                        NONPRECEDENTIAL DISPOSITION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 March 9, 2018*
                                 Decided March 14, 2018

                                         Before

                           DIANE P. WOOD, Chief Judge

                           WILLIAM J. BAUER, Circuit Judge

                           DAVID F. HAMILTON, Circuit Judge

No. 17-1702

MARK BROCK,                                       Appeal from the United States District
    Plaintiff-Appellant,                          Court for the Southern District of Indiana,
                                                  Terre Haute Division.
      v.
                                                  No. 14-CV-00170-JMS
WILLIAM WILSON, et al.,
     Defendants-Appellees.                        Jane E. Magnus-Stinson,
                                                  Chief Judge.




                                       ORDER

       Mark Brock suffers from fibromatosis, a condition that causes skin cells to grow
into non-metastasized but painful tumors. While incarcerated at the Federal
Correctional Institution in Terre Haute, Indiana, he received three surgeries for
recurrences of his fibromatosis. Brock has sued prison medical personnel under Bivens

      * We have agreed to decide the case without oral argument because the legal
issues have been authoritatively decided. See FED. R. APP. P. 34(a)(2)(B).
No. 17-1702                                                                        Page 2

v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and the United States under
the Federal Tort Claim Act, 28 U.S.C. § 2674, over the timing of his latest surgery. The
district court entered summary judgment for the defendants. Because the record does
not permit an inference that any defendant acted unreasonably or with deliberate
indifference, we affirm.

        We recount the facts in the light most favorable to Brock, the nonmovant.
See Tradesman Int’l, Inc. v. Black, 724 F.3d 1004, 1009 (7th Cir. 2013). Brock was
diagnosed with fibromatosis when he was a child. By 2011 he had received two
surgeries in prison to remove fibroid tumors, also called fibromas. Eight months after
his last surgery, a prison physician observed in November 2011 that Brock had a new
“nodule” on his chest wall about three centimeters long. He asked for Brock to see an
oncologist. The prison contracts with a company called NaphCare (which is not a
defendant) to schedule visits with outside medical providers. According to the Clinical
Director of the prison’s Chronic Care Clinic, Dr. William Wilson, NaphCare is reliable
and has never failed to schedule someone for an appointment with an outside surgeon
or specialist.

       With NaphCare’s help, Brock saw an outside oncologist the next month, in
December. The oncologist ordered CT scans for Brock (which occurred five days later)
and wanted Brock to follow up with the same cardiothoracic surgeon who had
performed Brock’s last surgery. That surgeon saw Brock a month later, in January 2012,
and recommended surgery in the near future to remove the mass. But the surgeon was
leaving the state, so Brock had to consult with another surgeon.

       Brock saw several surgeons in 2012. Three months after his previous surgeon had
recommended surgery, Brock met with a new cardiothoracic surgeon. After reviewing
Brock’s CT scan, this surgeon disagreed with the need for surgery, concluding that the
new mass may be either postsurgical scar tissue or related to radiation changes. To be
sure, he ordered new CT scans, which occurred three months later, in June. The scans
suggested “an enlargement of [Brock’s] left breast mass with a mass lesion,” so Brock
saw another cardiothoracic surgeon for a biopsy. When they met two months later, that
surgeon needed another CT scan before a biopsy or further treatment. Brock met
Dr. Wilson, the prison’s clinic director, three months later, and he ordered the CT scan
and wanted Brock to see a surgeon in Indianapolis “as soon as possible.” Dr. Wilson
selected Indianapolis because he could not find an available surgeon in Terre Haute. He
suggested transferring Brock out of state for a surgeon, but without a biopsy first
confirming that his new mass was fibromatosis, the prison would not transfer him.
No. 17-1702                                                                         Page 3

       Brock underwent the biopsy in April 2013, and surgery came afterwards. The
biopsy confirmed that the mass was recurrent fibromatosis. A month after the biopsy,
Dr. Wilson arranged for Brock to see another general surgeon, who needed a new
CT scan to see if the mass was attached to Brock’s chest wall, in which case it would
need to be evaluated by a thoracic surgeon. Dr. Wilson requested the scan, which
occurred in September. By this time the mass had grown to almost 8 centimeters by
5 centimeters. In November Brock met with a surgeon who reviewed the latest scan
and, in January 2014, recommended the surgery. Dr. Wilson accepted the
recommendation and ordered the surgery, which occurred in February 2014.

        Brock was in pain from the tissue mass since February 2012. He received pain
relief for it, but prison administrators discontinued the medication from July 2012 to
March 2013 as a disciplinary sanction after Brock gave his medicine to another inmate.
In March Dr. Wilson restarted Brock’s pain medication based on Brock’s agreement to
follow the prison’s rules.

        The case ended at summary judgment. The district court granted the United
States’ motion for summary judgment on Brock’s claim under the Federal Torts Claims
Act that the prison’s medical staff negligently delayed surgery. The judge reasoned that
undisputed medical testimony from two independent experts showed that Brock’s care
was medically appropriate. The court also granted summary judgment in favor of the
individual defendants. It ruled that the judgment for the United States on the
negligence claim barred Brock’s Bivens claim against the defendants for deliberate
indifference in violation of the Eighth Amendment.

       On appeal Brock does not question the district court’s analysis or cite any
applicable legal authority. We could dismiss the appeal on this ground. See FED. R. APP.
P. 28(a)(8)(A); Yasinskyy v. Holder, 724 F.3d 983, 989 (7th Cir. 2013). But we have
reviewed the record de novo to assure ourselves that the district court’s decision is
sound. See Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017). And it is.

       We begin with the Federal Torts Claim Act against the United States. We apply
Indiana’s law of negligence because claims under the Act are analyzed “in accordance
with the law of the place where act or omission occurred.” 28 U.S.C. § 1346(b). To
survive summary judgment, Brock must present evidence of a “(1) duty owed to
plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the
applicable standard of care; and (3) compensable injury proximately caused by
defendant's breach of duty.” Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384,
386 (Ind. 2016) (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)). A
No. 17-1702                                                                          Page 4

custodian of inmates must “take reasonable steps under the circumstances for the life,
health, and safety of the detainee.” Kader v. State, 1 N.E.3d 717, 728 (Ind. Ct. App. 2013)
(quoting Sauders v. Cnty. of Steuben, 693 N.E.2d 16, 18 (Ind. 1998)).

       Brock argues that the United States breached its duty of care because it took over
two years, from November 2011, when a prison doctor first detected the tissue mass, to
February 2014 for the surgery to take place. But the defendants’ experts stated that the
timing was medically reasonable, and Brock did not rebut that evidence. Indiana
typically requires expert medical testimony “to determine whether a physician’s
conduct fell below the applicable standard of care.” See Bader v. Johnson, 732 N.E.2d
1212, 1217–18 (Ind. 2000). Expert testimony is not required if the facts are not overly
technical, see id., but the details of chronology here do not suggest liability.

        We start by examining the chronology between November 2011 and April 2013.
NaphCare took two months, until January 2012, to get Brock to meet the oncologist who
recommended surgery. This two-month period is not a basis for liability. NaphCare is
not a defendant, and based on Wilson’s unrefuted testimony, he reasonably delegated
to NaphCare the job of finding professionals outside the prison. The prison’s medical
staff also reasonably required that Brock have several evaluations in 2012 and 2013. The
outside surgeon who recommended in January 2012 that Brock have surgery was not
available to perform it. The next outside surgeon whom Brock saw did not recommend
surgery without a new CT scan. A reasonable disagreement between these two doctors
over a treatment plan does not establish that one has diverged from the standard of
care. Estate of Cole v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). And Dr. Wilson’s decision
to follow the latter surgeon’s advice was reasonable because “both recommendations
[were] made by qualified medical professionals.” Shields v. Illinois Dep't of Corr.,
746 F.3d 782, 797 (7th Cir. 2014). NaphCare scheduled the CT scans for June and a visit
with another outside surgeon two months later for a needed biopsy. That outside
surgeon, who is also not a defendant and whose judgment is not questioned, required
another CT scan. Dr. Wilson reasonably relied on that surgeon’s advice and ordered the
CT scan, which became available three months later. True, some of the out-of-prison
exams took time to schedule, and the biopsy did not occur until April 2013. But the
scheduling problems are attributable to an apparent dearth of available local surgeons,
not the defendants’ disregard about the need for exams and treatment.

      The second stage of this chronology, leading to the surgery in February 2014, was
also medically reasonable. The period between the biopsy in April 2013 and the surgery
was spent updating the CT scans, which a qualified doctor recommended, and finding
No. 17-1702                                                                         Page 5

an available outside thoracic surgeon and general surgeon, as none was locally
available. And once Dr. Wilson received the recommendation for surgery in January
2014, it occurred one month later—a reasonable period. The record thus contains no
basis to find that the United States breached a duty of care.

        Brock has also not met his burden to show evidence of a compensable injury. He
has presented no evidence that he suffered any permanent, adverse health effects from
the delay. Brock responds that for nine months (from July 2012 to March 2013), prison
administrators denied him pain relief from the fibroma as a sanction for his misuse of
medicine. Needless pain can be a basis for liability. Perez v. Fenoglio, 792 F.3d 768, 778
(7th Cir. 2015) (“A delay in treatment may show deliberate indifference if it exacerbated
the inmate’s injury or unnecessarily prolonged his pain.”). But Brock, who was
represented by recruited counsel in the district court, did not present facts showing that
any of the named defendants instigated that sanction. Without the personal
involvement of the defendants in the decision to deny Brock pain relief, they cannot be
liable for that decision. Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010).

       That brings us to the Bivens claim that the individual defendants violated the
Eighth Amendment. The district court properly dismissed this claim once it decided in
favor of the United States on the claim under the Federal Tort Claims Act. The Eighth
Amendment’s standard is deliberate indifference, Farmer v. Brennan, 511 U.S. 825, 828
(1994), which is more demanding than negligence. And when the United States wins
summary judgment, the Act bars recovery from the individual defendants.
See 28 U.S.C. § 2674 (“The judgment in an action under section 1346(b) of this title shall
constitute a complete bar to any action by the claimant, by reason of the same subject
matter, against the employee of the government whose act or omission gave rise to the
claim.”).

       Accordingly, the judgment is AFFIRMED.
