Isaac Faulkner v. James Fenoglio

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 7, 2016 *
Decided January 15, 2016
Before
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15-1052
ISAAC FAULKNER,
Plaintiff-Appellant,
v.
JAMES FENOGLIO,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:13-cv-00762-PMF
Philip M. Frazier,
Magistrate Judge.
O R D E R
Isaac Faulkner, an Illinois inmate, appeals the grant of summary judgment
against him in this suit under 42 U.S.C. § 1983 asserting that Dr. James Fenoglio, the
prison’s medical director, was deliberately indifferent in treating his fractured wrist. A
magistrate judge concluded that Faulkner had not produced evidence from which a jury
reasonably could find that the doctor was deliberately indifferent. 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NONPRECEDENTIAL DISPOSITION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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No. 15-1052 Page 2
We construe the facts surrounding the treatment of Faulkner’s wrist injury in his
favor, as he is the non-movant. See Tradesman Int’l, Inc. v. Black, 724 F.3d 1004, 1009
(7th Cir. 2013). Faulkner injured his wrist playing basketball at the Lawrence
Correctional Facility and was taken immediately to the prison’s health care unit.
Faulkner, in extreme pain, thought that his wrist was broken. He was examined by
Dr. Fenoglio, who suspected a fracture and directed that the wrist be wrapped in an Ace
bandage and iced. The doctor also prescribed two painkillers and ordered an X-ray to be
taken on the next available date. Dr. Fenoglio at the time did not think that further
treatment was needed because the suspected fracture did not appear to be “displaced”
(in other words, the bones were not misaligned). Dr. Fenoglio then left it to his staff to
carry out the orders. For three days, however, a medical technician did not dispense one
of the two prescribed painkillers to Faulkner. And only on the fourth day was an X-ray
of Faulkner’s wrist eventually taken.
Dr. Fenoglio then looked at the X-ray, diagnosed a non-displaced fracture, gave
Faulkner a sling, and referred him to an orthopedic specialist. Faulkner, however, did
not get in to see the specialist for sixteen more days. (It took a week for health-unit staff
just to call the specialist’s office.) While he waited to see the specialist, Faulkner
submitted a grievance report saying that the pain medications were not working and
that his hand and fingers were swollen and discolored. The orthopedic specialist, who
finally saw Faulkner 20 days after his injury, placed a cast on his wrist and arm, telling
him that the delay in receiving a cast later may cause arthritis and pain.
Five days later, in a follow-up appointment with Dr. Fenoglio, Faulkner reported
that he was experiencing symptoms of possible nerve damage in his hand—pain,
numbness, and tingling. Dr. Fenoglio noted that Faulkner’s hands felt cold and clammy
and that he might have reflex sympathetic dystrophy syndrome (damage to the nerve
system that can be caused by trauma such as a bone fracture). Dr. Fenoglio asked
Faulkner to come back the next day for follow-up, ordered another X-ray, and referred
him to the orthopedic specialist for a second time.
Prison staff failed to carry out one of Dr. Fenoglio’s orders and delayed others.
Because Faulkner was in segregation, prison staff denied him permission to see
Dr. Fenoglio for the follow-up appointment. Health-unit staff then took 8 days to
arrange his follow-up appointment with the specialist and 19 days to carry out the X-ray.
In the meantime Faulkner submitted another grievance report stating that he still felt
pain, numbness, and a tingling feeling in his hand.

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No. 15-1052 Page 3
Faulkner later was transferred to another correctional facility and seen by an
orthopedic specialist a third time to have his cast removed. He continued to receive
painkillers for his hand.
Faulkner then brought this deliberate-indifference suit, asserting that
Dr. Fenoglio (1) prevented him on the day of the injury from being sent to an emergency
room, where he could have received an X-ray and cast without delay; (2) delayed giving
him painkillers; and (3) delayed arranging for him to be seen by specialists.
A magistrate judge, presiding with the parties’ consent, granted summary
judgment in favor of Dr. Fenoglio. Faulkner, the court concluded, failed to point to facts
that would support an inference that the doctor knew about and disregarded an
excessive risk to his health. According to the court, Faulkner failed to identify evidence
showing that Dr. Fenoglio’s response to his injury fell outside the applicable standard of
care for a wrist fracture or reflex sympathetic dystrophy syndrome, or that Dr.
Fenoglio—as opposed to support staff—delayed delivery of prescribed medications or
the specialist referrals. Faulkner may have believed that he could have received better
and more prompt care, the court added, but his position reflects “disagreement with the
level of care provided,” which is insufficient to show deliberate indifference.
On appeal Faulkner challenges the court’s conclusion that he lacks evidence
showing that Dr. Fenoglio’s treatment decisions fell far afield of the standard of care. In
his view, the doctor’s decision to treat him conservatively with an Ace wrap, ice, and
painkillers, rather than sending him immediately to an emergency room for an X-ray
and cast, departed from the standard of care. Faulkner contends that the tight Ace wrap,
left on for 20 days while he waited to receive a cast, created an obvious risk of nerve
damage. Faulkner points in support to the Illinois Department of Corrections nursing
treatment protocol on fractures and to an untitled document describing first aid and
emergency care treatment for fractures.
But the magistrate judge properly concluded that Faulkner lacked evidence that
Dr. Fenoglio’s treatment fell outside the applicable standard of care or created a risk of
serious harm. Neither document submitted by Faulkner calls for the treatment he says
he needed (an immediate X-ray and cast). Nor does either document mention any
possible harm caused by Ace wraps or specify a course of action for cases of suspected
nerve damage. These documents thus do not permit an inference that Dr. Fenoglio’s
response was “so significant a departure from accepted professional standards or
practices that it calls into question whether the doctor actually was exercising his
professional judgment.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014); see Holloway v.

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Del. Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012); Arnett v. Webster, 658 F.3d 742, 751
(7th Cir. 2011).
Faulkner next contends that the magistrate judge erred in concluding that Dr.
Fenoglio is not responsible for the delays and missed appointment caused by his staff.
Faulkner argues that Dr. Fenoglio, as medical director, should have intervened to ensure
his orders were followed.
But § 1983 requires personal responsibility—a plaintiff must show the defendant
knew about the conduct and facilitated it, approved it, condoned it, or turned a blind
eye. Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012); Knight v. Wiseman,
590 F.3d 458, 462–63 (7th Cir. 2009). The record evidence does not reflect that
Dr. Fenoglio knew that the medical technicians delayed delivering one of the prescribed
pain medications by three days or that on two occasions staff took an entire week to
arrange appointments for Faulkner to see outside specialists. Nor does the record
suggest that Dr. Fenoglio was aware that prison staff refused to allow Faulkner to attend
his follow-up appointment. The magistrate judge properly concluded that a jury could
not reasonably find Dr. Fenoglio responsible for the delays or any misconduct of the
prison’s staff toward Faulkner. See Minix v. Canarecci, 597 F.3d 824, 834 (7th Cir. 2010)
(affirming grant of summary judgment in favor of director of medical services at jail
because there was no evidence “suggesting that [he] was aware that [nurses were]
performing incompetent assessments of suicidal inmates but nevertheless acquiesced in
that practice”).
AFFIRMED.

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