Eduardo M. Perez v. Sharon Zunker

*Only appellee Sharon Zunker is participating in this appeal. The remaining
appellees were never served with process in the district court. After examining the briefs
and record, we have concluded that oral argument is unnecessary. Accordingly, the appeal
is submitted on the briefs and record. See FED. R. A PP. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2008*
Decided May 27, 2008
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3202
EDUARDO M. PEREZ,
Plaintiff‐Appellant,
v.
SHARON ZUNKER, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 05‐C‐711‐C
Barbara B. Crabb,
Chief Judge.
O R D E R
Wisconsin inmate Eduardo Perez claims in this action under 42 U.S.C. § 1983 that the
defendants, four current or former employees of the Department of Corrections, violated the
Eighth Amendment when they did not authorize surgery in 1997 for a back injury he
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐3202 Page 2
suffered that year. Perez also claims that one of the defendants, the Nursing Coordinator
for the department’s Bureau of Health Services, violated the Eighth Amendment when in
2005 she recommended denying his grievance complaining that he had not been sent to a
pain clinic for treatment of chronic arthritis and degenerative disc disease. The district
court screened Perez’s complaint, see 28 U.S.C. § 1915A, and dismissed the first claim
because Perez already had sued the same defendants on the same theory in 2001 and lost.
The court allowed the second claim to proceed against the Nursing Coordinator but granted
summary judgment for the defendant. Perez appeals, and we affirm.
The vast majority of facts in this case are undisputed. In July 1997, while
incarcerated in a Texas jail that temporarily housed Wisconsin prisoners, Perez fell while
taking a shower and injured his back. He was examined by medical personnel and given
medication for his pain. When his pain persisted, jailers referred him to a neurosurgeon
who diagnosed him as having a herniated disc and recommended surgery. But on
September 12, 1997, just two days after that diagnosis, Perez was transferred back to
Wisconsin. Within days of his arrival in Wisconsin, Perez was examined by a prison
physician and referred to the Neurosurgery Clinic at the University of Wisconsin Hospital.
An MRI performed at the clinic in October confirmed that Perez indeed suffered from a
herniated disc, but the treating neurosurgeon informed Perez that surgery would not correct
his back condition and recommended a more conservative course of treatment. After that
Perez received back therapy at the prison where he was confined.
Unhappy with this treatment plan, Perez sought to vindicate his rights in court. In
1999 he brought his first suit against the Department of Corrections and its secretary at the
time, claiming that the failure to provide back surgery constituted cruel and unusual
punishment in violation of the Eighth Amendment. The district court for the Eastern
District of Wisconsin granted summary judgment for the defendants, but at the defendants’
urging we vacated that decision and remanded with instructions to dismiss the suit for
failure to exhaust administrative remedies as required under the Prison Litigation Reform
Act, see 42 U.S.C. § 1997e(a). See Perez v. Wis. Dept. of Corrs., 182 F.3d 532 (7th Cir. 1999).
Perez then tried his luck in the Western District of Wisconsin in 2001, bringing the same
claim against the defendants named in this action. The district court there granted
summary judgment for the defendants, reasoning that the denial of back surgery in Perez’s
case did not rise to the level of an Eighth Amendment violation. See Perez v. Sullivan, 52
Fed. App’x. 275 (7th Cir. 2002) (affirming grant of summary judgment).
Meanwhile, according to Perez, he was still suffering from persistent back pain
during this protracted litigation. In March 2004, he says, a neurosurgeon at the University
of Wisconsin Hospital recommended that he receive treatment for chronic pain at the
hospital’s pain clinic, but he was never sent to the pain clinic despite repeated requests. In

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No. 07‐3202 Page 3
September 2005 Perez filed an inmate grievance, claiming that the prison’s failure to get him
treated at the pain clinic constituted cruel and unusual punishment. A grievance examiner
(who is not a defendant in this suit) investigated Perez’s grievance and recommended that it
be denied. The examiner reported that Perez had last visited the Health Services Unit
shortly before he filed his grievance, that he was given medication for his back pain, and
that he was scheduled for a follow‐up visit. The examiner acknowledged that Perez had
said in his grievance that he desired to visit the pain clinic at the University of Wisconsin,
but suggested that Perez should contact medical personnel in the Health Services Unit
regarding the clinic. Defendant Zunker, the Nursing Coordinator, reviewed Perez’s
grievance and agreed with the examiner that it should be denied. That decision was upheld
after Perez sought further administrative review.
Perez then filed the present suit. After the district court allowed the claim against
Zunker to proceed, she moved for summary judgment. In support of her motion, Zunker
submitted her own affidavit acknowledging that she served as the system‐wide Nursing
Coordinator for the department’s Bureau of Health Services during 2004 and 2005 when
Perez wanted to be treated at the pain clinic. Zunker’s affidavit establishes, however, that
as Nursing Coordinator she neither treats inmates nor supervises their care. According to
her affidavit, one of Zunker’s duties was to review certain inmate grievances after they were
investigated. Zunker said that, based on the recommendation of the grievance examiner
who reported that medical personnel had just treated Perez for his back pain and would be
seeing him again soon, she joined in recommending that Perez’s grievance be denied.
Perez responded to Zunker’s motion with repeated requests for more time. The
district court, concerned that Perez’s limited English skills might impede his ability to
present his claim, enlisted counsel to assist Perez. But counsel moved to withdraw several
months later, and after a hearing the district court concluded that Perez could adequately
represent himself. Perez then responded to the motion for summary judgment, but he did
not produce any admissible evidence to contradict Zunker’s evidence that she was not
personally involved in decisions about his medical care. The district court then granted
summary judgment for Zunker.
Perez’s arguments on appeal are difficult to discern. To the extent that he challenges
the dismissal of his Eighth Amendment claim for failure to provide back surgery in 1997,
we review de novo a dismissal under § 1915A. See Lagerstrom v. Kingston, 463 F.3d 621, 624
(7th Cir. 2006). We agree with the district court that Perez’s claim concerning the treatment
decision made in 1997 is barred by the doctrine of claim preclusion because Perez
previously litigated the identical claim against the same defendants and lost on the merits.
See Ross ex rel. Ross v. Bd. of Educ. of Tp. High Sch. Dist. 211, 486 F.3d 279, 283 (7th Cir. 2007).
And therefore the district court appropriately screened out this claim.

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No. 07‐3202 Page 4
We also conclude that the district court correctly granted summary judgment for
Zunker on the claim that survived screening. We review a grant of summary judgment
de novo, construing all facts and reasonable inferences in favor of the nonmoving party. See
Metzger v. Ill. State Police, 519 F.3d 677, 680‐81 (7th Cir. 2008). To succeed on an Eighth
Amendment claim concerning the denial of medical care, an inmate must demonstrate that
prison officials were deliberately indifferent to a serious medical need. E.g., Williams v.
Liefer, 491 F.3d 710, 714 (7th Cir. 2007).
It is undisputed that Zunker was not responsible for treating Perez for his back pain,
nor was she responsible for referring him to a pain clinic. More importantly, there is no
evidence that Zunker personally knew that an outside neurosurgeon had recommended
that Perez visit a pain clinic, nor is there evidence that the University of Wisconsin pain
clinic would have provided specialized services that were both medically necessary and
unavailable at the Health Services Unit. In this case, Zunker’s only apparent involvement
with Perez was to review his grievance, and in that capacity she recommended that his
grievance be denied because investigation had shown that he was receiving ongoing care
for his back pain. This is not a case of a grievance examiner turning a blind eye to the denial
of appropriate medical care, see Greeno v. Daley, 414 F.3d 645, 655‐56 (7th Cir. 2005), and
there is no evidence that Perez was harmed by managing his pain through the Health
Services Unit instead of through the pain clinic at the university hospital, see Vance v. Peters,
97 F.3d 987, 993 (7th Cir. 1996). Zunker simply rejected Perez’s grievance after satisfying
herself that treatment was being provided, and no jury could reasonably conclude that her
conduct amounted to deliberate indifference, see George v. Smith, 507 F.3d 605, 609 (7th Cir.
2007).
AFFIRMED.

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