Wronke v. Champaign County Sheriff's Office

May 16, 2005
04-4164
Versions:

ORDER

Noel Udarbe, a native and citizen of the Philippines, has been a lawful permanent resident of the United States since his arrival in 1982. In 2001, Udarbe pled guilty and was convicted of battery in Indiana and sentenced to one year in jail. Finding that to be a conviction for an aggravated felony, the INS charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii). In the course of the removal proceedings, Udarbe admitted that he had been convicted but claimed that his conviction should not qualify as an aggravated felony. He argued that removing him under that provision violated his Fifth Amendment rights because if he had been convicted of the same crime in Illinois, the maximum sentence would have been 364 days, meaning that he would not have been convicted of a felony.

The immigration judge found Udarbe removable. Udarbe appealed, again admitting his conviction and sentence but repeating his equal protection argument. The Board of Immigration Appeals dismissed Udarbe‘s appeal, stating that it did not “have the authority to rule on the constitutionality of the Act. . . .” Udarbe filed a motion to reconsider, which the Board also denied. Udarbe appeals that decision, arguing again that his constitutional rights were violated and that the Board erred in determining that it did not have the authority to rule on his constitutional claims.

Unfortunately for Udarbe, we don‘t have the authority to examine the merits of his constitutional argument, either. On July 19, 2004, we issued an order explaining that, because Udarbe did not file a timely petition for review of the Board‘s initial decision, this appeal is limited to review of the Board‘s April 6, 2004, denial of Udarbe‘s motion to reconsider. In that order, the Board stated simply that Udarbe “failed to show any particular errors of fact or law in our prior decision,” noting that Udarbe instead simply repeated constitutional arguments the Board had previously considered.

In this appeal, Udarbe does not dispute the Board‘s contention that he failed to present any new facts or evidence in his motion for reconsideration. Therefore, we find no error in the Board‘s order denying Udarbe‘s motion for reconsideration. And, as we explained in our July 19 order, our review is limited to that decision, so we do not have jurisdiction to consider Udarbe‘s claim that the Board erred in its initial decision not to consider Udarbe‘s constitutional arguments. The petition to review the denial of the petition for reconsideration is therefore DENIED.

ORDER

Kenneth Wronke was jailed for more than four years for civil contempt because he refused to pay child support as ordered by an Illinois court. See Wronke v. Illinois, No. 96-3716, 1997 WL 107761, at *1 (7th Cir. March 6, 1997) (unpublished order). During most of that time he was confined in the Champaign County Correctional Center. In this suit under 42 U.S.C. § 1983 and Illinois tort law, he claims that he was denied adequate medical care and subjected to dangerous working conditions. The district court granted summary judgment for the defendants, and on appeal Wronke essentially argues that all of his claims should have proceeded to trial. We affirm the judgment.

We recite the facts in the light most favorable to Wronke. See Gil v. Reed, 381 F.3d 649, 651 (7th Cir. 2004). Wronke volunteered to run the jail‘s laundry as “laundry trustee.” Though he complains that the job entailed working up to 20 hours a day, he acknowledges that it also entitled him to a single cell and enabled him to spend most of his time in the laundry instead of his cell. A few months before his release, he fell and cut his forearm when a barrel he was filling with laundry separated from its casters and tipped over. A deputy sheriff telephoned the nurse on call and, following her instructions, applied gauze and tape to stop the bleeding. The nurse telephoned Dr. Ahmad, who arrived a few hours later, anesthetized the arm, and stitched the cut. Wronke complained of shoulder pain, and without examining the shoulder Dr. Ahmad opined that the pain was attributable to the cut.

Wronke returned to work as soon as Dr. Ahmad finished treating him, but he was in constant pain for the next ten days, and the range of motion and strength of his shoulder were diminished. When the nurse who helped treat him checked on him the next day, Wronke told her he was “fine under the circumstances.” Later, when Dr. Ahmad returned to remove the stitches, he expressed concern about his rotator cuff, but the doctor did not examine his shoulder. After that Wronke never again sought medical attention for his shoulder or asked to see Dr. Ahmad. He continued working in the laundry until his release three months later, and though guards gave him over-the-counter analgesics every few days during that time, Wronke told them the medication was for headaches. On several occasions Wronke also received pain relievers from a nurse after he complained that his shoulder hurt. After his release Wronke continued taking over-the-counter pain medication, but only after ten months did he finally consult a doctor. Wronke says that an MRI conducted roughly fifteen months after the injury revealed a torn rotator cuff.

Wronke then sued Dr. Ahmad, the sheriff, and the deputy sheriff and nurse who responded when he fell. In his fourth amended complaint, he alleged that he tore his rotator cuff when he fell; he claimed that the long hours, dangerous working conditions and inadequate medical care after his fall violated the Eighth Amendment‘s ban against cruel and unusual punishment. He also claimed that Dr. Ahmad‘s treatment of his cut and failure to diagnose the rotator cuff injury constituted medical malpractice under Illinois law. A magistrate judge presiding by consent, see 28 U.S.C. § 636(c), granted summary judgment for the defendants. The court reasoned that Wronke could not establish a constitutional violation because there was no evidence of deliberate indifference to his medical needs and no evidence that he was forced to work in the prison laundry. Having already excluded the report of his proposed medical expert because of a discovery violation, see Fed. R. Civ. P. 26(a)(2)(B), the court also reasoned that Wronke could not establish malpractice by Dr. Ahmad because a medical expert‘s opinion is required in Illinois to establish the requisite standard of care and Wronke had none. (The court rejected the argument that cross-examination of Dr. Ahmad himself could fill the gap.)

Wronke‘s disagreements with the magistrate judge‘s analysis of his constitutional claims merely highlight his failure to appreciate his evidentiary burden. Whether we look to the Eighth Amendment as do the parties, but see Ingraham v. Wright, 430 U.S. 651, 667-78 (1977) (recognizing that Eighth Amendment has been held inapplicable to incarceration for civil contempt); United States v. Dien, 598 F.2d 743, 745 (2d Cir. 1979) (Eighth Amendment does not apply to a civil contempt sentence), or instead to the Due Process Clause, see West v. Schwebke, 333 F.3d 745, 748 (7th Cir. 2003) (Due Process Clause requires conditions of involuntary civil confinement to bear reasonable relation to purpose of confinement), there is no evidence that the defendants displayed the degree of indifference to Wronke‘s health or safety necessary to implicate the Constitution. The defendants quickly stopped the bleeding from the cut, and Wronke does not even assert he suffered any lasting harm or unnecessary pain either from their chosen course of treatment or from their brief delay in stitching it, see Langston v. Peters, 100 F.3d 1235, 1240-41 (7th Cir. 1996) (prisoner must establish detrimental effect of delay in medical treatment); Gil, 381 F.3d at 663 (prisoner must establish more than mere disagreement over best course of treatment). If his shoulder continued to bother him after his arm healed, he should have asked again to see the doctor, see Farmer v. Brennan, 511 U.S. 825, 847 (1994) (prisoner must establish defendants were subjectively aware of the risk of harm); Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). As for the conditions of Wronke‘s job, his assigned tasks of washing clothes, mopping floors, and delivering meals are nowhere comparable to the dangerous working conditions that courts have held subject to constitutional scrutiny. Cf. Hall v. Bennett, 379 F.3d 462, 464-65 (7th Cir. 2004) (risk of electrocution from working on live 400-volt line without protective gloves); Bagola v. Kindt, 39 F.3d 779, 780 (7th Cir. 1994) (risk of amputation from dangerous machinery); Fruit v. Norris, 905 F.2d 1147, 1150-51 (8th Cir. 1990) (exposure without protective gear to raw sewage inside a well with temperatures reaching 125 degrees); Wallis v. Baldwin, 70 F.3d 1074, 1075-77 (9th Cir. 1995) (exposure to asbestos with inadequate protective gear). Moreover, there was no evidence the job required Wronke to work 20 hours a day. “It didn‘t make any difference to me what time I started,” he acknowledged, because “I would rather be in the laundry than be in the pod with the dregs of society.” Wronke cannot manufacture a constitutional claim by volunteering for a job when he could have avoided the offending conditions by choosing to stay in his cell. See Christopher v. Buss, 384 F.3d 879, 882-83 (7th Cir. 2004) (prisoner‘s voluntary participation in softball game leading to injury undermined his constitutional claim).

Also without merit is Wronke‘s challenge to the grant of summary judgment on his malpractice claim. He argues that the district court should have accepted as part of the summary judgment evidence a report from his proposed medical expert, or else let him proceed to trial without expert testimony. Among a host of defects, the report lacked any reasoning in support of the purported expert‘s conclusions. See Fed. R. Civ. P. 26(a)(2)(B). Thus, the district court acted within its discretion in striking it. See Salgado v. Gen. Motors Corp., 150 F.3d 735, 742-43 (7th Cir. 1998). Without an expert‘s opinion, Wronke could not prove that another doctor would have given any better treatment. See Massey v. United States, 312 F.3d 272, 280 (7th Cir. 2002) (unless physician‘s negligence would be apparent to a layperson, Illinois requires expert medical testimony to establish standard of care and deviation from that standard). Moreover, even had the court considered the report for purposes of the defendants’ summary judgment motion, it would have added nothing. The purported expert‘s entire opinion is confined to two sentences, concluding that Wronke‘s shoulder injury was sustained when he fell and that “complications could have been prevented with proper treatment at time of initial injury.” Missing is any evidence from which a jury reasonably could conclude that Dr. Ahmad should have proceeded differently. E.g., Seef v. Ingalls Mem‘l Hosp., 311 Ill. App. 3d 7, 243 Ill. Dec. 806, 724 N.E.2d 115, 123 (1999).

AFFIRMED.

Notes

*
After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).