IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

CHRISTIAN AGUIRRE-HODGE,

Plaintiff, OPINION and ORDER

v. 18-cv-995-jdp

CHARLES LARSON,

Defendant.

Pro se plaintiff Christian Aguirre-Hodge

contends that defendant Dr. Charles Larson

violated the Eighth Amendment and Wisconsin

negligence law by canceling Aguirre-Hodge’s scheduled knee replacement surgery. Both parties

move for summary judgment. Dkt. 75; Dkt. 82.

Based on the totality of the care that Aguirre-Hodge

received, no reasonable jury could conclude that

Larson disregarded Aguirre-Hodge’s knee pain.

Larson’s decision to cancel the surgery pursuant to

prison protocols was not so blatantly inappropriate

that it demonstrates deliberate mistreatment. And

after Larson canceled the surgery, he took

reasonable steps to reschedule it. I will deny

Aguirre-Hodge’s motion regarding his Eighth

Amendment claim and grant Larson’s. Because I am

dismissing Aguirre-Hodge’s constitutional claim, I will relinquish jurisdiction over his state-law

negligence claim and dismiss it without prejudice.

Aguirre-Hodge also seeks to amend his

complaint to add new claims against new

defendants. I will deny the motion. It is simply too

late in the case to add new claims, and Aguirre-

Hodge does not explain why he did not move to

amend his complaint earlier. UNDISPUTED FACTS

The following facts are undisputed except where

noted.

Defendant Dr. Charles Larson was Aguirre-

Hodge’s primary care provider at Fox Lake

Correctional Institution. Aguirre-Hodge suffered

from chronic pain in his left knee. Larson treated

Aguirre-Hodge with ice, pain medication, and

steroid injections. Aguirre-Hodge told Larson that

those treatments did not relieve his pain, so Larson

approved an offsite consultation with an orthopedic

specialist in January 2018. The nurse practitioner

who conducted the consultation concluded that conservative measures to address Aguirre-Hodge’s

knee pain had failed, and he would have to live with

his symptoms or undergo joint replacement. The

report from the consultation noted that joint

replacement was an elective procedure and would

“require institutional approval.” Dkt. 77-1, at 10.

Under Department of Corrections (DOC)

policy, all “non-urgent” surgeries must be

authorized by the DOC’s Bureau of Health Services.

Dkt. 86-1, at 2. At some point following the

consultation, Aguirre-Hodge was scheduled for a

knee replacement surgery without prior authorization.1 Near the end of February, Larson

discovered that Aguirre-Hodge had been scheduled

for the surgery without authorization, and Larson

canceled it. A few days later, Aguirre-Hodge had an

appointment with Larson to discuss the institutional

approval process. After this meeting, Larson

submitted a request to authorize Aguirre-Hodge’s

knee surgery to the Bureau of Health Services. Dkt.

87-1, at 5. The bureau’s medical director, Dr. Paul

Bekx, denied the request on the grounds that

1 It’s unclear when the surgery was scheduled and who scheduled it. Larson “suspect[s] the HSU [health services unit] program assistant mistakenly scheduled it.” Dkt. 88, ¶ 14. In his briefs, Aguirre-Hodge says that Larson scheduled the surgery, but he doesn’t support that statement with evidence. See Dkt. 76, at 2. Aguirre-Hodge’s x-rays showed “only mild djd

[degenerative joint disease].” Id. at 6. The knee

replacement surgery for Aguirre-Hodge was not

rescheduled during his time at Fox Lake.

Aguirre-Hodge was transferred to New Lisbon

Correctional Institution later that year. Aguirre-

Hodge received knee replacement surgery in

February 2019, about a year after his first off-site

consultation with an orthopedic specialist. I will

discuss more facts as they become relevant to the

analysis. ANALYSIS

A. Summary judgment motions The Eighth Amendment prohibits prison

officials from consciously disregarding prisoners’

serious medical needs. Estelle v. Gamble,

,

103–04 (1976). To prevail on an Eighth

Amendment medical care claim, a prisoner must

prove that he suffered from an objectively serious

medical condition and that staff consciously failed

to take reasonable steps to help him. Duckworth v.

Ahmad,

(7th Cir. 2008). Delay

in treatment may constitute conscious disregard if

the delay unnecessarily prolongs the prisoner’s pain. Smith v. Knox Cty. Jail,

(7th

Cir. 2012). Aguirre-Hodge contends that Larson

unnecessarily prolonged his pain by canceling his

knee replacement surgery. Larson doesn’t dispute

that Aguirre-Hodge’s chronic knee pain was an

objectively serious medical condition, but he

disputes that he consciously disregarded

Aguirre-Hodge’s knee problems.

Both sides move for summary judgment.

Summary judgment is proper if no genuine issue of

material fact exists and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a).

On cross-motions for summary judgment, the court evaluates each motion separately, construing the

facts and drawing all reasonable inferences from

those facts in favor of the nonmoving party. Wis.

Cent., Ltd. v. Shannon,

(7th Cir.

2008). The court must grant summary judgment

when no reasonable jury could find for the

nonmoving party. Anderson v. Liberty Lobby, Inc.,

(1986).

In determining whether Larson consciously

disregarded Aguirre-Hodge’s knee problems, I must

look at the totality of care that Aguirre-Hodge

received. Petties v. Carter,

(7th

Cir. 2016). Based on the treatment that Aguirre- Hodge received, no reasonable jury could conclude

that Larson acted with conscious disregard to

Aguirre-Hodge’s pain. Larson treated Aguirre-

Hodge with ice, pain medication, and steroid

injections. And after Larson canceled the surgery, he

took steps to re-schedule it. Aguirre-Hodge would

have preferred to have had the surgery when it was

originally scheduled. But prisoners don’t have a

constitutional right to their preferred course of

treatment. Forbes v. Edgar,

(7th

Cir. 1997). A doctor’s care decision violates the

constitution only if it is “so blatantly inappropriate

as to evidence intentional mistreatment likely to seriously aggravate [a patient’s] condition.” Arnett v.

Webster,

(7th Cir. 2011).

Inadvertent error, negligence, gross negligence, and

ordinary malpractice are not enough to violate the

Eighth Amendment. Vance v. Peters,

(7th Cir. 1996). Instead, the care decision must

depart from professional standards to such a degree

“that no minimally competent professional” would

have made the same decision. Collignon v. Milwaukee

Cnty.,

(7th Cir. 1998). A

prisoner can establish that a doctor departed from

accepted professional standards by showing that the

professional “refused to take instructions from a specialist” or “fail[ed] to follow existing protocol.”

Petties,

.

Here, the record shows that Larson was

following protocol when he canceled

Aguirre-Hodge’s surgery. DOC policy provides that

medical staff must obtain prior authorization from

the DOC’s Bureau of Health Services before

scheduling surgeries that are “non-urgent.”

Dkt. 86-1, at 2. It’s unclear from the record whether

Larson had the authority to decide whether Aguirre-

Hodge’s procedure was non-urgent and thus subject

to DOC approval. But even if I assume that Larson

was responsible for categorizing Aguirre-Hodge’s surgery as non-urgent, that decision was not so

blatantly inappropriate that it demonstrates

intentional mistreatment. Under DOC policy, a

procedure is non-urgent if the condition it addresses

“does not represent a significant threat to the

patient’s general medical health, and which is not

likely to pose such a threat in the foreseeable

future.” Dkt. 86-1, at 2. A condition can be non-

urgent even if it “involve[es] persistent pain” such

that adequate care requires scheduling the

procedure as soon as reasonably practicable.

Urgent procedures, by contrast, are those where “a

delay in treatment would present a medically unacceptable risk for serious bodily harm, disability,

or further deterioration in the inmate patient’s

condition.”

Aguirre-Hodge was suffering from

significant pain, so adequate care could have

required scheduling the procedure as soon as

practicable. But nothing in the record suggests that

a delay to obtain prior authorization for the surgery

would present a risk of serious bodily harm to

Aguirre-Hodge. And Larson’s decision aligns with

the judgment of the nurse who performed Aguirre-

Hodge’s orthopedic consultation, who noted that

the surgery was elective and would require approval

from the prison. But even if Larson erred when he concluded that

Aguirre-Hodge’s surgery was non-urgent and

required prior authorization, that error

demonstrates, at most, medical negligence; it does

not show that Larson consciously disregarded

Aguirre-Hodge’s medical needs. After Larson

canceled the surgery, he took reasonable steps to

obtain the proper approvals. Larson met with

Aguirre-Hodge to discuss the approval process, and

he later submitted a prior authorization request to

the Bureau of Health Services. Dkt. 87-1, at 5.

Larson was not required to do anything more.

Aguirre-Hodge identifies no evidence that Larson had the authority to schedule the surgery after the

request had been denied. No reasonable jury could

conclude that Larson’s actions violated the Eighth

Amendment, so I will grant summary judgment to

Larson on Aguirre-Hodge’s constitutional claim.

Aguirre-Hodge also asserts a state-law

negligence claim against Larson. The court could

exercise supplemental jurisdiction over this claim.

But in the Seventh Circuit, the usual practice is to

dismiss state-law claims when all federal claims have

been dismissed prior to trial. Groce v. Eli Lilly & Co.,

(7th Cir. 1999). I see no reason

to depart from the circuit’s general rule in this case. I will dismiss Aguirre-Hodge’s negligence claim

without prejudice to him pursuing the claim in state

court.

B. Aguirre-Hodge’s motion to amend the complaint

After the parties finished briefing summary

judgment, Aguirre-Hodge moved to amend his

complaint to name members of the Bureau of

Health Services as defendants, contending that they

violated his rights by denying Larson’s prior

authorization request. Dkt. 102. Although leave to

amend should be freely given, Fed. R. Civ. P. 15(a),

“district courts have broad discretion to deny leave to amend where there is undue delay, bad faith,

dilatory motive, repeated failure to cure deficiencies,

undue prejudice to the defendants, or where the

amendment would be futile.” Arreola v. Godinez,

(7th Cir. 2008).

It is simply too late for Aguirre-Hodge to amend

his complaint at this point. Aguirre-Hodge filed his

proposed amended complaint five months after the

dispositive motion deadline and over a month after

the close of discovery. Allowing Aguirre-Hodge to

add new claims against new defendants would

require restarting the case from scratch; the court

would need to reopen discovery and set a new schedule. It would significantly delay disposition of

this case, which had been pending for more than

three years by the date Aguirre-Hodge moved to

amend his complaint. Courts have denied leave to

amend under similar circumstances. See Hukic v.

Aurora Loan Servs.,

(7th Cir.

2009) (denying leave to amend where plaintiff

waited until “three days before the close of fact

discovery” to add new claims and a new defendant);

Bowden v. Kirkland & Ellis LLP, 432 Fed. App’x 596,

600 (7th Cir. 2011) (“the [district] court reasonably

concluded that adding new defendants would unduly delay disposition of the case by triggering

another round of discovery or flurry of motions”).

Aguirre-Hodge does not explain why he waited

until after the close of discovery to amend his

complaint. I acknowledge that Aguirre-Hodge has

vision problems and has required extensions for

certain deadlines. But Aguirre-Hodge knew that

members of the Bureau of Health Services denied

Larson’s prior authorization request in October

2021; he attached the form denying his prior

authorization to his motion for summary judgment.

See Dkt. 77-1, at 18. And Larson explained the

approval process in his summary judgment submissions in November 2021. See Dkt. 83; Hukic,

(denying amendment when the

basis for the new claim was “available long before

[plaintiff] sought leave to amend”). I will deny

Aguirre-Hodge’s motion to amend his complaint.

ORDER

IT IS ORDERED that:

1. Plaintiff’s motion for summary judgment, Dkt. 75, is DENIED.

2. Defendant’s motion for summary judgment, Dkt. 82, is GRANTED on plaintiff’s constitutional claim, which is DISMISSED with prejudice. 3. Plaintiff’s state-law negligence claim is DISMISSED without prejudice under

(c)(3).

4. Plaintiff’s motion to amend his complaint, Dkt. 102, is DENIED.

5. The clerk of court is directed to enter judgment for defendant and close this case.

Entered August 30, 2022.

BY THE COURT:

_/s/_____________________ JAMES D. PETERSON District Judge