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Harper v. Santos

United States Court of Appeals, Seventh Circuit

February 13, 2017

Nathaniel Harper, Plaintiff-Appellant,
Venerio M. Santos and Terri Dean, Defendants-Appellees.

          Argued November 16, 2016

         Appeal from the United States District Court for the Southern District of Illinois. No. 12-CV-1188 - Nancy J. Rosenstengel, Judge.

          Before Easterbrook, Kanne, and Hamilton, Circuit Judges.

          PER CURIAM.

         Nathaniel Harper, an Illinois prisoner, sued a prison doctor, Venerio Santos, and nurse, Terri Dean, for deliberate indifference towards his pain following nine abdominal surgeries, the management of his diet, and inattention to a possible renal cell tumor. See 42 U.S.C. § 1983. The district court granted summary judgment for the defendants, concluding that Harper had not produced evidence from which a jury could find that either defendant ignored a substantial risk of harm. We affirm.

         Harper, a prisoner at the Centralia Correctional Center, was seen by a nurse at the health center on December 3, 2010, for complaints of nausea and vomiting. Harper asserts that Nurse Dean examined him, but the defendants contend that he was examined by another nurse. The nurse determined that Harper was constipated and sent him back to his cell with instructions to drink clear liquids and return if symptoms persisted.

         The parties also disagree over events the following day, when Harper returned with complaints that he still had stomach pains and was vomiting. Harper asserts that Nurse Dean evaluated him, laughed at his plight, and told him that there was no way to relieve his constipation. He says that he returned to the health center twice more that day, only to be sent back to his cell each time and told that the nurses could not help him. The defendants, however, maintain that two nurses saw Harper at 9:00 a.m. and that Dr. Santos ordered him admitted for observation. They assert that Harper was seen and evaluated by nurses three more times that day.

         Dr. Santos examined Harper on December 5 and ordered an x-ray of his abdomen. The x-ray indicated a "GI gas pattern most consistent with" an intestinal blockage, so the doctor arranged for Harper to be transferred to St. Mary's Good Samaritan Hospital to rule out a small-bowel obstruction.

         Harper was admitted to St. Mary's that same day and later operated upon for a bowel obstruction. He remained there for 38 days due to post-surgical complications, including inflammation of a membrane lining the abdominal wall, pneumonia, an infection from a catheter, a fistula, an infection at a surgical site, dehydration, and anemia. Altogether he underwent nine surgeries at the hospital and, by the time he left, he was equipped with a temporary colostomy bag.

         Following Harper's discharge, the doctors at St. Mary's recommended a course of treatment. They advised him that he could have a regular diet, but that he should drink plenty of fluids. For pain relief, they recommended, among other things, that he take 650 mg of Tylenol and Vicodin 500 mg/5 mg every six hours as needed. In addition, the doctors advised Harper to get an ultrasound every three months to monitor a mass on his kidney that had shown up on an x-ray; in their discharge summary, however, the doctors noted that decisions about monitoring would be left to his "primary care physician."

         When Harper returned to Centralia in January 2011, Dr. Santos discontinued Harper's Vicodin prescription but responded to his subsequent complaints of pain by upping his Tylenol dosage to two 500 mg tablets every 6 hours, as needed. This dosage was reduced the following month to 650 mg of Tylenol every 6 hours.

         Besides the pain, Harper had difficulty eating. Dr. Santos started Harper on a pureed diet, but Harper began vomiting multiple times a day. Dr. Santos prescribed Harper to consume between meals one can of Fibersource, a nutritional supplement, to which he initially responded well; he was able to eat a salami sandwich, apple slices, and carrots. But Harper soon reported that he could not tolerate solid food, so his diet was changed to include protein shakes. This led to hunger pangs, and Harper often complained that he was "starving" or that he did not feel well following his meals. Harper requested double portions of food from Nurse Dean, and Dr. Santos authorized him to receive double-meal trays. When symptoms continued, Harper asked Dr. Santos to order an egg-based diet because he could tolerate them, but Dr. Santos refused. Over time, Harper expressed fears that he was "fading away" and didn't think he was "going to make it." The nurses noted that Harper looked "thin" and "frail, " but by January 30, he again was tolerating food well and had stopped complaining of nausea or vomiting.

         Harper also had minor run-ins with Nurse Dean about his care. He states that she removed an extra pillow that he was using to elevate his leg and relieve his foot pain. Harper once refused to give the pillow to her, so she filed a disciplinary report with the prison. On another instance, Harper said that she refused his request to empty his colostomy bag.

         To monitor the mass on his kidney, Harper had an ultrasound at St. Mary's in April 2011, and after that Dr. Santos monitored it with sporadic blood and urine tests that were negative. According to Harper, Dr. Santos once told him that he would not treat him because he "only" had a kidney cyst and on another occasion in 2012, Dr. Santos ...

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