                         NONPRECEDENTIAL DISPOSITION
                 To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                               Submitted September 22, 2016*
                                Decided September 22, 2016

                                          Before

                             MICHAEL S. KANNE, Circuit Judge

                             ANN CLAIRE WILLIAMS, Circuit Judge

                             DIANE S. SYKES, Circuit Judge

No. 15-3276

JOSE CARLOS ARCE,                               Appeal from the United States District
      Plaintiff-Appellant,                      Court for the Southern District of Indiana,
                                                Indianapolis Division.
       v.
                                                No. 1:13-cv-01777-WTL-MJD
JENNIFER BARNES, et al.,
     Defendants-Appellees.                      William T. Lawrence,
                                                Judge.

                                        ORDER

       Jose Arce, a former Indiana inmate who suffers from back pain, appeals the grant
of summary judgment against him in this suit under 42 U.S.C. § 1983, asserting an
Eighth Amendment claim of deliberate indifference, a First Amendment retaliation
claim, and a state-law negligence claim. We affirm.




       *We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 15-3276                                                                        Page 2

        Arce’s claims arise from the time he was incarcerated at Plainfield Correctional
Facility. He alleged that the defendants—Nurse Jennifer Barnes, a nurse practitioner at
the facility employed by Corizon, LLC; Dr. Michael Mitcheff, Corizon’s regional
medical director; and Corizon—failed to treat his severe back pain that was caused by a
prior injury. As he described the events in his complaint, his back pain flared up after
his “orthopedic mattress” at the facility was inexplicably removed. He received
medication for the pain, but it was ineffective, and his complaints to Nurse Barnes
about its ineffectiveness were ignored. Arce said that he wrote to Plainfield’s then-
superintendent, Brian Smith, complaining about Barnes’s refusal to treat him and
asking for help to obtain appropriate treatment, but Smith never responded. Later, Arce
convinced a prison doctor to order a thick mattress to treat his back pain, but that order
was overruled by Dr. Mitcheff. Next, after he filed this suit, unnamed prison personnel
retaliated against him by, among other things, confiscating a pillow he had been using
for additional back support.

       Smith moved to dismiss Arce’s claims against him on grounds that he was
neither deliberately indifferent nor personally involved in Arce’s treatment. The district
court agreed and dismissed any claims against Smith for failure to state a claim.

       Discovery on the remaining claims ensued, and at summary judgment the
following facts, presented in a light most favorable to Arce, were presented. In April
2013, Arce aggravated his back after his “orthopedic mattress” was replaced with a
standard one during his temporary absence from Plainfield. At his request, a prison
doctor ordered him a “thick medical mattress for back pain,” but Dr. Mitcheff disagreed
that the mattress was medically necessary and cancelled the order. Dr. Mitcheff later
stated that he did not remember reviewing that order in particular but that he would
have reviewed the medical records, which showed that Arce “was completely
ambulatory, able to exercise, had full range of motion, and had no visible indication of
any adverse physical effects from his reported back pain.”

      After the order was cancelled, Nurse Barnes handled the treatment of Arce’s
back pain. Arce told her at an appointment in mid-June that his prescribed anti-
inflammatory medication, Naproxen, was not helping. Barnes agreed to have him try
another anti-inflammatory medication, Mobic, but a month later Arce complained that
the Mobic also was ineffective. In mid-August, Barnes authorized physical-therapy
appointments to treat Arce’s ongoing back pain, and his sessions over the next couple
months reduced his pain.
No. 15-3276                                                                             Page 3

      Two months after Arce filed this suit, unknown personnel confiscated an
“unauthorized” extra pillow. Arce complained about this confiscation at a medical
appointment and through two health care requests. Medical staff initially denied his
requests for a pillow but a few months later eventually ordered one.

        The district court granted summary judgment for the defendants. Regarding
Arce’s claim against Dr. Mitcheff, the court said, a jury could infer from the evidence
only that he disagreed with the prison doctor about the course of proper treatment for
Arce’s condition, and this was insufficient to show deliberate indifference. As for the
claim against Nurse Barnes, the court concluded that no jury could find that she
exhibited deliberate indifference after she responded to Arce’s report of Naproxen’s
ineffectiveness by changing his medication and, when that proved ineffective, arranged
for physical therapy. As for the retaliation claim, the court observed that there was no
evidence suggesting that either Barnes or Dr. Mitcheff was personally involved in any
retaliatory actions. Finally, the court rejected Arce’s state-law claims of medical
negligence because he failed to present them first to a medical review panel, as required
under Indiana law.

      The court later denied Arce’s post-judgment motion to reconsider, adding with
regard to his state-law negligence claims that he had not presented sufficient expert
testimony to establish that the defendants’ treatment fell below the standard of care.

       On appeal Arce first contests the grant of summary judgment for Nurse Barnes,
arguing that he presented evidence that Barnes knew that he was in great pain yet
delayed prescribing effective treatment in the form of physical therapy, and instead
persisted with a course of treatment that she knew would be ineffective.

        But he produced no evidence of this, as the district court properly concluded. It
is undisputed that Nurse Barnes altered her course of treatment each time that Arce
reported that his medications were ineffective, and although Arce would have preferred
to be prescribed physical therapy immediately—rather than upon the completion of a
course of Mobic—there is no evidence that Barnes knew that Mobic would be
ineffective or that the decision to start with that medication was one that “no minimally
competent professional” would have made. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.
2014) (quoting Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir. 2008)); see also Petties v. Carter,
No. 14–2674, 2016 WL 4631679, at *4–5 (7th Cir. August 25, 2016) (en banc). In fact, a
declaration from Arce’s doctor in Mexico notes that he recommended, among other
treatments, anti-inflammatory medication—namely, the Naproxen that Arce received
initially—as well as physical therapy. Arce does not point to any evidence suggesting
No. 15-3276                                                                         Page 4

that Barnes unreasonably delayed ordering physical therapy once she knew that Mobic
was not providing relief. Barnes testified that it is not uncommon to allow 30 to 60 days
to determine whether a new medication is effective, and Arce has not presented any
evidence to dispute this.

       Arce also maintains that the district court erred in granting summary judgment
for Dr. Mitcheff because, he contends, a jury could infer that the decision to override the
prison doctor’s order for a thick mattress was a deliberate decision to deny access to
treatment that was medically necessary. He argues that his medical records showed that
he was in great pain and that a jury could infer that Dr. Mitcheff, having reviewed those
records, knew that the mattress was necessary yet nonetheless disregarded his pain.

        The district court properly concluded that Arce did not present sufficient
evidence to create a fact question about Dr. Mitcheff’s treatment of his back condition.
He did not, for instance, introduce evidence of the doctor’s mental state—evidence to
suggest that the denial of a particular mattress was “such a substantial departure from
accepted professional judgment, practice, or standards as to demonstrate that
[Dr. Mitcheff] did not base the decision on such a judgment,” Petties, 2016 WL 4631679,
at *4 (quoting Estate of Cole v. Fromm, 94 F.3d 254, 262 (7th Cir. 1996)). As Dr. Mitcheff
pointed out, Arce’s medical records contained little evidence of physical limitations
from pain. Although the thick mattress recommended by the prison doctor suggests
that he viewed the mattress as necessary, the record does not reflect details about the
basis for this judgment, and a “[d]isagreement between a prisoner and his doctor, or
even between two medical professionals, about the proper course of treatment
generally is insufficient, by itself, to establish an Eighth Amendment violation.” Pyles,
771 F.3d at 409.

        Next Arce argues that the district court erred in granting summary judgment on
his retaliation claim because the court misconstrued his claim as one arising under §
1983 and the First Amendment rather than as a “retaliation claim under Indiana state
law.” He says that this construction prevented him from asserting a theory of vicarious
liability against Corizon. But the district court did not misconstrue Arce’s claim. His
complaint may not have mentioned the First Amendment, but it did allege that “filing
the instant lawsuit … is a legally protected activity,” that “he suffered a deprivation …
likely to prevent future protected activities,” and that “there is a causal connection
between the two.” And Arce did not create a fact question regarding retaliation. It was
undisputed that Nurse Barnes and Dr. Mitcheff were uninvolved in the actions that he
No. 15-3276                                                                           Page 5

contends were retaliatory, and Arce never identified anyone who he thought was
responsible or who had carried out actions directed by Barnes or Dr. Mitcheff.

        Arce also challenges the grant of summary judgment for the defendants on his
state-law negligence claims. Arce contends that it was error to reject these claims on the
ground that they had not been presented to a medical review panel, see IND. CODE § 34-
18-8-4, because that requirement, established under the Indiana Medical Malpractice
Act, applies only to suits against qualified health care providers, see id. § 34-18-3-1, and
the defendants did not submit any evidence that they so qualified. Id. § 34-18-3-2
(setting forth requirements under the Act).

       But even if we assume that the Medical Malpractice Act does not apply, Arce still
needed to “present expert testimony to establish the applicable standard of care and to
show whether the defendant’s conduct falls below the standard of care,” Musser v.
Gentiva Health Servs., 356 F.3d 751, 760 (7th Cir. 2004), and the only expert testimony he
obtained—that of his doctor in Mexico—was too generalized. It did not address the
specific treatment that Arce received in prison, let alone whether it fell below the
standard of care.

        Finally Arce challenges the district court’s conclusion that he failed to state a
claim of deliberate indifference against then-superintendent Smith for allegedly having
ignored his letter complaining about his treatment from Nurse Barnes. He maintains
that he sufficiently stated a constitutional claim by alleging that Smith knew from his
letter that he was being mistreated by Barnes, yet turned a blind eye to her misconduct.

       The district court was too hasty in dismissing this claim. “An inmate’s
correspondence to a prison administrator may … establish a basis for personal liability
under § 1983 where that correspondence provides sufficient knowledge of a
constitutional deprivation.” Perez v. Fenoglio, 792 F.3d 768, 781–82 (7th Cir. 2015). In
Arce’s correspondence to Smith—which he appended to his initial complaint and
invoked in his operative complaint—he wrote that Barnes thought he was “faking” his
back pain and that he had not received “any treatment that has relieved my pain.”
These statements, if true, would suggest that Smith had “a reason to believe (or actual
knowledge) that prison doctors or their assistants [were] mistreating (or not treating)”
Arce. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (quoting Hayes v. Snyder, 546
F.3d 516, 527 (7th Cir. 2008)).

       Remand of Arce's claim against Smith, however, would be fruitless. As we've
explained, identical allegations of deliberate indifference against Barnes failed at
No. 15-3276                                                                         Page 6

summary judgment, when Arce was required to come forward with supporting
evidence and could not do so. See Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 538
(7th Cir. 2011) (district court's error in dismissing claim at pleading stage was harmless
when other claims dismissed on summary judgment rested on identical allegations).
Arce's claim against Smith would suffer the same fate.

                                                                              AFFIRMED.
