In the
United States Court of Appeals
For the Seventh Circuit

No. 97-4058

CLARA WALKER,

Plaintiff-Appellant,

v.

HOWARD PETERS, SALVADOR GODINEZ,
RICHARD GRAMLEY, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 93 C 5831--James B. Moran, Judge.

Argued December 10, 1999--Decided November 30, 2000



      Before EASTERBROOK, ROVNER and DIANE P. WOOD, Circuit
Judges.

      ROVNER, Circuit Judge. Dwayne Walker was a
prisoner who suffered from a variety of serious
illnesses. He sued a number of prison officials
and doctors for violating his Eighth Amendment
right to be free from cruel and unusual
punishment, claiming these various individuals
were deliberately indifferent to his serious
medical needs. The district court granted summary
judgment in favor of the defendants, finding
that, at most, Walker’s complaints amounted to a
malpractice action and not a constitutional
deprivation. We affirm.

I.

      Dwayne Walker suffered from hemophilia,
avascular necrosis of his right hip, arthritis,
retinoschisis, a partially fused right ankle, a
partially fused left elbow, a pinched nerve in
his back, and AIDS. He suffered from mental
problems as well, including anti-social
personality disorder. He was incarcerated by the
Illinois Department of Corrections ("IDOC") from
June 1984 until his death in August 1999./1
Because of his hemophilia, Walker required
infusions of a substance known as "Factor VIII,"
a clotting protein that occurs naturally in the
blood of persons who do not suffer from
hemophilia. Factor VIII, marketed under the trade
name "Factorate," is a concentrate derived from
donor blood. In the early 1980s, donor blood was
not yet tested for the presence of HIV, and
consequently, a large percentage of hemophiliacs
contracted HIV and, subsequently, AIDS, as a
result of taking Factor VIII. The defendants do
not dispute Walker’s statement that 90% of
hemophiliacs taking Factor VIII during this time
period eventually contracted AIDS.

      Walker exhibited a number of symptoms consistent
with HIV infection and AIDS from the beginning of
his incarceration. In particular, he exhibited
generalized lymphadenopathy and an inverted T-4
helper cell/T-8 suppressor cell ratio, and these
symptoms were noted in medical records
transferred to the prison within a few months of
the date of his incarceration. Because he was in
a high risk group for contracting AIDS, and
because he exhibited these symptoms, certain
prison doctors assumed Walker was HIV positive,
or strongly suspected that he had HIV infection
and/or AIDS. One of the prison doctors noted in
Walker’s record that he "received so much Factor
VIII [that he is] assumed to be HIV positive."
Another health summary in Walker’s prison records
indicated that Walker was at high risk for AIDS
because of his hemophilia, and another indicated
that he had repeatedly refused to take a blood
test to confirm or rule out HIV infection. Walker
does not deny that he refused to take the
confirmatory blood test, but explained that the
results would have stigmatized him in prison.

      Although he exhibited these symptoms and fell
into this high risk group, and although some
prison officials and physicians assumed he was
HIV positive, Walker received no treatment for
this condition until 1993. The parties agree that
the appropriate treatment for a person infected
with HIV and possibly suffering from AIDS was
AZT, an anti-viral drug that became generally
available in 1987, and Bactrim, a widely
available antibiotic that is effective in
preventing certain opportunistic infections
associated with AIDS. The defendants contend that
they did not prescribe these medications for
Walker because he would not take the confirmatory
test. It would have been malpractice, they
maintain, to administer the potent and dangerous
drug AZT without confirmation that Walker was in
fact HIV positive. They maintain that they were
merely following the Centers for Disease Control
("CDC") criteria when they required a positive
HIV test before prescribing AZT. Walker contends
they did not provide the proper treatment for
more sinister reasons. He argues that the CDC
guidelines did not require a positive HIV test
for an AIDS diagnosis beginning in 1987. He also
points to the IDOC AIDS Manual, which he claims
allows AZT treatment for inmates with a CD4 count
below 300, whether or not HIV infection has been
confirmed. Moreover, upon his transfer to another
prison in the Illinois system in late 1993, he
began receiving AZT and Bactrim even though he
continued to refuse to take the confirmatory HIV
test. Finally, Walker maintains that if the HIV
test was required before treatment, the
defendants could have forced him, under Illinois
law, to take the test at any time. The defendants
are not allowed, Walker argues, to avoid learning
the true nature of his condition once they have
reason to believe he is seriously ill.

      Walker’s treatment for hemophilia also proved to
be troublesome. Construing the facts in favor of
Walker as we must on summary judgment,
hemophiliacs are able to sense their need for
Factor VIII, and should be infused with the
substance when they ask for it. Apparently
hemophiliacs can learn to recognize the signs
that they are having an internal bleed, and that
clotting factor is needed. Factor VIII should be
infused as soon as possible after the patient
senses the need. The consequences for an
untreated bleed can be severe and permanent.
Untreated bleeds in joints can lead to extreme
pain and limitation of the movement of that joint
in the future. A delay of even an hour can have
dire consequences. Walker states that on many
occasions when he requested Factor VIII, prison
officials refused to give it to him. Other times,
he was offered Factor VIII which had been
improperly prepared, and he refused to take it.
The defendants counter that Walker was an
unreliable indicator of his need for Factor VIII,
that he often asked for it when he did not need
it, and that he then refused to take it without
good reason after it had been mixed. Because the
substance must be discarded three hours after it
is prepared, Walker’s refusals led to repeated
spoilage of the expensive substance. Rather than
preparing the substance every time Walker
requested it, a prison doctor would examine him
and determine whether Walker actually needed the
Factor VIII before dispensing it. The defendants
claim that Walker was not harmed by this policy
and that his own actions made appropriate
treatment nearly impossible.

      Walker sued a number of prison officials and
doctors for deliberate indifference to his
serious medical needs, in violation of the Eighth
Amendment proscription against cruel and unusual
punishment. Count I of his complaint alleged that
the defendants failed to take the medically
necessary steps to determine whether he was
infected with HIV or whether he had AIDS, that
they failed to timely inform him of his HIV or
AIDS status, and that they failed to treat him
for HIV infection and AIDS. Count II alleged that
the defendants failed to provide Walker
appropriate treatment for his hemophilia by
routinely refusing to give him Factor VIII, and
by not informing non-medical prison staff of the
greater risk of physical injury to Walker
inherent in his hemophilia. Walker also complains
in Count II that the defendants failed to provide
adequate pain management for his hemophilia and
that even when they began treating him for AIDS,
the treatment was not medically appropriate.

      The defendants moved for summary judgment and
the district court granted judgment in favor of
the defendants on both counts. The court found
that the defendants’ failure to treat Walker for
HIV or AIDS could not constitute deliberate
indifference because Walker could have obtained
treatment by agreeing to the HIV confirmatory
test. The court also held that a refusal to
provide AZT without a confirmatory test was a
matter of medical judgment, and that action based
on medical judgment could never rise to the level
of a constitutional violation. The court found
that, contrary to Walker’s claim, Illinois law
did not give the defendants authority to test
Walker for HIV against his will unless he had
otherwise consented to treatment. Because the
record was replete with Walker’s refusal to
consent to treatment in a variety of contexts,
and because he had expressly refused to consent
to the HIV test, the district court held that
Illinois law did not grant authority to the
defendants to test Walker for HIV against his
will. As for Walker’s complaint that the
defendants sometimes refused to give him Factor
VIII when he requested it, the court found that
requiring clinical observation before dispensing
Factor VIII could not constitute deliberate
indifference because it was, once again, action
based on medical judgment. Finally, the court
granted summary judgment in favor of the non-
medical defendants because Walker could not
demonstrate that they were personally responsible
for any decisions regarding his medical care. The
court therefore granted summary judgment in favor
of all of the defendants and against Walker on
Counts I and II. Walker appeals.

II.

      On appeal, Walker contends that the defendants
were deliberately indifferent to his serious
medical needs because they failed to take the
medically necessary steps to determine whether he
was HIV positive or had AIDS, failed to timely
inform him of his HIV or AIDS status, and failed
to timely provide the medical treatment necessary
for a person with HIV disease or AIDS. He also
maintains that the defendants were deliberately
indifferent to his serious medical needs when
they routinely failed to provide appropriate
treatment for his hemophilia. Finally, he argues
that even when the defendants did begin to treat
him for AIDS, they did not provide treatment in
a medically appropriate manner.

      The defendants contend that Walker’s refusal to
cooperate in his own diagnosis is fatal to his
claim of deliberate indifference in the diagnosis
and treatment of HIV infection and AIDS.
Similarly, in the treatment of his hemophilia,
the defendants maintain that Walker’s repeated
wasting of Factor VIII led the prison officials
to refuse to provide the substance to him on
demand. Moreover, the defendants claim that
Walker cannot show that he was damaged by any of
the refusals to give him Factor VIII on any
particular occasion. Finally, the non-medical
defendants contend that Walker cannot demonstrate
that they were aware of his medical conditions or
treatment much less that they were involved in
the decision-making. Without personal
involvement, the non-medical defendants claim
they cannot be held liable under 42 U.S.C. sec.
1983.

A.

      We turn first to the standard for deliberate
indifference. In a case involving an attack on a
prisoner by other inmates, the Supreme Court set
forth the following definition:

We hold instead that a prison official cannot be
found liable under the Eighth Amendment for
denying an inmate humane conditions of
confinement unless the official knows of and
disregards an excessive risk to inmate health or
safety; the 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. . . . [A]n
official’s failure to alleviate a significant
risk that he should have perceived but did not,
while no cause for commendation, cannot under our
cases be condemned as the infliction of
punishment.

Farmer v. Brennan, 511 U.S. 825, 837-38 (1994).
The Court further explained that an inmate need
not show that a prison official acted or failed
to act believing that harm would actually befall
the inmate; rather it is enough for the inmate to
show that the official acted or failed to act
despite his knowledge of a substantial risk of
serious harm. 511 U.S. at 842. Moreover, whether
a prison official had the requisite knowledge of
a substantial risk is a fact question that could
be demonstrated by drawing an inference from
circumstantial evidence. For example, a fact
finder could conclude that the official was aware
of the substantial risk from the very fact that
the risk was obvious. Id.

      As we noted above, Farmer was a case in which a
prisoner was assaulted by other inmates, and we
subsequently expanded on the theme of obviousness
in the medical treatment context. We first noted
that people are not always conscious of what
reasonable people would be conscious of. Steele
v. Choi, 82 F.3d 175, 178 (7th Cir. 1996), cert.
denied, 519 U.S. 897 (1996). We do not consider
what a reasonable doctor would have done. That is
an objective test, and Farmer dictated a
subjective analysis. 82 F.2d at 179. Nor is it
enough to show that a prison doctor committed
malpractice. At the very least, a prison official
must act or fail to act despite his knowledge of
a substantial risk of serious harm. 82 F.3d at
178. Thus, in Choi, we noted that where there was
no evidence that the inmate’s symptoms were
consistent only with a single diagnosis, and
where there is no evidence that the doctor was
ignoring the inmate’s medical needs, it is not
enough to show that a reasonable doctor would
have made the correct diagnosis and treatment. 82
F.3d at 179. "If the symptoms plainly called for
a particular medical treatment--the leg is
broken, so it must be set; the person is not
breathing so CPR must be administered--a doctor’s
deliberate decision not to furnish the treatment
might be actionable under sec. 1983." Id. A
doctor might be careless in not appreciating the
need to investigate several possible explanations
for a particular prisoner’s symptoms, and this
carelessness may constitute malpractice. But
malpractice alone is not enough to meet the
constitutional standard. Id.

      Walker believes that his symptoms were obvious
and plainly called for a particular medical
treatment. Walker’s generalized lymphadenopathy
and inverted T4 helper cell/T8 suppressor cell
ratio, together with his hemophilia at a time
when hemophiliacs were contracting HIV at an
alarming rate all led a number of doctors to
strongly suspect, even assume, that he was HIV
positive. Indeed, a notation on his medical
records indicates that he had received so much
Factor VIII that he was presumed to be HIV
positive. The defendants agree that they strongly
suspected Walker was HIV positive and had
contracted AIDS. Thus, Walker presented enough
evidence from which an inference could be drawn
that at least some of the defendants knew of a
substantial risk of serious harm. The question
remains, however, whether Walker has any evidence
that the defendants’ response to this knowledge
was inadequate. Under Farmer, prison officials
who are aware of a substantial risk of serious
harm may not be held liable if they responded
reasonably to the risk, even if the harm was not
ultimately averted. 511 U.S. at 844; Reed v.
McBride, 178 F.3d 849, 854 (7th Cir. 1999)
("[t]he remaining question is whether the
defendants’ response can be characterized either
as inaction or woefully inadequate.").

      Everyone agrees that the defendants refused to
treat Walker unless and until he took a
confirmatory HIV test. They disagree on the
reason why prison officials insisted on this
step, and on the reason why Walker refused to
submit to the blood test. Even Walker does not
deny that at any point, he could have received a
confirmatory blood test, and if found positive,
would have been treated with AZT and Bactrim.
Walker argues that neither prison policy nor
medical standards at the time required a positive
HIV test before treatment could begin, and that
even if the HIV test was the only barrier to
obtaining treatment, the defendants could have,
indeed should have, forced him to undergo the
test. Walker points out that prison officials had
forced treatment on him in the past, requiring
him to take psychotropic medications. Walker
objected to that treatment, and sued prison
officials there for violating his Eighth
Amendment rights. See Walker v. Shansky, 28 F.3d
666 (7th Cir. 1994). He points also to the
Illinois AIDS Confidentiality Act, which
provides, in relevant part, that written informed
consent to the HIV test is not required where, in
the judgment of the physician, the testing is
medically indicated to provide appropriate
diagnosis and treatment, provided that the
subject of the test has otherwise consented to
medical treatment. See 410 ILCS 305/8. Although
the defendants disagree on the applicability of
this section, we will assume, in this summary
judgment context, that prison officials could
have forced Walker to undergo an HIV test, and
knew that they had the legal authority to do so.

      That does not answer the question, however. The
question is whether a reasonable jury could find
that prison officials were deliberately
indifferent to Walker’s serious medical needs
because they required the HIV test as a
prerequisite to treatment and then did not force
him to take it. Walker claims that officials are
now hiding behind the test as the reason for
their inaction when in fact no such test was ever
really required before treatment could be
dispensed. His evidence for this proposition is
thin. Although CDC criteria for counting AIDS
cases at that time did not include a requirement
of a positive HIV blood test, Walker has no
evidence that CDC criteria for treating (as
opposed to simply counting) AIDS patients did not
include a requirement for an HIV positive blood
test before AZT could be dispensed. Walker also
presents a 1989 memorandum from Dr. Ronald
Shansky, a defendant in this case, to all medical
directors and physicians in the Illinois
Department of Corrections. That memo, which has
a subject line of "Treatment of HIV Infection,"
states, in relevant part:

All individuals, whether confirmed with the
diagnosis of AIDS or ARC or with asymptomatic HIV
infection (T4 counts below 300), should be given
the same dose of AZT--that dose being 600 mg per
day. . . . All confirmed cases of AIDS should be
on this dose. In addition, I am recommending that
all individuals who have T4 counts of less than
300 and whose T4 cells are less than 20 percent
of the total T-cells be started on this dosage.

Walker cites this memo as evidence that no HIV
blood test was necessary as of 1989 in order to
begin treatment with AZT. Rather, all that was
needed was a T4 cell count of less than 300,
which prison doctors knew he had. Walker’s
reading of the memo is strained past the limits
of reasonableness. His best evidence that
requiring an HIV test was simply a ploy to deny
him treatment is that as soon as he was
transferred to another prison within the same
system, and subject to the same policies, he was
given AZT without taking an HIV test.

      This, however, is merely evidence that, in
another physician’s judgment, treatment could
begin in some cases without an HIV blood test.
Even so, requiring an HIV test before dispensing
a dangerous drug used to treat HIV positive
persons and persons with AIDS is so clearly
within the realm of reasonable conduct by the
prison that no reasonable jury could find that
the prison was deliberately indifferent to
Walker’s serious medical needs for requiring that
test, even though he had many of the symptoms of
the disease. Like the plaintiff in Choi, there is
no evidence tending to suggest that Walker’s
symptoms were consistent only with AIDS or HIV
infection, and there is no evidence that the
prison was ignoring Walker’s needs. Rather, they
required him to take a test confirming what they
suspected to be the case before they would begin
treatment. Nor are we persuaded by the fact that
the prison officials chose not to force the
needed test on Walker. Walker does not claim to
be incompetent or to have displayed any signs of
an inability to make medical decisions for
himself. As a competent adult, he was free to
refuse treatment. Here he impliedly refused
treatment by refusing to take the one test he
knew would lead to a confirmed diagnosis and
treatment with AZT. If there had been any
evidence that the defendants were aware he was
mentally ill and incompetent to make his own
medical decisions, or perhaps suffering from
AIDS-related dementia, for example, this might
well be a different case. Without evidence of
incompetence, no reasonable jury could find the
defendants were deliberately indifferent to
Walker’s serious medical needs simply because
they required an HIV confirmatory test before
dispensing a powerful and dangerous drug. The
district court correctly granted summary judgment
in favor of the defendants.

B.

      We turn next to Walker’s claim that the
defendants were deliberately indifferent to his
serious medical needs by routinely refusing to
give him Factor VIII on demand, and by giving him
inadequate treatment for AIDS once they did begin
to treat him for that condition. In particular,
he complains that the prison officials did not
provide adequate nutrition, exercise, living
conditions or psychological counseling for a
person with AIDS, and that prison staff were not
properly trained on how to handle a person with
hemophilia. His complaints relating to his
treatment for AIDS and his handling as a
hemophiliac are not supported by any evidence in
the record other than his own personal opinion
given in deposition testimony. No medical
testimony supports the proposition that his
treatment for AIDS was inadequate once the prison
officials began to treat him. Nor does he cite
any medical evidence in the record that he was
mishandled as a hemophiliac. No reasonable jury
could conclude based on his personal testimony
that his medical treatment was inadequate without
any competent evidence in the record to support
these claims. The district court therefore
correctly entered summary judgment on those
claims.

      Walker’s complaint about the administration of
Factor VIII is a closer call. Some of the prison
doctors agreed that hemophiliacs in general can
learn to recognize the signs of an internal bleed
and that they should be administered Factor VIII
on demand when they request it. Walker does not
dispute that he sometimes requested Factor VIII
and then refused to take it because he believed
it had been prepared improperly. Because the
substance can be used for only a few hours after
it is prepared, his refusals resulted in the
wasting of Factor VIII on occasion. Prison
officials have a different explanation for why
Walker refused to take Factor VIII after
requesting it. According to them, Walker often
requested narcotic pain medication at the same
time and refused to take the Factor VIII unless
he was also given the pain medication, even when
doctors believed the pain medication was not
needed. On summary judgment, we will give Walker
the benefit of the doubt and assume that he
refused to take Factor VIII because he thought it
had been improperly prepared. There is no
evidence in the record that it had, in fact, been
improperly prepared but we will assume Walker had
a good faith belief that it had been. That still
left the prison in the position of having to
decide whether to prepare Factor VIII every time
Walker requested it. Some doctors gave Walker
Factor VIII on demand, and others decided to
examine him to determine if he needed it before
preparing it and potentially wasting it. There
was clearly a difference of medical opinion on
how to treat Walker’s hemophilia, but there is no
evidence that the prison officials were
deliberately indifferent to Walker’s condition.
We examine the totality of an inmate’s medical
care when determining whether prison officials
have been deliberately indifferent to an inmate’s
serious medical needs. See Reed, 178 F.3d at 855.
Viewing the totality of the care Walker received
for his hemophilia, isolated incidents of delay
or even refusals to administer Factor VIII after
clinical determinations that none was needed
cannot be construed to be deliberate
indifference.

      The decisive factor, however, is that Walker
has no evidence that he was injured by the
defendants’ refusal on some occasions to provide
him Factor VIII. Although it is true that the
defendants admitted that a hemophiliac could be
harmed by delays or refusals in providing Factor
VIII, there is no evidence that Walker actually
was harmed by these decisions. In support of this
alleged harm, he cites the deposition of his
hematologist. She states that Walker’s inability
to walk could be the result of untreated joint
bleeds, or could be the result of muscle weakness
from lack of use. Because she is speculating as
to the cause of his difficulties, nothing in her
testimony supports Walker’s claim that he was
actually injured by the occasional refusals to
infuse him with Factor VIII when he requested it.
Because he cannot show injury, he cannot make out
a claim of deliberate indifference relating to
his treatment as a hemophiliac. The district
court was correct to grant summary judgment on
that claim as well.

III.
      Because Walker refused to take a reasonably
requested confirmatory test that would have led
to appropriate treatment, we conclude that he
cannot make out a claim for deliberate
indifference to his serious medical needs.
Likewise, we affirm the grant of summary judgment
on his claim of inappropriate treatment for
hemophilia because he cannot show that he was
injured by the defendants’ policies or practices.
Finally, we affirm summary judgment in favor of
the defendants on Walker’s remaining claims
because there is no competent evidence in the
record to support claims that he was not treated
appropriately once prison officials did begin
treating him for AIDS.

AFFIRMED.

FOOTNOTES

/1 Dwayne Walker died while this appeal was pending.
By order of this Court, his mother, Clara Walker,
was allowed to substitute as plaintiff. When we
refer herein to "Walker," we are referring to
Dwayne Walker.
