Eric Ollison v. Gregory Gossett

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-1125

ERIC OLLISON,

Plaintiff-Appellant,

v.

GREGORY GOSSETT, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 1:17-cv-01077 — James E. Shadid, Judge.

____________________

ARGUED NOVEMBER 8, 2024 — DECIDED MAY 7, 2025

____________________

Before RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.

RIPPLE, Circuit Judge. Eric Ollison, a former inmate at the

Illinois River Correctional Center (“IRCC”), brought this ac-

tion under 42 U.S.C. § 1983 against several prison officials, in-

cluding Wardens Walter Nicholson and Gregory Gossett.1 He

alleged that the IRCC’s failure to treat his chronic kidney

1 As this case comes to us on appeal, only Nicholson and Gossett remain

defendants.

2 No. 23-1125

disease, which progressed to acute renal failure, constituted

deliberate indifference in violation of the Eighth and Four-

teenth Amendments. 2 The district court granted Warden Ni-

cholson’s motion to dismiss and Warden Gossett’s motion for

summary judgment. 3 Mr. Ollison now appeals, contending

that the district court erred in granting the motions. He also

submits that the district court erred in excluding his expert

witnesses. For the reasons set forth in this opinion, we affirm

the judgment of the district court. 4

I

BACKGROUND

A.

Mr. Ollison came to the IRCC on January 17, 2012, where

Warden Nicholson and Warden Gossett were wardens for

successive periods. 5 The IRCC Warden’s responsibilities

2 The Eighth Amendment is applicable to the states through the Four-

teenth Amendment. See Robinson v. California, 370 U.S. 660, 666 (1962).

3 The district court’s jurisdiction was predicated on 28 U.S.C. §§ 1331 and

1343.

4 Our jurisdiction is secure under 28 U.S.C. § 1291.

5 Precisely when each defendant held the role is disputed, and the extent

of each warden’s potential liability depends in part on his dates of em-

ployment. At his first deposition, Warden Gossett testified that he became

the IRCC’s warden in July 2012. However, in his supplemental answers to

interrogatories, Warden Gossett asserted that he became warden in Sep-

tember 2013. Contrary to Mr. Ollison’s assertion, the district court did not

find that Warden Gossett became warden in September 2013. Instead, it

“specifically allowed Plaintiff ‘to argue at summary judgment or at trial

that Defendant Gossett worked at Illinois River Correctional Center prior

to March of 2013.’” R.549 at 5. Despite this invitation, however, Mr. Ollison

( … continued)

No. 23-1125 3

include “administering and directing the overall operations,

programs, and activities of the [IRCC]” and “developing and

implementing policies and procedures.”6 As part of his du-

ties, Warden Gossett had monthly staff meetings with the

heads of prison departments, including Nursing Director

Edna Greenhagen. He also met regularly with Wexford

Health Sources, Inc. (“Wexford”) Regional Manager Stacy

Moore to discuss the prison’s health care unit. 7 Neither War-

den Nicholson nor Warden Gossett had medical training.

Both concede that Mr. Ollison received inadequate treatment

while at the IRCC.

Before Mr. Ollison entered the Illinois Department of Cor-

rections system, he was diagnosed with and treated for kid-

ney disease. When he came to the IRCC, Mr. Ollison informed

intake personnel that he had a kidney condition, and his in-

take laboratory tests confirmed it, but his kidney disease was

not noted in his chart. At this time, his condition was under

control. His kidney disease then went untreated during his

time at the IRCC and progressed. The prison’s medical direc-

tor, Dr. Carla Greby, received lab results in April 2013 indi-

cating that his kidney disease had worsened, but Dr. Greby

did not inform Mr. Ollison of the deterioration in his medical

condition. Although Dr. Greby did contact a nephrologist, she

did not order further testing or treatment.

During the period in question, there were other problems

with Dr. Greby and the IRCC’s health care unit that are

did not present evidence rebutting Warden Gossett’s claim that he became

warden in September 2013.

6 R.495-28 at 2 (cleaned up).

7 Wexford provides health care at the IRCC on a contractual basis.

4 No. 23-1125

relevant to the present case. There had been several incident

reports that led Wexford supervisory personnel to report that

Dr. Greby “need[ed] to understand that if this continues, the

Warden will lock her out,” 8 and, in the spring of 2013, Wex-

ford considered terminating Dr. Greby’s employment after is-

suing multiple disciplinary warnings for her treatment of in-

mates. Health Care Unit Administrator Jonathan Sisson—

who was Dr. Greby’s supervisor and whose position was left

vacant while he was on military leave—described Dr. Greby

as thinking it was “her duty to discipline through medicine.” 9

Wexford was “holding [its] breath that nothing else signifi-

cant were to occur as not to leave the site with no Medical Di-

rector.”10 Nursing Director Greenhagen testified that it was

fair to say “the Administration at Illinois River was well

aware” of the “complaints made against Dr. Greby,” which

she had raised with an assistant warden. 11

Mr. Ollison’s health began to deteriorate noticeably in late

2013. However, as indicated in the grievance that he submit-

ted on December 22, 2013, he attributed the decline to a recent

change in medication. He reported that he was “lightheaded,

sleeping all day,” and was struggling to keep food down. 12 A

nonparty provider changed his medication at an appointment

on December 26, 2013, and scheduled a follow-up appoint-

ment. That same day, Mr. Ollison submitted an emergency

8 R.493-6 at 14.

9 R.493-4 at 79–80.

10 R.493-3 at 61.

11 R.495-23 at 63–66.

12 R.382-7 at 1–2.

No. 23-1125 5

grievance, describing his “lightheadedness, vomiting, swell-

ing of the face[,] and shivering” ever since the change in his

medication. 13 He also complained of chest pains and relayed

that others had “notic[ed] how [his] performance in the recre-

ation area has been decreasing since the taking of this pill.”14

Warden Gossett reviewed Mr. Ollison’s grievance on January

3, 2014, and determined that the situation did not constitute

an emergency. 15 He did not believe Mr. Ollison was very sick.

In his words, “If you’re this ill as you state why are you going

to the rec area.” 16 Mr. Ollison wrote a third grievance on Jan-

uary 8, 2014, again describing his symptoms. 17 On January 16,

2014, he was hospitalized and diagnosed with acute renal fail-

ure.

B.

Mr. Ollison brought this § 1983 action against, among

other defendants, Wardens Nicholson and Gossett. His com-

plaint alleged they were deliberately indifferent to his serious

medical needs in violation of his Eighth and Fourteenth

Amendment rights. Warden Nicholson moved to dismiss the

case against him, asserting that it was untimely, and that

Mr. Ollison had failed to state a claim. The district court

13 Id. at 4.

14 Id. at 5.

15 Warden Gossett did not consult with medical staff before making this

determination.

16 R.382-4 at 144.

17 The prison’s only physician was absent from the prison for many of the

days between January 1, 2014, and January 16, 2014, during which time

Mr. Ollison was critically ill.

6 No. 23-1125

granted Warden Nicholson’s motion, concluding first that

Mr. Ollison’s claim was time-barred. 18 “For the sake of com-

pleteness,” the court also determined that Mr. Ollison failed

to state a claim by not alleging facts that imputed personal

liability to Warden Nicholson. 19

After discovery, Warden Gossett moved for summary

judgment. In his response to that motion, Mr. Ollison relied

on expert reports from Dr. Manpreet Samra and Ralf J. Salke.

Warden Gossett then moved to exclude Dr. Samra’s and

Mr. Salke’s reports and testimony. He contended that both

lacked relevant expertise. The district court granted the mo-

tion. Although recognizing that Dr. Samra and Mr. Salke had

extensive expertise in their fields, the court concluded that

their testimony would not assist and might confuse the jury.

As ordered by the court, Mr. Ollison then filed a revised re-

sponse to Warden Gossett’s summary judgment motion.

The district court granted summary judgment for Warden

Gossett. The court first addressed Mr. Ollison’s grievances. It

concluded that Warden Gossett was not deliberately indiffer-

ent to Mr. Ollison’s serious medical needs in determining that

his second grievance did not constitute an emergency. Turn-

ing to Mr. Ollison’s assertion that Warden Gossett was liable

as a supervisor, the court concluded that Mr. Ollison’s sub-

mission was attempting to “present new factual allegations”

at summary judgment. 20 But even considering his new factual

18 Mr. Ollison later moved to reinstate Warden Nicholson as a defendant

when Warden Gossett altered his testimony regarding his dates of em-

ployment, but the district court denied the motion.

19 R.133 at 14–16.

20 R.549 at 26.

No. 23-1125 7

contentions, Mr. Ollison’s speculations on what Warden

Gossett may have known about deficiencies in the IRCC’s

health care system were, in the court’s view, inadequate.

Mr. Ollison timely appealed.

II

DISCUSSION

In this court, Mr. Ollison challenges both the district

court’s dismissal of his claim against Warden Nicholson and

the court’s grant of summary judgment to Warden Gossett.

He maintains that both defendants were deliberately indiffer-

ent in violation of the Eighth and Fourteenth Amendments

and that his experts were improperly excluded.

A.

A prison official violates the Eighth Amendment when he

is deliberately indifferent to an inmate’s serious medical con-

dition. See Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016)

(en banc); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). Our

case law identifies “two distinct categories of deliberate indif-

ference claims” regarding medical treatment. Cleveland-Per-

due v. Brutsche, 881 F.2d 427, 430 (7th Cir. 1989). 21 First, there

are “claims of isolated instances of indifference to a particular

inmate’s medical needs.” Id. Second, there are “claims that

systemic deficiencies at the prison’s health care facility ren-

dered the medical treatment constitutionally inadequate for

all inmates.” Id. at 430–31. Even though they are separate cat-

egories, “[t]he subjective state-of-mind element applies to

claims of isolated incidents of indifference and pervasive

21 See also Phillips v. Sheriff of Cook Cnty., 828 F.3d 541, 554 (7th Cir. 2016).

8 No. 23-1125

deficiencies in prison medical treatment.” Rasho v. Jeffreys,

22 F.4th 703, 710 (7th Cir. 2022) (emphasis in original).

Mr. Ollison relies on both categories.

The first category has as its touchstone the personal respon-

sibility of the defendant supervisor because the doctrine of re-

spondeat superior does not apply to § 1983 actions. See Rasho

v. Elyea, 856 F.3d 469, 478 (7th Cir. 2017). 22 Therefore, the su-

pervisory official must have known of, facilitated, approved,

condoned, or turned a blind eye to his subordinates’ activity,

although he need not have directly participated. See id. (quot-

ing Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir.

2012)). Most of our cases deal with situations where a plain-

tiff, already enduring an unconstitutional condition at the

hands of subordinates, brings that situation to the attention of

a cognizant supervisor and that supervisor turns a blind eye

to the problem, well knowing that the plaintiff consequently

might suffer an injury. In Perez v. Fenoglio, 792 F.3d 768 (7th

Cir. 2015), for example, an inmate with a serious hand injury

did not receive necessary medical treatment for ten months.

22 See also Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (“[A]n offi-

cial satisfies the personal responsibility requirement of section 1983 if the

conduct causing the constitutional deprivation occurs at his direction or

with his knowledge and consent.” (cleaned up) (quoting Smith v. Rowe,

761 F.2d 360, 369 (7th Cir. 1985))); Childress v. Walker, 787 F.3d 433, 439–40

(7th Cir. 2015) (recognizing “that an individual must be personally respon-

sible for a constitutional deprivation in order to be liable,” but noting that

“personal responsibility is not limited to those who participate in the of-

fending act”); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (not-

ing that although the doctrine of respondeat superior does not apply, “a

supervisor may be liable for ‘deliberate, reckless indifference’ to the mis-

conduct of subordinates” (quoting Chavez v. Illinois State Police, 251 F.3d

612, 651 (7th Cir. 2001))).

No. 23-1125 9

See id. at 776. He submitted a series of grievances that were

either rejected or ignored, then wrote directly to the warden

and again received no response. See id. at 775–76. We held that

the inmate’s deliberate indifference claim against the warden

should be allowed to proceed because the complaint suffi-

ciently alleged that, based on his correspondence, the warden

had actual knowledge of his medical condition but “failed to

exercise his … authority to intervene on Perez’s behalf to rec-

tify the situation.” Id. at 782. 23

Mr. Ollison also premises his allegation on the defendant

wardens’ failure to address known systemic failures in the

health care unit that caused his serious medical condition to

go untreated. Senior prison officials may be liable for systemic

constitutional violations. See Antonelli v. Sheahan, 81 F.3d 1422,

1428–29 (7th Cir. 1996). However, “[t]he general responsibil-

ity of a warden for supervising the operation of a prison is not

sufficient to establish personal liability” for systemic deficien-

cies. Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998) (altera-

tion in original) (quoting Est. of Rosenberg v. Crandell, 56 F.3d

35, 37 (8th Cir. 1995)). To prevail on a systemic deficiency

claim, the plaintiff must demonstrate that “there are such sys-

temic and gross deficiencies in staffing, facilities, equipment,

or procedures that the inmate population is effectively denied

access to adequate medical care.” Wellman v. Faulkner, 715

F.2d 269, 272 (7th Cir. 1983) (quoting Ramos v. Lamm, 639 F.2d

23 See also Pyles v. Fahim, 771 F.3d 403, 410 (7th Cir. 2014) (determining that

an inmate had a “plausible claim” that the warden turned a blind eye to

hazardous stairs about which the inmate had complained in an emergency

grievance and on which the inmate subsequently fell and was injured).

10 No. 23-1125

559, 575 (10th Cir. 1980)). 24 And he must prove that the war-

dens knew of and disregarded a substantial risk of harm to

him. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[A]

prison official cannot be found liable under the Eighth

Amendment … unless the official knows of and disregards an

excessive risk to inmate health or safety.…”).25

B.

Mr. Ollison submits that the district court erred in dismiss-

ing his supervisory liability claim against Warden Nicholson.

This claim falls into the second category we have described

above. We review de novo a district court’s dismissal for fail-

ure to state a claim. 26 See Peterson v. Wexford Health Sources,

24 Other circuits also have recognized that systemic deficiencies can give

rise to deliberate indifference claims. See Todaro v. Ward, 565 F.2d 48, 52

(2d Cir. 1977) (“[T]he Constitution does not stand in the way of a broader

attack on the adequacy of an institute’s entire health care system which

threatens the well-being of many individuals.”); Inmates of Allegheny Cnty.

Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (acknowledging that “[s]ys-

temic deficiencies” in inmates’ healthcare can constitute deliberate indif-

ference); Newman v. State of Alabama, 503 F.2d 1320, 1331–32 (5th Cir. 1974)

(evaluating “systemic medical deficiencies” and concluding that the

prison system’s health care facilities were constitutionally inadequate);

Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (noting that, at least in

the class action context, deliberate indifference may be shown by proving

there are “systemic deficiencies” in medical care).

25 See also Rasho v. Jeffreys, 22 F.4th 703, 710 (7th Cir. 2022) (requiring

knowledge of systemic deficiencies to support an Eighth Amendment

claim); Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998) (concluding that

an inmate’s complaint failed to state a claim because it did not allege a

“systematic lapse … that was known to the warden”).

26 We respectfully note that the district court’s conclusion that Mr. Olli-

son’s claim against Warden Nicholson was time-barred was erroneous. “A

( … continued)

No. 23-1125 11

Inc., 986 F.3d 746, 751 (7th Cir. 2021). Although the plaintiff

must allege “only enough facts to state a claim to relief that is

plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007), his complaint must “give the defendant fair

notice of what the … claim is and the grounds upon which it

rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (alteration in

original) (quoting Twombly, 550 U.S. at 555). Therefore,

“[t]hreadbare recitals of the elements of a cause of action, sup-

ported by mere conclusory statements, do not suffice.” Ash-

croft v. Iqbal, 556 U.S. 662, 678 (2009).

In Benson v. Cady, 761 F.2d 335 (7th Cir. 1985), abrogated on

other grounds by Henderson v. Wilcoxen, 802 F.3d 930 (7th Cir.

2015), Benson alleged that the warden had “failed to imple-

ment an adequate system for the speedy diagnosis and treat-

ment of injuries.” Id. at 341. Because he made only a “conclu-

sory allegation” and “alleged no specific deficiencies in the

§ 1983 claim to redress a medical injury arising from deliberate indiffer-

ence to a prisoner’s serious medical needs accrues when the plaintiff

knows of his physical injury and its cause.” Devbrow v. Kalu, 705 F.3d 765,

768 (7th Cir. 2013). Mr. Ollison did not know of his physical injury, acute

renal failure, and its cause, prison officials’ failure to monitor his chronic

kidney disease, until he was hospitalized. See id. at 766–67, 769 (determin-

ing that the claim of an inmate who informed medical staff he was at ele-

vated risk of prostate cancer but who did not receive a biopsy for five

years accrued no earlier than the date he received his cancer diagnosis).

Thus, his injury accrued on January 16, 2014, within the two-year statute

of limitations. However, “[w]e may affirm a district court’s dismissal on

any ground contained in the record,” Ewell v. Toney, 853 F.3d 911, 919 (7th

Cir. 2017), provided that the appellee raised the argument in the district

court. See Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010). In his memo-

randum in support of his motion to dismiss, Warden Nicholson submitted

that Mr. Ollison’s complaint failed to state a claim. Therefore, we will re-

view the court’s dismissal for failure to state a claim.

12 No. 23-1125

health care system,” we concluded that the plaintiff had failed

to state a claim of systemic deliberate indifference. Id. Mr. Oll-

ison’s complaint contains similar conclusory allegations. He

alleges that, as a supervisor, Warden Nicholson was “aware

of, facilitated, and/or turned a blind eye to the deficient prac-

tices which ultimately resulted in injury to Mr. OLLISON.”

R.1 ¶ 103. But he alleges no specific deficiencies in the IRCC’s

health care system from which deliberate indifference on the

part of Warden Nicholson can be inferred. Elsewhere in the

complaint, Mr. Ollison alleges that Warden Nicholson was re-

sponsible for the IRCC’s overall operation. As we noted ear-

lier, such a general factual allegation is insufficient. Indeed, in

Steidl v. Gramley, 151 F.3d 739 (7th Cir. 1998), where the plain-

tiff alleged that the warden was “ultimately in charge of, and

responsible for, all day-to-day operations,” we held that such

a general allegation failed to state a claim of systemic deficien-

cies. Id. at 741–42 (emphasis in original). Because Mr. Olli-

son’s complaint only contains general allegations and does

not put Warden Nicholson on notice of the factual grounds on

which his systemic deficiency claim rests, the district court

correctly concluded that Mr. Ollison failed to state a claim

against Warden Nicholson.

C.

Mr. Ollison also contends that the district court erred in

granting Warden Gossett summary judgment. We review

de novo the district court’s decision. See Clemons v. Wexford

Health Sources, Inc., 106 F.4th 628, 634 (7th Cir. 2024).

Mr. Ollison first submits that, by declaring his second

grievance nonemergent, Warden Gossett was deliberately in-

different to his serious medical condition. This claim falls

within the first category of deliberate indifference claims that

No. 23-1125 13

we described earlier. 27 To prevail on a claim of deliberate in-

difference, Mr. Ollison must prove (1) that he had an objec-

tively serious medical condition 28 (2) to which Warden

Gossett was deliberately indifferent. See Petties, 836 F.3d at

728. To satisfy the second requirement, Mr. Ollison “must

provide evidence that an official actually knew of and disre-

garded a substantial risk of harm.” Id. (emphasis in original).

Warden Gossett reviewed the only grievance he received

from Mr. Ollison 29 and determined that it did not present an

emergency. In that grievance, Mr. Ollison stated that a medi-

cation change caused him lightheadedness, vomiting, chest

pains, and other complications. But because his grievance also

suggested that he was still going to the recreation area, War-

den Gossett concluded that Mr. Ollison was not seriously ill.

The information in the grievance provided did not give War-

den Gossett “sufficient notice to alert him … to ‘an excessive

risk to inmate health or safety.’” Vance v. Peters, 97 F.3d 987,

993 (7th Cir. 1996) (quoting Farmer, 511 U.S. at 837). Therefore,

Warden Gossett did not know of and disregard a substantial

risk of harm to Mr. Ollison by concluding that the grievance

was nonemergent.

Mr. Ollison’s second contention focuses on systemic defi-

ciencies in the prison’s health care unit and presents a more

27 See supra Part II.A.

28 The parties do not dispute that Mr. Ollison’s acute renal failure was an

objectively serious medical condition.

29 Mr. Ollison provides no evidence that his first and third grievances

reached Warden Gossett. Without receiving the grievances, Warden

Gossett could not know of and disregard a substantial risk of harm based

on them. See Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc).

14 No. 23-1125

complex situation. As our colleague in the district court rec-

ognized, Mr. Ollison’s argument initially confronts a proce-

dural issue. With respect to the systemic deficiencies claim

against Warden Gossett, the allegations set forth in the com-

plaint are practically identical to those made against Warden

Nicholson. Therefore, if we confine our inquiry to an evalua-

tion of those allegations, we would have to conclude that the

complaint is insufficient to state a cause of action for deliber-

ate indifference against Warden Gossett. As the district court

noted, Mr. Ollison’s “complaint made no mention of the

Health Care Administrator’s tenure, Dr. Greby’s absenteeism,

Wexford’s consideration of terminating Dr. Greby’s employ-

ment, an alleged cover up, or Defendant Gossett’s knowledge

of any specific deficiencies in the provision of medical care.”30

Realizing this difficulty, Mr. Ollison renews the argument

that he made before the district court. He submits that, if we

take into account the facts that he has brought forth for the

first time in support of his summary judgment motion, there

are sufficient allegations of and evidentiary support for his

systemic deficiencies claim to withstand the summary judg-

ment motion. The district court declined to consider these

“new factual allegations” that Mr. Ollison raised for the first

time in his filings opposing summary judgment. 31 To support

its decision, the court relied principally on Whitaker v. Milwau-

kee County, 772 F.3d 802 (7th Cir. 2014), Chessie Logistics Co. v.

Krinos Holdings, Inc., 867 F.3d 852 (7th Cir. 2017), Colbert v. City

of Chicago, 851 F.3d 649 (7th Cir. 2017), and Shanahan v. City of

Chicago, 82 F.3d 776 (7th Cir. 1996). The district court viewed

30 R.549 at 25.

31 Id. at 26.

No. 23-1125 15

these cases as supporting the proposition that a plaintiff may

not amend his complaint in response to a summary judgment

motion by proffering “an entirely new factual basis to support

a claim.” 32

In Schmees v. HC1.COM, Inc., 77 F.4th 483 (7th Cir. 2023),

we revisited and clarified how courts ought to deal with a sit-

uation where a litigant attempts to introduce into his case,

through a “constructive amendment,” a claim for which his

complaint is factually deficient. Id. at 489. 33 Schmees empha-

sized the importance of the complaint to fair, orderly, and ef-

ficient litigation. Pleadings focus the litigation and ensure that

defendants receive “fair notice of each claim against them, as

required by the Federal Rules of Civil Procedure.” Id. at 488. 34

Consequently, “[m]any efficiencies are lost when claims or

defenses are left out of pleadings and a party then attempts to

assert them at later stages.” Reed v. Columbia St. Mary’s Hosp.,

915 F.3d 473, 479 (7th Cir. 2019). However, because discovery

often uncovers facts that support new legal theories, parties

may seek leave to amend their pleadings. See Fed. R. Civ. P.

15(a)(2). Nevertheless, as in this case, parties sometimes forgo

32 R.549 at 24.

33 The district court’s summary judgment order, issued on December 20,

2022, predated Schmees v. HC1.COM, Inc., 77 F.4th 483 (7th Cir. 2023),

which abrogated in part Shanahan v. City of Chicago, 82 F.3d 776 (7th Cir.

1996) and BRC Rubber & Plastics, Inc. v. Continental Carbon Co., 900 F.3d 529

(7th Cir. 2018).

34 See also Reed v. Columbia St. Mary’s Hosp., 915 F.3d 473, 479 (7th Cir. 2019)

(“Pleadings shape the litigation, including the scope and cost of discov-

ery.”).

16 No. 23-1125

formal invocation of Rule 15 and instead simply make new

factual assertions at summary judgment.

Before Schmees, there was some ambiguity in our case law

as to whether district courts had discretion to allow plaintiffs

to amend their complaints through summary judgment brief-

ing. For example, in Shanahan, we determined that “[a] plain-

tiff may not amend his complaint through arguments in his

brief in opposition to a motion for summary judgment.” 82

F.3d at 781. We repeated this prohibition in BRC Rubber &

Plastics, Inc. v. Continental Carbon Co., 900 F.3d 529 (7th Cir.

2018), writing that “although a plaintiff generally can alter the

legal theories asserted in its complaint, it cannot alter ‘the fac-

tual basis of [its] complaint at summary judgment.’” Id. at 541

(alteration in original) (quoting Whitaker, 772 F.3d at 808).

However, in Chessie Logistics, decided the year prior, we had

reached a different conclusion. We explained that when a

plaintiff’s briefing alters his factual theory, he constructively

amends his complaint, “and the district court has discretion

to deny the de facto amendment and to refuse to consider the

new factual claims.” 867 F.3d at 860.

In Schmees, we noticed this set and drift in our case law

and undertook to set a steadier course. We held that “district

courts retain discretion to interpret new factual allegations or

claims presented in a plaintiff’s briefs as a constructive mo-

tion to amend.” Schmees, 77 F.4th at 488. We made clear, how-

ever, that simply because the district court may consider new

factual allegations does not mean it is required to do so. On

the contrary, “[i]t will rarely be appropriate to do so.” Id. at

490. Schmees itself illustrates this cautious approach. There the

district court invited the plaintiff to refile a motion seeking

leave to amend her complaint to add new factual support. See

No. 23-1125 17

id. at 487. She declined to do so, choosing instead to raise those

facts for the first time in her brief opposing summary judg-

ment. See id. On appeal, we determined that the district court

did not abuse its discretion by declining to treat the new fac-

tual allegations raised in summary judgment briefing as a

constructive motion to amend. See id. at 490. Because the

plaintiff “rejected the opportunity to properly add the factual

underpinnings for the new claim, justice did not require that

[she] be allowed to smuggle it into the case through her sum-

mary judgment briefing.” Id.

In the present case, the district court’s opinion was not,

understandably, focused on whether it had the discretion to

consider the additional facts tendered by Mr. Ollison. Some

passages of the opinion, especially when examined in isola-

tion, suggest that the district court thought our case law es-

tablished an absolute prohibition against considering the ad-

ditional facts presented in the summary judgment record.

However, our study of the district court’s treatment of the is-

sue in its totality convinces us that the district court believed

that, even if it had such discretion, Mr. Ollison did not deserve

a favorable exercise of that discretion. Perhaps the clearest ev-

idence of the district court’s view was its observation that,

even though Mr. Ollison had a clear warning that his com-

plaint was insufficient after the earlier dismissal of the com-

plaint against Warden Nicholson, he made no attempt to

amend his almost identical complaint against Warden

Gossett. In light of Schmees, the district court’s observations

certainly entitled it to conclude that Mr. Ollison should have

given the court and the defendant more adequate notice of his

intent to make a claim of systemic deficiencies based on facts

not alleged in the complaint.

18 No. 23-1125

Mr. Ollison arguably could not have known, until discov-

ery was complete, that the deficiencies in the health care unit

were broader than just the insufficient care he received. How-

ever, Mr. Ollison does not put forth a persuasive explanation

for his decision not to amend his complaint. Mr. Ollison filed

his complaint on January 15, 2016. The district judge dis-

missed his case against Warden Nicholson on November 29,

2016, putting Mr. Ollison on notice that his complaint was fac-

tually deficient. Discovery proceeded, albeit haltingly, for

more than four years. Warden Gossett subsequently filed the

motion for summary judgment at issue on September 1, 2021.

Because Mr. Ollison had ample time to digest the facts he was

uncovering and amend his complaint to bolster his claim of

systemic deficiencies, we see no reason to permit him to con-

structively do so by way of summary judgment briefing.

We also are not persuaded by Mr. Ollison’s contention

that Warden Gossett had adequate notice of his systemic

claim because it “was repeatedly mentioned at court appear-

ances, in documents, and at deposition.” 35 In Schmees, we re-

jected the plaintiff’s contention that the defendant had notice

of her new facts because she referred to them in a few filings

and a settlement conference. Id.; see also Colbert, 851 F.3d at

656–57 (determining that defendant did not have fair notice

of new issue even though plaintiff raised facts relevant to it at

deposition). Accordingly, even though facts upon which

Mr. Ollison’s systemic deficiencies claim are predicated were

mentioned in discovery requests, depositions, and expert re-

ports, Warden Gossett did not have fair notice of the claim.

35 Appellant’s Br. 54.

No. 23-1125 19

Even assuming for the sake of argument that Mr. Ollison

could clear the significant procedural barrier of his infirm

complaint, the factual allegations he would have us consider

are insufficient to withstand summary judgment. Our case

law certainly establishes that a public officer, or a private per-

son acting in the name of the state, can be held responsible for

allowing systemic deficiencies to fester, if the deficiencies, left

unchanged, will foreseeably result in injury to the plaintiff.

See, e.g., Wellman, 715 F.2d at 272–74, 277 (concluding that the

prison’s leaving its staff psychiatrist position vacant for two

years, having difficulty stocking necessary medical supplies,

and employing two physicians who could not communicate

effectively with patients due to a language barrier amounted

to systemic deficiencies “for which senior prison officials may

have been responsible”). 36

After careful review of the record, however, we agree with

the district court that Mr. Ollison has not presented a record

that can withstand a summary judgment motion on his claim

of systemic deficiencies. We have examined with particular

scrutiny the possibility that Mr. Ollison might have alleged

adequately that Warden Gossett knew of the sorry state of af-

fairs in the health care unit and nevertheless permitted sys-

temic deficiencies to persist. To sustain such a claim, Mr. Oll-

ison would have to establish that Warden Gossett knew of the

health care unit’s defects and consciously disregarded them,

understanding that his disregard exposed to significant

36 See also Cleveland-Perdue v. Brutsche, 881 F.2d 427, 428–32 (7th Cir. 1989)

(holding that the plaintiff stated a claim of systemic deliberate indifference

against the official who failed to ensure that his proposed changes to med-

ical procedures were implemented after the death of an inmate who had

been prescribed medicine over the phone).

20 No. 23-1125

jeopardy the health of chronically ill patients such as Mr. Oll-

ison. 37

Whether assessed from a quantitative or a qualitative per-

spective, the record leaves much to be desired as to Warden

Gossett’s knowledge about the conditions in the health care

unit, especially with respect to the continued employment of

Dr. Greby. Assuming, for the sake of argument, that Warden

Gossett did have an adequate understanding of the situation

in the heath care unit, Mr. Ollison still has not presented suf-

ficient evidence to establish that he was deliberately indiffer-

ent in his response to that information. It is clear that Warden

Gossett did not have adequate authority to hire another phy-

sician to replace Dr. Greby. Procuring adequate professional

personnel for the medical unit was the responsibility of Wex-

ford. 38 Until Wexford made available another physician for

the IRCC, Warden Gossett was left with the difficult choice of

operating with no physician or tolerating the continued pres-

ence of Dr. Greby. This record simply will not sustain a jury

finding that the difficult decision to allow her presence until

another physician was available was a deliberately indifferent

one. At the very best, we can speculate that Warden Gossett

could have been more proactive in insisting that Wexford find

a replacement physician. Similarly, one can wonder whether

Warden Gossett should have sought a temporary Health Care

Unit Administrator while the permanent administrator was

37 See Vance v. Peters, 97 F.3d 987, 994 (7th Cir. 1996) (holding that the war-

den was not “sufficiently alerted of a lapse in [an inmate’s] treatment as

to require her intervention or further investigation”).

38 This process involved recruiting qualified candidates for the Illinois

prison system and then allocating the available personnel among the var-

ious facilities within Wexford’s area of contractual responsibility.

No. 23-1125 21

on military leave. Whether either of these courses were possi-

ble and, if possible, whether they would have been fruitful, is,

on this record, speculative and certainly not supportive of a

determination of deliberate indifference.

In reaching our conclusion that the record would not sup-

port a finding of liability on the part of Warden Gossett for

permitting the systemic deterioration of the facility to go un-

checked, we have taken into consideration, and scrutinized,

the district court’s decision to exclude the proffered testimony

of Mr. Ollison’s experts. Daubert v. Merrell Dow Pharmaceuti-

cals, Inc., 509 U.S. 579 (1993), requires that the district court act

as gatekeeper to ensure that expert testimony is relevant and

reliable. See id. at 589; Kumho Tire Co. v. Carmichael, 526 U.S.

137, 147 (1999). Our review of the district court’s exclusion of

proffered expert testimony requires that we engage in a two-

part inquiry. We first review de novo whether the district

court followed Rule 702 and Daubert. See Gopalratnam v.

Hewlett-Packard Co., 877 F.3d 771, 782 (7th Cir. 2017). “If the

court correctly ‘applied the Rule 702/Daubert framework, we

review [its] decision to admit or exclude expert testimony for

abuse of discretion.’” Kirk v. Clark Equip. Co., 991 F.3d 865, 872

(7th Cir. 2021) (alteration in original) (quoting Haley v. Kolbe

& Kolbe Millwork Co., 863 F.3d 600, 611 (7th Cir. 2017)). Under

that standard, “we will not disturb the district court’s findings

unless they are manifestly erroneous.” United States v. Adame,

827 F.3d 637, 645 (7th Cir. 2016) (quoting Lapsley v. Xtek, Inc.,

689 F.3d 802, 809 (7th Cir. 2012)).

The district court correctly followed the methodology re-

quired by Daubert. It outlined accurately the legal standard,

providing an overview of Rule 702 and Daubert. The district

court then conducted a thorough review of the experts’

22 No. 23-1125

materials. 39 It examined Dr. Samra’s and Mr. Salke’s extensive

experience in their respective fields. It then considered the re-

liability of their testimony. Only then did the court conclude

that neither expert’s opinions would assist the jury.

Because the district court properly applied the correct le-

gal standard, we review its exclusion of expert testimony for

an abuse of discretion. 40 In her proffered testimony, Dr. Samra

took the view that Warden Gossett should have known from

Mr. Ollison’s grievances that his kidney disease had pro-

gressed and should have transferred him to another prison or

referred him to a nephrologist. The district court appropri-

ately noted that although Dr. Samra would be qualified to

give her opinion on the care medical professionals provided,

she was not qualified to opine on the care Warden Gossett, a

nonmedical official, provided.41 Dr. Samra also maintained

that because the warden was not competent to evaluate the

medical records himself, Warden Gossett should have had

39 Compare Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 783 (7th Cir.

2017) (approving the district court’s thorough discussion and application

of the test), with Naeem v. McKesson Drug Co., 444 F.3d 593, 608 (7th Cir.

2006) (rejecting the district court’s one-sentence analysis).

40 An abuse of discretion “can occur when a court commits a serious error

of judgment, such as reliance on a forbidden factor or failure to consider

an essential factor, when a court treats a single Daubert factor as disposi-

tive, or when the record contains no evidence upon which the trial judge

rationally could have based his decision.” Gopalratnam, 877 F.3d at 782 (in-

ternal quotation marks and citations omitted).

41 See Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (“The question we

must ask is not whether an expert witness is qualified in general, but

whether his ‘qualifications provide a foundation for [him] to answer a spe-

cific question.’” (alteration in original) (quoting Berry v. City of Detroit, 25

F.3d 1342, 1351 (6th Cir. 1994))).

No. 23-1125 23

Mr. Ollison’s charts reviewed before addressing his griev-

ance. Dr. Samra did not review prison grievance policies in

advance of her testimony. The court concluded that she

lacked the expertise necessary to give this opinion. Finally,

she opined that Warden Gossett should have had another

physician come to the prison in Dr. Greby’s absence. In addi-

tion to noting her lack of expertise in prison administration, 42

the court determined that her testimony would not assist the

jury. Because the court’s decision was rationally based on the

evidence before it, the district court did not abuse its discre-

tion by excluding Dr. Samra’s opinions.

Nor was the district court’s decision to exclude Mr. Salke’s

testimony manifestly erroneous. See Adame, 827 F.3d at 645.

Mr. Salke stated that Warden Gossett was underqualified. In

his view, the warden should have filled the Health Care Unit

Administrator vacancy during Mr. Sisson’s military leave. He

also asserted that the warden knew of problems with

Dr. Greby and further opined that Warden Gossett was liable

as a supervisor. The court correctly determined that

Mr. Salke’s opinion on Warden Gossett’s qualifications,

which he based on common sense, was not an expert opin-

ion. 43 The court appropriately concluded that expert testi-

mony was not required to assist the jury in deciding whether

Warden Gossett knew of the problems with Dr. Greby. Fi-

nally, Mr. Salke’s opinion regarding supervisory liability

42 See United States v. Vitek Supply Corp., 144 F.3d 476, 486 (7th Cir. 1998)

(noting that opinions must be “informed by the witness’ expertise” to be

expert opinions (quoting United States v. Benson, 941 F.2d 598, 604 (7th Cir.

1991))).

43 See id.

24 No. 23-1125

inappropriately stated a legal conclusion and the district court

properly excluded it. 44

It was not an abuse of discretion for the district court to

exclude the testimony of Dr. Samra and Mr. Salke.

Conclusion

The judgment of the district court is affirmed.

AFFIRMED

44 See Good Shepherd Manor Found., Inc., v. City of Momence, 323 F.3d 557,

564 (7th Cir. 2003).

No. 23-1125 25

KIRSCH, Circuit Judge, concurring. I join the majority opin-

ion. Regardless of the merits of Eric Ollison’s claims, the dis-

trict court did not err in dismissing his claim against Warden

Walter Nicholson or in refusing to consider the new argument

he made in opposing Warden Gregory Gossett’s motion for

summary judgment. I write separately to address two points

made in the dissent.

First, our dissenting colleague says we should reverse the

dismissal of Ollison’s claim against Warden Nicholson be-

cause the district court did not consider new evidence when

it denied Ollison’s motion to reconsider. Post at 55–56. In its

view, Ollison did not need to move to amend his complaint

because doing so would have been futile in light of the district

court’s erroneous statute of limitations ruling, and because he

had already put this evidence before the district court in his

motion to reconsider. Id. That is an interesting argument, but

it is not one Ollison advances on appeal. Ollison’s argument

is that the allegations in his complaint are sufficient to state a

claim against Warden Nicholson. The majority opinion ably

explains why that is not the case. Ante at 10–12. Although Oll-

ison is correct that, on appeal, he can elaborate on the com-

plaint’s factual allegations, to do so there must be sufficient

factual material in the complaint to elaborate on. Reynolds v.

CB Sports Bar, Inc., 623 F.3d 1143, 1147 (7th Cir. 2010). There

isn’t any. Conclusory statements are not factual allegations.

Second, the dissent says the majority opinion overlooks

the difference between a claim and a legal theory of relief. Post

at 53–54, 57–61. In its view, Ollison raises a single claim

against Warden Gossett based on two legal theories of relief.

Id. at 57–58. I fail to see why the claim/theory distinction is

relevant here. Different theories of relief are often supported

26 No. 23-1125

by different factual allegations. Although plaintiffs need not

plead specific legal theories, defendants are entitled to fair no-

tice of the factual allegations that support a plaintiff’s entitle-

ment to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). Accordingly, plaintiffs do not have free rein to change

the factual basis of their claim at summary judgment. Our ex-

planation in Chessie Logistics Co. v. Krinos Holdings, Inc., 867

F.3d 852 (7th Cir. 2017), is instructive:

The Federal Rules of Civil Procedure do not

require a plaintiff to plead legal theories. Ac-

cordingly, when a plaintiff does plead legal the-

ories, it can later alter those theories.…

This is not the framework that applies when

a plaintiff changes its factual theory during

summary judgment briefing. Plaintiffs do have

to raise factual allegations in their complaints.

An attempt to alter the factual basis of a claim at

summary judgment may amount to an attempt

to amend the complaint.…

… [T]he district court has discretion to deny

the de facto amendment and to refuse to con-

sider the new factual claims.

Id. at 859–60 (cleaned up).

Where, like here, the plaintiff raises a new argument at

summary judgment, we must determine “whether it changes

the complaint’s factual theory, or just the legal theories plain-

tiff has pursued so far.” Id. at 860. One way to do so is to ask

if the plaintiff’s new theory of relief is supported by the fac-

tual allegations in the complaint. If it isn’t, then the plaintiff is

changing the factual basis of his claim. See id. at 860–61; BRC

No. 23-1125 27

Rubber & Plastics, Inc. v. Cont’l Carbon Co., 900 F.3d 529, 541

(7th Cir. 2018); Whitaker v. Milwaukee County, 772 F.3d 802,

808–09 (7th Cir. 2014). That is what happened here. Ollison’s

argument at summary judgment—that Warden Gossett ex-

hibited deliberate indifference to systemic deficiencies at the

prison’s health care facility—is wholly unsupported by the

well-pleaded factual allegations in the complaint, which focus

narrowly on Gossett’s response to Ollison’s grievances. Ante

at 14; see also id. at 7–10 (explaining the different factual bases

that support each theory of relief). The dissent suggests oth-

erwise, post at 58, but I fail to see what factual allegations it is

alluding to. The bald assertion that Warden Gossett was

“aware of, facilitated, and/or turned a blind eye to the defi-

cient practices” that led to Ollison’s injuries is not a well-

pleaded factual allegation.

Because Ollison changed the factual basis of his claim at

summary judgment, the district court had the discretion to

deny this de facto amendment. Schmees v. HC1.COM, Inc., 77

F.4th 483, 488–90 (7th Cir. 2023). That discretion empowers

district courts to ensure a just, speedy, and inexpensive reso-

lution for the parties. Fed. R. Civ. P. 1. As the facts of this case

illustrate, determining when the equities weigh in favor of

permitting a plaintiff to constructively amend his complaint

is a difficult, fact-intensive question. For the reasons stated in

the majority opinion, the district court did not abuse its dis-

cretion here. Ante at 15–18.

28 No. 23-1125

HAMILTON, Circuit Judge, dissenting.

I. Introduction

Plaintiff Eric Ollison was a victim of an appalling failure

to provide needed medical care at an Illinois prison. His

chronic kidney disease was eminently treatable, but systemic

failures in prison health care put him on life support and

caused permanent brain damage and physical injuries.

Ollison reached an extraordinary settlement with

Wexford and the medical defendants for three million dollars.

His claims against the prison wardens, however, have been

caught in an unfair whipsaw of erroneous and inconsistent

district court decisions. First, the Northern District dismissed

the claim against Warden Nicholson based on the statute of

limitations. The majority and I agree that was wrong. Ante at

10‒11 n.26. Second, Ollison asked the Central District to

reconsider that dismissal based on new evidence obtained in

discovery. The court refused, repeating the statute of

limitations error and refusing to consider the new evidence

on the merits. Third, when plaintiff opposed summary

judgment for Warden Gossett by offering evidence of his

awareness of the systemic failures in the prison’s medical

care, the Central District failed to recognize that it at least had

discretion to consider that information. The majority and I

agree that was an error, see ante at 16–17, though I think the

district court was obliged to consider that information.

The majority errs, however, by choosing not to remedy the

unfair effects of those errors and by focusing on what it asserts

incorrectly were fatal procedural missteps by plaintiff. We

should instead reverse the judgment in favor of the two

wardens and remand for trial against both. Plaintiff Ollison’s

No. 23-1125 29

evidence would allow a reasonable jury to find that Warden

Nicholson or Warden Gossett or both knew of the long-term

systemic breakdown in medical care at the prison and

responded with deliberate indifference. The foreseeable

results included the grave injuries to plaintiff Ollison.

Making matters worse, the majority’s procedural lifelines

for the defendant wardens are ill-advised. They punish the

plaintiff for having failed to amend his complaint in response

to a merely hypothetical motion to dismiss. They also set and

spring a trap on the plaintiff for having missed an imaginary

deadline for adding factual detail to the complaint. These

procedural lifelines are likely to cause lawyers and district

courts to waste time on cleaning up pleadings rather than

focusing on the merits of serious disputes.

II. Common Ground

Before explaining why I believe the majority opinion errs,

several points of common ground deserve emphasis. First, we

agree that plaintiff offered evidence that his medical care was

provided (or denied) by a doctor who was deliberately using

poor and abusive medical care to punish prisoners. A jury

could find that the doctor’s work epitomized what the Eighth

Amendment prohibits: cruel and unusual punishment.

Second, we agree that prison officials can violate the

Eighth Amendment by responding with deliberate indiffer-

ence to serious and systemic deficiencies in prison health care.

See ante at 9–10 & nn.24 & 25; Antonelli v. Sheahan, 81 F.3d

1422, 1428–29 (7th Cir. 1996); Cleveland-Perdue v. Brutsche, 881

F.2d 427, 430–32 (7th Cir. 1989); Wellman v. Faulkner, 715 F.2d

269, 272 (7th Cir. 1983) (deliberate indifference can be shown

by “such systemic and gross deficiencies in staffing, facilities,

30 No. 23-1125

equipment, or procedures that the inmate population is effec-

tively denied access to adequate medical care” (quoting Ra-

mos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)).

I believe we also agree that such a theory requires proof

that the individual defendant (a) had actual knowledge of the

deficiencies and (b) failed to take reasonable remedial steps

that were within that defendant’s power. See Farmer v. Bren-

nan, 511 U.S. 825, 844 (1994) (“prison officials who actually

knew of a substantial risk to inmate health or safety may be

found free from liability if they responded reasonably to the

risk”); Ortiz v. Jordan, 562 U.S. 180, 190 (2011) (noting that

Farmer’s deliberate indifference standard was “not in contro-

versy”); LaBrec v. Walker, 948 F.3d 836, 841 (7th Cir. 2020). And

we agree that a defendant’s reasonable response will defeat a

claim of deliberate indifference even if the response was not

successful. Farmer, 511 U.S. at 844; Rasho v. Jeffreys, 22 F.4th

703, 710 (7th Cir. 2022).

I also appreciate that the doctor’s appalling performance

posed a difficult problem for the wardens. They knew for

more than a year that Wexford was trying to fire and replace

Dr. Carla B. Greby, who is at the center of this case. Medical

positions at prisons can be difficult to fill. Warden Gossett

saw his choice at least at one point as either tolerating the

intolerable Dr. Greby a little longer or going without any on-

site physician for more than 2,000 inmates. But whether the

wardens’ responses to the Dr. Greby dilemma were

reasonable, or perhaps started out as reasonable but

eventually became unreasonable, should present factual

issues for trial. See Wellman, 715 F.2d at 273 (finding systemic

deliberate indifference in prison medical care; despite prison

officials’ apparent good intentions, failure to fill critical

No. 23-1125 31

psychiatrist position for two years “may weigh more heavily

against the state than for it”).

I also agree with the majority on two important aspects of

the grant of summary judgment for Warden Gossett.

Summary judgment was proper regarding his response to

plaintiff’s grievance on December 26, 2013, which Gossett

reviewed on January 3, 2014. He concluded (without

consulting medical personnel) that it did not require an

emergency response. Plaintiff’s grievance complained that his

“performance in the recreation area” had been decreasing

since his medication had been changed. Gossett responded to

the grievance by asking plaintiff why, if he was as sick as he

claimed, he was still going to the recreation area. That

response was not close to optimal, but a jury could not

reasonably find that it amounted to deliberate indifference.

The district court also did not make a reversible error in

rejecting testimony from plaintiff’s expert witnesses, Dr.

Samra and Mr. Salke, in deciding the summary judgment

motion. Both clearly have expertise and opinions that are

relevant to the case overall. The problem is that their expertise

does not address the narrow issues that were decisive on

summary judgment in favor of Warden Gossett. See ante at

22–23. 1

1 If the case were to go to trial, the district court would need to

reconsider those witnesses. Dr. Samra’s medical opinions would be

central to trial issues of causation and damages. Mr. Salke’s opinions

about prison operations might well be relevant and admissible regarding

the reasonableness of both wardens’ responses to the steady stream of

information they received about Dr. Greby and the threat her awful

performance posed to the health of all inmates, and especially those with

serious chronic diseases like plaintiff Ollison. See Jimenez v. City of Chicago,

32 No. 23-1125

Despite these points of agreement, the majority errs in af-

firming dismissal of Warden Nicholson and summary judg-

ment for Warden Gossett. To explain those errors, Part III sets

forth the evidence against both wardens that plaintiff submit-

ted to the district court and explains why that evidence

should be sufficient to go to trial against both. Part IV explains

why the majority’s procedural grounds for affirming are un-

justified and ill-advised.

III. The Merits of Plaintiff’s Claims

A. Plaintiff’s Kidney Disease

Plaintiff Ollison arrived at the Illinois River Correctional

Center in January 2012. He had a history of kidney disease,

but it had been well-managed up to that time. Ollison

believed incorrectly that it had been cured. In fact, though,

blood tests at Illinois River showed elevated creatinine levels,

indicating kidney disease that called for careful monitoring.

But plaintiff received no medical attention for his kidney

disease for more than a year.

In April 2013, Dr. Greby received lab results showing that

plaintiff’s kidney disease had progressed to a dangerous

point, but some aspects of the disease were still reversible

with proper care. R. 405-8 at 139–40, 149–51 (Greby Dep.);

732 F.3d 710, 721 (7th Cir. 2013) (“In constitutional tort cases, expert

testimony regarding sound professional standards governing a

defendant’s actions can be relevant and helpful.”); Haley v. Gross, 86 F. 3d

630, 644–45 (7th Cir. 1996) (no abuse of discretion in deliberate indifference

case where district court allowed “an expert in the area of corrections and

prison management” to “testify regarding what he believed to be the

proper response to certain prison situations”).

No. 23-1125 33

App. B3 at 23. 2 Dr. Greby did not inform plaintiff. She

contacted a Wexford nephrologist who told her to send

plaintiff to a hospital for a complete work-up. R. 535-7 at 152–

54, 162–64 (Einwohner Dep.). Yet Dr. Greby did not follow

that advice from a specialist. Nor, apparently, did she take

any other measures in response to the ominous lab results.

Between April 2013 and early January 2014, plaintiff met with

Dr. Greby multiple times, but no follow-up labs were drawn,

and Dr. Greby took no other action to monitor or respond to

plaintiff’s advancing kidney disease.

In November 2013, months after Dr. Greby failed to send

him for the recommended work-up, plaintiff suddenly felt

extremely ill. R. 405-1 at 5 (Ollison Decl.). Plaintiff’s medical

expert has explained that kidney disease is a “silent disease”

that will often show no symptoms until renal failure is

imminent. App. B3 at 21. (Dr. Samra’s opinion on this point is

well within her expertise.) In the following weeks, plaintiff

received little medical attention but continued to receive

medications that were contraindicated for someone with

kidney disease. He did not understand what was wrong.

App. B3 at 14–15. His three grievances about the lack of

medical attention received no effective response.

Blood tests done on January 8, 2014, a week before plain-

tiff’s renal failure crisis, showed “alarmingly dangerous lev-

els” of creatinine and uremia (urine proteins), meaning his

kidneys were not filtering out waste products. App. B3 at 17.

Those levels signaled, according to Dr. Samra, “the onset of

2 Citations to district court docket entries take the form of R. __ and

use the electronic PDF pagination, not the pagination internal to the doc-

ument.

34 No. 23-1125

renal failure” and called for immediate medical attention. Id.

That same day, though, Wexford sent Dr. Greby home for,

among other things, refusing to work during a flu outbreak at

the prison. R. 493-3 at 74 (Stacy Moore Jan. 8, 2014 email). Her

supervisor reported that “it was more beneficial to the unit to

not have her there than to have her on site as a negative influ-

ence.” Id. The next day, on Thursday, January 9, Dr. Greby

reviewed plaintiff’s alarming lab report, but she just handed

it off to a clerk without taking any action. Greby Dep. at 152–

53, 155–56; R. 535-52 at 126–27 (Stein Dep.).

During the next week, Dr. Greby was absent without

cause until after plaintiff went to the emergency room. R. 535-

2 at 5–6 (Greby attendance records). In her absence, nobody

with a medical degree was working at the prison. See R. 493-

4 at 55 (Moore May 31, 2013 email); App. B1 at 8. On January

15 and 16, plaintiff complained of vomiting every day since

December, nausea, constipation, and swollen limbs. Stein

Dep. at 127, 130. Based on these complaints, and in Dr.

Greby’s absence, a nurse looked at plaintiff’s chart. She dis-

covered the highly abnormal lab results from January 8. Id. at

153. After contacting the on-site physician assistant and a re-

mote nephrologist, the nurse took new labs. Id. at 135, 154.

Plaintiff’s already “alarmingly dangerous” creatinine levels

had gotten even worse. Id. at 136. The nephrologist called

Wexford’s national medical director to alert him that plaintiff

was having a medical emergency and needed emergency hos-

pital care. Einwohner Dep. at 191–95.

On Thursday, January 16, plaintiff was taken to a hospital

and was diagnosed with high uremia levels and acute renal

failure consistent with end-stage renal disease. His kidneys

had likely been failing since December. App. B3 at 29. He was

No. 23-1125 35

placed on emergency hemodialysis. The procedure is inher-

ently risky, and plaintiff became paralyzed on his left side and

suffered strokes and seizures. Doctors feared that he might

not recover from what they described then as a vegetative

state. They recommended only palliative care. App. B5.

Plaintiff remained in a coma for nearly three weeks. He

then began to recover. In February 2014 he was sent to other

hospitals for rehabilitation, but he has suffered long-term

physical and mental injuries. R. 406-2 at 2 (Waimei Tai Expert

Report); App. A5 at 8. As of late 2020, plaintiff was on a wait-

ing list for a kidney transplant.

B. The Systemic Deficiencies

Dr. Greby’s Abuse of Inmates: Depositions taken before

January 2020 revealed most of these details about the lapses

in individual medical care that led to plaintiff’s kidney failure.

However, plaintiff did not know the scale of the dysfunction

in the health care unit until after February 12, 2020, when he

received court-ordered production of more than 700 pages of

emails and other documents from Wexford. Those emails

revealed a longstanding consensus within Wexford that Dr.

Greby’s approach to her work amounted to a systemic

breakdown in the Illinois River health care unit.

The details of Dr. Greby’s mistreatment of other prisoners

are not essential here. Wexford’s settlement with plaintiff for

three million dollars speaks volumes. The record includes the

avoidable deaths of other prisoner-patients and reports of

both physical and verbal abuse of patients that Wexford

considered reliable enough to discipline and eventually fire

Dr. Greby. Even as early as the spring of 2012, the situation

was bad enough that Wexford had given Dr. Greby a “Final

36 No. 23-1125

Warning,” and the warden was moving toward locking Dr.

Greby out from Illinois River. R. 493-3 at 76–77 (March 2012

Final Warning); R. 493-6 at 94 (medical director review); R.

493-6 at 74 (Moore March 1, 2012 email). 3

A month later, Wexford’s director of nursing reported

there had been multiple incidents where Dr. Greby had

signed off on abnormal lab test results without following up

with the patients. R. 493-6 at 64 (Greenhagen April 27, 2012

email). In one case, a patient went without treatment for

Hepatitis C for a month until severe abdominal pain led

nursing staff to check a lab test that had been taken a month

prior. Id. During this period, Dr. Greby was also frequently

late or absent from work, and she routinely failed to follow

the procedures for calling in. R. 493-6 at 32 (Moore June 22,

2012 email), 38 (attendance memo), 39–40 (Moore June 8, 2012

email). That was all a year and a half before plaintiff’s medical

crisis in January 2014.

The Health Care Unit administrator of the Illinois River

facility was on military leave for almost all of 2012 and 2013,

meaning that the warden had no assistant keeping close tabs

on Dr. Greby and the health care unit. When the administrator

returned briefly to Illinois River in April 2013 between

military assignments, he reported that prisoner-patient

complaints about Dr. Greby were becoming “more frequent

and more intense.” He asked Wexford to have a different

doctor see two patients who said they had been berated and

even physically abused by Dr. Greby. R. 493-5 at 28–29 (Sisson

April 19, 2013 email). He also reported: “Dr. Greby thinks all

3 The wardens had the authority to unilaterally “lock out” IDOC or

Wexford employees – i.e., prevent them from coming back into the facility.

No. 23-1125 37

inmates are liars and it is her duty to discipline through

medicine.” Id. at 29. That damning assessment concisely

defines cruel and unusual punishment in prison health care.

In May 2013, Wexford regional director Stacy Moore was

ready to fire Dr. Greby if she did not resign immediately. At

that point, it was “very evident” that Dr. Greby would “never

change her ways.” R. 493-5 at 9 (Bodnar May 10, 2013 email).

A Wexford employee explained the situation internally: “The

only reason we have tolerated Dr. Greby at IL River this long

is because we had nobody to replace her. She’s been given

every kind of discipline imaginable and still a big problem

and risk. In the latest incidents we had with her, she has

resorted to kicking an inmate in his sore leg.” R. 493-4 at 61

(Bodnar May 24, 2013 email).

A plan to replace Dr. Greby fell through when a new

physician went instead to another Illinois prison. At Illinois

River, Wexford was in damage control mode. Wexford knew

that Dr. Greby was at best ineffective and absent and at worst

an ongoing threat to patients’ health and safety. See R. 493-3

at 59–61 (January 13–24, 2014 emails), 70–71 (Moore January

10, 2014 emails), 74 (January 8–9, 2014 emails), 87–88 (Moore

December 13, 2013 email). It also knew that further discipline

had become an idle threat. R. 493-3 at 61 (Moore January 13,

2014 email). Three days before plaintiff’s crisis in January

2014, Wexford’s Moore described the situation at Illinois

River: “we have basically been holding our breath that

nothing else significant were to occur as not to leave the site

with no Medical Director.” Id.

Dr. Greby was finally fired by Wexford on January 31,

2014, two weeks after plaintiff’s crisis put him in the hospital

on life support and one week after another prisoner-patient

38 No. 23-1125

died from rectal cancer that had not been detected. R. 493-3 at

35 (Termination Notice), 59 (Moore January 24, 2014 email).

In a reference to plaintiff Ollison, the termination notice

identified as evidence of her unsatisfactory performance Dr.

Greby’s “handling of a recent case involving a patient with

renal issues” despite numerous disciplinary actions and

warnings. R. 493-3 at 35.

C. The Wardens’ Knowledge and Responses

The evidence summarized so far shows why Wexford

settled with plaintiff, but the claims against the wardens

require more. They require evidence that each actually knew

of those systemic failures in prison health care and evidence

that each failed to respond reasonably. See Farmer v. Brennan,

511 U.S. 825, 844, 847 (1994). Plaintiff did not, however, need

to show that either warden was specifically aware of his

chronic kidney disease or the health care unit’s failure to treat

it. He needed to show only that the wardens had actual

knowledge of a systemic breakdown putting all prisoner-

patients at risk. See id. at 843 (“Nor may a prison official

escape liability for deliberate indifference by showing that,

while he was aware of an obvious, substantial risk to inmate

safety, he did not know that the complainant was especially

likely to be assaulted by the specific prisoner who eventually

committed the assault.”); Rasho v. Jeffreys, 22 F.4th 703, 710

(7th Cir. 2022) (“subjective state-of-mind element applies to

claims of … pervasive deficiencies in prison medical

treatment”); Antonelli v. Sheahan, 81 F.3d 1422, 1428–29 (7th

Cir. 1996) (reversing in part dismissal and allowing some

claims of systemic breakdowns in jail conditions to proceed

against senior officials); Cleveland-Perdue v. Brutsche, 881 F.2d

427, 430–32 (7th Cir. 1989) (affirming denial of qualified

No. 23-1125 39

immunity for senior officials who failed to correct systemic

deficiencies in prison’s health care).

Plaintiff’s strongest evidence about the wardens’

knowledge comes from the Wexford emails and documents

and the deposition testimony of Wexford’s Stacy Moore.

Those emails summarized communications between the

warden and Wexford about Dr. Greby’s failings. 4

The discussion below recounts the evidence against the

“warden” without distinguishing between Warden Gossett

and Warden Nicholson because the Wexford emails almost

always referred to the warden simply as “warden.” This

feature of the Wexford emails would be important at trial—

the question is who was warden when—but it does not affect

the pretrial viability of plaintiff’s claim against either warden.

The Wexford emails reveal that Director Moore was in

regular communication with the Illinois River warden about

Dr. Greby’s incompetent, erratic, abusive, and dangerous

performance as medical director. Part of Moore’s job was to

visit Illinois River each week or so. See R. 495-26 at 56, 88–89

(Moore Dep.). She testified that she was in communication

with the warden via email and that it was her practice to

speak with him during each site visit if he was available. Id.

The Wexford emails and Moore’s testimony reflect extensive

communication between Moore and the wardens between

4 The emails were not sent to the wardens and would be hearsay if

offered as direct proof of the truth of what was said in communications

with the wardens. The hearsay problems were cured, however, when

Wexford’s Moore, who wrote or received most of the emails, testified in a

follow-up deposition that those emails accurately reported the contempo-

raneous communications with the wardens. See R. 495-26 (Moore Dep.).

40 No. 23-1125

September 2011, when Moore joined Wexford, and January

2014, when plaintiff went into kidney failure.

Moore regularly reported that the warden was frustrated

with Dr. Greby’s behavior and willing to lock her out of the

facility. R. 493-6 at 74 (March 2012), 32 (June 2012), 23-24, 13–

14 (Aug. 2012); R. 493-7 at 18 (Nov. 2011). She also reported

that the warden and assistant wardens were “very

communicative with [Wexford’s director of nursing] and I in

regards to any concerns that they have had” regarding Dr.

Greby. R. 493-6 at 69 (March 2012).

In February 2012, nearly two years before Ollison’s renal

failure crisis, a review of Dr. Greby’s performance noted that

the “New Warden/Administration [was] not as tolerant

waiting on Wexford action before locking her out.” R. 493-6

at 94 (calling for one-month suspension without pay). Shortly

after that review, the acting warden and assistant warden

“reviewed at length” the Final Warning issued to Dr. Greby

by Wexford. R. 493-6 at 72 (Moore March 9, 2012 email); R.

495-26 at 57 (Moore Dep.). At that time, they “were made

aware of whatever issues there were” regarding Dr. Greby.

Moore Dep. at 57. The assistant wardens also periodically

requested that Wexford review particular cases of inadequate

treatment or unprofessional conduct by Dr. Greby. R. 493-6 at

13–14 (Moore August 3, 2012 email); R. 493-8 at 75–76 (May

2–6, 2012 emails).

In May 2013, Wexford was actively trying to replace Dr.

Greby as medical director. Wexford had found a suitable

replacement for Dr. Greby and told the Illinois River wardens

that a personnel change was imminent. R. 493-4 at 63–68 (May

22–26, 2013 emails), 70–73 (May 17-21, 2013 emails). When

Wexford decided instead to place Dr. Greby’s replacement at

No. 23-1125 41

a different prison, Moore updated the warden and assistant

wardens. At that time, they said “their preference would be

to have Dr. Greby there instead of having no MD at all but

understand that if something egregious were to occur, she

would be terminated.” R. 493-4 at 53 (Moore June 3, 2013

email), 54–55 (Moore May 31, 2013 email).

This evidence is astonishing. I have not seen before

reliable evidence of such serious problems in a prison health

care facility over such a long time. As early as April 2012,

Wexford was aware of Dr. Greby’s habit of signing off on

abnormal labs without follow up—the exact conduct that led

to plaintiff’s kidneys failing. Replacing Dr. Greby may have

been the goal, but Wexford repeatedly postponed action,

watered down proposed sanctions, and failed to replace Dr.

Greby before January 2014.

In terms of the bottom line for this appeal, a jury could

find that the wardens were well-informed about both the se-

rious threats to prisoner health and safety posed by Dr. Greby

and the failure to take effective action to improve her perfor-

mance or to replace her. Like Wexford, both wardens hoped

for the best while leaving prisoner-patients vulnerable to

“egregious” outcomes. Only after Dr. Greby’s failures put

plaintiff Ollison on life support and led to the death of another

prisoner-patient was she fired, as Wexford and the warden

had known she needed to be for more than a year.

We are required to consider all of this evidence in the light

reasonably most favorable to plaintiff. The cumulative effect

of plaintiff’s evidence here would let a reasonable jury find

that not only Dr. Greby but also Wexford as a company and

Warden Nicholson or Warden Gossett or both acted with

42 No. 23-1125

deliberate indifference to known, systemic deficiencies in the

health care unit.

Focusing on the wardens, the Wexford emails and Moore

testimony provide powerful direct and circumstantial

evidence that they were well aware that Dr. Greby was acting

both incompetently and with cruelly deliberate indifference

in dealing with prisoners’ health needs. Their knowledge

stretched back nearly two years before plaintiff’s kidneys

failed.

The Supreme Court explained the use of circumstantial

evidence in Eighth Amendment deliberate indifference cases

in Farmer v. Brennan: “Whether a prison official had the

requisite knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways, including

inference from circumstantial evidence….” 511 U.S. at 842. If

a risk is obvious, a jury may infer that a particular defendant

knew of it. Id. The Court continued:

For example, 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 being sued 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.”

No. 23-1125 43

Id. at 842–43. Change the phrase “risk of inmate attacks” in

that passage to “risk of completely inadequate and cruel

health care” and that passage applies directly to this evidence.

The Wexford emails reveal that the risks arising from Dr.

Greby’s chronic absenteeism, abusive conduct, and flagrant

disregard for medical protocol were “longstanding, perva-

sive, well-documented,” and “expressly noted by prison offi-

cials in the past.” Id. at 842. Moore’s weekly meetings, the

health care unit administrator’s characterization of Dr.

Greby’s philosophy of punishment through medicine, and

specific reports of discussions with the wardens about Dr.

Greby’s conduct indicate that the wardens “had been exposed

to information concerning the risk.” Id. From the combination

of emails and Moore’s testimony about communications with

the wardens, it is reasonable to infer that Illinois River’s war-

dens knew that the senior health care official at the prison was

cruel and incompetent, threatening the health and safety of all

prisoners.

The problem was a difficult one for Wexford and the

wardens, but the stakes were life and death. At this stage, the

key fact is that for as much as two years, the wardens did

nothing to remedy the risk of harm that Dr. Greby posed to

prisoner-patients. The long record of delay, ineffective

threats, and inaction presents at least genuine issues of fact as

to whether the wardens responded reasonably over time to

this serious risk to all prisoners. See Whiting v. Wexford Health

Sources, Inc., 839 F.3d 658, 663 (7th Cir. 2016) (“State-of-mind

evidence sufficient to create a jury question might include …

the defendant’s persistence in ‘a course of treatment known

to be ineffective ….’”), quoting Petties v. Carter, 836 F.3d 722,

730 (7th Cir. 2016); Rasho, 22 F.4th at 719 (Ripple, J.,

44 No. 23-1125

dissenting) (explaining that “prison officials’ knowledge that

certain ‘remedial’ actions will not ameliorate the

constitutional violation” “bears directly on whether the

deliberate indifference standard has been met”).

Plaintiff does not necessarily need to show there was a

single, unilateral action that the wardens should have taken

to address Dr. Greby’s misconduct. The legal standard is that

they needed to respond reasonably, including by working

with Wexford and central headquarters for the Department of

Corrections to mitigate harm while Dr. Greby was still

working at Illinois River.

Even if the wardens could not have taken unilateral action

to fire Dr. Greby, they could have worked with Wexford to

protect the health of the prisoners entrusted to their custody

during the extended search for her replacement. Plaintiff’s

medical emergency is illustrative. Nursing staff caught and

responded to plaintiff’s kidney failure only because Dr. Greby

failed to show up to work. A reasonable jury could conclude,

for example, that working with Wexford to grant more

responsibility to attentive nursing staff working with remote

contractors would have been a better solution than Wexford

and the wardens holding their breath and just hoping that

nothing else serious would happen.

The majority identifies another potential option: the

wardens could have sought a temporary Health Care Unit

Administrator during the extended period when the

permanent administrator was on military leave. When the

administrator was available on site, he reviewed complaints

about Dr. Greby and requested that a different doctor follow

up with specific prisoner-patients. Consulting another doctor

about plaintiff’s kidney disease may well have prevented his

No. 23-1125 45

medical emergency. While the administrator was on leave,

Wexford stepped into his role, placing the health care unit at

the mercy of Wexford’s self-interest and competing priorities,

as exemplified by Wexford’s last-minute decision to assign

Dr. Greby’s replacement to another prison. The wardens’

failure to maintain adequate supervision over the healthcare

unit for an extended period would also support a jury’s

finding of deliberate indifference.

The record indicates that other possibilities, like locking

Dr. Greby out of the facility were discussed. We do not yet

have much information about the wardens’ efforts to follow

through on those discussions. If — as the record suggests —

that lack of information is attributable to the wardens’ lack of

action, that is a further reason to send plaintiff’s claims to trial,

not to affirm the grant of summary judgment.

Plaintiff was especially vulnerable to the wardens’

inaction. His chronic disease needed to be monitored through

blood tests because it would not show visible symptoms until

it became life-threatening. That is indeed what happened. It

happened because Dr. Greby: (a) failed to follow the expert

guidance of a nephrologist; (b) failed to respond to plaintiff’s

abnormal lab results; (c) failed to ensure that he had timely

blood tests to monitor his condition; and (d) otherwise failed

to address his serious medical needs. And it happened, a jury

could find, because Wexford and the Illinois River wardens

failed to take reasonable action to protect prisoners like

plaintiff from her incompetence and cruelty.

The Gossett Timing Issue: The strength of plaintiff’s

evidence should have made this a relatively straightforward

denial of summary judgment. Instead, minor procedural

issues and a factual ambiguity introduced four years into the

46 No. 23-1125

case by Warden Gossett seem to have distracted the focus of

both the district court and the majority from the strength of

plaintiff’s case.

As noted above, the Wexford emails recount communica-

tions with the “warden” without identifying either Warden

Nicholson or Warden Gossett by name. In February 2020,

when Wexford produced the emails, those omissions did not

pose a problem for plaintiff. In the answer to plaintiff’s com-

plaint, Gossett admitted that he had been warden during all

times relevant to plaintiff’s complaint. R. 223 at 7. And in a

November 2019 deposition, Gossett had testified that he be-

came an assistant warden at Illinois River in 2011 and warden

in July 2012—consistent with the answer to plaintiff’s com-

plaint. R. 369-2 at 16. Plaintiff had no reason to doubt

Gossett’s testimony and conducted multiple depositions after

he received the Wexford emails assuming that Gossett had

been the warden referred to in the emails. Appellant’s Br. at

19.

But then Gossett changed his story. Four months after

plaintiff received the Wexford emails and seven months after

Gossett’s initial deposition, he served unsigned supplemental

interrogatory answers saying he did not become assistant

warden at Illinois River until March 2013 and warden until

September 2013. R. 369-3 at 2 (June 23, 2020 Interrogatories).

He confirmed that timeline in a second deposition. R. 369-4 at

34, 64, 72 (July 16, 2020 Dep.). When asked why he had given

different dates in his first deposition, Gossett explained that

he had been retired for more than five years and had not seen

his personnel file before his original deposition. Id. at 72.

Then, however, undermining the idea that he had merely

corrected a mistake, Gossett said in October 2020 in support

No. 23-1125 47

of his motion for summary judgment that it was an undis-

puted fact that “at all times relevant to the Complaint,” he

was warden at Illinois River. R. 382 at 2. That assertion con-

flicted with his new supplemental interrogatory answers and

his testimony in the second deposition.

The regime of individual liability under Section 1983

makes the issue important. Gossett’s new story about his

dates of employment implied that Nicholson had been

warden during 2012 and into 2013. That change, combined

with the Wexford emails and Moore’s testimony, tended to

shift responsibility from Gossett to Nicholson, at least for

much of the relevant time. The new Gossett story thus

indicated that Nicholson had, as warden, personal knowledge

of the systemic breakdowns in health care resulting from Dr.

Greby’s abusive and dangerous medical care of prisoner-

patients. But at that point, Nicholson had already been

dismissed from the case.

Responding to this new information, plaintiff filed a mo-

tion that is critical to fair consideration of this appeal. In Sep-

tember 2020, he moved to modify the earlier order dismissing

Nicholson from the case or alternatively, to bar Gossett from

disputing his original sworn testimony about his dates of em-

ployment. R. 369. The district court characterized plaintiff’s

motion as “frivolous” and refused to vacate the earlier dismis-

sal order. A4 at 8. The majority and I agree, however, that the

judge’s stated rationale was wrong. Ante at 10‒11 n.26.

The district court then went a step further. It purported to

resolve the factual conflict by characterizing Gossett’s original

answers as merely mistaken and prohibiting plaintiff from us-

ing them as evidence. A6 at 23. The district court took the

view that Gossett’s original and repeated assertion about

48 No. 23-1125

when he served as warden was “mistaken, and now cor-

rected.” Id. The judge said the corrected version would be

deemed conclusive unless plaintiff could produce additional

evidence contradicting it. Id.

This was an extraordinary ruling, protecting Gossett from

his own contradictions. When a witness gives contradictory

answers to a relevant question, a party is entitled to use either

version he chooses, or both, at least to attack the credibility of

the witness’s testimony. See Allen v. Chicago Transit Auth., 317

F.3d 696, 699–700 (7th Cir. 2003) (“When a witness repeatedly

contradicts himself under oath on material matters … the

witness’s credibility becomes an issue for the jury; it cannot

be resolved in a summary judgment proceeding.”); see also

Evans v. Griffin, 932 F.3d 1043, 1048 (7th Cir. 2019) (preparing

for depositions is essential: “Both courts and juries can, and

regularly do, disregard a party’s later statements that

contradict earlier deposition testimony.”).

Much of the district court’s analysis of the merits of

plaintiff’s systemic deficiency theory relied on this ruling.

After resolving the factual dispute in the defendants’ favor,

the court deemed wide swaths of probative evidence

irrelevant based on when particular emails had been sent. The

court also treated Warden Gossett’s testimony as

unassailable, despite the fact that plaintiff would be entitled

to use Gossett’s confusion about his dates of employment to

impeach his credibility at trial on virtually any subject.

The majority avoids this problem by relying on supposed

procedural bobbles by plaintiff, but the Gossett timing issue

is critical to considering plaintiff’s motion to reconsider and

the later decision on summary judgment. Under Gossett’s

corrected answers, the Wexford emails and Moore’s

No. 23-1125 49

testimony indicate that Nicholson was warden for much of

the time Dr. Greby was rendering terrible medical care, that

he was well aware of the problems, and that he failed for

many months to take effective action in response—i.e., that he

acted with deliberate indifference to the systemic problems

that led to plaintiff’s serious injuries.

Instead of allowing the two warden defendants to play a

shell game with their employment dates and relative degrees

of knowledge about Dr. Greby, the district court should have

left this critical factual issue to be resolved at trial. And even

if we accept the district court’s erroneous decision to resolve

this factual dispute on summary judgment, fairness de-

manded that the district court reconsider the dismissal of Ni-

cholson and bring him back into the case.

IV. Mistaken Procedural Rationales for Affirming

As I have tried to show above, plaintiff has submitted

ample evidence that would allow a reasonable jury to find

that Warden Gossett or Warden Nicholson or both acted with

deliberate indifference. They failed for more than two years

to address known systemic deficiencies in Dr. Greby’s

treatment of the prisoners in her and the wardens’ care.

The majority disagrees but does so by focusing on whether

the wardens had unilateral power to fire and replace Dr.

Greby. That analysis fails to give plaintiff the benefit of his

evidence on summary judgment and fails to consider other

steps the wardens could have taken. The appalling medical

care for plaintiff and other prisoners was known to the war-

dens over a period of years, not days or even weeks. Their

response was to hope things improved. As the saying goes,

though, “hope is not a strategy.” Instead, the majority affirms

50 No. 23-1125

the decisions in favor of the wardens primarily on unfair and

erroneous procedural grounds. I address first plaintiff’s claim

against Nicholson and then turn to Gossett.

A. Warden Nicholson

The majority and I agree that both district courts erred by

finding that plaintiff’s claim against Nicholson was barred by

the statute of limitations. See ante at 10‒11 n.26. Counsel for

the defendants agreed at oral argument. The majority affirms,

however, on the theory that plaintiff’s original complaint did

not allege sufficient facts to state a viable claim against

Nicholson. That theory is mistaken and unfairly fails to

account for the evidence produced in discovery and plaintiff’s

timely presentation of it to the district court.

The effect of the statute of limitations error: As a result of the

statute of limitations error, the merits of plaintiff’s claim

against Nicholson received short shrift in both district courts.

The effects of that error played out in three stages.

First, after erring on the statute of limitations, Judge

Chang went on, “[f]or the sake of completeness,” to address

defense arguments that the complaint did not allege sufficient

facts to establish Nicholson’s personal responsibility for

plaintiff’s injuries. A2 at 14–16. Plaintiff asked Judge Chang

to reconsider the statute of limitations and personal liability

issues before transfer to the Central District, but his motion

was denied. R. 139; R. 143. The erroneous statute of limita-

tions decision meant that an amendment to cure the supposed

deficiency would have been futile. After all, the court had just

said, albeit mistakenly, that the claim against Nicholson was

barred no matter what level of factual detail might have been

alleged.

No. 23-1125 51

Three years later in 2020, after the case had been trans-

ferred to the Central District, the role of Warden Nicholson

resurfaced. A contentious discovery process in the Central

District led to the two developments discussed above in Sec-

tion III-C: (1) Wexford produced strong evidence that the

wardens had actual knowledge of the systemic problems with

Dr. Greby and the health care unit; and (2) Gossett contra-

dicted his original testimony about the dates he was em-

ployed at Illinois River. 5

It’s understandable that plaintiff’s focus returned to

Nicholson only after Gossett changed his testimony in 2020

about when he became warden. Judge Chang had already

twice found his claim against Nicholson to be time-barred.

When Gossett’s new testimony shifted much of the

potential responsibility back to Nicholson, the strategic

calculation for plaintiff shifted with it. Plaintiff responded to

the new discovery and Gossett’s about-face by putting the

timeliness and merits of the claim against Nicholson squarely

in front of Judge Shadid in the September 2020 motion to

reconsider. See R. 369.

Judge Shadid denied plaintiff’s motion to reconsider by

repeating the statute of limitations error. Most important for

this appeal, however, he declined to rule on plaintiff’s

argument about the substance of his claims against

Nicholson—the allegations in the original complaint as

amplified by the new evidence that Nicholson was fully

aware of Dr. Greby and the systemic failings of the health care

5 Again, this view of the evidence is through the lens of defendants’

summary judgment motion, giving plaintiff the benefit of conflicts in the

evidence and of favorable, reasonable inferences from the evidence.

52 No. 23-1125

unit. In reliance on his legal error about the statute of

limitations, Judge Shadid treated plaintiff’s arguments about

the merits as “moot.” A4 at 8. He did not exercise his

discretion to consider the new evidence against Nicholson.

To sum up, both district courts were wrong about the

statute of limitations defense, and, based on that mistake, the

second district court declined to address the sufficiency of the

pleadings and evidence against Nicholson. When the district

court’s only stated rationale for denying a decisive motion

was wrong, reversal is routine. That is so even if we might

hypothesize other reasons for reaching the same result.

Judge Shadid’s legal error on the statute of limitations is

sufficient to warrant reversal, but he also reversibly erred by

failing to exercise his discretion to consider plaintiff’s newly

discovered evidence against Nicholson. Where the law gives

a trial court discretion that the court does not recognize and

exercise, the failure to exercise discretion constitutes an abuse

of discretion. E.g., Childress v. Walker, 787 F.3d 433, 443 (7th

Cir. 2015); LSLJ Partnership v. Frito-Lay, Inc., 920 F.2d 476, 479

(7th Cir. 1990) (finding that “the district court’s erroneous de-

nial of jurisdiction resulted in an abuse of its discretion when

it failed to exercise any discretion by not reaching the merits

of the plaintiff’s Rule 60(b) motion”).

If Judge Shadid had considered plaintiff’s evidence, it

would have been an abuse of discretion to deny plaintiff the

ability to pursue his claim against Nicholson. The obstacles to

that claim had been erected by the district courts’ errors on

the statute of limitations, Gossett’s repeated false testimony

about when he became warden, and Wexford’s prolonged

resistance to producing in discovery some of the most critical

evidence in the case.

No. 23-1125 53

Undue focus on the original pleadings: The majority affirms,

however, by focusing on the original dismissal on the

pleadings almost nine years ago. It loses sight of the evidence

plaintiff assembled in the meantime. More specifically, the

majority opinion (a) confuses the difference between a claim

and a legal theory (which need not be included in a

complaint), (b) overlooks the fact that the deficiencies found

by the original district court are the sort that we routinely

require district courts to allow a plaintiff to cure, and

(c) formalistically requires the plaintiff to have tried to cure

those problems by moving to amend the complaint rather

than as he did, by fairly presenting the claim against

Nicholson in the 2020 motion to reconsider.

The end result is that the majority indulges both district

courts’ errors and dismisses an unusually strong claim

without considering its merits or all that happened in the

lawsuit after the original complaint was filed. The majority

opinion’s reasoning will encourage defendants to play

procedural games of “gotcha” and will force plaintiffs to

guess about when and in how much detail they should

update their pleadings with more factual details. This

reasoning will also require district courts to waste time on

unnecessary motions to amend pleadings.

To explain these points in order, first, the majority

recognizes correctly that a plaintiff can pursue a deliberate

indifference claim under the Eighth Amendment under two

different theories. One theory focuses on deliberate

indifference to the individual plaintiff’s health and safety. The

other focuses on deliberate indifference to systemic threats to

many prisoners’ health or safety. Ante at 7–8. The majority

errs, however, by confusing the difference between a claim

54 No. 23-1125

and a legal theory, see ante at 12, 15, 18, and then insisting

that the complaint was required to identify the theory

plaintiff was pursuing before he could obtain more complete

information through discovery.

“A claim is the set of operative facts that produce an as-

sertable right in court and create an entitlement to a remedy.

A theory of relief is the vehicle for pursuing the claim; it may

be based on any type of legal source, whether a constitution,

statute, precedent, or administrative law.” Roberts v. Smith &

Wesson Brands, Inc., 98 F.4th 810, 815 (7th Cir. 2024), quoting

St. Augustine School v. Underly, 78 F.4th 349, 352 (7th Cir. 2023).

Plaintiff’s claim against Warden Nicholson is that the

warden’s deliberate indifference to prisoners’ health and

safety caused plaintiff to suffer renal failure and his

consequent injuries. His complaint did not need to specify

legal theories. E.g., Johnson v. City of Shelby, 574 U.S. 10, 11

(2014) (per curiam) (summarily reversing dismissal for failure

to invoke § 1983 in complaint); Alioto v. Town of Lisbon, 651

F.3d 715, 721 (7th Cir. 2011) (“we have stated repeatedly (and

frequently) that a complaint need not plead legal theories,

which can be learned during discovery”).

Next, the majority errs by holding plaintiff to the facts

alleged in his original complaint. Whether the original

complaint sufficiently pled a plausible claim against Warden

Nicholson is in the eye of the beholder. See Runnion ex rel.

Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana,

786 F.3d 510, 520 (7th Cir. 2015) (“In the wake of Twombly and

Iqbal, there remain considerable uncertainty and variation

among the lower courts as to just how demanding pleading

standards have become.”). Most of the factual allegations in

the original complaint focused on medical personnel and

No. 23-1125 55

Wexford, against whom plaintiff developed a strong enough

case to settle for three million dollars. The allegations about

the warden defendants were sparse. While I think they were

sufficient to provide fair notice, the Twombly-Iqbal standard

varies widely in application.

The key point now is that the deficiencies the majority re-

lies upon are the sort that we have repeatedly insisted district

courts give a plaintiff a fair opportunity to cure. E.g., id. at

519–20; see also, e.g., Abu-Shawish v. United States, 898 F.3d

726, 738 (7th Cir. 2018); Perez v. Fenoglio, 792 F.3d 768, 783 (7th

Cir. 2015) (noting this rule applies to prisoners); Luevano v.

Wal-Mart Stores, Inc., 722 F.3d 1014, 1022–23 (7th Cir. 2013);

Barry Aviation Inc. v. Land O’Lakes Municipal Airport Comm’n,

377 F.3d 682, 687 & n.3 (7th Cir. 2004). In this case, of course,

it would have seemed futile to try to cure those deficiencies

by amending the complaint because of the Northern District’s

erroneous finding on the statute of limitations.

Until plaintiff received a favorable decision on the statute

of limitations, amending his complaint with detailed factual

allegations about Nicholson would have done him little good.

It was perfectly reasonable for him to address this dilemma

by putting the statute of limitations and personal liability is-

sues before Judge Shadid at the same time in his motion to

reconsider. 6

Whether plaintiff did or did not also include in that mo-

tion a request to amend his complaint is a hypertechnical for-

malism. It should not control this appeal. We do not require

6 Even under Gossett’s revised employment dates, plaintiff’s claim

against Nicholson would have still been time-barred under the district

courts’ erroneous view of the statute of limitations issue.

56 No. 23-1125

plaintiffs to file futile motions to amend their complaints in

order to preserve their claims. See Brown & Williamson Tobacco

Corp. v. Jacobson, 713 F.2d 262, 270 (7th Cir. 1983) (defendant’s

view that plaintiff should have moved for leave to file an

amended complaint instead of appealing district court’s dis-

missal of complaint was “untenable” where district court dis-

missed complaint on a variety of grounds, only one of which

could have been cured by amendment: “The filing of such a

motion would therefore have been futile, and was not re-

quired.”).

Our discretion on appeal: The majority opinion compounds

the district court’s errors by failing to exercise our discretion

to consider plaintiff’s additional factual allegations. “A party

appealing a Rule 12(b)(6) dismissal may elaborate on his

factual allegations so long as the new elaborations are

consistent with the pleadings.” Geinosky v. City of Chicago, 675

F.3d 743, 745 n.1 (7th Cir. 2012) (collecting cases); accord, e.g.,

Veazey v. Communications & Cable of Chicago, Inc., 194 F.3d 850,

861 (7th Cir. 1999) (reversing dismissal based on factual

assertions first raised on appeal). We are in the business of

trying to decide cases fairly and on the merits when possible.

See Runnion, 786 F.3d at 520 (recognizing “federal rule policy

of deciding cases on the basis of the substantive rights

involved rather than on technicalities”), quoting Barry

Aviation, 377 F.3d at 687, quoting in turn 5A Wright & Miller,

Federal Practice and Procedure § 1357 (2d ed. 1990).

The majority opinion neither acknowledges nor exercises

this discretion. It does not consider any of plaintiff’s evidence

against Nicholson and uses the district court’s resolution of

the factual dispute about Gossett’s employment dates to limit

its review of plaintiff’s claim against Gossett. As a result,

No. 23-1125 57

plaintiff once again suffers the consequences of both Gossett’s

false testimony and the erroneous denial of plaintiff’s motion

to reconsider based on the repeated statute of limitations error

that defendants do not even bother to defend.

We have the ability to correct these errors, and we should

do so. Even if we assume that plaintiff’s original complaint

did not allege sufficient facts to state a claim against Nichol-

son, the Wexford emails and documents and the Moore dep-

osition reveal the deficient practices that were alleged by

plaintiff’s complaint and are therefore appropriate, even in-

dispensable, for fair consideration of this appeal. That evi-

dence shows both that plaintiff has a substantial claim for re-

lief against Nicholson and that material factual disputes about

his knowledge and his actions in the face of that knowledge

can be resolved only at trial. We should reverse the judgment

in favor of Nicholson and remand for trial on plaintiff’s claim

against him.

B. Warden Gossett

We should also reverse summary judgment in favor of

Warden Gossett and remand that claim for trial. The majority

again offers a procedural rationale for affirming the grant of

summary judgment to Gossett. Its theory is that plaintiff

unfairly surprised Gossett in his response to the motion for

summary judgment by asserting the theory of deliberate

indifference to systemic failures.

The notion of unfair surprise is belied by the history of this

case and by the realities of litigation. Plaintiff asserts one claim

against Gossett, for deliberate indifference to his serious

medical condition, causing him to suffer renal failure in

January 2014. There is no doubt that Gossett received

58 No. 23-1125

sufficient notice of that claim. As discussed above, two broad

legal theories are available to prove that claim, one focusing

on a defendant’s knowledge of and indifference to a

particular plaintiff’s condition and the other focusing on a

defendant’s knowledge of and indifference to systemic

failings that put many prisoners at risk, including the

plaintiff. See supra at 2–3; ante at 7. Plaintiff’s original

complaint included allegations consistent with both theories

against Gossett.

The majority tells us, however, that the factual allegations

against Gossett in the original complaint were no better than

those against Nicholson, which Judge Chang and the majority

have deemed insufficient. The majority then takes an extraor-

dinary step. It hypothesizes a motion to dismiss by Gossett

that it thinks could have been granted if it had been filed. Ante

at 14. Then it penalizes plaintiff for having failed to try to

amend his complaint to defeat that hypothetical motion.

The problem is that Gossett made no such challenge to the

original complaint. Once the case against him had progressed

through discovery to the point of summary judgment, there

would have been no reason to examine retroactively the suf-

ficiency of a complaint filed and answered years ago.7

7 To be precise, when Gossett’s counsel first appeared in 2016, Gossett

joined a pending motion to dismiss, sever, and/or transfer filed by other

defendants. R. 93. The motion he joined did not raise any issue about the

sufficiency of allegations of any defendant’s individual responsibility or

the allegations about systemic failures. See R. 48 & 49.

More fundamental, the majority overlooks the fact that motions to

dismiss are not mandatory. Defendants may have good strategic reasons

for not filing a motion to dismiss. The motion might turn up only curable

pleading defects or might help teach a plaintiff how to strengthen his case.

No. 23-1125 59

The civil rules and modern case management are designed

to minimize the extent of factual and legal surprises at trial.

Tools such as contention interrogatories and detailed pretrial

orders that specify claims, defenses, legal theories, and sup-

porting factual contentions can help achieve that goal. In my

review of the extensive district court record in this case, how-

ever, I have not found any deadline that would have required

plaintiff to come forward with his detailed factual contentions

regarding Gossett’s deliberate indifference to the systemic

failures in the prison’s health care before plaintiff filed his

September 14, 2020 motion to reconsider the dismissal of Ni-

cholson. Nor have I found a deadline for amending his com-

plaint with more detailed factual allegations, especially in the

absence of a motion to dismiss by Gossett.

The majority opinion nevertheless affirms summary judg-

ment for Gossett because plaintiff did not move to amend his

complaint to include such detailed factual allegations. The

majority opinion also leaves unclear when plaintiff suppos-

edly should have done so. I suppose the theory is that he

should have done so after receiving the critical (and late) dis-

covery productions in February 2020 and no later than the

September 2020 motion to reconsider the dismissal of Nichol-

son.

Instead, the majority relies on Schmees v. HC1.COM, Inc.,

77 F.4th 483 (7th Cir. 2023), to conclude that plaintiff’s mistake

was failing to move to amend his complaint (by some

unspecified time) before Gossett moved for summary

judgment. Ante at 15–18. Schmees tried to clear up some

We should not decide an appeal by hypothesizing how such an unfiled

motion might have been decided.

60 No. 23-1125

tension in this court’s case law regarding whether and when

a district court may or must allow a party to amend his

pleadings, expressly or implicitly, in responding to a motion

for summary judgment. See 77 F.4th at 488–90. We explained

that “a district court retains discretion to treat new claims

presented for the first time in briefing as a constructive

motion to amend.” Id. at 490.

We wrote: “We expect justice will rarely require leave to

amend in the context of new claims presented for the first time

in opposition to a motion for summary judgment.” Id. at 489.

For a genuinely new claim, that is correct, but both Schmees

and the majority opinion here confuse legal theories and

claims. Plaintiff adequately pleaded a deliberate indifference

claim against Warden Gossett. Nonetheless, the majority says

the district court had discretion to bar this plaintiff from rely-

ing on new facts uncovered in discovery to support a theory

that was raised, albeit imperfectly, in the original complaint.

The majority’s finding that the district court did not abuse

its discretion to consider the facts supporting plaintiff’s sys-

temic deficiencies theory will undermine one of the goals of

Schmees. Schmees thought it was not adopting a rule “that

could burden courts with a slew of perhaps-unnecessary mo-

tions to amend.” 77 F.4th at 489, citing Fed. R. Civ. P. 1 (federal

rules should be employed to promote “just, speedy, and inex-

pensive” resolution of cases). With respect, the majority’s ap-

plication of Schmees here will have precisely that undesirable

effect. It will give plaintiffs strong incentives to file otherwise

unnecessary motions to amend. Plaintiffs filing such motions

should cite this case as their reason for doing so. The major-

ity’s reasoning will also give defendants strong incentives to

file motions to take advantage of any plaintiff’s failure to

No. 23-1125 61

make such amendments as would satisfy a district court try-

ing to follow this majority opinion’s reasoning.

To be sure, under the majority’s reasoning, I believe dis-

trict judges should have ample discretion to reject such de-

fense motions trying to spring pleading traps on plaintiffs.

The problem, though, is that plaintiffs will not be able to count

on such favorable discretion. They will instead have to protect

themselves from such traps by anticipating them and moving,

perhaps repeatedly, to amend their complaints as more and

more facts become known through discovery and otherwise.

The majority believes plaintiff should have given the court

and Gossett “more adequate notice of his intent to make a

claim [read: rely on a theory] of systemic deficiencies based

on facts not alleged in the complaint.” Ante at 17. The majority

even endorses the district court’s criticism of plaintiff for not

having included in his original complaint, in 2016, “the

Health Care Administrator’s tenure, Dr. Greby’s absenteeism,

Wexford’s consideration of terminating Dr. Greby’s

employment, an alleged cover up, or Defendant Gossett’s

knowledge of any specific deficiencies in the provision of

medical care.” Ante at 14, quoting App. A7 at 25.

This reasoning loses sight of the realities of litigation and

the reasons for discovery. It would have been a rare case

indeed for a prisoner to have known about any of those sorts

of facts—hidden in the defendants’ files and memories—

when he filed the complaint. Plaintiff Ollison had to fight

tenaciously against unjustified resistance to his legitimate

discovery requests. His efforts uncovered the evidence of

systemic failures and evidence that Wexford management

and Gossett and/or Nicholson knew about them. The fact that

plaintiff wanted to rely on facts newly uncovered through

62 No. 23-1125

discovery should distinguish this case from Schmees. In that

case, all the new factual allegations included in the plaintiff’s

brief in opposition to summary judgment were known to the

plaintiff from the day she first filed her complaint. See

Schmees, 77 F.4th at 486–88.

Furthermore, in Schmees the plaintiff had proposed an

amended complaint with the facts underlying her legal

theory, but she ultimately chose not to pursue it. Id. at 490. We

relied on this fact, emphasizing that it was reasonable for the

defendant to believe that the plaintiff was no longer pursuing

any claim based on the facts contained in the proposed, but

never refiled, amended complaint. Id. No such willful

abandonment of a claim or legal theory can be attributed to

plaintiff Ollison in this case.

To the contrary, shortly after receiving and digesting the

evidence uncovered by discovery, plaintiff sought and ob-

tained leave to depose Moore and Gossett about their super-

vision of the health care unit. Then, plaintiff put that evidence

squarely in front of the district court, as well as Gossett and

his counsel, in the September 2020 motion to reconsider the

dismissal of Nicholson. In that motion, he argued that Gossett

“was in fact very much aware of the harm [Dr. Greby] was

causing and he was involved in the attempts to fire Greby for

more than a year prior to her firing.” R. 369 at 15.

Accordingly, the idea that plaintiff’s opposition to

summary judgment unfairly surprised Gossett or the court

cannot withstand scrutiny of the full record here. If there is

any unfairness, it is being pulled on plaintiff with Gossett’s

disingenuous cries of “surprise” and the district judge’s and

majority’s reward for that tactic.

No. 23-1125 63

It is not at all clear that Schmees should apply in a case like

this one, in which the plaintiff wants to rely on facts revealed

through discovery to pursue a particular legal theory to

oppose summary judgment. After discovery has been

completed, case management orders and pretrial conferences,

not the complaint, organize litigation. And again, in this case

the majority should but does not identify a disclosure

deadline that plaintiff supposedly missed.

Summary judgment practice is already complex and

expensive enough. The combination of Schmees with its

application in this case will push plaintiffs’ lawyers to

anticipate motions for summary judgment and to move to

amend complaints in advance to include factual details that

they expect to want to include in their response to the

expected defense statement of material facts. That prospect is

only going to add to expense, to wasted time by lawyers, to

“perhaps-unnecessary motions to amend,” and to the

prospect of deciding cases not on their merits but by unfair

games of “gotcha” based on the sufficiency of pleadings that

were answered years earlier. It also loses sight of the pleading

standard in Rule 8, calling for “a short and plain statement of

the claim showing that the pleader is entitled to relief.”

We should reverse the dismissal of plaintiff’s claim against

Warden Nicholson and summary judgment for Warden

Gossett and remand this case for trial. I respectfully dissent.