Case Information
*1 Before R IPPLE , W ILLIAMS , and H AMILTON , Circuit Judges . R IPPLE , Circuit Judge
. Donald McDonald was diagnosed with arthritis and high cholesterol while serving a life sen- ∗ After examining the briefs and record, we have concluded that oral ar- gument is unnecessary. Thus the appeal is submitted on the briefs and record. See F ED . R. A PP . P. 34(a)(2)(C).
tence at Stateville Correctional Center (“Stateville”), a maxi- mum-security prison in Illinois. Over the ten years following his diagnosis, he received a low-cholesterol diet planned by a dietician at the facility. In 2009, however, a new warden took the helm at Stateville, and he promptly discharged the dieti- cian and cancelled all special diets, including Mr. McDon- ald’s. The new warden also decreased the frequency of out- door recreation for inmates to two days each week and altered the prison’s job-assignment policy to restrict inmates from working in a particular job for more than one year.
As a result of these changes, Mr. McDonald brought this action under 42 U.S.C. § 1983 against Marcus Hardy, the new warden, Daryl Edwards, an assistant warden, and Salvador Godinez, then the director of the Illinois Department of Cor- rections. Mr. McDonald claimed that Warden Hardy, with the support of Assistant Warden Edwards, had violated the Eighth Amendment’s prohibition on cruel and unusual pun- ishment by cancelling his prescribed low-cholesterol diet, de- creasing his outdoor-recreation time, and changing the job- assignment system. Mr. McDonald also alleged that Director Godinez had violated the Equal Protection Clause by allow- ing inmates at the other maximum-security prisons in Illinois to have prescription diets and more time for outdoor recrea- tion. Mr. McDonald sought both damages and injunctive re- lief.
The district court granted the defendants’ motion for sum-
mary judgment on each of Mr. McDonald’s four claims. In this
appeal, Mr. McDonald challenges the grant of summary judg-
ment only as to his claims concerning the cancellation of his
low-cholesterol diet, the limited time given for outdoor recre-
ation, and the purported disparity of treatment of inmates at
different Illinois maximum-security prisons. Mr. McDonald
does not mention the district court’s rejection of his claim
about the new system for assigning prison jobs; that claim
therefore has been abandoned.
See Thornton v. M7 Aerospace
LP
, 796 F.3d 757, 771 (7th Cir. 2015);
Hentosh v. Herman M.
Finch Univ. of Health Scis./The Chicago Med. Sch.
,
We conclude that Warden Hardy and Assistant Warden Edwards are not entitled to summary judgment on Mr. McDonald’s claim concerning the cancellation of his pre- scription diet, and we remand that claim for further proceed- ings. In all other respects we affirm the judgment of the dis- trict court.
I BACKGROUND A. Facts
Because the district court ruled in favor of the defendants
at summary judgment, we view the following facts in the light
most favorable to Mr. McDonald, the nonmoving party.
See
Riker v. Lemmon
,
Mr. McDonald, who has been incarcerated at Stateville for twenty years, was diagnosed with high cholesterol in 1998. A physician at the prison prescribed a low-cholesterol diet, along with cholesterol-lowering medication. [2] Mr. McDonald remained on that prescription diet until the end of 2009, when Warden Hardy took charge. Warden Hardy then fired Stateville’s dietician and cancelled all medical diets. Since then, Mr. McDonald has eaten the regular diet at Stateville, which includes foods that the dietician had warned him to avoid, including cheese, eggs, and foods containing high amounts of mayonnaise. Medical providers working at State- ville repeatedly have told Mr. McDonald that they cannot re- instate his prescription for a low-cholesterol diet because the cafeteria staff does not have the means to satisfy the prescrip- tion.
During a January 2014 deposition, Mr. McDonald acknowledged that his total cholesterol level had decreased at some point during the two years preceding the deposition, perhaps because doctors continued experimenting with dif- ferent cholesterol medications. Specifically, Mr. McDonald 5 stated that his total cholesterol level had gone “down from 400” milligrams per deciliter (“mg/dL”) to “around three.” [5] That level, he added, was “still too high.” There is no evi- dence in the record, however, about Mr. McDonald’s choles- terol level when his diet was cancelled four years before that deposition.
Mr. McDonald also has been diagnosed with arthritis, for which physicians have recommended exercises and some- times prescribed pain medication. Stateville provides inmates with outdoor recreation twice each week for two and one-half hours each day, but Mr. McDonald alleges that this time is in- sufficient to provide therapeutic treatment for his arthritis. He also asserts that other maximum-security Illinois prisons pro- vide “full yard,” meaning “they have sometimes three and four times a day exercise programs where [inmates] might get three yards and a gym.”
McDonald v. Wexford Health Sources, Inc.
, No. 09 C 4196,
from inmates incarcerated at Menard Correctional Center and Pontiac Correctional Center, the other maximum-security prisons in Illinois. B. Earlier Proceedings
Mr. McDonald brought this action in March 2013. He first alleged that Warden Hardy had violated the Eighth Amend- ment by “maintain[ing] and enforc[ing an] institutional pol- icy denying Plaintiff a low cholesterol diet.” [8] He also asserted that Warden Hardy was “the moving force behind the Policy of two (2) days of recreation, two hours each day,” which, he said, caused him “to aggravate his medical conditions of high cholesterol, arth[ritis] and borderline diabetes.” [9] Mr. McDon- ald next contended that Assistant Warden Edwards had vio- lated the Eighth Amendment when he “failed to create pro- grams that offered medical diets” and failed to provide suffi- cient time for outdoor recreation. [10] Finally, Mr. McDonald al- leged that Director Godinez unconstitutionally discriminated against similarly situated Illinois inmates “by allowing Menard Correctional Center and Pontiac Correctional Center to provide special medical diets and yard or gym (exercise) more than two (2) times a we[e]k.” [11] He sought damages against the individual defendants as well as “an injunction [r]equiring Stateville Correctional Center [to] provide [s]pe- cial diets for high cholesterol [and] diabetes, and an oppor- tunity for plaintiff to exercise five (5) days a week.” [12] In August 2013, five months after Mr. McDonald brought this action, he requested various documents from the defend- ants, including a “complete copy” of his medical file at State- ville, policies and procedures concerning medical diets and opportunities for exercise at Stateville, and policies and pro- cedures concerning opportunities for exercise throughout the Illinois Department of Corrections. When the defendants failed to respond with all of the requested documents, Mr. McDonald twice asked the district court to compel pro- duction, and both times the court ordered the defendants to comply with Mr. McDonald’s discovery requests.
Three months after the second order compelling discov- ery, and without complying with that order, the defendants moved for summary judgment. Warden Hardy and Assistant Warden Edwards did not dispute that Mr. McDonald had a medical prescription for a low-cholesterol diet when Warden Hardy arrived at Stateville in late 2009. Instead, these defend- ants simply asserted that “[n]o physician ha[d] prescribed a low cholesterol diet for Plaintiff in the last several years .” These defendants also did not dispute that Warden Hardy had given (and Assistant Warden Edwards had carried out) the order to cancel Mr. McDonald’s prescription. Nor did they offer evidence that Warden Hardy had consulted Mr. McDon- ald’s physicians (or any medical source) before cancelling Mr. McDonald’s prescription diet. And these defendants did not offer a medical expert’s opinion that Mr. McDonald’s low- cholesterol diet was unnecessary or that cancelling it had not harmed him and had not placed him at a greater risk of suf- fering a heart attack or stroke.
Rather, the only relevant evidence submitted by any of the defendants was the transcript of Mr. McDonald’s deposition. Warden Hardy and Assistant Warden Edwards—without producing any evidence showing what Mr. McDonald’s cho- lesterol level had been before his diet was cancelled—asserted that Mr. McDonald did not have a valid claim because during his deposition he had acknowledged that his cholesterol level decreased from 400 mg/dL to 300 mg/dL in the two years pre- ceding that January 2014 deposition. The defendants con- tended that this decrease established that Mr. McDonald’s high cholesterol was being treated adequately “by physicians at Stateville with medication.” The defendants did not ex- plain, though, how Mr. McDonald’s claim could be defeated by evidence that his cholesterol level remained at least as high as 300 mg/dL two years or more after they had ended his diet. Mr. McDonald countered with medical literature (accepted by the district court without objection from the defendants) ex- plaining that the optimal cholesterol range for someone of middle age is 115 mg/dL to 200 mg/dL. The defendants did not offer evidence, or even suggest, that a cholesterol level of either 300 mg/dL or 400 mg/dL is safe.
In granting summary judgment for the defendants on all claims, the district court first rejected Mr. McDonald’s conten- tion that the amount of outdoor recreation available to State- ville inmates is constitutionally deficient. The court reasoned that Mr. McDonald’s evidence concerning his opportunities to exercise both in his cell and outdoors defeated his claim of an 9 Eighth Amendment violation, particularly because Mr. McDonald had not presented evidence “that the limita- tion on his yard time adversely affected his cholesterol level or his arthritis.” [16] The court then turned to the cancellation of Mr. McDonald’s low-cholesterol diet. In rejecting that claim, the court asserted that Mr. McDonald lacked “evidence show- ing that a doctor has prescribed him a low cholesterol diet or that the lack of such a diet has hindered his ability to control his cholesterol levels.” [17] Mr. McDonald simply disagreed, the court reasoned, with the medical treatment provided by doc- tors at Stateville. And, the court emphasized, because the de- fendants are not physicians, they are permitted to “reason- ably rely on the judgment of medical professionals regarding the care provided to an inmate.” [18] Finally, the court concluded that Director Godinez was entitled to summary judgment on Mr. McDonald’s equal protection claim; Director Godinez’s decisions concerning inmates at different prisons in Illinois are presumed to be rational, the court explained, and Mr. McDonald’s “belief” that Stateville inmates are unfairly allowed less time for recreation and deprived of prescription diets was insufficient to overcome that presumption. II
DISCUSSION
We review the district court’s decision granting summary
judgment de novo.
Riker
,
Low-Cholesterol Diet
Mr. McDonald submits that the district court improperly granted summary judgment on his claim that Warden Hardy and Assistant Warden Edwards displayed deliberate indiffer- ence to his high cholesterol by cancelling his prescription diet.
The Eighth Amendment, which applies to the states
through the Due Process Clause of the Fourteenth
Amendment, requires that inmates receive adequate medical
care.
See Estelle v. Gamble
,
An objectively serious medical condition is one that “a
physician has diagnosed as needing treatment” or that is so
obviously serious “that even a lay person would easily recog-
nize the necessity for a doctor’s attention.”
Knight
, 590 F.3d at
463 (internal quotation marks omitted). Prisoners typically
point to acute problems that, because of inadequate treat-
ment, already have caused or aggravated pain or other harm.
See, e.g.
,
Conley v. Birch
, 796 F.3d 742, 744–45, 747 (7th Cir.
2015) (fractured hand);
Perez v. Fenoglio
,
With that in mind, we turn to the merits of Mr. McDonald’s
claim of deliberate indifference. We first note that the hurdles
Mr. McDonald encountered in developing evidence to flesh
out this claim are troubling, particularly with respect to essen-
tial medical records. Twice the district court had to direct the
defendants to comply with Mr. McDonald’s discovery re-
quests, yet Mr. McDonald informs us that the defendants
never fully complied with the court’s orders. The defendants
do not deny this accusation or explain their conduct. Instead,
they insist that, “other than his two motions to compel,”
Mr. McDonald “identifies nothing in the record to show that
he brought any of the…claimed discovery ‘violations’ to the
attention of the district court.” The defendants add that
diabetes);
Rouse v. Plantier
,
tional institutions, where, at least one study has shown, there is a signifi- cantly higher prevalence of hypertension, asthma, arthritis, cervical can- cer, and hepatitis. Ingrid A. Bingswanger, Chronic Medical Diseases Among Jail and Prison Inmates , C ORRECTIONS . COM (Oct. 25, 2010), http://www.cor- rections.com/news/article/26014-chronic-medical-diseases-among-jail- and-prison-inmates. Appellees’ Br. 28. This assertion is puzzling; by filing two motions com-
plaining of inadequate responses to his discovery requests, Mr. McDonald
Mr. McDonald “does not explain how not having the particu-
lar documents he complains Defendants never produced—
e.g., his medical records showing that he had been prescribed
a low-cholesterol diet years ago and the prior policy of seven
hours of recreation per week—prejudiced him in any way on
summary judgment.”
[28]
Finally, the defendants point out that
Mr. McDonald did not ask for additional time to complete dis-
covery or submit an affidavit swearing that he could not ade-
quately oppose summary judgment without the documents.
See
F ED . R. C IV . P. 56(d);
First Nat’l Bank & Trust Corp. v. Am.
Eurocopter Corp.
,
In any event, what little evidence Warden Hardy and As-
sistant Warden Edwards did submit in opposing Mr. McDon-
ald’s claim about his prescription diet actually supports, ra-
ther than defeats, that claim, and thus we must overturn the
grant of summary judgment regardless whether the docu-
did
bring the alleged discovery violations to the attention of the district
court.
Id.
at 28–29.
See Sentis Grp., Inc. v. Shell Oil Co.
,
Constr. Servs., Inc. v. Fudge
,
2008);
Israel Travel Advisory Serv., Inc. v. Israel Identity Tours, Inc.
, 61 F.3d
1250, 1254–55 (7th Cir. 1995);
Fair Hous. of Marin v. Combs
,
ments withheld by the defendants were material. The evi-
dence is undisputed that when Warden Hardy arrived at Stat-
eville in late 2009 he cancelled (and Assistant Warden Ed-
wards refused to reinstate) all prescription diets, including
Mr. McDonald’s. These defendants, however, are not physi-
cians, and there is no evidence in the record that they ever
consulted a medical professional about the advisability of
cancelling the allowance for low-cholesterol diets at the
prison. Interference with prescribed treatment is a well-recog-
nized example of how nonmedical prison personnel can dis-
play deliberate indifference to inmates’ medical conditions.
See Estelle
,
Warden Hardy and Assistant Warden Edwards fall back on their contention that nothing was taken away from Mr. McDonald because he “presented no evidence that a med- ical professional has prescribed a low-cholesterol diet for him.” First, we note the obvious conflict that this statement presents with the defendants’ assertion in the same brief that full compliance with Mr. McDonald’s discovery requests, which included requests for medical records proving the ex- istence of the prescription, would not have changed the result at summary judgment. In any event, this characterization of the evidence at summary judgment is wrong: Mr. McDonald testified at his deposition that he was given a prescription diet when he was diagnosed with high cholesterol and that he was still receiving that low-cholesterol diet when Warden Hardy took it away. The defendants did not introduce evidence that prescription diets expire or must be renewed periodically, nor did they introduce evidence that an inmate could have been receiving a nonstandard, low-cholesterol diet without a pre- scription. Rather, their statement of uncontested facts at sum- mary judgment stated only that Mr. McDonald had not been prescribed a low-cholesterol diet “in the last several years,” i.e., since Warden Hardy fired the prison dietician. But this fact does not help the defendants. That Mr. McDonald was not given a prescription after Warden Hardy took over is not evi- dence that a prescription was medically unnecessary; in fact, the absence of a prescription after Warden Hardy’s arrival is the very reason for Mr. McDonald’s lawsuit. No physician would give him a prescription, he explained at his deposition, because after Warden Hardy’s arrival four years earlier a pre- scription for a low-cholesterol diet would have been ignored by the cafeteria staff.
Warden Hardy and Assistant Warden Edwards next point
to the medical treatment for high cholesterol that Mr. McDon-
ald had been receiving—a variety of prescription medicines—
and contend that this claim of deliberate indifference amounts
to nothing more than Mr. McDonald’s disagreement with the
medical staff’s chosen course of treatment. Despite the fact
that eliminating Mr. McDonald’s prescription diet
was not
the
medical staff’s choice, the district court was persuaded by the
defendants’ reasoning. At his deposition, however,
Mr. McDonald testified that medication alone was ineffective
at lowering his cholesterol to a safe level. A level of 300 mg/dL
17 is “too high,” he stated.
[34]
The defendants did not submit any
evidence challenging that statement. A jury reasonably
could find that Warden Hardy and Assistant Warden Ed-
wards were deliberately indifferent to Mr. McDonald’s condi-
tion when they ignored his pleas to honor the medical staff’s
inclusion of a low-cholesterol diet in his treatment plan.
See
Smego v. Mitchell
,
Warden Hardy and Assistant Warden Edwards touch on,
but have not developed, an argument concerning causation.
See Flint v. City of Belvidere
, 791 F.3d 764, 770 (7th Cir. 2015)
(explaining that plaintiff alleging constitutional tort must
show that defendant caused injury);
Roe
,
B. Eighth Amendment Claim Based on Outdoor Recrea-
tion
Mr. McDonald contends that the court erroneously
granted summary judgment to Warden Hardy and Assistant
Warden Edwards on his claim that the five hours they allow
for outdoor recreation each week is constitutionally deficient.
In contrast with the claim about his low-cholesterol diet, how-
ever, Mr. McDonald presented no evidence that a physician
had specified a minimum level of outdoor recreation to treat
either his arthritis or high cholesterol.
See Jackson v. Kotter
, 541
F.3d 688, 697–98
(7th Cir. 2008)
(explaining
that
Eighth Amendment does not give inmates right to dictate
course of treatment);
Forbes v. Edgar
,
C. Equal Protection Claim
Mr. McDonald additionally argues that the district court improperly granted summary judgment on his claim that Di- rector Godinez, the former director of the Illinois Department of Corrections, discriminated against Stateville inmates in vi- olation of the Equal Protection Clause by denying them med- ical diets and greater opportunities for outdoor recreation, both of which, he says, are available at the other two maxi- mum-security prisons in Illinois. Mr. McDonald, however, ad- mitted during his deposition that he lacks personal knowledge of the conditions at the state’s other maximum-se- curity prisons, which dooms his claim at summary judg- ment.
D. Remaining Issues
Three other matters remain. First, because Mr. McDonald seeks injunctive relief on his claim that Warden Hardy inter- fered with his prescribed diet, the district court on remand should add as a defendant, in his official capacity, the current warden of Stateville.
Second, we note that Mr. McDonald currently has pending
before the same district judge a second, related lawsuit claim-
ing that Wexford Health Sources (a company that contracts
with Illinois to provide medical care to its prisoners), along
with its employees, was deliberately indifferent to his high
cholesterol by prescribing ineffective and harmful medica-
tions.
McDonald v. Wexford Health Sources, Inc.
, No. 09 C 4196
(N.D. Ill.). In that second suit the district court recruited coun-
sel for Mr. McDonald. That lawyer retained a medical expert,
and the district court recently denied the defendants’ motion
for summary judgment. Because the legal issues and facts
overlap significantly, the district court on remand should con-
sider consolidating the two lawsuits and requesting that
counsel also represent Mr. McDonald in this one.
See
F ED . R. C IV . P. 42(a)(2) (allowing district court to consolidate actions
that “involve a common question of law or fact”);
Blair v.
Equifax Check Servs., Inc.
,
Finally, on remand the district court should resolve Mr. McDonald’s assertion that the defendants have stone- walled his discovery demands despite two orders from the court directing compliance.
Conclusion
The district court erred in granting the defendants’ motion for summary judgment on Mr. McDonald’s claim that Warden Hardy and Assistant Warden Edwards displayed deliberate indifference to his high cholesterol by cancelling and refusing to reinstate his low-cholesterol diet. Accordingly, we vacate the grant of summary judgment on that claim, and we remand that claim for further proceedings. In all other respects we af- firm the district court’s judgment.
AFFIRMED in part, REVERSED and REMANDED in part
Notes
[1] After this appeal was filed, Director Godinez retired from the Illinois Department of Corrections, and Warden Hardy accepted a different posi- tion within the Department. It is unclear whether Assistant Warden Ed- wards still works for the Department. For simplicity we refer to the three defendants by the titles they held at the times relevant to Mr. McDonald’s complaint.
[2] At summary judgment, Mr. McDonald submitted an excerpt from what he referred to as the American College of Physicians’ “Complete Home Medical Guide,” which supports his contentions that “changes in diet and exercise habits” typically are the first line of defense against high choles- terol and that medications are prescribed only if “these measures fail,” on their own, at lowering total cholesterol to a safe level. R.50 at 7–8; R.51 at 11.
[3] The excerpt submitted by Mr. McDonald, see supra note 2, also asserts that “[a] high cholesterol level is associated with a diet that is high in fats, particularly saturated fats,” R.51 at 10–11.
[4] Mr. McDonald is also litigating a separate lawsuit alleging that many of the medications doctors prescribed were ineffective at lowering his cho- lesterol and, in some instances, have caused harmful side effects. See
[8] R.1 at 8.
[9] Id. at 8–9.
[10] Id. at 9.
[11] Id. at 10.
[12] Id. at 12.
[13] R.21 at 10.
[14] R.43 at 4 (emphasis added).
[15] Id.
[16] R.55 at 7.
[17] Id. at 10.
[18] Id. at 11.
[19] Id. at 12.
[20]
See also Johnson v. Doughty
,
[21]
See also Rodriguez v. Plymouth Ambulance Serv.
,
[22]
See also Gayton v. McCoy
,
[23]
See also Gomez v. Randle
, 680 F.3d 859, 865 (7th Cir. 2012) (shotgun
wound);
Rodriguez
, 577 F.3d at 830 (incorrect insertion of IV needle);
Grieveson v. Anderson
,
[24] See High Cholesterol: The Silent Killer , H EALTH C ENT . (Mar. 23, 2011), http://www.healthcentral.com/cholesterol/c/684890/134294/cholesterol/; High Cholesterol Overview , M AYO C LINIC (Feb. 9, 2016), http://www.mayo- clinic.org/diseases-conditions/high-blood-cholesterol/home/ovc- 20181871.
[25]
See also Leavitt v. Corr. Med. Servs., Inc.
,
[31]
See also Chapman
,
[32] Appellees’ Br. 18.
[33] R.44 at 2.
[34] R.44-1 at 20 (11:19).
[35] Indeed, it is apparent after browsing readily available sources targeted at lay persons that a total cholesterol level above 240 mg/dL is high. See High Blood Cholesterol Levels In-Depth Report , N.Y. T IMES , http://www.ny- times.com/health/guides/disease/high-blood-cholesterol-and-triglycer- ides/print.html (last visited Apr. 20, 2016); High Cholesterol , U.S. D EP ’ T OF V ETERANS A FFAIRS , N AT ’ L C TR . FOR H EALTH P ROMOTION & D ISEASE P REVENTION (April 2009), http://www.ahrq.gov/sites/default/files/ wysiwyg/patients-consumers/prevention/disease/cholpatient.pdf; Know the Facts About High Cholesterol , C TRS . FOR D ISEASE C ONTROL & P REVENTION 1, http://www.cdc.gov/cholesterol/docs/ConsumerEd_Cholesterol.pdf (last visited Apr. 20, 2016).
[36]
See also Arnett v. Webster
,
[37] R.43 at 4.
[38] We note that evidence in the public record of a separate lawsuit, McDon- ald v. Wexford Health Sources, Inc. , No. 09 C 4196 (N.D. Ill.), supports Mr. McDonald’s contention that he has been harmed by the defendants’ actions. According to a medical report submitted in response to the de- fendants’ motion for summary judgment in that lawsuit, Mr. McDonald has been diagnosed with atherosclerosis of the aorta, a “hardening and narrowing of the arteries” that can be caused by high cholesterol and “is the usual cause of heart attacks, strokes, and peripheral vascular disease,” What Is Atherosclerosis , W EB MD (May 26, 2014), http://www.webmd.com/ heart-disease/what-is-atherosclerosis.
[39]
See Markel v. Bd. of Regents of Univ. of Wis. Sys.
,