Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

ORTIZ v. CITY OF CHICAGO (August 25, 2011)

Acting pursuant to a confidential tip, the Chicago Police raided May Molina's apartment. They placed Molina under arrest. Molina happens to be a local civil rights activist and a harsh critic of police practices. Molina also suffers from diabetes, hypertension, and a thyroid condition. She takes medications for those conditions. Pursuant to department policy, she was not allowed to take her medication into the lockup. Molina died after approximately 27 hours of confinement. Her estate brought suit against a number of police officers involved in her detention pursuant to § 1983, alleging constitutionally inadequate medical care and an unreasonable delay in providing her a probable cause hearing. Judge Grady (N.D. Ill.) excluded the estate's expert witness and granted summary judgment to the defendants on both claims. The estate appeals.

In their opinion, Seventh Circuit Judges Rovner, Wood, and Evans (who, as a result of his death, took no part in the decision) affirmed in part and reversed and remanded in part. The Court first addressed the inadequate medical care count. It pointed out that, since Molina had not yet had a probable cause hearing, her estate’s claim was governed by the Fourth Amendment reasonableness standard and not the Eight Amendment deliberate indifference standard. Since the defendants did not argue burdensomeness or police interest, the only reasonableness factors at issue are whether each individual defendant was on notice of a serious medical condition and causation. With respect to notice, the Court identified the allegations with respect to each individual defendant and concluded, in each case, that the allegations created genuine issues of fact. Considering the evidence in the light most favorable to Molina, each individual defendants either heard her ask for medical attention, heard her cry for help, were told by her lawyer that she needed to be hospitalized, or received numerous telephone calls from friends and relatives advising that she needed her medication. Therefore, the Court concluded that each was on notice of her serious medical condition. With respect to causation, the question is whether, had the defendants responded and taken her to the hospital, she would not have died or suffered pain and suffering. The district court applied too narrow a test when it required the estate to prove that it was the failure to provide her medication that caused her death. Because the defendants' expert testified that she died from an overdose of drugs she ingested at the time of the police raid, and because the district court excluded the estate’s expert testimony that she died because she was not giving her medication, the district court concluded that the estate failed to prove causation. But the estate did not need to prove that it was the lack of medication -- it only needed to prove that it was the failure to take her to the hospital. The Court therefore concluded that the expert testimony was not even required on that point. There was enough lay testimony in the record to establish causation. The Court also found the district court improperly excluded the expert testimony because of its misunderstanding of the factual record. With respect to the defendants' qualified immunity claim, the Court had no difficulty concluding that failing to provide medical care to a prisoner with a serious health risk satisfied the estate’s burden (without deciding whether it should apply the deliberate indifference or objectively unreasonable standard). On the unreasonable delay count, the Court agreed with the district court. The Supreme Court adopted a 48-hour burden shifting rule in Gerstein. Therefore, this 27-hour detention is presumptively reasonable. The estate failed to overcome the presumption.

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ORTIZ v. WEBSTER (August 24, 2011)

Shortly after Arboleda Ortiz was incarcerated in the Terre Haute federal prison, an ophthalmologist diagnosed him with a pterygium, a thin film covering the eye, and recommended surgery. The prison denied the request. Someone wrote on the request "NO TOWN TRIPS." Over the next few years, two other doctors concurred with the surgery recommendation while a fourth doctor concluded that the condition was not serious enough for surgery. Dr. Thomas Webster, the prison medical director, reviewed Ortiz’ file and concluded that surgery was not medically necessary, but that it might be required within two years after further evaluation. Ortiz filed suit in 2005 under Bivens, alleging that Dr. Webster was deliberately indifferent to his medical needs. Ortiz eventually got the surgery while his lawsuit progressed. The district court originally granted summary judgment to Webster. On appeal, the Seventh Circuit reversed and remanded, identifying several fact disputes: a) the seriousness of Ortiz’ condition, given the several surgery recommendations, b) Dr. Webster's motivation, given that his stated reason for denying surgery was contrary to the medical record, and c) whether the "NO TOWN TRIP" reflected a prison policy against off-site trips for death row inmates. On remand, the author of the "NO TOWN TRIP" explained it away and Dr. Webster presented evidence that there was no prison policy against off-site medical treatment. Dr. Webster also presented expert testimony that his treatment was within the standard of care because surgical removal of the film is not necessary until there is corneal distortion. Judge McKinney (S.D. Ind.) granted summary judgment to Dr. Webster. Ortiz appeals.

In their opinion, Seventh Circuit Judges Bauer, Manion, and Kanne (dissenting) vacated and remanded. In order to prevail on summary judgment, Ortiz had to show both that his condition was objectively serious and that Dr. Webster knowingly disregarded it. The Court had no difficulty concluding that, at a minimum, there was a fact dispute as to whether the condition was objectively serious. The Court also concluded that Ortiz presented sufficient evidence to get to a jury on the deliberate indifference element. First, construing the evidence in Ortiz' favor, the conditions identified by the expert as requiring surgery actually existed when Dr. Webster refused surgery. Second, even when Dr. Webster refused surgery, he indicated the need for further evaluation and the possibility of the need for surgery within two years. But no further evaluation took place within the next two years. A jury could conclude that Dr. Webster's inaction unreasonably delayed the necessary surgery. Finally, the Court noted that the expert opinion that surgery was not necessary did not resolve the fact dispute -- it merely added one more opinion on the no-surgery side of the debate.

Judge Kanne dissented, taking issue with the majority’s treatment of the deliberate indifference prong. He pointed out that deliberate indifference in a medical context is especially hard to prove. A difference of opinion about a condition’s proper treatment is not enough. Judge Kanne saw nothing either in Dr. Webster's initial review of the file or his later treatment, even taking the facts in a light most favorable to Ortiz, that rose to the level of deliberate indifference.

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FIELDS v. SMITH (August 5, 2011)

Andrea Fields, Matthew (a.k.a. Jessica) Davison, and Vankemah Moaton are all inmates in the Wisconsin Department of Corrections system and are all male-to-female transsexuals. They have each been diagnosed with Gender Identity Disorder, a condition in which an individual identifies with the gender that does not match his or her own physical characteristics. Prior to 2010, each had been receiving hormonal therapy. Then Wisconsin adopted the Inmate Sex Change Prevention Act, which prohibited the Department of Corrections from using any funds to provide hormonal therapy or sexual reassignment surgery. Fields and the others brought a class action challenging the Act’s constitutionality. Chief Judge Clevert (E.D. Wis.) denied class certification but conducted a trial on the individual claims. After hearing substantial expert testimony, the court concluded that the Act violated the Eighth Amendment, both as applied and on its face. Defendants appeal.

In their opinion, Seventh Circuit Judges Rovner and Wood and District Judge Gottschall affirmed. The Eight Amendment prohibits cruel and unusual punishment. Prison officials violate it when they display "deliberate indifference" to prisoners' medical needs. The Court conceded that two cases, one from 1987 and one from 1997, provide some support for defendants’ views that hormone therapy and sexual reassignment surgery are not required by the Eighth Amendment. The Court noted, however, that the support came from dicta or short comments that were based on certain assumptions pertaining to cost and the availability of alternative treatments. Now, years later, the district court heard expert testimony concerning those assumptions. The defendants concede that GID is a serious medical condition, do not contend that the Act’s prohibitions are defensible on a cost savings basis, and they presented no evidence that an alternative treatment could accomplish similar results. The trial evidence established that hormone therapy was the only effective treatment for plaintiffs' condition. Denying the only effective treatment for a serious medical condition violates the Eighth Amendment. The Court also rejected the defendants’ argument that prison security was a sufficient reason to ban the treatments. Finally, the Court concluded that the district court did not abuse its discretion in finding the Act facially unconstitutional.

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OWENS v. HINSLEY (March 18, 2011)

While imprisoned in the Menard Correctional Center, James Owens became unhappy with prison conditions and with the prison's response to his complaints. So he started a hunger strike. He spent 21 days in his cell and four in the infirmary before he ate again. He lost 20 pounds but suffered no medical complications. Within weeks, he began a second hunger strike. This time, he spent 25 days in his cell and almost 3 weeks in the infirmary. He ate again only after the prison began force-feeding him. He lost 30 pounds on his second hunger strike but again suffered no medical complications. He submitted an informal grievance complaining that he should have been moved to the infirmary sooner. His counselor ignored the grievance. The following year, on two separate occasions, Owens was assaulted by cellmates, complained to guards, and was assaulted again before the guards did anything. Owens brought suit pursuant to § 1983. The complaint contained seven separate claims against 15 different defendants. Chief Judge Herndon (S.D. Ill.) dismissed five of the seven claims at screening and granted summary judgment to the defendants on the other two. Owens appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood affirmed. The Court first noted that the complaint violated the rules of civil procedure regarding joinder and should either have been severed into two separate actions or dismissed for improper joinder. However, since improper joinder is not jurisdictional, the Court addressed each claim's merits in turn. His claim that prison officials violated the Constitution when they ignored his grievances is frivolous -- prison grievance procedures are not required by the Constitution. His claim that his First Amendment right to demonstrate was violated when the prison force-fed him is frivolous -- there is no constitutional right to refuse life-saving medical treatment. His claim that the guards failed to protect him from cellmate assaults fails -- no reasonable juror could find that the guards deliberately ignored a substantial risk of serious harm. His claim that the prison was deliberately indifferent when it did not move him from his cell to the infirmary during his hunger strikes fails, although not for the reason relied upon by the district court. His allegation, in his verified response to summary judgment,  that he submitted an informal grievance is the equivalent of an affidavit. The court should have considered it. The claim still fails because he failed to exhaust administrative remedies when he did not follow up his informal grievance with a written grievance to a designated prison official. The district court dismissed the other three claims without prejudice because the allegations of misconduct were not linked to a particular defendant. Although an amended complaint may have corrected some of that problem, the Court concluded that the district court did not abuse its discretion in denying leave to amend when Owens failed to comply with local procedure, failed to follow the court's instructions for refiling, and filed claims that had already been dismissed at screening.

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ROE v. ELYEA (January 28, 2011)

Hepatitis C is a disease that affects the liver. It is caused by the HCV virus and is transmitted through blood to blood contact. Many hepatitis C sufferers are asymptomatic while others develop cirrhosis or liver cancer. These conditions sometimes develop two or three decades after the initial infection. The virus is relatively common in the United States prison population. Edward Roe, Anthony Stasiak, Timothy Stephen, and Jonathan Walker are current or former Illinois prison inmates who suffer from the disease (Roe actually died in 2007). The plaintiffs brought suit against Dr. Willard Elyea, the former medical director of the Illinois Department of Corrections. They allege that the Department’s diagnosis and treatment protocols violated the Constitution. Their principal contention is that Elyea instituted a policy applicable to all inmates suffering from hepatitis C that deprived them of treatment unless they had a certain amount of time remaining on their sentences. The plaintiffs' damage claims were tried to a jury, which awarded to each plaintiff $20,000 in compensatory damages and $2 million in punitive damages. Judge Baker (C.D. Ill.) rejected Elyea’s qualified immunity claim but vacated the judgments in favor of Messrs. Stephen, Stasiak, and Walker on the ground that insufficient evidence supported the verdicts. He upheld the verdict and compensatory damages in favor of Roe but ordered a conditional remittitur, giving Roe the choice of $20,000 in punitive damages or a new punitive damages trial. When Roe made no choice, the court entered an order reducing the punitive damages to $20,000. Stephen, Stasiak, and Walker appeal the court's entry of judgment against them, Roe's estate appeals the remittitur, and Elyea appeals the qualified immunity ruling and the denial of judgment as a matter of law with respect to Roe, and also challenges the Court's jurisdiction to hear the appeal.

In their opinion, Seventh Circuit Judges Ripple and Rovner and District Judge St. Eve affirmed. The Court first addressed two jurisdictional issues. It rejected Elyea's argument that plaintiffs’ notice of appeal was ineffective because it was filed after the entry of the conditional remittitur order but before entry of the final judgment. The Court held that Federal Rule of Appellate Procedure 4(a)(2) applied to the remittitur order and the premature notice became effective when the final judgment was entered. The Court agreed with Elyea, however, that the remittitur order was not reviewable (a point Roe ultimately conceded). A party cannot appeal a judgment to which it has consented. The Court turned to qualified immunity and the merits. With respect to qualified immunity, the Court concluded that the district court properly denied qualified immunity. It was "clearly established" that an inmate had a right to adequate medical care that addressed his particularized need. The evidence in the record allowed a factfinder to conclude that Elyea's policy precluded certain treatment without regard to the inmate's particularized need. On the merits, the Court noted that the plaintiff's burden on an Eighth Amendment deliberate indifference claim is high. He must establish both an objectively serious medical need and that a prison official disregarded a known risk. Applying that test to each of the plaintiffs, the court concluded: a) Roe established the serious medical need and a denial of treatment without regard to his particular medical needs, and the record contained sufficient support for the jury's conclusion on causation, b) Walker failed to demonstrate Elyea's responsibility for his lack of treatment, c) Stasiak demonstrated a serious medical need but failed to demonstrate that the policy, as opposed to the time remaining on his sentence, resulted in any injury, and d) Stephen demonstrated a serious medical need but also failed to demonstrate that the policy, as opposed to the time remaining on his sentence, resulted in any injury.

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MCGOWAN v. HULICK (July 20, 2010)

Michael McGowan was incarcerated in an Illinois prison in 2006. He filed a pro se lawsuit pursuant to state law and § 1983 against a dentist and the prison's dental director alleging the following facts: In November of 2006, his tooth began to hurt. His pleas for assistance finally resulted in an appointment with a dentist in late January 2007. The dentist refused to provide a filling but agreed to extract the tooth. The procedure did not go well. McGowan was in severe pain, the tooth broke apart, and the dentist had to remove pieces of the tooth from his mouth with an ice pick. After the procedure, the pain increased, a mass of tissue developed, and he developed a sinus perforation. Other than pain relievers and temporary fixes, McGowan received no treatment until August, months after the extraction. The complaint alleges detailed facts regarding his requests for treatment and the delay occasioned at least in part by the prison dental director. Judge Herndon (S.D. Ill.) dismissed the case with prejudice for failure to state a claim pursuant to the § 1915A screening. The court acknowledged the long delay in treatment but concluded that it did not amount to deliberate indifference. The court did not address the state law negligence claims. McGowan appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Wood vacated and remanded. The Court noted the "well-established" Eighth Amendment test -- that deliberate indifference to serious medical (or dental) needs can amount to a violation. Delay itself can equal deliberate indifference in circumstances where it made conditions worse. Here, the Court concluded that the allegations against the prison dental director were erroneously dismissed. It noted the very specific complaint allegations of significant delays before McGowan was able to see the dentist, the oral surgeon, and finally the specialist. At this screening stage of this proceeding, the Court concluded that the allegations were sufficient to proceed. The Court reviewed the allegations against the dentist quite differently. It saw that as a dispute over which procedure was used and the competence with which it was performed. Although the ice pick allegation gave the Court the most pause, it decided that the allegation was simply that some instrument that looked like an ice pick was used. Although possibly supporting a negligence or gross negligence conclusion, the Court concluded that the allegations cannot support a finding of deliberate indifference. With respect to the state law negligence claims, the Court reinstated the claim with respect to the dental director and instructed the district court to modify its dismissal of the dentist to be without prejudice.

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WRAGG v. VILLAGE OF THORNTON (May 7, 2010)

In 1997, Thornton Village President Jack Swan received an anonymous complaint that a village police officer had molested a minor boy. A few months later, with Swan's knowledge, the officer resigned and sought treatment for a cocaine habit. A few years later, Swan appointed that same officer the Village's fire chief. Soon thereafter, he was found molesting another minor boy, a member of the Village’s fire cadet program. The chief's propensities were the subject of much conversation throughout the department. A few years later, the chief was arrested for molesting yet another boy, also a fire cadet. Swan removed the chief from his post. The cadet sued the Village under § 1983, asserting that the Village retained the fire chief knowing his history of molesting minors and that their deliberate indifference violated his substantive due process rights. The court granted summary judgment to the Village. The cadet appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Wood affirmed. The Court acknowledged that the fire chief was a state actor and the cadet had a substantive due process right not to be harmed by him. Whether the Village was liable under Monell, however, depends on whether the injury was caused by an express policy or a widespread practice, or by a "person with final policymaking authority." Because the cadet alleged neither an express policy or widespread practice, the Court focused on whether the injury was caused by a person with final policymaking authority. The Court identified an issue of fact with respect to that inquiry. The Board of Trustees certainly had final power to appoint and remove the fire chief. The Court found it unclear, however, whether Swan had final authority to retain him. Either way, however, the claim failed. With respect to the board, the cadet presented evidence only with respect to one member. Municipal liability under Monell cannot be based on the isolated act of one member of a multi-member board. With respect to Swan, the Court concluded that the evidence was insufficient for a reasonable jury to find that Swan was on notice that the retention of the chief posed a substantial risk to the cadet. The Court conceded that there were "storm warnings" regarding the fire chief -- but found none of them sufficient to establish the deliberate indifference necessary for municipal liability.

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MINIX v. CANARECCI (February 26, 2010)

While on leave from a mental hospital where he was a patient, Gregory Zick was arrested and incarcerated in the St. Joseph County Jail. The jail provided medical and mental health services through contracts with third-party vendors Memorial Home Care and Madison Center. Jail personnel became aware during Zick's booking that he had attempted suicide in the past and was taking medications to treat his suicidal thoughts. Zick was originally put in medical segregation and on suicide watch. He was transferred into the general population, however, a few days later after he denied having suicidal thoughts. About a month later, he was placed back in medical segregation after he refused to take his medication and a jail officer noticed a razor blade missing. Again, after a few days, he was released from medical segregation because he was alert and denied thoughts of suicide. Later that night, he hanged himself with a bed sheet. Cathy Minix, his personal representative, brought an action pursuant to § 1983 against the Sheriff, the medical providers, and several jail employees. She alleged violations of the Eighth and Fourteenth Amendments based on the defendants' display of deliberate indifference. The district court granted summary judgment to all defendants except the Sheriff. Minix then accepted an offer of judgment from the Sheriff. She appeals the summary judgment rulings in favor of Memorial Home Care and its employee Dr. David, Madison Center and its employee Christine Lonz, and the supervisor of the nursing staff, Jeanne James.

In their opinion, Judges Bauer, Kanne, and Tinder affirmed. The Court first addressed its jurisdiction, in light of the offer of judgment and its acceptance. Since the claim against the Sheriff was against him in his official capacity, and therefore could not have included punitive damages under § 1983, the punitive damage claims against the other defendants present a live controversy, even if the acceptance of the offer of judgment limits additional compensatory damages. On the merits, the Court first identified the two elements of an inadequate medical care claim under the Eighth or Fourteenth Amendment: a substantial risk to one's safety because of an objectively serious harm, and deliberate indifference to that risk. A jail suicide case automatically satisfies the first element. The second element requires that each defendant know that there is a substantial risk of suicide -- and intentionally disregard it. The Court addressed each defendant under that standard and found summary judgment proper in each case: a) Lonz was unaware of Zick’s suicidal history or thoughts, b) there was no evidence that Madison Center adopted or condoned any unconstitutional policy and there was no causal link between any Madison Center practice and the suicide, c) Zick's behavior in segregation did not provide Nurse James with actual knowledge of a substantial risk of suicide, d) Dr. David was not directly involved in Zick's treatment, and e) there was a lack of evidence that Memorial Home condoned or adopted an unconstitutional practice.

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GAYTON v. MCCOY (January 28, 2010)

India Taylor had a life-threatening heart condition. She took six different medications to treat the condition. The six drugs were not the only drugs Taylor took – she was also a heroin user. Taylor was arrested on four different occasions in the summer of 2003. As a result, personnel at the Peoria County Jail became very familiar with her condition and her medications. Both her medical history and her prescriptions became part of her file. She was arrested again in October. Because she complained of chest pain, she was taken for a medical examination. Nurse Radcliffe knew her history and medications and asked her brother to bring her medications to the jail. She also made a notation that Taylor should see the doctor the next day if her medications did not arrive. The next day, Taylor complained of nausea on multiple occasions. By mid-afternoon, she was vomiting violently. The guards called the nurse, and even collected her vomit in a bag. Nurse Hibbert suspected that Taylor was faking her symptoms in order to get drugs and refused to see her. Although her name was on the list to see the doctor the next day, she died during the night. Lester Gayton, her brother and administrator of her estate, brought a wrongful death action pursuant to §1983. He named the sheriff, the jail superintendent, the doctor, three nurses, and the outsourced health care provider at the jail. The district court excluded the testimony of the plaintiff's medical expert and granted summary judgment to the defendants. Gayton appeals.

In their opinion, Judges Flaum and Williams and District Judge Lawrence affirmed in part and reversed in part. The Court started with the district court’s exclusion of the medical expert, Dr. Weinstein. First, the Court concluded that the lower court erred in finding Weinstein unqualified to opine on the cause of death. In fact, Weinstein did not testify as to cause of death -- he simply adopted the other experts' conclusion that Taylor died of nonspecific heart failure. Next, the Court stated that the fact that Weinstein was not a cardiologist did not make him unqualified. Finally, with respect to the reliability of his specific conclusions, the Court considered each conclusion individually: a) the lower court properly barred the conclusion that Taylor might have lived had she been given her medication since he gave no basis for his opinion and claims no specific expertise regarding the medication, b) the court improperly barred his testimony that the combination of her vomiting and certain medications might have contributed to her heart failure since that opinion requires no specialized expertise, and c) although the court did not address it, Weinstein is an expert in prison healthcare and is qualified to give his opinion that prison medical personnel fell short of accepted standards of medical care.

The Court next addressed summary judgment. A cause of action for failure to provide adequate medical care requires a showing of a serious medical condition, deliberate indifference, and causation. The deliberate indifference element itself requires knowledge of the health risk and a disregarding of that risk. Given Taylor's serious heart condition, her complaints of chest pain and nausea, and her excessive vomiting, the Court had little difficulty in finding enough evidence of a serious medical condition to overcome summary judgment. On the issue of deliberate indifference, the Court analyzed each defendant separately: a) summary judgment was proper for the sheriff, the doctor, and the superintendent since they had no contact with Taylor and did not know of her request for medical attention, b) summary judgment was proper for the outsourced medical care organization since the plaintiff conceded that the medical policies were sufficient, thus precluding Monell liability, c) summary judgment was proper for two of the three nurses in that one acted reasonably and the other, although negligent, was not deliberately indifferent, and d) summary judgment in Nurse Hibbert’s favor was improper since a jury could find that her refusal to see Taylor despite strong indications that she was in need of medical treatment amounted to deliberate indifference. Finally, the Court also found sufficient evidence in the record on which a jury could find proximate causation between Nurse Hibbert’s conduct and a delay in treatment that exacerbated Taylor’s suffering.

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KNIGHT v. WISEMAN (December 22, 2009)

Shortly before Rick Knight began serving a prison term, he had surgery on his shoulder. Although he had no medical work restrictions, he did advise prison personnel of the surgery and some lingering pain. Nevertheless, several months later, he was transferred to a work camp. Prison inmates at the work camp participate in the work gangs, typically trimming trees and picking up roadside logs. At the camp, Knight participated in several work details without complaint, although he was generally successful in finding the less-strenuous tasks. On February 16, Knight was assigned to a work gang with Officers Wiseman and Wiedau. Although Knight again selected easier tasks, the officers insisted he do more. They were unaware of his shoulder complaints. The result -- he re-injured his shoulder throwing a log. A third officer returned Knight to the camp, although he took a short detour to run an errand on the way. Knight was diagnosed with a torn rotator cuff. He brought suit against the two officers pursuant to § 1983, alleging violations of this Eighth and Fourteenth Amendment rights. The district court granted summary judgment to the officers, concluding that they did not act with deliberate indifference. Knight appeals.

In their opinion, Judges Flaum, Manion and Wood affirmed. Two elements are required to state a claim for an Eighth amendment violation. There must be a serious medical condition and the plaintiff must demonstrate deliberate indifference on the part of the prison official to that condition. Deliberate indifference requires a showing that the defendant was actually aware of the serious medical condition. Here, there is no evidence in the record that the officers were aware of Knight's condition when they first ordered him to work. Although one of the officers ordered Knight back to work after his first complaint of pain, he quickly retracted his order when he realized the seriousness of Knight's injury. Finally, the Court rejected Knight's argument that the few hour delay in receiving treatment, including the brief detour, amounted to deliberate indifference. Such a claim would require medical evidence that showed his condition deteriorated due to the delay, which does not exist here.

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