                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-3618
GREGG L. DUCKWORTH,
                                             Plaintiff-Appellant,
                               v.

MAHER K. AHMAD AND FRANCIS KAYIRA,
                                          Defendants-Appellees.
                        ____________
           Appeal from the United States District Court
                for the Southern District of Illinois.
          No. 02-CV-381—David R. Herndon, Chief Judge.
                        ____________
       ARGUED APRIL 10, 2008—DECIDED JULY 14, 2008
                        ____________


 Before FLAUM, KANNE, and EVANS, Circuit Judges.
  FLAUM, Circuit Judge. Gregg L. Duckworth is an inmate
in the Centralia Correctional Facility in southern Illinois
and, sadly, in early 2001 a doctor diagnosed him with
bladder cancer. This diagnosis came after sixteen months
of treatment for gross hematuria—a condition that
involves the emission of blood in the urine—by two
different doctors, Maher K. Ahmad and Francis Kayira.
After his diagnosis, Duckworth filed this suit under
42 U.S.C. § 1983, alleging that both doctors were deliber-
ately indifferent to his serious medical needs and thus
2                                              No. 07-3618

violated his Eighth Amendment rights. The parties con-
sented to proceed before a magistrate and, after discovery,
the judge recommended granting Dr. Ahmad’s motion
for summary judgment and denying Dr. Kayira’s. The
district court adopted the magistrate’s recommendation as
to Dr. Ahmad but vacated the magistrate’s recommenda-
tion as to Dr. Kayira, instead entering summary judg-
ment in his favor as well. Duckworth appealed and, for
the reasons set out below, we affirm.


                      I. Background
  This case turns on the treatment afforded Duckworth
from August 1999 through December 2000. During this
period, Duckworth had two stints in two prisons, the
Champaign County Jail and the Centralia Correctional
Facility, where, as is relevant here, he saw first Dr. Ahmad
and then Dr. Kayira respectively. Duckworth first visited
Dr. Ahmad in August 1999 and complained of blood in his
urine, a condition called gross hematuria. Dr. Ahmad
diagnosed Duckworth with “painless hematuria” and
conducted a urinalysis, which did not reveal an infection.
The doctor then referred Duckworth to a urologist at the
Christie Clinic, a nearby group medical practice. But rather
than being taken to the urologist, Duckworth went (for
reasons unknown) to a general practitioner, Dr. James
Blatzer. Dr. Blatzer’s tests—including a “mid-stream catch”
of his urine—did not indicate the presence of blood. And
so Duckworth was discharged with the instructions to
return if he saw any blood in his urine in the future.
 Over the next few months, Duckworth would go to see
Dr. Ahmad four more times, and for three of these visits,
Dr. Ahmad labored under the erroneous belief that
No. 07-3618                                               3

Duckworth was still receiving treatment at the Christie
Clinic. During his next two visits, in October and Novem-
ber 1999, Duckworth did not complain of blood in his
urine although a urinalysis conducted during one of these
trips revealed trace amounts of blood. And during one
of these appointments Duckworth told Dr. Ahmad that
he was being treated by a urologist, which was in line
with Dr. Ahmad’s assumptions.
  His final visit came in February 2000. Duckworth com-
plained of blood in his urine and told Dr. Ahmad that he
was not, in fact, seeing a urologist. As a result, Dr. Ahmad
ordered a number of tests including an intravenous
pyelogram or IVP, which is an x-ray of the kidneys and
urinary tract. Duckworth testified that prior to this test
Dr. Ahmad had told him that “if this comes back clear,
I don’t want to hear no more out of you.” These x-rays
did come back clear, and Dr. Ahmad never did treat
Duckworth again. Duckworth claims that he tried to
receive treatment from Dr. Ahmad a few more times in
February 2000 but nurses refused per Dr. Ahmad’s orders.
Dr. Ahmad claims that he never heard of any request
for treatment, but he agrees that he did not treat
Duckworth after February 2000.
   In July 2000, Illinois prison officials transferred
Duckworth to the Centralia Correctional Facility, a
medium-security prison seventy miles east of St. Louis.
There, Duckworth sought treatment from Dr. Kayira. His
first visit was in June 2000 when, once again, Duckworth
complained of blood in his urine. During this initial
visit, Duckworth told Dr. Kayira about his ten months
of hematuria, the ineffectiveness of his four months of
treatment, and his fears that he had cancer based on his
family’s history with the disease. In response, Dr. Kayira
4                                              No. 07-3618

ordered a urinalysis, prescribed a painkiller, and re-
quested Duckworth’s medical records from the Cham-
paign County Jail. In addition, Dr. Kayira sought to
quiet Duckworth’s cancer fears. A month later, Duck-
worth again sought treatment for hematuria. The tests
did not indicate that there was blood in the urine, but it
did return a high white blood cell count and bacteria.
Believing that this was a recurrent urinary tract infection,
Dr. Kayira ordered a “clean catch midstream” and a
“culture and sensitivity” test. The results from this test
indicated some type of infection, and so Dr. Kayira pre-
scribed antibiotics in an effort to clear it up.
   In September 2000, Duckworth complained to a nurse
about stomach pains and continued hematuria. When he
learned of this, Dr. Kayira ordered a urinalysis and a
KUB test—so named as an acronym for kidneys, urinary,
and bowels. The urinalysis did not indicate the presence
of any blood, but Duckworth did have a slightly high red-
blood-cell count, a much higher white-blood-cell count,
and a moderate level of bacteria. The KUB test revealed
calcific densities or calcium deposits that can indicate
the presence of stones in the urinary tract. Based on all
this, Dr. Kayira suspected that Duckworth had kidney
stones and prescribed a course of antibiotics to treat them.
Soon afterwards, Dr. Kayira also requested the results
of the IVP that Dr. Ahmad had conducted months earlier.
Over the coming months, Duckworth’s condition was
little improved. After Duckworth complained of stomach
pain in October 2000, Dr. Kayira requested a second
IVP, which indicated the presence of a bladder stone. In
November 2000, Duckworth saw Dr. Kayira again, and a
urinalysis revealed an abnormal amount of blood in the
urine, high red and white blood cells, and moderate level
of bacteria.
No. 07-3618                                              5

   Finally, in December 2000, Duckworth complained to
Dr. Kayira of pain in his back and abdomen. Dr. Kayira
recommended painkillers and referred Duckworth to a
urologist, Dr. Manoj H. Desai. Dr. Desai conducted a
series of diagnostic tests in December and early January,
including a cystoscopy. This last test revealed a can-
cerous tumor in Duckworth’s bladder. Although it is
unclear what treatment followed, Duckworth eventually
filed this lawsuit against Drs. Ahmad and Kayira. After
discovery and cross-motions for summary judgment, a
magistrate judge recommended granting Dr. Ahmad’s
motion and denying Dr. Kayira’s. The district court then
adopted the recommendation as to Dr. Ahmad and re-
jected it as to Dr. Kayira, reasoning that his course of
treatment did not rise to the level of objective indiffer-
ence. This appeal followed.


                     II. Discussion
  As he did below, Duckworth argues on appeal that both
Drs. Ahmad and Kayira were deliberately indifferent to
his gross hematuria. We review de novo the district
court’s decision to grant the defendants summary judg-
ment on these claims. And, because Duckworth lost
below, we reasonably construe the facts in his favor.
Greeno v. Daley, 414 F.3d 645, 648-49 (7th Cir. 2005).
  The states have an affirmative duty to provide medical
care to their inmates. Estelle v. Gamble, 429 U.S. 97, 103
(1976). And the upshot of this duty is that the “deliberate
indifference to [the] serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of
pain’ ” and violates the Eighth Amendment’s prohibition
against cruel and unusual punishments. Id. at 104. To
6                                                 No. 07-3618

state a cause of action, a plaintiff must show (1) an ob-
jectively serious medical condition to which (2) a state
official was deliberately, that is subjectively, indifferent.
Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000). Deliber-
ate indifference is not medical malpractice; the Eighth
Amendment does not codify common law torts. Id. And
although deliberate means more than negligent, it is
something less than purposeful. Farmer v. Brennan, 511
U.S. 825, 836 (1994). The point between these two poles
lies where “the official knows of and disregards an ex-
cessive risk to inmate health or safety” or where “the
official [is] both aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he . . . draw[s] the inference.” Id. at 837. A jury
can “infer deliberate indifference on the basis of a physi-
cian’s treatment decision [when] the decision [is] so far
afield of accepted professional standards as to raise the
inference that it was not actually based on a medical
judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.
2006).
  All the parties agree that gross hematuria is an objec-
tively serious medical condition. But Duckworth argues
and the defendants deny that the medical treatment
afforded him shows deliberate indifference. The short
of his argument is that either doctor should have ordered
a cystoscopy as soon as he learned that Duckworth was
passing blood in his urine. In turn, he claims that the
failure to do so, coupled with the additional facts laid out
below, proves their deliberate indifference. The following
sections discuss each claim in turn.
No. 07-3618                                                   7

    A. Dr. Ahmad
   Duckworth claims that the Dr. Ahmad’s treatment
while he was housed in the Champaign County Jail evinced
deliberate indifference.1 Specifically, Duckworth argues
that Dr. Ahmad had notice of his serious condition after he
first treated him. Despite having knowledge of this condi-
tion, Dr. Ahmad failed to take the medically necessary
steps to treat him. That is, the doctor should have ordered
a battery of tests, including a cystoscopy, once he learned
of the hematuria, rather than refer him out to the Christie
Clinic and administer an IVP and urinalyses. Duckworth
also points to Dr. Ahmad’s questionable bedside manner
when administering the IVP, specifically his statement that
“if this comes back clear, I don’t want to hear no more out
of you.” Lastly, he claims that Dr. Ahmad remained
indifferent to his repeated requests for medical treatment
in the months leading up to his departure from the Cham-
paign County Jail.
  It is regrettable, as Duckworth suggests, that no doctor
conducted a cystoscopy earlier than January 2001. With
the benefit of hindsight, it may have been a better route
for Dr. Ahmad to immediately conduct one after diagnos-
ing him with gross hematuria. And Dr. Ahmad’s alleged
statement that he did not want to “hear no more out of”
Duckworth after the IVP would, if true, be far from em-
pathic. But the most that the evidence establishes is that
Dr. Ahmad placed too much faith in having referred
Duckworth out to the Christie Clinic. Showing deliberate
indifference requires more.


1
   The parties also dispute whether Dr. Ahmad was a state actor.
It is unnecessary to reach this issue as, even assuming that
he was, Dr. Ahmad was not deliberately indifferent.
8                                               No. 07-3618

  Before a doctor will be found deliberately indifferent, the
plaintiff must show subjective indifference. Sherrod v.
Lingle, 223 F.3d 605, 611 (7th Cir. 2000). The nub of this
subjective inquiry is what risk the medical staff knew
of and whether the course of treatment was so far afield as
to allow a jury to infer deliberate indifference. See Edwards
v. Snyder, 478 F.3d 827, 830-31 (7th Cir. 2007) (“The sub-
jective component of a deliberate indifference claim
requires that the prison official knew of ‘a substantial risk
of harm to the inmate and disregarded the risk.’ ”) (citing
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)). Here,
Duckworth has failed to show that Dr. Ahmad knew at
all that the hematuria involved an excessive risk of cancer.
Farmer, 511 U.S. at 837 (“[T]he official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.”). Dr. Ahmad thought Duckworth
was seeing a urologist. He labored under this misunder-
standing for Duckworth’s next three visits, and Duckworth
even confirmed this during one visit. Then, when
Duckworth disabused him of the idea, Dr. Ahmad con-
ducted additional testing—including urinalysis and an
IVP—to determine the cause of Duckworth’s hematuria. No
evidence shows that Dr. Ahmad suspected cancer or
actually “dr[e]w the inference” that Duckworth’s symp-
toms posed a serious medical risk.
  Nor has Duckworth presented evidence that his chosen
treatment was “so far afield of accepted professional
standards as to raise the inference that it was not actually
based on a medical judgment.” Norfleet v. Webster, 439
F.3d 392, 396 (7th Cir. 2006). When Dr. Ahmad first
learned of Duckworth’s symptoms, he referred him to a
specialist. And after he learned that Duckworth was not
No. 07-3618                                                9

seeing a specialist, he conducted tests—an IVP and a
urinalysis—to investigate further. Neither test revealed
blood in Duckworth’s urine. And so Dr. Ahmad’s deci-
sion to forgo a more aggressive treatment plan cannot
raise an inference of deliberate indifference. Perhaps it
would have been prudent for Dr. Ahmad to immediately
order a cystoscopy. But the evidence adduced below
does not indicate that he was deliberately indifferent in
failing to do so. Accordingly, the district court properly
granted him summary judgment.


  B. Dr. Kayira
  Duckworth raises a similar claim against Dr. Kayira. He
claims that Dr. Kayira knew of the obvious risk of cancer
from gross hematuria yet pursued an alternate course
of treatment. In addition, he soldiered on with this course
of treatment even in the face of evidence suggesting it
was not working. Dr. Kayira even told Duckworth that
he did not have cancer after hearing of Duckworth’s
family history with the disease. Finally, as with Dr. Ahmad,
Duckworth claims that Dr. Kayira should have immedi-
ately ordered a cystoscopy when he complained of his
hematuria and told Dr. Kayira of his family’s history of
cancer.
  Unlike Dr. Ahmad—who did not know that cancer may
be the cause of the hematuria—Dr. Kayira was aware that
cancer was a risk but erroneously thought that another
condition was more likely causing Duckworth’s symptoms.
The question then becomes whether this distinction
requires a different result, and we do not think it does. The
evidence below shows a pattern of behavior: Dr. Kayira
would order tests; these tests would provide evidence
10                                              No. 07-3618

of some other condition besides cancer; and Dr. Kayira
would treat that condition. For example, the testing
after the first visit indicated a high white blood cell count
and bacteria. A “clean catch midstream” and a “culture and
sensitivity” test revealed some sort of infection. Dr. Kayira
thought that Duckworth had a recurrent urinary tract
infection and prescribed antibiotics in an effort to clear it
up. A second urinalysis similarly revealed a high white
blood cell count and a moderate level of bacteria, and an
accompanying KUB test showed calcific densities
in Duckworth’s urinary tract. Dr. Kayira thought
Duckworth had kidney stones and prescribed a course of
antibiotics. Another IVP revealed a bladder stone, which
Dr. Kayira took as confirmation that his course of treat-
ment was appropriate.
  This evidence justifies summary judgment in Dr. Kayira’s
favor because there is no evidence that Kayira knew of
and disregarded the risk of cancer even if he was aware
that it was a possibility. Duckworth points to the expert
testimony of an experienced urologist stating that cancer
should always be ruled out first before other conditions
when a patient has gross hematuria. This may be a fair
statement of how a reasonable doctor would treat
Duckworth’s symptoms, but it does not shed any light
into Dr. Kayira’s state of mind. Nor did Dr. Kayira’s
chosen course of treatment so depart from accepted
professional practice as to allow the jury to infer indiffer-
ence. Dr. Kayira tried to cure what he thought was
wrong with Duckworth, an opinion he arrived at using
medical judgment. In addition, Duckworth points to Dr.
Kayira’s statement assuring him that he did not have
cancer during his first visit. If anything, this assurance
only indicates that Dr. Kayira did not think that Duck-
worth had cancer. As was the case with Dr. Ahmad, it may
No. 07-3618                                               11

have been prudent for Dr. Kayira to rule cancer out first.
But this is just to reiterate the standard for medical mal-
practice, which falls short of deliberate indifference.
  These facts differentiate this case from those in Greeno v.
Daley, 414 F.3d 645 (7th Cir. 2005), a case that the magis-
trate cited when denying Dr. Kayira’s motion for sum-
mary judgment. There, the inmate suffered from severe
heartburn and vomiting. After visiting a prison doctor,
the doctor made notes on two separate occasions to rule out
a chronic peptic ulcer and gastro-esophageal reflux disease,
something that the doctor never did. Instead, medical staff
prescribed several medications to treat his heartburn and
antacids for his vomiting. This treatment actually made
Greeno’s condition worse, a fact Greeno communicated to
his doctors. In addition to this ineffective course of treat-
ment, at some point medical personnel denied him treat-
ment altogether. After months of ineffective treatment, a
specialist eventually tested him for an esophageal ulcer.
The tests came back positive for a distal ulcer, which
Greeno finally had treated. To compound matters, the
months of taking antacids had caused damage to Greeno’s
colon and bowels.
  We held that this evidence was sufficient to show the
medical staff treating Greeno was subjectively indifferent
to his serious medical condition. Central to our holding
were the facts that “[t]he possibility of an ulcer was first
noted in Greeno’s chart in August 1995” after which “the
defendants doggedly persisted in a course of treatment
known to be ineffective.” Id. at 655. The evidence was
overwhelming that the course of treatment was not effec-
tive; Greeno repeatedly complained of worsening symp-
toms to medical staff over the course of a year. Despite
this evidence, the medical staff became increasingly
12                                                No. 07-3618

frustrated with Greeno’s requests for treatment, refused
to alter his treatment when the condition became worse,
and even denied him further medication at one point.
  Duckworth cannot make a similar claim. In the first
place, there is no evidence, as in Greeno, that Dr. Kayira
thought that cancer was a realistic possibility. Nor were
Duckworth’s symptoms obviously attributable to cancer.
The Greeno doctors, on the other hand, were presented
with a patient who, over the course of three years, com-
plained of severe heartburn and uncontrollable vomiting.
After the initial two visits, the doctors indicated the
need to rule out the ultimate condition that afflicted
Greeno. Despite these notes, they persisted in a course of
treatment that obviously did not work—even though a lay
person could surmise that continuing to treat severe
vomiting with antacids over three years was not a
sound medical approach. The evidence here indicates
that unlike the medical staff in Greeno, Dr. Kayira did not
think Duckworth’s condition was anything more serious
than a urinary tract infection. These are the kinds of
medical assessments doctors can make without running
afoul of the Constitution.
  In addition, the course of treatment was not obviously
ineffective as in Greeno. Dr. Kayira responded to
Duckworth’s continued complaints in a manner calculated
to treat him. See Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir.
1996) (“What we have here is not deliberate indifference
to a serious medical need, but a deliberate decision by
a doctor to treat a medical need in a particular man-
ner.”). The initial testing done by Dr. Kayira did not
indicate an abnormal amount of blood in the urine. When
Duckworth’s hematuria worsened, Dr. Kayira re-
sponded with more advanced testing. When the initial
No. 07-3618                                              13

antibiotics treatment did not work, Dr. Kayira ordered a
KUB test. And when his treatment based on the results
of the KUB test did not work, he administered an IVP,
which indicated a bladder stone. This was followed a
month later by another urinalysis, and a month after that
Dr. Kayira referred Duckworth to a specialist, who then
discovered his cancer. This is not such “a substantial
departure from accepted professional judgment, prac-
tice, or standards as to demonstrate that the person respon-
sible did not base the decision on such a judgment.” Estate
of Cole by Pardue v. Fromm, 94 F.3d 254, 261-62 (7th Cir.
1996). Dr. Kayira’s hypotheses were that Duckworth
suffered from kidney stones or a urinary tract infection.
And based on these hypotheses, he pursued a course of
treatment. This is a far cry from that followed in Greeno
where the doctors made no effort to determine what
was wrong with the plaintiff. In short, there is no evid-
ence that Dr. Kayira knew of and disregarded the risk of
cancer and, as a result, the district court was correct to
enter summary judgment in his favor.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the district
court’s grant of summary judgment in favor of both
Drs. Ahmad and Kayira.




                   USCA-02-C-0072—7-14-08
