technician or a guard to summon
immediate medical assistance.) Following the sergeant’s instruction, Daniels wrote out a
request to go to the medical unit for trouble breathing because of his asthma. Daniels
gave the note to the sergeant who told Daniels that he would give it to a medical
technician.
Less than 20 minutes later, Daniels flagged down Nurse Harper, who was passing
out medication to other inmates. (Nurse Harper is not a medical technician, nor was she
serving as one on this day.) Daniels saw that the note he had written was now in Nurse
Harper’s bag, and he told her that he was having difficulty breathing and wanted to go
to the medical unit. Nurse Harper was not examining patients, and she normally did not
accept medical requests from inmates or guards while passing out medication.
Nonetheless she told Daniels that when she finished handing out medication she would
“see what she [could] do.”
A few hours passed (how many is unknown) before Daniels was examined. After
his brief encounter with Nurse Harper, he waited in his cell and his condition worsened.
According to Daniels, he developed audible wheezing and could breathe only shallowly.
His cellmate alerted the sergeant to Daniels’s new symptoms, and the sergeant called for
a medical technician. After several failed attempts to reach a technician, the sergeant
ordered another guard to escort Daniels to the medical unit.
After he arrived at the medical unit, Daniels was examined, but the staff
considered treatment unnecessary. A medical technician took his blood pressure,
listened to his lungs, and then left. When she returned about ten minutes later, she told
Daniels that “Dr. [Saleh] Obaisi said I was fine and to send me back to my unit.” Daniels
returned to his cell. Over the next ten hours, his condition deteriorated further. He
wheezed and coughed loud enough to awake his cellmate around 11 p.m. Daniels told
the cellmate that he was now nauseous, light-headed, and feared for life. His cellmate
called for a medical technician who arrived promptly and escorted Daniels to the
prison’s emergency room.
Daniels received treatment that resolved the situation. A nurse examined him and
noted that he had audible wheezing, difficulty breathing, and could not say a full

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sentence. The nurse gave him a breathing treatment consisting of aerosolized albuterol,
and a doctor ordered steroid pills and overnight observation. By early the next morning
Daniels reported that he was feeling fine, although soon after he was worried that his
difficulty breathing and wheezing had returned. At noon Dr. Obaisi examined Daniels
and concluded that he could be discharged back to his cell. Dr. Obaisi continued
Daniels’s prescription for steroid pills and prescribed a new inhaler. Thereafter,
Daniels’s breathing problems subsided with no further intervention.
In this suit, Daniels alleges that Nurse Harper acted recklessly when she failed to
summon medical assistance for him immediately when she saw him. The district court
granted her motion for summary judgment. It explained that Nurse Harper had not
acted recklessly because, among other reasons, no evidence suggested that when she
saw Daniels she knew (or recklessly disregarded) that Daniels was suffering from a
condition requiring instant treatment.
On appeal, Daniels raises one argument: Nurse Harper knew that Daniels was
suffering from a serious medical condition and she failed to alert the medical unit
promptly. Because, Daniels continues, she was deliberately indifferent to his medical
needs, the district court erred in granting summary judgment.
But no evidence in the record supports Daniels’s assertion that, when Nurse
Harper saw him, she knew that his condition was serious and urgent. We recognize that
“[a]sthma can be, and frequently is, a serious medical condition, depending on the
severity of the attacks.” Board v. Farnham, 394 F.3d 469, 484 (7th Cir. 2005); see Garvin v.
Armstrong, 236 F.3d 896, 898 (7th Cir. 2001). And we can assume that Daniels had a
severe asthma attack. But Daniels needed to provide evidence suggesting that Nurse
Harper disregarded symptoms from which she could infer that he was having a severe
attack, and he has not. See Perez v. Fenoglio, 792 F.3d 768, 776–77 (7th Cir. 2015); Pittman ex
rel. Hamilton v. Cnty. of Madison, Ill., 746 F.3d 766, 776 (7th Cir. 2014). Daniels told Nurse
Harper only that he was having difficulty breathing because of asthma and wanted
treatment. He did not report, and does not assert that he displayed, to her the symptoms
of an attack that he says he developed only later, after she saw him: wheezing, coughing,
shallow breathing, nausea, light-headedness, and an inability to complete sentences.
Without seeing and disregarding symptoms of a severe attack, Harper was not aware of
a substantial risk of serious harm to Daniels that required immediate medical attention.
See Williams v. Rodriguez, 509 F.3d 392, 402 (7th Cir. 2007) (inmate who said to officer that
he had asthma, “can’t breathe,” and “needed [his] medication,” but did not “exhibit[]

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physical symptoms reflective of an asthma attack” did not display a serious medical
condition.)
What is more, the record actually contains evidence that belies Daniels’s
contention that a medical professional in Nurse Harper’s position would have perceived
a need for immediate treatment. A few hours after Nurse Harper saw Daniels, when he
says that his condition had deteriorated somewhat, staff at the medical unit who
examined him did not detect an emergency. Both a medical technician and Dr. Obaisi
did not think that his condition was serious enough to require intervention. (Although
Daniels sued Dr. Obaisi in this case for his inaction, Daniels has on appeal acquiesced in
the district court’s grant of summary judgment to the doctor.) It wasn’t until nearly
twelve hours after Daniels’s encounter with Nurse Harper that his condition had
developed into a full-blown asthma attack, with the attendant physical symptoms. And
at that point he received the care that resolved his condition. But because a reasonable
trier of fact could not conclude from this record that Nurse Harper saw and recklessly
ignored signs of a severe asthma attack when she briefly saw him a half day earlier, she
is entitled to summary judgment. See Burton v. Downey, 805 F.3d 776, 784 (7th Cir. 2015);
Cavalieri v. Shepard, 321 F.3d 616, 621 (7th Cir. 2003).
AFFIRMED.

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