                                   NONPRECEDENTIAL DISPOSITION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 November 5, 2009*
                                   Decided November 12, 2009


                                                Before
                                FRANK H. EASTERBROOK, Chief Judge

                                MICHAEL S. KANNE, Circuit Judge
                                DIANE P. WOOD, Circuit Judge

No. 09-1237                                                        Appeal from the United
                                                                   States District Court for the
JOHN L. ALLEN,                                                     Western District of Wisconsin.
      Plaintiff-Appellant,
                                                                   No. 08-cv-037-bbc
                v.                                                 Barbara B. Crabb, Chief Judge.
GLEN HEINZL and JILL HANSON,
      Defendants-Appellees.


                                                 Order

    John Allen has suffered from testicular cysts and chronic scrotal pain since 2002, if
not before. The cause is undetermined, and physicians at the several prisons where Al-
len has been confined have been unable to alleviate the pain, though Allen has been
sent to specialists at several hospitals for analysis and testing. In 2007 a urologist at the
University of Wisconsin recommended a CT scan to rule out any abnormal pathology
such as renal stones or tumors.
     A review committee at Allen’s prison did not agree with the urologist’s recommen-
dation, and in this suit under 42 U.S.C. §1983 against Glen Heinzl, his treating physician,
Allen contends that failure to carry out the urologist’s recommendation violates the
cruel and unusual punishments clause of the eighth amendment. He also contends that
Jill Hanson, a nurse at the prison, violated the eighth amendment by not providing him
with a scrotal support promptly after a physician prescribed it.


   * After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 09-1237                                                                           Page 2

    The district court granted summary judgment in favor of the defendants, and prop-
erly so. The evidence shows that Hanson ordered the scrotal support but failed to en-
sure that the staff at the prison’s pharmacy followed through. This may establish negli-
gence (though the principal failing lay with the pharmacy’s staff); it would not permit a
trier of fact to infer that Hanson desired to inflict needless pain or was deliberately indif-
ferent to Allen’s pain. See Farmer v. Brennan, 511 U.S. 825 (1994).
     The suit against Heinzl fails for a different reason: he did not make the decision. The
prison’s review committee, rather than Heinzl, decided not to send Allen for a CT scan.
There is no vicarious liability under §1983. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948
(2009); Monell v. New York Department of Social Services, 436 U.S. 658, 691 (1978). It is un-
necessary to consider whether the committee’s members, who are not parties, dis-
played deliberate indifference to Allen’s pain. Allen contends that Heinzl can be ordered
to pay damages for not recommending the CT scan more strongly. He did recommend
it, twice, but added that the procedure is “rather expensive” and “[n]ot real likely … to
give a definitive diagnosis that will affect treatment”. Still, the decision was out of his
hands—and a tepid recommendation differs from a desire to harm or deliberate indif-
ference to pain.
                                                                                   AFFIRMED
