SCOTT HILDRETH v. KIM BUTLER, LORI OAKLEY, and WEXFORD HEALTH SOURCES, INC.
No. 18-2660
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 19, 2019 — DECIDED MAY 19, 2020
Before SYKES, HAMILTON, and BRENNAN, Circuit Judges.
Appeal from the United States District Court for the Southern District of Illinois. No. 3:15-cv-00831-NJR-DGW — Nancy J. Rosenstengel, Chief Judge.
Feeling his treatment was lacking, Hildreth sued Wexford Health Sources, Inc. and two jail administrators under
I. Background
A. Delays in Hildreth’s Medication
Hildreth’s Parkinson’s disease causes him to lose his balance, move uncontrollably, and occasionally fall. To alleviate these symptoms, a prison doctor prescribed Mirapex, which Hildreth contends made a “day and night” difference. As a specialty prescription, Mirapex was not kept in stock at the prison; instead, it was filled by an outside pharmacy. The prison allows Hildreth to keep a monthly supply of 90 Mirapex pills in his cell.
To refill his prescription, Hildreth must submit a refill sticker within seven days of the end of the prescription to a nurse, who takes it to an outside pharmacy. Hildreth usually receives his refill when he has three to five days of medication left. According to Hildreth, his prescription refill was delayed “at least three times,” causing him to experience withdrawal symptoms within a day or two. In each instance, he informed his gallery officer, who instructed him to tell the nurse. The nurse often told him to wait and see if the prescription would arrive on time. When his medication was late, Hildreth would file a grievance. For two of the three grievances, Hildreth received his medication within a few days of his prescription lapsing. Wexford’s medical director, Dr. Roderick Matticks, testified the third lapse occurred in part because Hildreth failed to attend the chronic clinic, where a Wexford physician evaluates chronically ill inmates to assess their condition and whether prescriptions should be continued. Dr. Matticks was aware of these two or three instances in which Hildreth “had some perceived delays in obtaining refills on his medications.”
B. Hildreth’s Request for a Typewriter
Hildreth used a typewriter instead of handwriting documents because his Parkinson’s symptoms rendered them illegible. But the prison, a maximum-security facility, banned the typewriter from his cell as contraband. Hildreth also claimed the prison discriminated against him based on his Parkinson’s disease by failing to reasonably accommodate him for his inability to write legibly.
To accommodate Hildreth’s request to draft documents, he was placed on the automatic call line to the law library when he was 90 days away from a court deadline. A counselor was available to help him draft documents, and he could contact an officer for emergencies. Hildreth also could use a typewriter whenever he had access to the law library. Kim Butler, the former assistant warden and ADA coordinator, granted Hildreth access to the law library three days per week from 8:00 a.m. to 2:00 p.m. to use the typewriter.
In the summer of 2012, Hildreth filed a grievance requesting a permit allowing him to possess the typewriter in his cell. Over two years later, on October 30, 2014, Hildreth filed a grievance stating he needed staff assistance to file grievances. Defendant Lori Oakley, a grievance officer, reviewed the complaint and found it moot because Butler had provided Hildreth with increased law library access and assistance to draft grievances. Hildreth’s extra library access was later rescinded after he was provided an ADA attendant to help write grievances and pleadings. According
Hildreth has not missed any court deadlines due to the prison’s actions. Still, he testified he can do only a portion of what he used to, which was to spend at least six hours a day working on court filings with a typewriter in his cell. While other inmates can draft handwritten court filings at any time in their cells, Hildreth is limited to his time with the typewriter in the library.
C. District Court Proceedings
Hildreth sued under
Wexford moved for summary judgment on Hildreth’s § 1983 claim. According to Wexford, Hildreth’s medication was late only three times over a period of nineteen months, too infrequent from which to infer a widespread practice or custom of deliberate indifference. The district court agreed and found only three documented instances when Hildreth experienced medication delays over a period of nineteen months:
- On April 8, 2014, Hildreth submitted a grievance noting he was out of medication. The Warden determined this was an emergency. A doctor saw Hildreth the next day and renewed his medication for one year, but Hildreth did not receive his medication until a later date. The record does not indicate when he received this prescription.
- On October 25, 2014, Hildreth submitted another grievance stating he was about to run out of his prescription and had a couple days’ worth left. The warden expedited this as an emergency. The grievance officer then contacted the healthcare unit, which stated Hildreth received the medication on October 30, 2014.
- On November 16, 2015, Hildreth submitted a grievance stating he had been out of his medication since November 13. The Warden expedited this grievance. The healthcare unit administrator advised the grievance officer that Hildreth’s prescription had expired and the request to continue using Mirapex was sent to the pharmacy. The grievance officer responded on November 23, 2015, finding this grievance moot. The record
does not indicate when he received this prescription.
Hildreth did not present evidence that any other inmates experienced medication delays.2 The district court found that three delays over the period of a year and a half involving only Hildreth did not support an inference of a widespread practice or custom, so summary judgment was granted to Wexford.
Defendants Butler and Oakley also moved for summary judgment on Hildreth’s ADA claim, arguing they reasonably accommodated his disability. The district court considered whether Hildreth, given his disability, was able to participate in the activities in question with or without reasonable accommodations. The district court found he was able to use the law library and access a typewriter three times per week for six hours a day from August 2013 to July 2015. He also could contact an officer in emergency situations, and a counselor was available to assist. The increased library access was rescinded only after Hildreth was assigned a personal ADA attendant. Nevertheless, Hildreth could have requested extra library time in lieu of using the attendant. Although Hildreth complained the attendant was inadequate, Hildreth did not miss any court deadlines.
Considering the prison’s security concerns and the fact that Hildreth was able to successfully draft documents, the district court found the prison’s accommodations reasonable as a matter of law and granted summary judgment to Butler and Oakley on this claim. Hildreth appealed.
II. Discussion
Summary judgment is proper when the admissible evidence shows no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See
A. Section 1983 Claim
We start with Hildreth’s Eighth Amendment claim against Wexford, which he brought under
Because Wexford is a “private corporation that has contracted to provide essential government services [it] is subject [under
To support a
We put the first requirement to the side because Hildreth has not provided enough evidence on the second to show a practice of delaying prescriptions was widespread, which is the “pivotal requirement” of his
Hildreth’s claim fails on two axes: first, his allegations of delays are insufficiently widespread, as they involve only him; and second, the alleged delays are insufficiently numerous, as he has substantiated only three.
1. Incidents involving only Hildreth
Hildreth provides evidence of delays in only his personal prescriptions. While it is not “impossible” for a plaintiff to demonstrate a widespread practice or custom with evidence limited to personal experience, “it is necessarily more difficult … because ‘what is needed is evidence that there is a true municipal policy at issue, not a random event.’” Id. (quoting Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005)); see Winkler v. Madison Cty., 893 F.3d 877, 902 (6th Cir. 2018) (affirming summary judgment in county’s favor when plaintiff “discusses only [her son’s] treatment, and therefore cannot establish that the County had a custom of deliberate indifference to the serious healthcare needs of all the inmates”); Denham v. Corizon Health, Inc., 675 F. App’x 935, 944 (11th Cir. 2017) (holding plaintiff failed to
2. Insufficient Number of Delays
Hildreth alleges his prescription lapsed “at least three times.” And the district court found three grievances for Hildreth’s lapsed medication on April 8, 2014, October 25, 2014, and November 16, 2015. Other than these three personal experiences, Hildreth has not provided evidence that any other inmates experienced prescription delays.
Three instances of prescription delays over nineteen months involving solely one inmate fail to qualify as a widespread unconstitutional practice so well-settled that it constitutes a custom or usage with the force of law. Although this court has not adopted any “bright-line rules” defining a widespread practice or custom, we have acknowledged that the frequency of conduct necessary to impose Monell liability must be more than three. Thomas v. Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (noting “there is no clear consensus as to how frequently such conduct must occur to impose Monell liability, ‘except that it must be more than one instance,’ or even three”) (citations omitted); see also, e.g., Doe v. Vigo Cty., 905 F.3d 1038, 1045 (7th Cir. 2018) (holding a “handful of incidents of misconduct,” including three incidents of sexual contact, two incidents of inappropriate comments, and two allegations of harassment over two decades “is not enough to establish a custom or practice”); Estate of Moreland v. Dieter, 395 F.3d 747, 760 (7th Cir. 2005) (holding three incidents of improper pepper-spraying over a three-year period did not amount to a widespread custom); Gable v. City of Chicago, 296 F.3d 531, 538 (7th Cir. 2002) (holding three incidents of erroneously denying to vehicle owners that their vehicles were in the impoundment lot over a four-year period did not amount to a persistent and widespread practice).
We agree with the district court that this case is comparable to Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008). In Grieveson, on four occasions over a period of about eleven months, jail guards gave the plaintiff his entire prescription at once, exposing him to the risk of theft by other inmates. Those four instances were insufficient to establish a widespread practice or custom. 538 F.3d at 774. As Grieveson explained, “evidence of four incidents that [plaintiff] alone experienced” is “simply not enough to foster a genuine issue of material fact that the practice was widespread.” Id. at 774–75. Accordingly, granting summary judgment in Wexford’s favor was proper.
Our dissenting colleague attempts to distinguish Grieveson. Grieveson complained once, while Hildreth complained three times, and Grieveson did not allege widespread non-compliance with official policy. But a single complaint of four incidents over eleven months is not materially different than three complaints, each of a single incident, over nineteen months. And like Grieveson, Hildreth did not allege a widespread failure. Hildreth’s allegations concern only himself. He sued on his own
3. Other Alleged Incidents
Hildreth cites other incidents which he says qualify as part of a widespread practice or custom. But due to failures of proof and forfeiture, those incidents cannot be considered. Hildreth argues the district court erred in excluding evidence of two more delays in prescription refills discussed in another inmate’s affidavit. Michael McGowan attested he overheard conversations between Hildreth and people whom McGowan believed to be Wexford nurses. The affidavit describes an October 2015 incident, when a nurse refused to accept Hildreth’s medication refill slip because of Hildreth’s demeanor. The affidavit also describes an undated incident, when a nurse said she was not going to “check on the status” of Hildreth’s medication and that he needed to wait for it to arrive.
Hildreth submitted McGowan’s affidavit in response to Wexford’s motion for summary judgment. The district court excluded the affidavit as inadmissible hearsay. We review a district court’s evidentiary decision for an abuse of discretion. See Bordelon v. Bd. of Educ. of the City of Chi., 811 F.3d 984, 991 (7th Cir. 2016). Hildreth argues the district court abused its discretion by excluding this affidavit
We conclude the district court did not abuse its discretion by not considering the McGowan affidavit because there was insufficient evidence to establish that Wexford employed the nurses referenced in the affidavit. Hildreth failed to show that the nurses who allegedly made these statements were employed by Wexford, and he failed to confirm that the statements were made within the scope of employment. Id. at 992. Even if a Wexford nurse did make these comments, “not everything that relates to one’s job falls within the scope of one’s agency or employment.” Williams v. Pharmacia, Inc., 137 F.3d 944, 950 (7th Cir. 1998). While the “precise reach of
Even if the district court had abused its discretion and improperly excluded these two other incidents, Hildreth’s claim still fails because the “practice” of medication delay was not widespread. Importantly, neither of these incidents describe a delay in the delivery of Hildreth’s prescription. The first relates to a nurse refusing to accept the medication refill slip due to Hildreth’s demeanor—not an allegation concerning a medication delay. The second undated incident refers to a nurse saying she would not “check on the status” of Hildreth’s medication—again, not a medication delay. Without knowing when the prescription was due to be delivered, a delay cannot be presumed. So neither of these incidents can support Hildreth’s claim that Wexford has an unconstitutional practice or custom of delaying prescriptions.
On appeal, Hildreth employs a kitchen-sink strategy by arguing there were three more delays (beyond the five discussed so far) for a total of eight delays that the district court failed to consider. These three further instances were not argued in the district court, so we cannot consider them. See, e.g., Scheidler v. Indiana, 914 F.3d 535, 540, 544 (7th Cir. 2019) (holding plaintiff forfeited her argument by not developing it in the district court); Flournoy v. Schomig, 418 F. App’x 528, 531 (7th Cir. 2011) (refusing to consider new evidence of deliberate indifference under
Even if we were to review these three additional allegations on appeal, they are vague, they lack sufficient connection to Wexford, and at least two occurred sporadically several years before the other alleged incidents. Specifically, two incidents are dated November 3, 2009 and January 28, 2011 and were included in the “cumulative counseling summary” to Hildreth’s summary judgment response on the issue of exhaustion of administrative remedies. Hildreth failed to discuss any of these incidents in his summary judgment response on the issue of inadequate care, the issue under consideration. The third incident is an undated occurrence when his medication lapsed because it was not renewed, which was also not discussed in his summary judgment response on the issue of inadequate care. The district court did not err in not considering them, as it is not the court’s job to “scour the record in search of evidence to defeat a motion for summary judgment.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008).
Even if the hearsay, forfeiture, and relevance rules were put to the side, and we considered all eight incidents which occurred over a period of six years, courts have concluded that more than eight incidents over a shorter time period does not constitute a “widespread” practice or custom. See, e.g., Pittman ex rel Hamilton v. Cty. of Madison, 746 F.3d 766, 780 (7th Cir. 2014) (holding 36 suicide attempts and 3 suicides in a 5-year period was not enough evidence of a widespread inadequate suicide policy); Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th Cir. 2009) (holding 27 complaints of excessive force over 3 years were insufficient to establish a pattern); Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002) (holding 11 incidents of warrantless entry over a 4-year period did not support an unconstitutional pattern).
The dissent states we adopt a “bright-line rule” as to the number of incidents to establish an unconstitutional custom under Monell.7 But rather than set a number, we have considered and applied the precedents of this and other courts to these facts, nothing less and nothing more. Hildreth has not shown five incidents of prescription refill delay, much less eight. And under that law three delays over nineteen months for a single individual does not establish a widespread custom or practice of delaying medication. So we affirm the district court’s grant of summary judgment to Wexford on Hildreth’s
B. ADA Claim
We turn next to Hildreth’s statutory claim under the ADA.8 Under the Act, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
The key question here is whether Hildreth, given his disability, was able to draft his legal documents, with or without reasonable accommodations from the prison. See Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996). As a result of the Parkinson’s disease and its effect on his handwriting, Hildreth requested a typewriter in his cell to draft court documents and correspondence. Because a typewriter is prohibited in a cell, the prison officials instead provided him with an assistant to help him draft documents. They also increased his access to the library to eighteen hours per week where he could use a typewriter. Hildreth’s extra library access was withdrawn only when he received an assistant. While not the around-the-clock, easy access Hildreth wants to word processing, or the well-trained writer whom he might like, Hildreth successfully drafted legal documents and never missed a court deadline. Further, he could have asked for more library time, but the record shows no such request.
The question is not whether other modifications could have been made, such as those Hildreth seeks, but whether the accommodations made were reasonable. We conclude they were. The defendants’ accommodations allowed Hildreth sufficient time and access to a typewriter to draft and file documents while taking into account the prison’s reasonable security concerns with contraband. Love, 103 F.3d at 561 (noting the ADA’s “reasonableness requirement must be judged in light of the overall institutional requirements. Security concerns, safety concerns, and administrative exigencies would all be important considerations to take into account” (citation omitted)).
Even if Butler and Oakley failed to make these reasonable accommodations, Hildreth would still not be entitled to damages because he has not shown deliberate indifference. Hildreth admits he has been moved to a different area of the prison where he may now possess a typewriter in his cell. This renders moot his claim for prospective injunctive relief. See Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (noting for a plaintiff to have standing for prospective injunctive relief, he “must face a ‘real and immediate’ threat of future injury as opposed to a threat that is merely ‘conjectural or hypothetical’” (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983))). So Hildreth can now seek only compensatory damages, provided he shows deliberate indifference. See Lacy, 897 F.3d at 862 (7th Cir. 2018) (agreeing with the majority of circuits that “deliberate indifference [is] the proper standard for obtaining compensatory damages” under the ADA). But Hildreth never argued Butler or Oakley were deliberately indifferent and thus cannot recover compensatory damages. Accordingly, we affirm the summary judgment in defendants’ favor on the ADA claim.
III. Conclusion
The district court concluded correctly that Hildreth did not show a widespread
delaying medication, and that prison officials reasonably accommodated his Parkinson‘s disease. So we AFFIRM the district court‘s grant of summary judgment in defendants’ favor.9
HAMILTON, Circuit Judge, dissenting. Plaintiff Hildreth has offered sufficient evidence that Wexford knew of his serious health needs—which required reliable, timely refills of his Parkinson‘s medication—and acted unreasonably in response to those needs. Wexford established prescription refill and renewal systems, i.e., policies, that did not include warnings and back-ups to correct inevitable and serious mistakes. That‘s enough to show deliberate indifference under Farmer v. Brennan, 511 U.S. 825, 843–44 (1994), and Glisson v. Indiana Dep‘t of Corrections, 849 F.3d 372, 382 (7th Cir. 2017) (en banc). I respectfully dissent.
I. Discovery in Future Cases
Before explaining where the majority opinion errs, however, I must highlight the opinion‘s obvious implications for discovery in the district courts. Wexford should be careful what it asks for. Its lawyers have won this case, but on theories and arguments that invite—indeed, virtually require—much broader, more intrusive, and more expensive discovery in similar cases. Plaintiffs like Hildreth will need to pursue discovery into the medical care of other prisoners and even into Wexford‘s personnel records. The need for district courts to recruit counsel in such cases will be even more compelling.
Consider the grounds for Wexford‘s victory. The first is the simplest. Important evidence is deemed inadmissible hearsay because plaintiff does not have evidence that the speakers, prison nurses whose employment shifted back and forth between Wexford and the Illinois Department of Corrections, were employees of Wexford on the days they made the disputed statements. That‘s incorrect as a matter of evidence law in two ways: these were not “statements” offered for their truth, and even if they had been, a person can be an agent of a party under
Second, Wexford argues and the majority opinion agrees that plaintiff does not offer evidence of sufficiently widespread problems with timely refills of critical, life-changing prescriptions at Menard or other prisons where Wexford has contracts. I explain below why I disagree. But if a similar plaintiff must prove that the system in fact fails more frequently, and not just for him, his demands for broad discovery into other inmates’ experiences with Wexford and its refill system should be undeniable.
There is evidence that these conditions have persisted for years, with expert findings almost perfectly mirroring Hildreth‘s experiences. See Report of the 2nd Court Appointed Expert, at 83, Lippert v. Godinez, No. 1:10-cv-4603 (N.D. Ill. Oct. 2018) (“We found many examples of patients whose ordered medications were never provided, were delayed starting, and were stopped because the patient had not been seen by a provider to renew medication. Record reviews indicated that appointments for chronic care are not scheduled to take place prior to expiration of chronic disease medication orders.“). The expert reports from the Lippert litigation excoriate Wexford for its oversight of Illinois prison health care—including the delivery of medication—and the first report was published in December 2014, between plaintiff Hildreth‘s second and third grievances.
These reports are not in this record, were not raised in these briefs, and are not appropriate subjects for judicial notice. But they may be available in future cases. They would face hearsay objections if offered to prove the matters asserted. See Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 522 (7th Cir. 2019) (holding district court did not abuse its discretion excluding the Lippert Report when offered as proof that Wexford provided substandard care). But these reports would be admissible to show corporate knowledge of Wexford‘s policy failings and of the risks that inmates faced. Daniel v. Cook County, 833 F.3d 728, 743 (7th Cir. 2016) (holding documents from other jail-condition case were “inadmissible hearsay to the extent they are offered to prove the truth of the statements they contain” but “may be admissible to show that the defendants were on notice of their contents“).
In addition, plaintiffs in similar cases should be able to find ways to put these reports (or testimony from their authors) into evidence for the truth of the matters asserted to establish a more extensive record of Wexford‘s similar failures with other prisoners. And of course, evidence about Wexford‘s contracts and the financial incentives it faces in delivering, or not delivering, health care to Illinois prisoners would also be relevant in evaluating the company‘s policies and whether they amount to deliberate indifference to serious health risks. Given the majority opinion‘s reasoning here, these additional paths of discovery should be available and would potentially be compensable by Wexford in
II. Wexford‘s Prescription Policies and the Lapses in Hildreth‘s Prescription
Returning to this case and this record, plaintiff Hildreth has come forward with evidence that defendant Wexford‘s policies for renewing and refilling prescriptions reflect deliberate indifference to the serious medical needs of Hildreth himself and other prisoners who depend on reliable refills of prescriptions for medicines that are not kept on-site at the prison. In reviewing a grant of summary judgment, we view the facts in the light most reasonably favorable to plaintiff as the non-moving party. Dixon v. County of Cook, 819 F.3d 343, 346 (7th Cir. 2016).
Hildreth suffers from Parkinson‘s disease, a neurological disease that causes reduced levels of dopamine in the brain, causing in turn tremors and problems in movement and balance, among other serious symptoms. Parkinson‘s has no known cure, but medication can help control the symptoms by mimicking the effects of dopamine.
Hildreth needs a drug called Mirapex to manage his symptoms. Without Mirapex, his Parkinson‘s symptoms return within a day or two, and he suffers from poor balance, stiffness, shaking, fevers, memory problems, and freezing episodes. This leaves him “immobile” and “balled up in bed.” Any lapse in medication causes pain and puts him at risk of injury. During one such lapse, he lost his balance and fell in the shower. For Hildreth, the difference between having medication and not having it is “night and day.”
As an inmate at the Menard Correctional Center, Hildreth must rely on Wexford—a private health-care contractor—and the Illinois Department of Corrections (IDOC) to provide him with health care, including his Parkinson‘s medication.1 Both Wexford and IDOC play a role in providing health care, and IDOC employs some health-care workers. Wexford, however, has primary responsibility for overseeing prisoner treatment, including prescribing medication and setting prescription policies. The site medical director at Menard, a Wexford employee, was supposed to provide oversight. During the events of this lawsuit, however, this key position was first vacant, then filled temporarily, occupied briefly by one doctor, and then by another doctor who soon left the position because he was not working the required 40 hours per week and “would leave early.”
Wexford treats the Mirapex that Hildreth needs as a “non-formulary medication.” This means that the drug is not kept in stock at the prison but is shipped as needed from an outside provider, Boswell Pharmacy Services. Wexford‘s non-formulary medication refill policy requires a sequence of actions to get the medicine to
In addition to the refill policy, Wexford has a prescription renewal policy for inmates like Hildreth with chronic illnesses. Such inmates are supposed to be signed up automatically for clinic visits at least every six months. These visits serve a key function in coordinating care for chronically ill patients and making sure their medical needs are met. At these clinics, patients are seen by a Wexford physician or nurse practitioner who will then write any necessary prescriptions, which will last between six months and one year.
These policies look good on paper, but these are human systems and people make mistakes. Hildreth did not regularly receive passes for the chronic clinic and did not go every six months. Instead, he was seen by doctors at irregular intervals and was sometimes just told that his prescription was being renewed “automatically.” At least one time, Hildreth did not receive his medication on time because his prescription had lapsed. Another time, a Wexford nurse refused to accept Hildreth‘s renewal sticker because “she did not like Scott Hildreth‘s demeanor.”2
In effect, Wexford policy relied on what a manufacturer would call “just-in-time” supply control. When a manufacturer relies on such a system, it knows it must monitor progress closely so that mistakes don‘t shut down the assembly line. When the just-in-time system is used to provide critical medicine, the stakes are even higher. The need for a policy to catch and correct mistakes before they cause harm is greater. Without such elements in the Wexford policy, plaintiff was left without medication he needed to control his Parkinson‘s symptoms for days and sometimes more than a week at a time. As applied, then, the formal policies did not reliably supply Hildreth with his Parkinson‘s medication. The record contains evidence of at least three medication lapses over a period of nineteen months. In each instance, Hildreth did the only things he could to bring the lapse to the attention of those responsible for his care—speaking to the nurses on duty and filing grievances.
On April 8, 2014, Hildreth filed his first grievance in the record about a medication lapse: “I am out of my Parkinsons meds (AGAIN) ... I have serious mobility problems ... I‘ve been telling C/Os [correctional officers] and nurses for days I did not get refill[.] I turned in sticker on time[.] Been without for days.” (Emphasis added). The next day, Hildreth‘s prescription was renewed, indicating that the lapse took place because his prescription had expired and had not been renewed on time. The record does not indicate when Hildreth received his refill, but he likely would have gone at least another couple of days because of the turnaround time from Boswell.
On October 25, 2014, he filed another grievance: “I have gone thru this before?! I don‘t know why I bother with your griev[ance] syst[em]? I am about to run out of my [] Mirapex for Parkison‘s ... I‘ve told the nurses for a couple days
On November 16, 2015, Hildreth filed yet another grievance regarding the same problem: “Been without Parkinsons meds again! Since Friday 13th. This is why I filed law suit.” He said that he had “told nurses” about the situation, but to “no avail as usual.” This grievance was not reviewed until a full week later, on November 23. Upon review, the Healthcare Unit Administrator—an IDOC employee—noted that the “non-formulary for his meds have expired. The request to continue use was sent into the pharmacy. We are waiting to hear back.” During this incident, Hildreth went without his medication for at least ten days. In reviewing the grant of summary judgment, we must assume that such a long lapse was exceptionally painful and dangerous for Hildreth. We must also assume that Hildreth did his part by complying with Wexford‘s prescription refill and renewal policies.
III. Analysis — The Eighth Amendment and Monell
It‘s worth remembering why modern federal courts devote so much attention to health care in prisons. “An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical ‘torture or a lingering death’ ... . In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency ... .” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (citations omitted). That‘s why deliberate indifference to inmates’ serious medical needs violates the Eighth Amendment‘s prohibition on cruel and unusual punishment. Daniel v. Cook County, 833 F.3d 728, 733 (7th Cir. 2016), citing Estelle, 429 U.S. at 104. A plaintiff shows deliberate indifference by establishing that those responsible for inmate health know that an inmate faces a “substantial risk of serious harm” and disregard that risk by “failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
For claims against municipal governments under
In this case, the correct focus is on Wexford‘s systems (i.e., its policies) for prescription refills and renewals. Monell liability may apply even in the absence of individual liability where the institutional policies themselves show deliberate indifference to inmates’ serious medical needs. Glisson v. Indiana Dep‘t of Corrections, 849 F.3d 372, 378 (7th Cir. 2017) (en banc) (contractor chose not to provide for coordinated care for prisoners with multiple, complex illnesses); see also Daniel, 833 F.3d at 733–34 (“individual defendants can defend themselves by shifting blame to other individuals or to problems with the ‘system,’ particularly where no one individual seems to be responsible for an inmate‘s overall care“). This doctrinal niche is often relevant in prison health-care cases, particularly where health care is delivered by a combination of government employees and a private contractor like Wexford. The combination diffuses responsibility between government and contractor and among many individuals. Inmates can suffer because of health-care providers’ lack of policy, systematic failures to follow official policy, or obvious gaps in policy. E.g., Glisson, 849 F.3d at 378; Daniel, 833 F.3d at 735; Thomas v. Cook County Sheriff‘s Dep‘t, 604 F.3d 293, 303 (7th Cir. 2010). In such cases, it may be that no facially unconstitutional policy tells employees to take actions that violate someone‘s constitutional rights. Instead, the government or its contractor adopts or tolerates practices that predictably lead to constitutional harms.
A. Evidentiary Dispute
I need to address briefly the erroneous exclusion of evidence that helps demonstrate why Wexford‘s system needs to have warning systems and back-ups. In opposing summary judgment, Hildreth offered an affidavit from another inmate, Michael McGowan, who testified that he overheard two relevant conversations. In October 2015, Susan Kirk—a nurse who McGowan believed worked for Wexford—refused to accept Hildreth‘s medication refill sticker, “indicating she did not like Scott Hildreth‘s demeanor.” In a second encounter, Angie Walters—another nurse who McGowan believed worked for Wexford—refused to check on the status of Hildreth‘s medication refill when he reported that he had run out. The district court excluded McGowan‘s testimony about these statements as hearsay, and the majority opinion upholds those rulings.
As a matter of elementary evidence law, this is just clearly wrong. Hildreth did not offer the affidavit to prove that what the nurses said was true. He offered the affidavit to prove their actions. One nurse refused to accept plaintiff‘s refill sticker. The other refused to check on the status of his refill when he had already run out. The conversations were not hearsay at all but instead verbal acts—refusals—falling completely outside the definition of hearsay in
Hildreth has presented sufficient evidence of a Monell policy or custom for his claim to survive. A jury could conclude that “the failure to establish adequate systems” for providing essential medication “was so pervasive that acquiescence on the part of policymakers was apparent and amounted to a policy decision.” Daniel, 833 F.3d at 734, citing Dixon v. County of Cook, 819 F.3d 343, 348 (7th Cir. 2016). Hildreth has identified a policy—or rather, a network of policies and key policy gaps—that can form the basis of Wexford‘s Eighth Amendment liability. The issue is not exactly how often the policy failed Hildreth. The issue is whether the system established by Wexford policymakers reflected deliberate indifference to the inevitability of human mistakes.
A prisoner asserting a deliberate-indifference claim must show that the defendant had actual knowledge of the danger or serious condition the prisoner faced, and that the defendant failed to take reasonable steps in the face of the risk. Farmer v. Brennan, 511 U.S. 825, 843–44 (1994); Ortiz v. Jordan, 562 U.S. 180, 190 (2011) (reinforcing Farmer‘s reasonableness requirement); LaBrec v. Walker, 948 F.3d 836, 841 (7th Cir. 2020); Glisson, 849 F.3d at 381. The Supreme Court explained in Farmer that a plaintiff can prove actual knowledge with circumstantial evidence, of course, and that the very obviousness of the danger can support an inference of actual knowledge. 511 U.S. at 842; see also LaBrec, 948 F.3d at 841 (citing Farmer); Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (en banc) (“If a risk from a particular course of medical treatment (or lack thereof) is obvious enough, a factfinder can infer that a prison official knew about it and disregarded it.“).
Hildreth has offered evidence to satisfy this demanding standard. Ample evidence showed that Wexford had actual knowledge of Hildreth‘s Parkinson‘s disease, his prescription, and the need to ensure a steady supply of the medicine. Wexford surely had actual knowledge that some prisoners would have similarly urgent needs for critical prescriptions not available on-site at the prison. Given that actual knowledge of serious medical needs, Wexford had a constitutional duty to take reasonable steps to avoid or minimize the risk of lapses in medication. In other words, Wexford had a constitutional duty to put in place a reasonably reliable system for renewing and refilling such critical non-formulary drugs and to monitor the performance of that system.
Compare Hildreth‘s situation to that of a hospital patient on a ventilator that is keeping the patient alive. The machine runs on electricity. Electrical power will be interrupted from time to time by storms and equipment failures. Machines like ventilators occasionally break down. Any reasonable hospital must anticipate the possibility of those interruptions and breakdowns, and it must have alerts and a back-up system in place. Similarly here, Wexford may be deemed to have actual knowledge of both the obvious possibility, even the inevitability, of mistakes or lapses in its renewal and refill systems and of the serious consequences for patients if those were not corrected. Wexford thus had a constitutional duty to take reasonable steps—warnings and back-up systems—to mitigate the effects of inevitable mistakes and oversights.
In Hildreth‘s case, Wexford‘s system for providing medication led to a series of serious delays in providing him with his medication—at least three times in nineteen months. Each time this happened, we must assume, Hildreth did every-thing he could to avoid the problem and then to make Wexford aware of it. He told the nurses and filed formal grievances. In these grievances, he said that this was an ongoing problem and that the nurses were not responsive to his needs. The longest lapse in medication—at least ten days—occurred after he had recently submitted two grievances related to other lapses.
Wexford argues that Hildreth‘s grievances cannot be used to infer that it knew about the systemic failure of its medication policies and that this precludes liability:
Wexford is not involved in the grievance process, and would not know of the contents of a grievance unless an IDOC employee notifies Wexford about it. Even then, that individual would have been a member of the onsite healthcare staff, not necessarily a policymaker. As such, Wexford policymakers had no reason to know that any alleged issue existed.
Brief for Appellee Wexford at 21. This argument has things exactly backwards: Wexford‘s lack of involvement in the grievance process makes it more culpable and strengthens Hildreth‘s claim. Humans make mistakes. In implementing systems known to be critical to life, health, and safety, a company like Wexford must allow for such mistakes and take reasonable steps to provide warnings and back-up systems. Federal courts do not and should not design the specifics. As noted, though, the Eighth Amendment requires reasonable
Daniel v. Cook County addressed this point: “If a grievance system is part of a jail‘s or prison‘s system for communicating and responding to health care requests, and if the system fails in a way that causes a deprivation of needed health care, then the problem with the grievance system may be an important part of the plaintiff‘s case for deliberate indifference to his health care needs.” 833 F.3d at 737. We have also said, of course, that “the dangers of delayed responses to medical requests are readily apparent.” Thomas, 604 F.3d at 304. In the face of such danger, it is unreasonable for a medical policymaker to cut itself off from important feedback about failures or lapses in its policies.
Dividing responsibility between private contractors and state agencies can increase these risks. In such cases, the law should and does provide incentives for actors to take reasonable steps to mitigate known dangers. The law should not do what the majority opinion‘s reasoning does here: reward divided responsibility and deliberate ignorance by those who control prisoners’ only access to health care. Hildreth‘s grievances give the impression of a person in pain, screaming into a void. Wexford ignored Hildreth‘s grievances, seemingly by design. And when Hildreth used the only other avenue available—communication with nurses—he was told only to “wait and see” if the refill would come. On this record, we should reverse summary judgment for Wexford.
C. The Majority Opinion‘s Approach to Custom
The majority opinion adopts a highly restricted approach to establishing a Monell custom that is at odds with our precedent. The majority looks only to the raw number of alleged failures and the time period over which they took place. Ante at 11–13. It views the broader policy decisions and context surrounding the violations as immaterial. This approach divorces the legal doctrine from its purpose of identifying those cases in which a government or corporate policy causes and fails to address predictable failures to provide needed medical care. After acknowledging that we have adopted no “bright-line rules” for establishing a Monell custom, the majority opinion adopts one by saying that the number of possibly unconstitutional incidents “must be more than three.” Ante at 11.
There are at least two problems with the approach. First, Hildreth does not present the kind of pure custom case where institutional culpability is inferred solely from repeated employee misconduct and the question is whether the corporation can be held liable for tolerating them. While Hildreth uses the term “custom” in his briefing—presumably because he asks us to infer something from the repeated medication lapses he experienced—his theory of Monell liability implicates both official policies and unofficial customs. Hildreth specifically points to Wexford‘s admission that it is “not involved in the grievance process” as evidence of its deliberate indifference. He asks us to infer from Wexford‘s medication refill policy, its prescription renewal policy, a pattern of non-compliance with each of those policies, a pattern of medication lapses, and—importantly—the utter failure of Wexford to provide a functioning pathway to fix these problems, that Wexford tolerated “systematic
Second, even when addressing what could be called pure custom cases, we have never held that some minimum number of incidents is needed to establish municipal liability. Rather, the question is one of corporate knowledge and responsibility, as is always the case under Monell. “[M]unicipal liability can ... be demonstrated indirectly ‘by showing a series of bad acts and inviting the court to infer from them that the policymaking level of government was bound to have noticed what was going on.‘” Woodward, 368 F.3d at 927, quoting Estate of Novack v. County of Wood, 226 F.3d 525, 530 (7th Cir. 2000). The majority opinion‘s per se rule is at odds with our approach to Monell, which focuses broadly on indicia of municipal or corporate responsibility rather than just the number of incidents. E.g., Dixon, 819 F.3d at 348 (“[W]e look to see if a trier of fact could find systemic and gross deficiencies in staffing, facilities, equipment, or procedures in a detention center‘s medical care system.“) (internal quotation marks omitted); Daniel, 833 F.3d at 734 (“[A]n inmate can meet this burden by offering ‘competent evidence tending to show a general pattern of repeated behavior (i.e., something greater than a mere isolated event).‘“), quoting Davis v. Carter, 452 F.3d 686, 694 (7th Cir. 2006). As we said in Woodward, a prison health-care company “does not get a ‘one free suicide’ pass.” 368 F.3d at 929.
Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008), which the majority opinion treats as controlling, is easily distinguishable. An inmate alleged that the jail maintained a customary practice of failing to distribute inmate prescriptions properly after four instances in which his entire prescription was distributed at once and then stolen by other inmates. Id. at 774. We held that these four incidents were insufficient to establish a custom. Grieveson differs in two critical ways from this case: the inmate complained to the prison officials only once, and the inmate did not allege widespread noncompliance with official policy. Here, by contrast, Hildreth filed at least three grievances and made even more frequent complaints to nurses where Wexford‘s system failed, and nothing happened. And he described frequent noncompliance with Wexford‘s refill and renewal policies. Wexford‘s just-in-time refill system left little room for mistakes, and such a system demands warnings and back-ups where health and safety are at stake. The repeated and foreseeable mistakes in refilling Hildreth‘s prescription and the failure to respond to his complaints make for a much stronger case of systemic deficiencies here than in Grieveson.
I would reverse and remand for trial, and I would add a strong suggestion that Hildreth be permitted to pursue additional discovery to expand the evidence of deliberate indifference.