Andrew Waldrop v. Wexford Health Sources, Incorp

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 13, 2016 *

Decided May 18, 2016

Before

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 15-2403

ANDREW WALDROP, Appeal from the United States District

Plaintiff-Appellant, Court for the Northern District of Illinois,

Eastern Division.

v.

No. 12 C 6031

WEXFORD HEALTH SOURCES, INC.,

et al. Edmond E. Chang,

Defendants-Appellees. Judge.

ORDER

Andrew Waldrop, an Illinois inmate who has type I diabetes, challenges the grant

of summary judgment against him in this action under 42 U.S.C. § 1983, in which he

asserts that his Eighth and Fourteenth Amendment rights were violated when he

received inadequate insulin from the medical staff at Stateville Correctional Center. We

affirm in part and vacate and remand in part.

*After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus the

appeal is submitted on the briefs and record. See FED. R. APP. P. 34(a)(2)(C).

No. 15-2403 Page 2

Because the district court decided this case on a motion for summary judgment,

we recite the facts in the light most favorable to Waldrop, the nonmoving party.

See Hernandez v. Dart, 814 F.3d 836, 840 (7th Cir. 2016). Waldrop has type 1 diabetes

mellitus, so his pancreas produces no insulin, which is necessary to process sugar. When

his blood sugar becomes too low, he frequently suffers attacks in which he becomes

disoriented and cannot identify his surroundings, his communication skills slow down,

and he has trouble responding to people. For nearly 40 years Waldrop has depended on

daily insulin injections to manage his diabetes.

While imprisoned at Stateville, Waldrop received injections twice daily. The

morning dose was fixed according to a standing prescription, and the evening dose

varied along a sliding scale based on his blood sugar levels. A nurse would bring to

Waldrop’s cell his insulin and an Accu-Chek glucose meter, a device that measures

blood sugar levels through a prick of the finger. Waldrop would use the Accu-Chek to

test his blood sugar, show the reading to the nurse, and the nurse would provide an

appropriate dose of insulin that Waldrop himself would inject. Waldrop sometimes

refused to use the Accu-Chek because it caused him pain.

In November 2011, Waldrop filed a grievance against an administering nurse,

Adrienne Miller, after she withheld his insulin when he refused to perform the

Accu-Chek test. (She was concerned that an excessively high insulin dosage could

trigger fatal consequences.) Waldrop complained that he had a right to refuse any part of

his medical treatment, including the Accu-Chek test, and that any such refusal should

not preclude him from receiving insulin. When Waldrop received no response to his

grievance and no assurance that he would continue to receive his insulin, he wrote a

letter to the Acting Director of the Illinois Department of Corrections blaming Anna

McBee, a grievance officer at Stateville, for not responding. In March 2011, Waldrop was

notified by the Administrative Review Board, (which reviews reports and

recommendations of grievance officers,) that the grievance had been resolved and Miller

had been informed that she could provide insulin to inmates without a preliminary

Accu-Chek reading.

Waldrop filed a second and third grievance in November 2011—one complaining

that Waldrop had to administer his insulin in the presence of a correctional officer, the

other complaining that his future medical treatment had been conditioned

inappropriately on his seeing a psychologist. Both grievances were reviewed by Delores

Trevino, a nurse supervisor, who summarized Waldrop’s medical care in a

memorandum. Based on this memorandum, McBee issued a report recommending that

the grievances had been resolved, and the Administrative Review Board denied both.

No. 15-2403 Page 3

That same month Waldrop filed a fourth emergency grievance, alleging that

Dr. Anton Dubrick, a physician at the prison, had canceled his insulin and prescribed

him a pill (Glipizide) that was ineffective. Waldrop complained that the pill would work

only if his pancreas still produced insulin, which it did not, and he requested that he be

prescribed insulin. According to Waldrop, the fourth grievance stemmed from a

check-up on November 10 with Dr. Dubrick, who did not perform the usual examination

for signs of diabetes complications (such as checking Waldrop’s blood circulation, feet,

eyes, breathing, and sites on his fingers where the Accu-Chek is administered). And

Dr. Dubrick discussed Waldrop’s medical conditions within earshot of other medical

staff, inmates, and officers. Frustrated by both the lack of privacy and insufficient

examination, Waldrop told Dr. Dubrick what checks he ought to perform and refused to

see him anymore. Afterwards Dr. Dubrick wrote in his medical notes that he questioned

Waldrop’s competency and he no longer could safely manage Waldrop on insulin.

Dr. Dubrick cancelled Waldrop’s insulin prescription and prescribed daily Glipizide

pills. 1 Dr. Dubrick did not tell Waldrop that his diabetes was uncontrolled and that his

treatment had been changed. Several days later, after he had not received his usual

insulin, Waldrop learned from a medical technician that Dr. Dubrick had cancelled his

insulin and prescribed the Glipizide.

Without insulin, Waldrop experienced frequent urination, dry mouth and

vomiting, and he had to limit his eating so that his blood sugar would not get too high.

When his sugar level rose too high, his legs felt like “jelly.” Waldrop complained to a

nurse that he needed insulin because he had been vomiting and had elevated blood

pressure. His blood sugar reading had spiked to more than 300 mg/dL; his normal levels

ranged between 100 and 200 mg/dL. The nurse immediately called Dr. Imhotep Carter,

the prison’s medical director, who prescribed an emergency dose of insulin.

In March 2012 Cynthia Garcia, a nurse, reviewed Waldrop’s fourth grievance and

filed a memorandum that said Waldrop was currently on insulin. McBee, the grievance

officer, recommended that the grievance was resolved because Waldrop was receiving

appropriate medical care. In late March 2012 (over four months after Waldrop filed the

emergency grievance), the Administrative Review Board informed Waldrop that his

grievance was denied.

1Glipizide is an oral medication that lowers blood sugar by causing the pancreas to produce insulin. See

Nat’l Library of Med, MedlinePlus, “Glipizide,” available at https://www.nlm.nih.gov/medlineplus/

druginfo/meds/a684060.html (last visited May 13, 2016)). We refer to the National Library of Medicine

merely as a reference aid to provide context for Waldrop’s medical treatment.

No. 15-2403 Page 4

Later in November Waldrop filed two more grievances. In a fifth grievance, he

complained that Dr. Carter had lowered his insulin dosage to a level below that

recommended by the American Diabetes Association. And in the sixth grievance, he

complained that Dr. Carter had him confined in isolation in the infirmary against his will

for four days. Waldrop had been admitted to the infirmary shortly after Dr. Dubrick

canceled his insulin and Dr. Carter prescribed an emergency dose, and while he

remained there, he received insulin twice a day. But he argued with the nurses that his

insulin dosages should be higher. And at one point, he refused his food and insulin dose

because he was angry that Dr. Carter had not seen him yet. His blood sugar levels

reached 500 mg/dL during his stay at the infirmary.

Four months later, Garcia reviewed the grievance and prepared a memorandum

summarizing Waldrop’s medical care. Then McBee, the grievance officer, recommended

that the grievances were resolved because Waldrop was receiving appropriate care. The

Administrative Review Board denied both grievances in March 2012.

In July 2012, Waldrop brought this deliberate-indifference suit against Wexford

Health Sources, the private organization that provides medical care at Stateville; its

employees Drs. Carter and Dubrick and nurses Garcia and Miller; as well as state

employees McBee, Trevino, and an unidentified correctional officer (the subject of his

second grievance). He asserted that the individual defendants disregarded his serious

medical needs as a diabetic and that Wexford had a policy that encouraged its

employees to deny medical treatment.

The district court granted the defendants’ motions for summary judgment. First,

regarding Waldrop’s claims against McBee, Trevino, and Garcia, the court determined

that Waldrop had not exhausted his administrative remedies against them specifically.

Waldrop did not name any of the defendants in his grievances, the court explained, nor

describe facts that might suggest that they were the subject of his complaints. Although

Waldrop urged that he “impliedly” complained about these three individuals by virtue

of their role in reviewing his grievances, the court pointed out that the Prison Litigation

Reform Act required him to be as specific as possible about any individuals involved

and to give descriptive information about “what happened, when, where” and by

whom. And even if Waldrop’s claims against McBee, Trevino, and Garcia were not

precluded on exhaustion grounds, the court added, Waldrop presented no evidence

from which deliberate indifference on the part of these three individuals could be

inferred.

Regarding Waldrop’s claims against Miller, Dr. Dubrick, and Dr. Carter, the court

found no triable issue about whether their conduct amounted to deliberate indifference.

No. 15-2403 Page 5

The court noted that there was no question that denying a diabetic insulin could be an

objectively serious deprivation, but determined that Waldrop had presented no basis for

a jury to infer that any of these three individuals subjected him to a substantial risk of

harm. The court added that the individual defendants in any event would be entitled to

qualified immunity because there was no basis for a jury to conclude that they were

committing any constitutional violations. And finally, the court granted summary

judgment to Wexford because Waldrop had not produced any evidence to show that it

had a custom or policy of denying inmates necessary insulin.

On appeal Waldrop first challenges the district court’s conclusion that he did not

exhaust his administrative remedies with respect to McBee, Trevino, and Garcia. He

admits that he did not file a grievance against any of them and that they never provided

him medical care, but maintains that he was not required to name them explicitly

because they already knew of his dissatisfaction with the handling of his grievances

based on their personal involvement reviewing them.

The district court correctly determined that Waldrop had not exhausted his

remedies because he was required to file separate complaints naming each defendant.

Separate complaints are required if the underlying facts or complaints are different,

Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013), and the underlying facts of Waldrop’s

claims against the defendants differ—Waldrop claims that McBee, Trevino, and Garcia

did not timely review his grievances, whereas he claims that the other defendants were

deliberately indifferent to his need for insulin.

Waldrop next argues that the court ignored disputed issues of fact regarding

whether Miller, Dr. Dubrick, and Dr. Carter had disregarded the substantial risk that he

would be harmed by the denial of insulin. With regard to Miller, the nurse who denied

him insulin on one occasion when he refused the Accu-Chek test, Waldrop asserts that

the lack of insulin could have caused damage to his internal organs. But as the district

court explained, Waldrop did not submit any evidence of a risk of harm from this single

episode from which a jury could infer deliberate indifference. Contrary to Waldrop’s

suggestion that Miller intended for her denial of insulin to put him at risk of harm, the

undisputed record evidence reflects that Miller hoped to mitigate possible harm: she

testified that an excessive dose of insulin could be fatal and, not knowing his blood sugar

levels on that occasion, she worried about the risks of providing any insulin.

Waldrop next argues that the district court erred in finding that Dr. Carter did not

subject him to a substantial risk of harm by lowering his insulin dosage while he was

treated in the infirmary. But Waldrop’s contentions, unsupported by evidence, cannot

refute Dr. Carter’s medical judgment about proper diabetes management. Waldrop must

No. 15-2403 Page 6

introduce evidence so as to allow a reasonable juror to find that Dr. Carter’s decision to

prescribe low doses of insulin was “such a substantial departure from accepted

professional judgment, practice, or standards, as to demonstrate that” Dr. Carter

“actually did not base the decision” on medical judgment, Jackson v. Kotter, 541 F.3d 688,

697 (7th Cir. 2008) (internal quotation marks and citations omitted), and this he has not

done.

Waldrop next contends that the district court erred in two respects in its analysis

regarding Dr. Dubrick. He first asserts that the district court ignored his evidence that he

was exposed to—and actually suffered—an objectively serious harm when Dr. Dubrick

canceled his prescription for insulin injections and substituted Glipizide. See Townsend v.

Cooper, 759 F.3d 678, 688–89 (7th Cir. 2014) (describing the objective and subjective

components of a deliberate indifference claim).

Although the district court acknowledged that denying insulin to a type 1

diabetic constitutes a serious risk of harm, it erred when it found that Waldrop failed to

present evidence that he was actually exposed to that risk. The district court relied on Dr.

Dubrick’s testimony that Glipizide could serve as a short-term alternative to insulin, but

it did not acknowledge Dr. Carter’s countervailing views that that type 1 diabetics

“absolutely require insulin” because they “can no longer manufacture their own insulin”

and they “cannot survive without it.” Contrary to Dr. Dubrick’s assertion that pills are

an alternative to insulin, Dr. Carter said that Glucophage treatment and other pills are

“not a substitute” for insulin injections, and “[t]here is no science behind that

[substitution].” 2 If we credit Dr. Carter’s testimony in Waldrop’s favor, as we do at

summary judgment, then type 1 diabetics simply do not produce insulin. Thus a pill like

Glipizide—which encourages insulin production—constitutes no treatment at all of a

type 1 diabetic’s condition. There is evidence (which the district court did not

2 For general background to Dr. Carter’s testimony that a pill cannot replace insulin for type 1 diabetics,

we referred to the Physicians’ Desk Reference and the National Library of Medicine, which explain how

Glipizide works. See Physicians’ Desk Reference, “Glipizide,” available at http://www.pdr.net/

drug-summary/Glipizide-glipizide-3526.1620 (last visited May 13, 2016) (Glipizide is contraindicated for

type 1 diabetes); Nat’l Library of Med., MedlinePlus, “Glipizide,” available at https://www.nlm.nih.gov/

medlineplus/druginfo/meds/a684060.html (last visited May 13, 2016). According to the National Library

of Medicine, Glipizide is used to treat type 2 diabetes, “a condition in which the body does not use insulin

normally.” Nat’l Library of Med., MedlinePlus, “Glipizide”. Glipizide “lowers blood sugar by causing the

pancreas to produce insulin … and helping the body to use insulin efficiently.” Id. But “Glipizide is not

used to treat type 1 diabetes,” according to the Library, because type 1 is a “condition in which the body

does not produce insulin.” Id. We cite to medical reference aids for context only to understand Dr. Carter’s

testimony; information obtained from those aids does not influence the resolution of this case.

No. 15-2403 Page 7

acknowledge) that, as a result of the insulin withdrawal, Waldrop suffered actual harm

of insatiable thirst, frequent urination, elevated blood pressure, and vomiting such that

he had to be administered an emergency dose of insulin and admitted to the infirmary

for several days. See Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005)

(hospital stay of several days resulting from insulin withdrawal was “sufficiently

serious” medical need).

Waldrop raises a second challenge to the court’s analysis regarding Dr. Dubrick—

that he presented sufficient evidence to create a fact question whether Dr. Dubrick was

subjectively aware of—and disregarded—the risk of harm to a type 1 diabetic who does

not receive regular insulin. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Waldrop

points out that Dr. Dubrick was aware of the risk of insufficient insulin because he

testified that “really sick” type 1 diabetics may present acute symptoms, including

“so-called ketoacidosis with vomiting, unstable vital signs, severe dehydration.” And

Dr. Dubrick testified to knowing that, if left untreated, type 1 diabetes may cause serious

long-term consequences for the “circulation, kidneys, eyes.” From this testimony,

contends Waldrop, a jury could infer that Dr. Dubrick was deliberately indifferent when

he disregarded those risks by canceling Waldrop’s insulin injections and prescribing

Glipizide, which does not treat type 1 diabetes. See Egebergh v. Nicholson, 272 F.3d 925,

928 (7th Cir. 2001) (officer’s knowledge that diabetes can be fatal, coupled with decision

to deprive arrestee of insulin, permits jury inference of deliberate indifference); cf. Ortiz

v. City of Chicago, 656 F.3d 523, 534 (7th Cir. 2011) (remanding where plaintiff showed

that officers failed to provide any medical care for diabetic detainee despite awareness

that diabetic condition required care).

Dr. Dubrick characterizes Waldrop’s argument as nothing more than a

disagreement over possible treatments, which is insufficient to show deliberate

indifference. But the disparity between the testimony of Dr. Carter and Dr. Dubrick

about the appropriateness of Glipizide for treating type 1 diabetes amounts to more than

mere disagreement. Dr. Carter’s testimony could permit an inference that Dr. Dubrick’s

medical decision to prescribe Glipizide was “so significant a departure from accepted

professional standards or practices that it calls into question whether the doctor actually

was exercising his professional judgment.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir.

2014); see also Smego v. Mitchell, 723 F.3d 752, 758 (7th Cir. 2013) (explaining that a

“physician is deliberately indifferent when he persists in an ineffective treatment”);

cf. Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011) (same).

Waldrop also contends that the Wexford defendants are not entitled to a defense

of qualified immunity. He points out that clearly established law prohibits the

No. 15-2403 Page 8

defendants from denying insulin to a diabetic. The defendants have not persisted in that

defense on appeal, nor do we think they could. See Egebergh, 272 F.3d at 926 (denial of

qualified immunity appropriate where jury could infer that defendants were

deliberately indifferent to type 1 diabetic plaintiff’s need for insulin); see also Currie v.

Chhabra, 728 F.3d 626, 631–32 (7th Cir.2013) (affirming denial of qualified immunity for

private health care providers for jail).

We end by noting that Waldrop’s claim about the ineffectiveness of his appointed

counsel is meritless. He asserts that his lawyer failed to subpoena all his medical records

or to depose witnesses who would have supported his claim against Miller. But Waldrop

has no constitutional or statutory right to counsel in this case, Olson v. Morgan, 750 F.3d

708, 711 (7th Cir.2014), and thus no right to effective counsel, Stanciel v. Gramley, 267 F.3d

575, 580–81 (7th Cir. 2001).

Accordingly, the judgment in favor of Defendant Dubrick is VACATED, and the

case is REMANDED for further proceedings as to that defendant. In all other respects

the judgment is AFFIRMED.