                        NONPRECEDENTIAL DISPOSITION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 October 23, 2015*
                                Decided October 28, 2015

                                          Before

                         MICHAEL S. KANNE, Circuit Judge

                         ILANA DIAMOND ROVNER, Circuit Judge

                         DIANE S. SYKES, Circuit Judge

No. 14-3801

HARRY POWELL,                                    Appeal from the United States District
    Plaintiff-Appellant,                         Court for the Central District of Illinois.

       v.                                        No. 12 C 3261

VIPIN SHAH, et al.,                              Sue E. Myerscough,
      Defendants-Appellees.                      Judge.

                                        ORDER

       Harry Powell, an Illinois inmate, appeals the grant of summary judgment against
him in this suit under 42 U.S.C. § 1983, asserting that Wexford Health Services, which
contracts with the prison to provide medical care, and two Wexford doctors were
deliberately indifferent in not referring him to a specialist and ordering physical therapy.



       *After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-3801                                                                            Page 2

The district court concluded that the defendants had not been deliberately indifferent.
We affirm.

        Powell began receiving treatment after injuring his left knee during a basketball
game at the Western Illinois Correctional Center. He saw a nurse two days later,
complaining of knee pain and difficulty walking and straightening his leg. The nurse
gave him a cold compress and Tylenol. Two days after that, Powell saw Dr. Vipin Shah,
who recorded no swelling in the knee but noted Powell’s difficulty bending his leg.
Dr. Shah prescribed ibuprofen and a warm pack for what he described as Powell’s “soft
tissue injury to the left knee.” After Powell received an x-ray two days later, Dr. Shah
concluded that the injury was likely caused by an “osteochondral lesion-osteochondral
dessicans” or possibly a bone fracture.1 He prescribed ibuprofen, crutches, an Ace
bandage, and a knee brace for six months; and he recommended that Powell be assigned
to a first-floor cell and a low bunk.

       Dissatisfied with the treatment, Powell filed successive grievances about his knee
pain. About two months later, Powell’s counselor followed up on one of the grievances
with a written response: “According to HCV–Dr. Shah, patient has been seen multiple
times, treated with plan suggested by utilization management, knee brace, rest, [and]
immobilization. If this does not help, he will be referred to ortho.”

       Over the next eight months and 21 appointments, Dr. Shah treated Powell for
varying levels of knee pain. At one of the earlier appointments, a second x-ray showed
results similar to the first, and Dr. Shah continued to treat Powell with pain medication
and a knee brace. Later, after receiving an MRI, Powell says that he was told by the
technician that he would need arthroscopic surgery. Dr. Shah, however, concluded from
the MRI that Powell’s ligaments were intact and his knee was stable; he therefore
continued prescribing the same course of treatment, though varying the doses and

       1  An “osteochondral lesion-osteochondral dessicans” is alternately described as a
“tear or fracture in the cartilage covering one of the bones in a joint,” Cedars-Sinai Medical
Center, Osteochondral Lesions/Osteochondritis Dessicans (Oct. 23, 2015),
https://www.cedars-sinai.edu/Patients/Health-Conditions/Osteochondral-Lesions-Osteo
chondritis-Dessicans.aspx, or “a joint condition in which bone underneath the cartilage
of a joint dies due to lack of blood flow,” Mayo Clinic, Osteochondritis Dissecans (Oct. 23,
2015), http://www.mayoclinic.org/diseases-conditions/osteochondritis-dissecans/
basics/definition/con-20024803.
No. 14-3801                                                                           Page 3

strength of the pain medication. Six months into his treatment, Powell asserts, Dr. Shah
told him that he “has done all he is going to do for [Powell].” Later that month, Dr. Shah
recommended exercise for Powell’s recent weight gain. And about two months after
that, Dr. Shah advised “relaxation behavior” for his knee pain.

        Four months after his last appointment with Dr. Shah, Powell saw another prison
doctor, Dr. Thomas Baker, for an ibuprofen refill and because his knee sleeve had
loosened. Dr. Baker reviewed Powell’s records, ordered blood work to monitor any
effects from Powell’s prolonged use of ibuprofen, and then essentially continued the
same treatment plan prescribed by Dr. Shah. Powell saw Dr. Baker for three more
appointments until he was transferred to another prison the following year.

        After his transfer, Powell sued Dr. Shah and Dr. Baker, arguing that they treated
his knee injury deficiently and caused him prolonged pain, suffering, and emotional
distress. He asserted that the doctors should have referred him to an orthopedic surgeon
and ordered physical therapy. He also sued Wexford, asserting that its policy of
restricting referrals to outside specialists to save money was unconstitutional.

       The case proceeded to discovery, and Powell filed a motion to recruit counsel,
which the court denied, finding that he was competent to litigate his claims. Ten months
later Powell filed a second motion to recruit counsel, which the court also denied. The
parties then filed cross-motions for summary judgment, after which Powell sought the
appointment of an expert medical witness to explain why orthopedic surgery was
necessary. The court denied Powell’s request, finding that he had failed to establish the
need for an expert and, further, he essentially was seeking, not a neutral expert, but an
expert to testify on his behalf.

       The district court then granted summary judgment in favor of defendants. The
court found that none of the evidence cited by Powell created a fact question regarding
whether the doctors’ treatment decisions rose to the level of deliberate indifference. First,
with regard to the counselor’s response to his grievance that Powell would be “referred
to ortho,” the court discounted the response as irrelevant because Powell had not shown
that the counselor had medical training or knowledge or even authority to recommend
that Powell see an orthopedic specialist. Second, with regard to Powell’s statement that
the MRI technician told him that he would need surgery, the court rejected that evidence
as inadmissible hearsay and, in any event, it would not be sufficient to defeat summary
judgment because it referred merely to a difference of medical opinion. And third,
No. 14-3801                                                                          Page 4

regarding Powell’s “subjective belief” that he should be referred to a specialist, the court
found that this “supposition” did not constitute evidence that the doctors’ treatment was
blatantly inappropriate. Finally, the court concluded that Powell failed to produce any
evidence that Wexford maintained an unconstitutional policy that caused him to suffer a
constitutional deprivation.

        Powell then filed a postjudgment motion to reconsider, asserting that he could
prove the inadequacy of his treatment through newly discovered evidence: the opinion
of an orthopedic surgeon—whom he saw after re-injuring his knee at another
prison—that he should have had surgery when he first injured his knee. The district
court construed Powell’s motion to reconsider as brought under Rule 59(e) and denied
it, finding that the evidence concerned a new, later knee injury and was not related to the
treatment at issue for his knee injury two years earlier.

       On appeal Powell challenges the grant of summary judgment and specifically the
court’s discounting of evidence that he submitted. He argues that the district court
erroneously attributed the statement that he would be “referred to ortho” to his
counselor rather than Dr. Shah, and that this statement—in addition to his other
evidence—shows that the doctors knew that they should have referred him to a
specialist yet refused to do so.

       The district court did not err in concluding that Powell failed to create a fact
question over whether the doctors were deliberately indifferent. Although continuing an
ineffective treatment plan may constitute deliberate indifference, Ortiz v. Webster,
655 F.3d 731, 735 (7th Cir. 2011); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010), the
treatment decision must be “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. Del. Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012); Johnson v. Doughty,
433 F.3d 1001, 1013 (7th Cir. 2006). Even if the statement that Powell would be “referred
to ortho” came from Dr. Shah rather than his counselor, the district court nevertheless
correctly concluded that Powell’s evidence did not support his contention that his
doctors abandoned their professional judgment when they regularly monitored him but
did not refer him to a specialist or order physical therapy. Powell cannot point to any
evidence that calls into question Dr. Shah’s exercise of professional judgment—in
concluding from two x-rays, an MRI, and multiple check-ups that Powell’s knee was
stable and could be treated with a knee brace, varying doses and strengths of pain
No. 14-3801                                                                          Page 5

medication, and exercise—or Dr. Baker’s, in continuing Dr. Shah’s regimen and
prescribing the same treatment after examining Powell’s medical records and ensuring
through blood testing that he was not suffering any adverse effects from the medication.
This record supports the district court’s conclusion that Powell’s evidence amounted to a
mere disagreement with his doctors’ treatment decisions and was therefore insufficient
to establish deliberate indifference. See Pyles, 771 F.3d at 409.

        Powell also argues that summary judgment in favor of Wexford was error
because Dr. Shah stated that he would have to consult Wexford before referring him to
an orthopedic surgeon since “money can be an issue, cause [sic] there is not money,” and
Wexford has a “public record of unconstitutional policies.” But as the district court
correctly determined, not only is the evidence speculative, but Wexford cannot be held
liable for damages if, as here, Powell cannot show an underlying constitutional violation.
See Pyles, 771 F.3d at 412; Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir.
2013).

       Next, Powell challenges the district court’s denial of an expert medical witness,
arguing that the need for an orthopedic specialist who could explain the standard of care
was apparent from the court’s misguided ruling. An expert was not necessary, however,
given the straightforward facts of the case and Powell’s failure to produce evidence that
the treatment was not appropriate. Gaviria v. Reynolds, 476 F.3d 940, 945 (D.C. Cir. 2007).
Moreover, the only issue in this case was whether the doctors had a “sufficiently
culpable state of mind,” Farmer v. Brennan, 511 U.S. 825, 834 (1994); Holloway, 700 F.3d at
1072, which the court accurately recognized as a subjective inquiry that did not require
an expert, see Ledford v. Sullivan, 105 F.3d 354, 359–60 (7th Cir. 1997).

       Finally, Powell argues that the district court abused its discretion by denying him
counsel because the case involved conflicting medical testimony and he is incarcerated,
indigent, and lacks legal training. But as the district court correctly pointed out, Powell
demonstrated over the course of litigation that he was competent to litigate his case.
Powell filed “cogent pleadings” and defeated an earlier motion for summary judgment
on exhaustion grounds; his claims and knee injury were not novel or complex; and he
had personal knowledge of the facts underlying his claims and was able to obtain his
own medical records. See Olson v. Morgan, 750 F.3d 708, 711–12 (7th Cir. 2014); Pruitt v.
Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc).

                                                                               AFFIRMED.
