ANGEL L. RODRIGUEZ, Plаintiff-Appellant, v. PLYMOUTH AMBULANCE SERVICE, et al., Defendants-Appellees.
No. 06-4260
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 19, 2008—DECIDED AUGUST 18, 2009
Before POSNER, RIPPLE and EVANS, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:06-CV-01091-AEG—Charles N. Clevert, Jr., Judge.
I
BACKGROUND
A.1
Mr. Rodriguez is an inmate at the Kettle Moraine Correctional Institution (“KMCI”) in Wisconsin. On Oсtober 8, 2005, he began spitting up blood and experiencing abdominal pain. An ambulance from the Plymouth Ambulance Service (“Plymouth”), with emergency medical technician-paramedics (“EMT”) Mike Lubbert and Nadie Becker aboard, arrived at KMCI to transport Mr. Rodriguez to St. Agnes Hospital (“St. Agnes”). In the ambulance, Mr. Lubbert inserted a temporary intravenous line (“IV”) into Mr. Rodriguez’s right arm. The IV caused Mr. Rodriguez pain, and he notified Mr. Lubbert and Ms. Becker.
Mr. Rodriguez also complained about the “serious pain” he was experiencing to the nurses at the emergency
At Waupun Memorial, Mr. Rodriguez informed the nurses that he was in pain from the IV. The nurses flushed and adjusted the IV, causing his arm to bleed profusely and causing him “more severe pain.” R.1 at 6A. The IV was not removed until four days after its insertion. By that time, Mr. Rodriguez’s arm was swollen and completely immobile. When he complained to the staff at Waupun Memorial and requested pain relief medication, they provided him with an ice bag and stated that they could do nothing more. Id.
Upon his return to KMCI, the prison’s medical staff noticed that Mr. Rodriguez’s arm was severely infected and that pus was oozing from the site where the IV had been inserted. After running a test, the staff determined that Mr. Rodriguez had contracted methicillin-resistant staphylococcus aureus. Mr. Rodriguez was treated at the prison with antibiotics, but he continues to experience pain in his arm.
The district court took the view that the allegations of the complaint arguably suggest that the named defendants had operated under the color of state law. Relying on our decisions in Burrell v. City of Mattoon, 378 F.3d 642, 650 (7th Cir. 2004), and Proffitt v. Ridgeway, 279 F.3d 503, 507 (7th Cir. 2002), the court based its conclusion on the principles that a private person can become liable under section 1983 by conspiring with a public official to deprive a person of a constitutional right or by becoming a willful participant with the state or its agents in such a deprivation.
The district court then turned to the merits of Mr. Rodriguez’s Eighth Amendment claim. It determined that there was no arguable basis for relief and dismissed the complaint.
II
DISCUSSION
This case is significantly more complex than the district court’s opinion suggests. To ensure clarity of analysis and of presentation, we shall discuss the principles of law that guide our decision in Sections A through C and then apply those principles to the facts of this case in Section D.
A.
As a threshold matter, we shall address the appropriate standard of review and the sufficiency of Mr. Rodriguez’s complaint.
The sufficiency of a complaint is governed by
We do note, however, that Mr. Rodriguez mentions in the text of his pro se complaint several individuals whom he believes were responsible for his injury, but
Ordinarily a tort victim who does not know who the tоrtfeasor is cannot sue. To know that one has been injured tortiously but not by whom is a ground for tolling the statute of limitations, but it is not a ground for filing suit before the plaintiff knows who injured him and who therefore should be named as the defendants. But this is not an ordinary case. Billman is a prison inmate. His opportunities for conducting a precomplaint inquiry are, we assume, virtually nil. . . . Even without doing any investigating, Billman knew enough to know that a terrible thing had been done to him. But he did not know enough to identify the culprits or to determine whether they had the confluence of knowledge . . . and power . . . necessary to hold them liable for inflicting a cruel and unusual punishment.
We do not think that the children’s game of pin the tail on the donkey is a proper model for constitutional tort law. If a prisoner makes allegations that if true indicate a significant likelihood that someone employed by the prison system has inflicted cruel and unusual punishment on him, and if the circumstances are such as to make it infeasible for the prisoner to identify that someone before filing his complaint, his suit should not be dismissed as frivolous. The principle is not limited to prisoner cases. It applies
to any case in which, usually because the plaintiff has been injured as the consequence of the actions of an unknown member of a collective body, identification of the responsible party may be impossible without pretrial discovery. . . . Of course, eventually the plaintiff must discover the names of the defendants in order to serve summonses on them and thus establish the court’s personal jurisdiction, without which the suit must be dismissed. But his initial inability to identify the injurers is not by itself a proper ground for the dismissal of the suit. Dismissal would gratuitously prevent him from using the tools of pretrial discovery to discover the defendants’ identity. Our point is not that Billman should be given a break because he lacks legal skills. Or that his complaint should, like any complaint governed by the Federal Rules of Civil Procedure, be read generously. . . . Our point is that because Billman is a prisoner he may not be in a position to identify the proper defendants, or all of them, in his complaint. . . . We think it is the duty of the district court to assist him, within reason, to make the necessary investigation.
Id. at 789-90 (citations omitted).
B.
Mr. Rodriguez brought this claim under
1.
It has long been established that there is no respondeat superior liability under section 1983.3 Although this principle typically surfaces in the context of municipal corporations,4 we have applied the same principle to situations where the employer is an individual.5 The same is true of a private corporation. As we noted in Johnson v. Dossey, 515 F.3d 778 (7th Cir. 2008):
The corporate defendants require a bit more attention. Both [defendants] claim to be sued solely under a theory of respondeat superior or vicarious liability. Like public municipal corporations, they cannot be sued solely on that basis: a “private corporation is
not vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights.” Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982); see also Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760 (7th Cir. 2002). However, like a municipality, a private corporation can be liable if the injury alleged is the result of a policy or practice, or liability can be “demonstrated indirectly ‘by showing a series of bad acts and inviting the court to infer from them that the policy-making level of government was bound to have noticed what was going on and by failing to do anything must have encouraged or at least condoned . . . the misconduct of subordinate officers.’” Woodward v. Corr. Med. Servs., 368 F.3d 917, 927 (7th Cir. 2004).
Id. at 782 (alteration in original).
2.
We next consider the principle that, to be held liable under section 1983, a private entity must have acted under color of state law.
a.
When a plaintiff brings a section 1983 claim against a defendant who is not a government official or employee, the plaintiff must show that the private entity acted under
At its most basic level, the state action doctrine requires that a court find such a “close nexus between the
Moreover, the Court has set forth several tests for us to employ in evaluating the “range of circumstances” that might constitute state action. Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 295 (2001). We recognize that these formulations are susceptible to
The Supreme Court also has provided us with some guidance for determining when nongovernmental health care providers that serve state prisoners should be considered state actors. Nevertheless, we still remain, to some degree, in uncharted waters.
Our analytical voyage must begin with West v. Atkins, 487 U.S. 42 (1988). In West, the Supreme Court held that, when a physician is employed by the state to provide medical services to state prison inmates, that physician acts under the color of state law for purposes of section 1983. The physician’s conduct in providing medical services, said the Court, “is fairly attributable to the State.” Id. at 54. In West, the Court primarily was addressing the state’s argument that Polk County v. Dodson, 454 U.S. 312 (1981), controlled the situation before it. In Polk, the Court had held that “a public defender does not act under color of state law when performing a lawyer’s traditional funсtions as counsel to a defendant in a criminal proceeding.” Id. at 325.12 In West, the state had argued that, because the physician also exercises independent professional judgment, he cannot be considered a state actor. In disagreeing with this argument, the Court relied upon its decision in Estelle v. Gamble, 429 U.S. 97 (1976). In Estelle, the Court
Turning to the facts before it, the Court in West reasoned that, because the state controls the medical care of inmates to the exclusion of all other sources, the state has a constitutional obligation under the Eighth Amendment to provide adequate medical care. The physician employed by the state is therefore obliged to treat prison inmates in fulfillment of the state’s responsibility. When he does so, the Court concluded, he is “‘clothed with the authority of state law.’” West, 487 U.S. at 55 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
Notably, in West, the Court did not rely on the particular contractual arrangement that the physician had with the state, but, rather, emphasized the function of the physician:
It is the physician’s function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State. Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to pro-
vide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights. The State bore an affirmative obligation to provide adequate medical care to West. The State delegated that function to respondent Atkins; and respondent voluntarily assumed that obligation by contract.
Id. at 55-56 (emphasis added) (footnote omitted).
This emphasis on the function performed by the physician as opposed to the physician’s particular contractual relationship with the state was the subject of further elaboration by the Court:
It is the physician’s function while working for the State, not the amount of time he spends in the performance of those duties or the fact that he may be employed by others to perform similar duties, that determines whether he is acting under color of state law. In the State’s employ, respondent worked as a physician at the prison hospital fully vested with state authority to fulfill essential aspects of the duty, placed on the State by the Eighth Amendment and state law, to provide essential medical care to those the State had incarcerated.
Id. at 56-57 (emphasis added) (footnote omitted).
The situation before us today is not identical to the one before the Court in West. However, in applying West, our focus must be on the particular function of the medical care provider in the fulfillment of the state’s obliga-
At the outset, we note that in West, the Supreme Court did not rely explicitly on any of the tests that it had developed in earlier cases to discern whether private activity could be “fairly attributable to the State.” Rendell-Baker, 457 U.S. at 838 (quotation marks omitted). It was not until the Court’s later decision in American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40 (1999), that it said explicitly that its holding in West was based on the public function test. The Court simply noted that in West, “the State was constitutionally obligated to provide medical treatment to injured inmates, and the delegation of that traditionally exclusive public function to a private physician gave rise to a finding of state action.” Id. at 55.16 In discerning how to apply West to other medical care situations involving incarcerated persons, we therefore must keep in mind the theoretical underpinnings of the public function test. As one scholar has summarized:
The theory is that if the government must satisfy certain cоnstitutional obligations when carrying out its functions, it cannot avoid those obligations and deprive individuals of their constitutionally protected rights by delegating governmental functions to the private sector. The delegation of the function should be accompanied with a delegation of constitutional responsibilities.
ii.
West tells us that the functional analysis ought to focus on the relationship among the state, the health care provider and the prisoner. West also tells us that one of the factors that we must weigh, in assessing that trilateral relationship, is the setting in which the medical care is rendered. The Court emphasized that a medical care provider in the correctional setting inevitably is affected by that setting in the performance of his medical functions. “Unlike the situation confronting free patients, the nonmedical functions of prison life inevitably influence the nature, timing, and form of medical care provided to inmates.” West, 487 U.S. at 56-57 n.15. Medical care is simply “not unaffected by the fact that the State controlled the circumstances and sources of a prisoner’s medical treatment.” Id.
We do not read this statement as indicating that all medical advice rendered outside of the prison walls is exempt from the state action doctrine simply because it is provided outside the prison. Indeed, the Court’s statement makes clear that state control is highly relevant. In the context of modern American medical practice, it is not feasible to render a great deal of medical care within the confines of a penаl institution. The state clearly does not relieve itself of its responsibility to provide medical care solely on account of the venue where those services are rendered. See Connor v. Donnelly,
Giving significant weight to the degree to which the work of the private medical provider is controlled or influenced by the state simply acknowledges the general concern, in any state action analysis, that the degree of state control or coercion is a very significant factor in determining whether the private individual’s actions can be “fairly attributable to the state.” Lugar, 457 U.S. at 937. While this factor is not often articulated in applying the public function test in other contexts, it certainly must be weighed in the medical context when assessing the relationship among the state, the private actor and the prisoner.
iii.
Although West tells us that the contractual relationship between the state and the medical care provider cannot be the focus of our inquiry, see West, 487 U.S. at 55, it nevertheless must be an important factor in determining whether the private health care provider has
In contrast, private organizations and their employees that have only an incidental and transitory relationship with the state’s penal system usually cannot be said to have accepted, voluntarily, the responsibility of acting for the state and assuming the state’s responsibility
” ‘assume[d] an obligation to the [penological] mission that the State, through the [prison], attempts to achieve.’ ”
West, 487 U.S. at 51 (quoting Polk County, 454 U.S. at 320). In these circumstances, matters of professional judgment do in fact predominate over the achievement of state objectives. See id. at 52 n.10.
iv.
We believe that it is also important to emphasize that the Supreme Court in West did not focus simply on the relationship of the private medical provider to the state. It also considered the relationship of the private provider to the prisoner. In doing so, we think that the Court meant to emphasize that, in order to be liable as the state for the provision of medical services, the private provider must have a direct, not an attenuated, relationship with the prisoner-patient. In the fulfillment of its
These considerations do not provide us, however, with a pat answer as to whether any particular medical care arrangement constitutes state action through the application of the public function doctrine. They are, however, the factors that West indicates that we must apply in our assessment оf the individual case. As the Supreme Court told us in Brentwood Academy, what is fairly attributable to the state “is a matter of normative judgment, and the criteria lack rigid simplicity.”
531 U.S. at 295.
The “broad and idealistic concepts of dignity, civilized standards, humanity, and decency,”
prohibits punishments which are incompatible with “the evolving standards of decency that mark the progress of a maturing society.”
Estelle, 429 U.S. at 102 (quotation marks omitted). It thus requires that the government provide “medical care for those whom it is punishing by incarceration.”
Id. at 103. The “may result in pain and suffering which no one suggests would serve any penological purpose.”
Id. Accordingly, “deliberate indifference to serious medical needs”
of a prisoner constitutes the unnecessary and wanton infliction of pain forbidden by the “a plaintiff must show (1) an objectively serious medical condition to which (2) a state official was deliberately, that is subjectively, indifferent.”
Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008) (citing Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000)).
In Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997), we addressed the appropriate principles to be applied in cases involving delays in the treatment of painful“The former requires that the deprivation suffered by the prisoner be ‘objectively, sufficiently serious.’ ”
Gutierrez, 111 F.3d at 1369 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation marks omitted). The latter requires that the state official, or the person acting in his stead, act with deliberate indifference. Id. We also recognized that delays in treating painful medical cоnditions, even if not life-threatening, may support an “permanent disfigurement, loss of range of motion, and the infliction of unnecessary pain”
). By contrast, minor pains cannot give rise to such a claim:
Deliberately to ignore a request for medical assistance has long been held to be a form of cruel and unusual punishment . . . but this is provided that the illness or injury for which assistance is sought is sufficiently serious or painful to make the refusal of assistance uncivilized. . . . A prison‘s medical staff that refuses to dispense bromides for the sniffles or
minor aches and pains or a tiny scratch or a mild headache or minor fatigue—the sorts of ailments for which many people who are not in prison do not seek medical attention—does not by its refusal violate the Constitution .
Id. at 1372. (alterations in the original) (quoting Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996)).
D.
Having set forth the principles of law that must govern our decision, we now turn to the narrative in Mr. Rodriguez‘s complaint to determine whether any of his claims should have survived the screening process under
1.
Plymouth Ambulance Service and its Employees
In his complaint, Mr. Rodriguez claims that an ambulance from Plymouth, with EMT Lubbert and EMT Becker aboard, transported him from the prison to St. Agnes. Mr. Rodriguez further claims that EMT Lubbert “inserted a temporary I.V. in [his] right arm [which was] stable only enough to get some fluids running until the transport caravan arrive[d] at St. Agnes Hospital.”
R.1 at 6. This initial insertion of the IV, therefore, was performed for a legitimate medical reason and not to inflict gratuitously pain on Mr. Rodriguez. At worst, it was a negligent act.
“objectively serious medical condition”
) (internal quotation marks omitted).
We think that this allegation is sufficient to state a claim under the
However, before this claim may survive screening, another issue must also be resolved through limited
Finally, we must address whether this claim may proceed agаinst all the defendants involved in the transportation of Mr. Rodriguez to St. Agnes. In the complaint, Mr. Rodriguez named as defendants the EMTs who attended to him, as well as Plymouth. However, he alleges no wrongdoing on the part of the corporation, no failure to train its employees and no policy of the corporation that violated his constitutional rights. The company is not liable under
2.
St. Agnes Hospital
The next defendant named by Mr. Rodriguez is St. Agnes. Mr. Rodriguez alleges that, upon his arrival at St. Agnes, a nurse drew blood and injected him with pain medication. He states that he “pleaded to the emergency nurses to adjust or fix the temporary I.V. so it wouldn‘t cause him pain,”
but that the nurse declined to do so because the hospital did not have “an active medical account”
with KMCI. R.1 at 6. He states that he waited for an hour at St. Agnes, in pain, before an ambulance arrived to transfer him to another hospital.
We do not believe that the allegations against St. Agnes state a cause of action under
3.
Waupun Memorial Hospital
Finally, Mr. Rodriguez alleges that treatment of his arm by the staff at Waupun Memorial constituted deliberate indifference to his serious medical needs and constituted the gratuitous infliction of pain.
With respect to Waupun Memorial, we believe that the allegations of the complaint are sufficient to allege state
In his complaint, Mr. Rodriguez specifically mentions only the hospital as a defendant. As in the case of Plymouth and St. Agnes, however, there is no allegation that his alleged maltreatment was due to a policy of the institution or to a failure to train its personnel. There can be no respondeat superior liability fоr the actions of the staff members under
“as far as it [could be] pushed,”
R.1 at 6A, and refused to treat the attendant pain. The only relief administered, according to the complaint, was an ice pack. At this stage, we cannot say that these allegations describe only simple negligence, as opposed to deliberate inattention to a worsening medical condition (that later resulted in a serious infection and at least temporary loss of use of an arm) аnd deliberate indifference to continuing pain. Notably, the complaint explicitly contrasts the ice pack treatment administered by the Waupun Memorial staff to the antibiotic therapy and laboratory analysis initiated by the prison hospital staff shortly thereafter. This contrast does not suggest a simple professional disagreement as to choice of remedies, but the difference between meaningful treatment and non-treatment. As we stated in Gutierrez, 111 F.3d at 1371, “delays in treating painful medical conditions that are not life-threatening can support Eighth Amendment claims.”
In this case, Mr. Rodriguez has alleged that Waupun Memorial failed to treat his arm during the entire duration of his hospital stay, causing him extreme pain and resulting in the“A jury can ‘infer deliberate indifference on the basis of a physician‘s treatment decision [when] the decision [is] so far afield of accepted professional standards as to raise the inference that it was not actually based on a medical judgment.’ ”
(quoting Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006) (alterations in the original))).
Under these circumstances, we believe that Mr. Rodriguez should have the opportunity to engage in limited discovery to ascertain the identity of these staff members, whose conduct he has explicitly described. If he does so, the allegations of the complaint with respect to the conduct of those individuals are sufficient to state a claim under
Conclusion
The judgment of the district court is affirmed in part and vacated and remanded in part for further proceedings consistent with this opinion. No costs are assessed in this case.
AFFIRMED in part,
VACATED and REMANDED in part
8-18-09
Notes
“private prison-management corporations and their employees may be sued under § 1983 by a prisoner who has suffered a constitutional injury”(emphasis added)).