The Journal of The DuPage County Bar Association

Back Issues > Vol. 29 (2016-17)

Being Locked Up Does Not Mean Being Locked Out From Medical Care
By Glenn R. Gaffney and Jolianne S. Walters

Even prisoners have freedoms that cannot be locked away in a jail cell. One such freedom is the Eighth Amendment right to be free from cruel and unusual punishment. While cruel and unusual punishment can take many forms, the deliberate indifference to an inmate’s serious medical condition presents one of the more egregious and often encountered violations of an inmate’s Eighth Amendment rights. When an inmate’s constitutional rights are violated in this way, he or she can bring a claim under 42 U.S.C. § 1983 against the governmental entity, prison officials, or others acting under color of state law.

Pleading a § 1983 claim and surviving a motion to dismiss. Governmental entities, such as states, counties, and municipalities, “have an affirmative duty to provide medical care to their inmates.”1 When a prisoner’s Eighth Amendment rights have been violated due to inadequate medical care, a plaintiff can bring a complaint alleging such violation. In order to survive a motion to dismiss, which is typically the first attack on a complaint, the allegations must be sufficient to raise at least a possibility of relief above the “speculative level.”2 So while specific facts are not necessary, the complaint and its allegations should give the defendant fair notice of what the claim is and the grounds upon which it rests.3

The necessary elements of a claim. To plead a claim under 42 U.S.C. § 1983 alleging a violation of an inmate’s Eighth Amendment rights, the law requires that a plaintiff plead sufficient facts to support each of the following elements: (1) that the inmate has an objectively serious medical condition; and (2) that an official was deliberately indifferent to that condition resulting in harm.4 Deliberate indifference occurs when the prison officials, or others acting under state or federal law, realize that a substantial risk of serious harm to a prisoner exists, but then disregard that risk.5 In this regard, the mental state of the state actor has to be somewhere beyond the line of negligence, but need not be as far as the line of actual purpose, and may properly be equated with the standard of “reckless disregard.”6

Successfully pleading an “objectively serious medical condition”. With regard to the first element of “objectively serious medical condition,” the Seventh Circuit has demonstrated that a broad range of medical conditions can qualify as “objectively serious.”7 Some examples of “objectively serious medical conditions” include a dislocated finger, a hernia, arthritis, heartburn with vomiting, a broken wrist, minor burns, tooth decay, and even transsexualism.8 Additionally, courts have repeatedly held that treatment of psychiatric or psychological conditions may also present a “serious medical need.”9 What’s more is that “a medical condition need not be life-threatening to be serious; rather, it could be a condition that would result in further significant injury or unnecessary and wanton infliction of pain if not treated.”10 Thus, in short, a serious medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.11

Successfully pleading an “official’s deliberate indifference to a serious medical condition”. The second element follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.12 In this regard, not every claim by a prisoner alleging inadequate medical care states a constitutional violation. The Supreme Court has limited recovery under the Eighth Amendment to only those cases in which a prisoner can establish “deliberate indifference to serious medical needs.”13 Therefore, in order to successfully plead that an official was deliberately indifferent to a serious medical need, sufficient facts must be pled to establish that the prison official had a “sufficiently culpable state of mind.”14 In other words, the deliberate indifference standard is satisfied if the plaintiff shows that the prison official acted or failed to act despite the official’s knowledge of a substantial risk of serious harm to the plaintiff’s safety.15 A failure of prison officials to act in such circumstances suggests that the officials actually wanted the prisoner to suffer the harm.16

To successfully plead deliberate indifference, sufficient facts must be pled to overcome two hurdles. The first hurdle is pleading a substantial risk of serious harm. The second hurdle is establishing that the official had the requisite knowledge of the harm and disregarded that knowledge. To show a substantial risk of harm, facts must be pled to show an objectively serious risk, which is one that society considers so grave that to expose any unwilling individual to it would offend contemporary standards of decency.17 For example, in Erickson v. Pardus, 551 U.S. 89 (2007), the plaintiff inmate, an individual suffering from Hepatitis C and a liver condition, brought action against the State. The plaintiff alleged that the decision to remove him from his Hepatitis C treatment program was endangering his life, that he was still in need of treatment, and that the officials were refusing to provide treatment.18 The Court held that the plaintiff stated a claim because sufficient facts were pled to show an objective risk of harm.19 In other words, the Eighth Amendment not only prohibits deliberate indifference to the inmate’s current serious health problems, but also deliberate indifference to conditions which pose an unreasonable risk of serious damage to future health.20

In addition to showing an objective risk of harm, a plaintiff must also plead sufficient facts to show that the prison official subjectively knew of and disregarded the excessive risk to the inmate’s health and safety.21 Courts have held that a sufficiently culpable state of mind is shown when the prison official exhibits a substantial departure from accepted professional judgment, practice, or standards.22 In this regard, the plaintiff’s burden is high.23 However, a successful plaintiff does not have to show that he was “literally ignored” in his demands for medical treatment in order to be able to state a claim. If a plaintiff can show that the treatment provided was “blatantly inappropriate,” a plaintiff can establish that the prison official was deliberately indifferent to his medical needs.24

Surviving a motion for summary judgment. A complaint that survives a motion to dismiss will allow a plaintiff to engage in the broad federal discovery process. In discovery, the plaintiff will need to find and then present evidence that the defendant was deliberately indifferent to the prisoner’s serious medical condition. Without such evidence, a defendant would prevail on a motion for summary judgment, which is usually the last attack on a complaint before trial.
At the summary judgment stage, the defendant will undoubtedly present facts showing its own version of the events that either there was not an objectively serious medical condition at stake and/or that the prison officials were not deliberately indifferent to a known serious medical condition. Despite defendant’s arguments and evidence, however, the court must adopt the plaintiff’s version of facts, but, only those facts which are real and established in the record. Therefore, in order to survive a motion for summary judgment, the plaintiff needs to establish that the record, taken as a whole, could lead a rational jury to find that the prisoner’s claim has merit.

Examples of cases surviving a motion for summary judgment. While each case is different, with its own unique set of facts, the body of law that exists provides helpful guidance and illustrative instructions on how to go about defeating a defendant’s motion for summary judgment on a § 1983 claim. As an example, in Farmer v. Brennan, 511 U.S. 825 (1994), the plaintiff inmate, a transsexual male, brought suit when he was placed in the general male prison population and subjected to numerous beatings and rapes by a fellow inmate in the prisoner’s cell.The inmate alleged that the official’s conduct in placing him in the general male prison population constituted deliberate indifference to his safety because they knew he projected feminine characteristics and would be particularly vulnerable to sexual attack. The question before the Court was whether the evidence showed that the prison officials were deliberately indifferent to plaintiff’s safety in light of his medical condition. The Court explained that if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official had been exposed to information concerning the risk and thus, must have known about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.25 As such, the plaintiff was allowed to proceed to trial.

In another example, Board v. Farnham, 394 F.3d 469 (7th Cir. 2005), two plaintiff detainees brought suit against the State for violation of their Eighth Amendment rights when they were denied toothpaste and an asthma inhaler. The evidence revealed that one of the detainees requested toothpaste from a jailer approximately 15 times and was refused each time, which caused him to suffer tooth decay, resulting in the removal of several teeth.26

The evidence also showed that although the prison officials knew of the deplorable condition of the ventilation system and that it was causing the detainees to suffer nose bleeds and suffer breathing problems, they failed to remedy the situation.27 On this evidence, the Court found that the prison official’s failure to provide the toothpaste sufficiently showed deliberate indifference to that detainee’s serious medical condition.28 In the same way, the Court found that the failure to provide the other detainee with an inhaler and the failure to remedy the known poor ventilation of the jail constituted deliberate indifference.29 As such, the detainees’ cases were allowed to proceed to trial.

Examples of cases being dismissed on a motion for summary judgment. Although successful cases are instructive in their own right, arguably, more can be learned from the failures of others. For example, in Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996), the plaintiff inmate, an asthmatic, brought suit against the State when his asthma was aggravated after being placed with another inmate who smoked. The evidence revealed that the plaintiff was only “mildly asthmatic” and that he only exhibited occasional signs of distress when his fellow inmates smoked. The evidence also revealed that plaintiff received considerable medical attention for his asthma, he never required outside hospitalization, and he missed several appointments with the medical staff regarding his asthma. Based on this, the Court ruled that the plaintiff did not satisfy the first element because he did not demonstrate that he had an objectively serious medical condition. As a result, the Court ruled that plaintiff had not shown that he had a medical need sufficiently serious to implicate the Constitution.30

In another example, in Freeman v. Berge, 441 F.3d 543 (7th Cir. 2006), the plaintiff inmate brought suit against the State when he was denied meals. The evidence revealed that the prison had a feeding protocol and that if the prisoner did not comply, the meal was not served. The evidence showed that the plaintiff voluntarily failed to comply with this rule.31 Because he missed so many meals, plaintiff lost 45 pounds. The Court granted summary judgment in the State’s favor because it found that to an overwhelming degree, the plaintiff’s food deprivation was self-inflicted. The Court further found that the record contained no evidence that the inmate experienced any real suffering, extreme discomfort, or any lasting detrimental health consequences.

In another example, in Johnson v. Doughty, 433 F.3d 1001 (7th Cir. 2006), the plaintiff inmate, who suffered from a hernia, brought suit against prison officials alleging that the prison officials and doctors were deliberately indifferent to his need to undergo surgical treatment for his hernia. The Court found that the evidence failed to support any findings of deliberate indifference because they took plaintiff’s medical complaints seriously and they reasonably relied upon the prison doctors’ recommendations in handling the inmate’s conditions.32 The Court further held that the prison doctors’ treatment of the inmate was grounded in professional judgment, and that the inmate was afforded adequate, reasonable medical treatment.33 Thus, an inmate’s “mere dissatisfaction or disagreement with a doctor’s course of treatment is generally insufficient” to establish deliberate indifference.34

Trial of an Eighth Amendment failure to provide medical attention. A plaintiff surviving a motion for summary judgment is entitled to a jury trial. The elements of a plaintiff’s claim are set forth within Seventh Circuit Pattern Jury Instructions § 7.12 which provides, as follows:

To succeed on his claim for failure to provide medical attention, a plaintiff must prove each of the following things by a preponderance of the evidence: (1) plaintiff had a serious medical need: (2) defendant was deliberately indifferent to plaintiff’s serious medical needs: (3) defendant’s conduct caused harm to plaintiff: (4) defendant acted under color of law (this element is typically not in dispute).

The Seventh Circuit Pattern Jury Instructions § 7.13 defines “serious medical need,” as a condition that a doctor says requires treatment, or something so obvious that even someone who is not a doctor would recognize it as requiring treatment. The Seventh Circuit Pattern Jury Instructions § 7.14 also defines the term “deliberately indifferent,” as follows: “When I use the term “deliberately indifferent,” I mean that defendant actually knew of a substantial risk of [serious harm] or [describe specific harm to plaintiff’s health or safety], and that defendant consciously disregarded this risk by failing to take reasonable measures to deal with it.”

If a plaintiff can prove with sufficient evidence to a judge or jury each element under the Seventh Circuit’s rules, the plaintiff will prevail and be entitled to an award of damages.

Damages available for a successful plaintiff. The Seventh Circuit sets forth the types of damages that a plaintiff can receive.35 A plaintiff can obtain the following types of compensatory damages:

1. The reasonable value of medical care and supplies that Plaintiff reasonably needed and actually received, as well as the present value of the care and supplies that he is reasonably certain to need and receive in the future.

2. The wages, salary, profits earning capacity that Plaintiff has lost and the present value of the wages, salary, profits, earning capacity that Plaintiff is reasonably certain to lose in the future because of his inability or diminished ability to work.

3. The physical and mental/emotional pain and suffering and disability/loss of a normal life the Plaintiff has experienced and is reasonably certain to experience in the future. No evidence of the dollar value of physical or mental/emotional pain and suffering or disability/loss of a normal life has been or needs to be introduced. There is no exact standard for setting the damages to be awarded on account of pain and suffering. You are to determine an amount that will fairly compensate the Plaintiff for the injury he has sustained. In addition to compensatory damages, a plaintiff can also attempt to receive punitive damages.36 The jury, however, can only assess punitive damages if it finds that the defendant’s conduct was malicious or in reckless disregard of plaintiffs rights.37

Conclusion. It is readily apparent that prisoners have the constitutional right to be free from cruel and unusual punishment, which in this context means that prison officials must not be deliberately indifferent to serious medical conditions. A successful plaintiff must establish that the defendant actually knew of a substantial risk of serious harm to plaintiff’s health or safety and that the defendant consciously disregarded that risk and failed to take reasonable measures which caused plaintiff harm. If successful, the plaintiff can then receive compensatory damages/potentially punitive damages and attorney’s fees and cost of suit.

1. See Duckworth v. Ahmad, 532 F.3d 675, 678-79 (7th Cir. 2008); Estelle v. Gamble, 429 U.S. 97, 103-104 (1976).
2. EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007).
3. Erickson v. Pardus, 551 U.S. 89, 93 (2007).
4. Estelle, 429 U.S. at 106; See also Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.2009) (the Supreme Court has stated that to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face); Arnett v. Webster, 658 F.3d 742, 752 (7th Cir. 2011) (a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged).
5. Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a plaintiff must show that officials are aware of facts from which indifference could be drawn that a substantial risk of harm exists and they must also draw the inference).
6. Id.
7. Roe v. Elyea, 631 F.3d 843, 861-862 (7th Cir. 2011) (collecting cases), citing Edwards v. Snyder, 478 F.3d 827 (7th Cir. 2007) (dislocated finger); O’Malley v. Litscher, 465 F.3d 799, 805 (7th Cir. 2006) (minor burns resulting from lying in vomit); Norfleet v. Webster, 439 F.3d 392, 394-95 (7th Cir. 2006) (arthritis); Johnson v. Doughty, 433 F.3d 1001, 1003-04, 1010 (7th Cir. 2006) (hernia); Greeno v. Daley, 414 F.3d 645, 649-51 (7th Cir. 2005) (heartburn and vomiting); Duncan v. Duckworth, 644 F.2d 653, 654 (7th Cir. 1981) (fractured wrist); Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (tooth decay); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987) (transsexualism considered to be serious medical condition).
8. Id.
9. See e.g. Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182, 1187 (5th Cir. 1986); Wellman v. Faulkner, 715 F.2d 269, 273 (7th Cir. 1983).
10. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
11. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
12. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
13. Estelle, 429 U.S. at 104.
14. Id.
15. Daniels v. Mezo, 2014 U.S. Dist. LEXIS 149822, at *6-7 (S.D. Ill. Oct. 21, 2014); Nunn v. Busse, 2010 U.S. Dist. LEXIS 40491, 2010 WL 1710449, at *6 (N.D. Ind. 2010).
16. Id.
17. Id.
18. Erickson, 551 U.S. at 89.
19. Id. at 94.
20. Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2011), citing Board v. Farnham, 394 F. 3d. 469, 479 (7th Cir. 2005).
21. Golden v. Berge, 2003 U.S. Dist. LEXIS 28458, at *14 (W.D. Wis. 2003).
22. Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008).
23. Duckworth, supra n. 1 at 679.
24. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005).
25. Farmer, 511 U.S. at 842-843.
26. Board, 394 F.3d at 473.
27. Id. at 474.
28. Id. at 480.
29. Id. at 485-486.
30. Oliver, 77 F.3d at 161.
31. Freeman, 441 F.3d at 543.
32. Johnson, 433 F.3d at 1001.
33. Id.
34. Id. at 1013.
35. Seventh Circuit Pattern Jury Instructions § 7.23.
36. Seventh Circuit Pattern Jury Instructions § 7.24.

37. Smith v. Wade, 461 U.S. 30, 56 (1983).

Glenn Gaffney has been Chair of the DCBA Labor and Employment Section and has been a member and Chair of the ISBA Labor and Employment Section Council. Mr. Gaffney was President of the DCBA for the term 2006-2007 and is currently Vice Chair of its Professional Responsibility Section.

Jolianne S. Walters is currently an associate with Gaffney & Gaffney, P.C. Ms. Walters has represented clients in a wide variety of labor and employment-related matters. She practiced at various corporate firms, where she performed risk management audits, human resources development, and litigation services and has experience in workers’ compensation litigation, personal injury actions, foreclosures, and construction claims.

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