Ashoor Rasho v. Willard Elyea

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1902

ASHOOR RASHO,

Plaintiff-Appellant,

v.

WILLARD O. ELYEA, ET AL.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 1:11-CV-01308 — Michael M. Mihm, Judge.

____________________

ARGUED APRIL 17, 2015 — DECIDED MARCH 7, 2017

____________________

Before POSNER and WILLIAMS, Circuit Judges, and WOOD,

District Judge.*

WOOD, District Judge. Ashoor Rasho arrived at the Pontiac

Correctional Center (“Pontiac”), an Illinois prison, in 2003.

Rasho has a history of mental illness and, after he stopped

taking his medication and began showing escalating symp-

* Hon. Andrea R. Wood of the Northern District of Illinois sitting by des-

ignation.

2 No. 14-1902

toms, he was transferred into Pontiac’s Mental Health Unit.

He remained in the Mental Health Unit until 2006, when he

was transferred to the North Segregation Unit. Rasho be-

lieves that he was transferred out of the Mental Health Unit

not because he no longer required the specialized treatment

offered there but instead in retaliation for complaints he had

lodged against various prison staff. According to Rasho, af-

ter he was transferred, he was denied even minimally ade-

quate mental health care for more than 20 months.

Rasho subsequently filed a lawsuit pursuant to 42 U.S.C.

§ 1983 against the Pontiac staff psychiatrist and psychology

services administrator who recommended his transfer out of

the Mental Health Unit, as well as the warden, medical di-

rector, and director of mental health, alleging that each acted

with deliberate indifference to his serious medical needs in

violation of the Eighth Amendment to the United States

Constitution. 1 The district court granted summary judgment

in favor of all of the defendants. Rasho now appeals.

I.

Rasho has been an inmate in the custody of the Illinois

Department of Corrections (“IDOC”) since 1996, although he

did not arrive at Pontiac until 2003. He has a history of men-

tal illness—characterized by auditory hallucinations, severe

depression, agitation, self-mutilation, and suicide attempts—

1 As explained in the district court’s opinion, Rasho’s individual action

has been separated from the putative class action Rasho, et al. v. Director

Roger E. Walker, Jr., et al., Case No. 07-cv-1298 (C.D. Ill.). The present ap-

peal, like the lower court ruling from which it has been taken, addresses

only Rasho’s individual claims.

No. 14-1902 3

for which he has been prescribed psychotropic medications.

At various times, he has been diagnosed with the Axis I

mental disorders “Major Depressive Disorder, Recurrent,

with Psychotic Features or Schizophrenia” and “Major De-

pressive Disorder with Psychotic Features, Recurrent.” 2

While at Pontiac, he also received an Axis I diagnosis of “his-

tory of polysubstance abuse and dependence” and an Axis II

diagnosis of “antisocial personality disorder and borderline

personality disorder.” As described by his expert witness in

this case, Rasho is a “very, very sick man.”

In April 2004, after Rasho stopped taking his medications

and began cutting himself, a psychiatrist at Pontiac recom-

mended that he be transferred to the prison’s Mental Health

Unit. Inmates assigned to that unit have more frequent ac-

cess to mental health professionals and receive greater con-

tinuity of mental health care than those in other prison units.

Among the therapeutic benefits available to inmates in the

Mental Health Unit are group therapy, cells with open bars,

and the ability to have private and confidential conversa-

tions with mental health staff more easily. Inmates in the

Mental Health Unit also may receive individual therapy, cri-

sis intervention, and psychotropic medication management.

While Rasho was in the Mental Health Unit, he met with

mental health professionals at least monthly and was pre-

scribed psychotropic medications. Yet the record reveals that

2 “Axis I” is a classification for clinical disorders recognized in the Diag-

nostic and Statistical Manual of Mental Disorders (4th ed. Text Rev. 2000)

(“DSM-IV”), published by the American Psychiatric Association and

widely recognized as an authoritative source for information about men-

tal conditions. “Axis II” is the DSM-IV’s classification for personality

disorders.

4 No. 14-1902

Rasho still cut himself on approximately five or six occa-

sions—including at least twice that resulted in Rasho being

placed on crisis watch—and engaged in other disruptive and

self-destructive behavior. He complained frequently and

acted out while in the Mental Health Unit and filed several

grievances regarding Pontiac staff.

Rasho remained in the Mental Health Unit until he was

transferred to the North Segregation Unit in November 2006.

The transfer was initially recommended by Dr. Michael

Massa, who worked as a staff psychiatrist at Pontiac and

treated Rasho. The transfer was also approved by Dr. John

Garlick, who held the position of Psychology Services Ad-

ministrator and was Dr. Massa’s supervisor. At the time, Dr.

Massa and Dr. Garlick provided mental health services to

Pontiac inmates pursuant to the IDOC’s contract with pri-

vate contractor Wexford Health Sources, Inc. (“Wexford”).

Dr. Massa first recommended that Rasho be transferred out

of the Mental Health Unit on May 25, 2006; he followed with

another recommendation on August 3, 2006. Rasho was

eventually transferred in November 2006.

The parties dispute the reason for Dr. Massa’s and Dr.

Garlick’s determination to transfer Rasho out of the Mental

Health Unit. Dr. Massa claims that he recommended the

transfer because he did not believe that Rasho had a diagno-

sis or set of symptoms such that he was benefitting from the

placement. Dr. Massa also claims that he had become con-

cerned that Rasho’s continued presence in the Mental Health

Unit would be detrimental to other inmates in the unit—

specifically, Rasho was showing signs of antisocial personal-

ity disorder that made him a risk to the genuinely mentally

ill and vulnerable inmates there. Dr. Garlick claims that he

No. 14-1902 5

agreed that Rasho should leave the Mental Health Unit

based on his own interactions with Rasho and his

knowledge of Rasho’s condition and behavior. According to

Dr. Garlick, he too was concerned that Rasho’s continued

presence in the Mental Health Unit would have a detri-

mental effect on other inmates and he also doubted that

Rasho was benefitting from placement there.

Rasho challenges Dr. Massa’s and Dr. Garlick’s stated

reasons for recommending his transfer out of the Mental

Health Unit. He contends that they actually decided to have

him transferred as punishment for his complaints. In fact,

Rasho claims that both Dr. Massa and Dr. Garlick actually

told him that he was kicked out of the Mental Health Unit

because he filed too many grievances. Rasho also points out

that Dr. Massa recommended the transfer even though Dr.

Massa was well aware of Rasho’s history of mental health

problems and continued to prescribe Rasho powerful psy-

chotropic medications after making the recommendation.

One of those medications was Geodon, which is primarily

used to treat schizophrenia and mania and to provide

maintenance for bipolar disorder. If Dr. Massa truly believed

that he did not require specialized mental health treatment,

Rasho argues, then why would he continue to prescribe

medications indicated only for that purpose?

Rasho also has presented testimony from Dr. Jose Mat-

thews, who treated Rasho in the North Segregation Unit,

and Dr. Joel Silverberg, an expert witness retained on

Rasho’s behalf for purposes of this case. Dr. Matthews testi-

fied that after treating Rasho for some time in the North Seg-

regation Unit (and initially believing that Rasho might be

malingering), he came to believe that Rasho did require

6 No. 14-1902

greater care than would be provided in the North Segrega-

tion Unit and should be transferred back to the Mental

Health Unit. When Dr. Matthews raised the issue, however,

Dr. Garlick rejected the idea stating “no, no, no, [Rasho]

can’t go there.”

Similarly, Dr. Silverberg has offered an expert opinion

that Rasho should have been kept in the Mental Health Unit

and not transferred to the North Segregation Unit, an envi-

ronment that he considers to have been “toxic” to Rasho’s

mental health and where there was no meaningful mental

health treatment. According to Dr. Silverberg, inmates in the

North Segregation Unit were isolated and treated like ani-

mals. Moreover, the filth and noise there aggravated Rasho’s

condition and, because the unit did not have places that al-

lowed Rasho to talk to mental health staff in private, Rasho

was forced to downplay his issues. Dr. Silverberg concluded

that Rasho was undertreated while at Pontiac but did re-

spond when provided with appropriate care—i.e., beginning

no earlier than 2008 (or approximately 20 months after

Rasho was transferred), when Dr. Matthews arrived at Pon-

tiac and began paying special attention to Rasho beyond

what would otherwise have been provided.

Although it is undisputed that Rasho cut himself both

while he was in the Mental Health Unit and after he was

transferred, supported by the testimony from Dr. Matthews

and Dr. Silverberg, Rasho claims that his mental health dete-

riorated and his self-mutilation escalated after he was trans-

ferred.

Rasho was transferred from Pontiac to Stateville Correc-

tional Center in 2011, but then returned to Pontiac’s North

Segregation Unit in February 2012. Rasho claims that his

No. 14-1902 7

mental health treatment upon his return to Pontiac was very

different than during his prior stint there. The difference was

the attention he received from Dr. Matthews, who began

meeting with Rasho for two hours each week. Rasho charac-

terizes the treatment that Dr. Matthews provided him as ex-

ceptional and not at all typical of the care usually provided

to inmates in the North Segregation Unit. Dr. Matthews has

acknowledged that he initially felt that Rasho might be fak-

ing his symptoms. By the time he left Pontiac in September

2012, however, Dr. Matthews had changed his mind and

recommended that Rasho be transferred to the Mental

Health Unit. As noted above, this recommendation was re-

jected by Dr. Garlick.

Rasho claims in his lawsuit that Dr. Massa and Dr. Gar-

lick acted with deliberate indifference to his serious medical

needs by transferring him out of the Mental Health Unit.

Rasho also has sued three supervisory IDOC staff for their

purported deliberate indifference: Dr. Wendy Blank (origi-

nally named in Rasho’s lawsuit under her prior name, Wen-

dy Navarro) served as IDOC’s Director of Mental Health be-

ginning in 2006; Dr. Willard Elyea served as IDOC’s medical

director from 1999 until April 2007; and finally, Eddie Jones

was Pontiac’s warden from 2006 to 2008. Rasho seeks to hold

these defendants liable under a theory that they failed in

their respective duties to take reasonable steps to ensure ad-

equate medical care for seriously mentally ill inmates.

The district court granted summary judgment in favor of

all of the defendants. Focusing on his claim against Dr. Mas-

sa, the district court found that Rasho could not show that he

actually received inadequate care while in the North Segre-

gation Unit. Key to the district court’s conclusion was the

8 No. 14-1902

opinion from Dr. Silverberg that the care provided to Rasho

by Dr. Matthews fell within the appropriate standard of care.

As the district court explained, “the importance of [Dr. Sil-

verberg’s] testimony is the fact that Rasho was capable of

getting ‘appropriate and reasonable’ treatment while being

housed in North Segregation unit. Given this, it is difficult to

find that Dr. Massa’s recommendation to transfer Rasho to

North Segregation would violate the Constitution.” The dis-

trict court went on to express skepticism that Rasho would

be able to establish any injury as a result of the alleged con-

stitutional violation, since he self-mutilated both before and

after the transfer.

Having concluded that Rasho could not prevail against

the medical provider most directly responsible for the

decision to transfer him out of the Mental Health Unit, the

district court next considered Rasho’s claims against Dr.

Garlick, Dr. Elyea, Dr. Blank, and Warden Jones. With

respect to Dr. Garlick, the district court found that he was

even further removed from the transfer decision than Dr.

Massa and, in any case, that there was no evidence he knew

a transfer from the Mental Health Unit would be detrimental

to Rasho’s mental health. With respect to Dr. Elyea and Dr.

Navarro, who were even further removed from the transfer

decision than Dr. Garlick, the district court concluded that

there was no evidence their actions caused any harm to

Rasho in particular. Finally, the district court held that the

record could not support a finding that Warden Jones failed

to comply with any duty by not preventing Rasho from

being transferred out of the Mental Health Unit into the

allegedly terrible conditions of the North Segregation Unit.

No. 14-1902 9

II.

We review the district court’s grant of summary

judgment de novo, viewing the record in the light most

favorable to Rasho and drawing all inferences in his favor.

Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). Summary

judgment is appropriate if “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

It is well-established that prison officials and medical

staff violate the Eight Amendment’s prohibition on cruel

and unusual punishment when they act with deliberate

indifference to a prisoner’s serious medical needs. Estelle v.

Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976);

Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016). “To

determine if the Eighth Amendment has been violated in the

prison medical context, we perform a two-step analysis, first

examining whether a plaintiff suffered from an objectively

serious medical condition, and then determining whether

the individual was deliberately indifferent to that

condition.” Petties, 836 F.3d at 727–28 (citing Farmer v.

Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811

(1994); Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)).

For purposes of summary judgment, the defendants

conceded below that whether Rasho suffered from an

objectively serious medical condition constitutes a triable

issue of fact for a jury to decide. And so the question to be

determined here is whether Rasho has produced sufficient

evidence to permit a jury to find that any of the defendants

were deliberately indifferent to his condition.

10 No. 14-1902

Deliberate indifference requires that a defendant actually

know about yet disregard a substantial risk of harm to an

inmate’s health or safety. Petties, 836 F.3d at 728. “The

standard is a subjective one: The defendant must know facts

from which he could infer that a substantial risk of serious

harm exists and he must actually draw the inference.” Zaya

v. Sood, 836 F.3d 800, 804 (7th Cir. 2016). Emphasizing the

deference owed to the professional judgment of medical

providers, we have observed that “[b]y definition a

treatment decision [that is] based on professional judgment

cannot evince deliberate indifference because professional

judgment implies a choice of what the defendant believed to

be the best course of treatment.” Id. at 805; see also McGee v.

Adams, 721 F.3d 474, 481 (7th Cir. 2013); Sain v. Wood, 512

F.3d 886, 894–95 (7th Cir. 2008). “A medical professional

acting in his professional capacity may be held to have

displayed deliberate indifference only if the decision by the

professional is such a substantial departure from accepted

professional judgment, practice, or standards, as to

demonstrate that the person responsible actually did not

base the decision on such a judgment.” Sain, 512 F.3d at 895

(internal quotation marks omitted).

The defendants would like us to view the decision to

transfer Rasho out of the Mental Health Unit as an exercise

of medical judgment entitled to judicial deference. But Rasho

claims that Dr. Masso and Dr. Garlick did not exercise

medical judgment at all in deciding to recommend that he be

transferred. Instead, Rasho contends, their decision was

motivated by spite: they sought to have him transferred in

retaliation for his several grievances against prison staff and

medical personnel.

No. 14-1902 11

In Petties, we recognized that the choice of “an easier and

less efficacious treatment without exercising professional

judgment” can constitute deliberate indifference. 836 F.3d at

730 (internal quotation marks omitted). Most often, this

concern arises when a medical provider is alleged to have

chosen a treatment—or lack thereof—based on cost

considerations rather than medical judgment. See, e.g., Roe v.

Elyea, 631 F.3d 843, 863 (7th Cir. 2011) (“Although

administrative convenience and costs may be, in appropriate

circumstances, permissible factors for correctional systems to

consider in making treatment decisions, the Constitution is

violated when they are considered to the exclusion of

reasonable medical judgment about inmate health.”

(emphasis omitted)); Johnson v. Doughty, 433 F.3d 1001, 1013

(7th Cir. 2006) (“The cost of treatment alternatives is a factor

in determining what constitutes adequate, minimum-level

medical care, but medical personnel cannot simply resort to

an easier course of treatment that they know is ineffective.”

(citations omitted)). But a similar concern arises if a medical

provider bases his or her treatment decision on personal

prejudices or animosity. In either circumstance, the medical

provider may violate the patient-inmate’s constitutional

rights by failing to exercise medical judgment at all. See Roe,

631 F.3d at 863.

Rasho here has put forward sufficient evidence from

which a reasonable jury could decide that Dr. Massa and Dr.

Garlick caused him to be transferred out of the Mental

Health Unit for reasons that had nothing to do with medical

judgment. Such evidence includes Rasho’s own testimony

that Dr. Massa and Dr. Garlick each explicitly told him that

he was transferred in response to his complaints. The district

court discounted Rasho’s testimony on this point as not

12 No. 14-1902

sufficiently unequivocal in its language. But Rasho’s

credibility and the weight to be afforded his testimony is a

matter for a jury to decide. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)

(“Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge[.]”). Together with his

mental health history, the continued prescription of

psychotropic medications after his transfer, the testimony

from Dr. Matthews regarding his need for mental health

treatment and Dr. Garlick’s refusal to allow him to return to

the Mental Health Unit, and Dr. Silverberg’s expert

testimony, Rasho’s testimony is sufficient to create a

disputed issue of material fact regarding whether Dr. Massa

and Dr. Garlick recommended the transfer as retaliation

rather than as a matter of medical judgment.

Furthermore, we reject the suggestion that a reasonable

jury could not find that Dr. Massa and Dr. Garlick acted in

retaliation for Rasho’s grievances simply because those

grievances were directed toward other Pontiac staff

members. To the contrary, a reasonable inference to be

drawn from the evidence could be that Dr. Massa and Dr.

Garlick were motivated either to punish Rasho for his

complaints against their colleagues or by a desire to remove

a troublemaking inmate before they became the next targets

of his complaints.

In addition, drawing all reasonable inferences from the

evidence in Rasho’s favor, a jury could conclude that Rasho

was harmed as a result of his transfer out of the Mental

Health Unit. The district court expressed skepticism that

such a causal connection could be proved. But a jury could

No. 14-1902 13

agree with Dr. Silverberg that being transferred out of the

Mental Health Unit increased the risk that Rasho’s mental

condition would deteriorate, leading to self-mutilation and

other self-destructive behavior. That Rasho was capable of

getting appropriate and reasonable treatment while in the

North Segregation Unit is not dispositive where a jury could

find that to have been the case only due to an extraordinary

effort by Dr. Matthews.

As an alternative basis for its grant of summary

judgment in favor of Dr. Massa, the district court concluded

that Rasho’s claim is barred by the Prison Litigation Reform

Act, 42 U.S.C. § 1997e(e), because he cannot present evidence

of a physical injury. Section 1997e(e) provides that “[n]o

Federal civil action may be brought by a prisoner confined in

a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior

showing of physical injury or the commission of a sexual

act.” 42 U.S.C. § 1997e(e). The district court found that Rasho

could not present evidence of a physical injury resulting

from his transfer out of the Mental Health Unit and therefore

his claim is barred. But Rasho did present evidence of at

least one undisputed incident of self-mutilation. That

incident is sufficient to satisfy the physical harm

requirement. And as discussed above, Rasho has

demonstrated that there is a triable issue of fact regarding

whether that harm is attributable to the increased risk to his

mental health resulting from his transfer.

Even if Rasho were unable to point to any physical

injury, the lack of such an injury would not bar his claim but

rather merely limit the damages he could recover: if Rasho

proved his claim, he would still be able to recover nominal

14 No. 14-1902

and punitive damages. Gray v. Hardy, 826 F.3d 1000, 1007

(7th Cir. 2016); Calhoun v. Detella, 319 F.3d 936, 941–42 (7th

Cir. 2003). Thus the district court erred in suggesting that the

lack of a physical injury provided an independent basis to

grant summary judgment in Dr. Massa’s favor.

III.

As noted above, in addition to Dr. Massa and Dr. Garlick,

Rasho also sued three defendants with more tenuous

connections to his mental health treatment: Dr. Elyea, Dr.

Blank, and Warden Jones. Specifically, Rasho sought to hold

Dr. Elyea accountable for his alleged failure to supervise

properly the contract between IDOC and its medical

provider, Wexford; he asserted a claim against Dr. Blank

based on the allegation that she knew the mental health staff

at Pontiac was less than half as large as needed to provide

adequate care for its inmates and that Wexford’s

psychiatrists were not working enough hours to comply

with their contractual requirements; and finally, he sued

Warden Jones based on the theory that, as the prison official

in charge of ensuring proper implementation of the policies

and procedures established by IDOC’s Director of Mental

Health, Warden Jones was ultimately responsible for the

decision to transfer him from the Mental Health Unit to the

North Segregation Unit.

But in order to hold an individual defendant liable under

§ 1983 for a violation of an inmate’s constitutional rights, the

inmate must show that the defendant was personally

responsible for that violation. Childress v. Walker, 787 F.3d

433, 439 (7th Cir. 2001); Sanville v. McCaughtry, 266 F.3d 724,

740 (7th Cir. 2001). “A defendant will be deemed to have

sufficient personal responsibility if he directed the conduct

No. 14-1902 15

causing the constitutional violation, or if it occurred with his

knowledge or consent.” Sanville, 266 F.3d at 740 (internal

quotation marks omitted). While the defendant need not

have participated directly in the deprivation of the plaintiff’s

constitutional right to be held liable, he or she must

nonetheless have “‘know[n] about the conduct, facilitate[d]

it, approve[d] it, condone[d] it, or turne[d] a blind eye for

fear of what they might see.’” Matthews v. City of East St.

Louis, 675 F.3d 793, 708 (7th Cir. 2012) (quoting Jones v. City

of Chicago, 856 F.2d 985, 992–93 (7th Cir. 1988)).

As the district court correctly concluded, Rasho has

presented no evidence to show that any of Dr. Elyea, Dr.

Blank, or Warden Jones was personally responsible for the

decision to transfer him out of the Mental Health Unit or

otherwise to connect the alleged conduct of those defendants

to the deficient mental health care he claims to have received

after that transfer. There is no evidence, for example, that Dr.

Elyea’s alleged failure to supervise properly Wexford’s

contract or Dr. Blank’s alleged failure to promulgate

protocols led to Rasho’s transfer or caused him any harm.

Nor is there any evidence that Warden Jones knew about,

facilitated, approved, condoned, or turned a blind eye

toward the psychiatric staff’s purported decision to punish

Rasho by transferring him out of the Mental Health Unit.

Rasho also has failed to put forward any facts suggesting

that Dr. Elyea, Dr. Blank, or Dr. Jones had any reason to

doubt that Dr. Massa and Dr. Garlick based their

recommendations on anything other than medical judgment.

Prison officials generally are entitled to rely on the judgment

of medical professionals treating an inmate, see Rice ex rel.

Rice v. Corr. Med. Servs., 675 F.3d 650, 676 (7th Cir. 2012)

16 No. 14-1902

(noting that “jail officials ordinarily are entitled to defer to

the judgment of medical professionals”); Arnett v. Webster,

658 F.3d 742, 755 (7th Cir. 2011) (noting that non-medical

prison officials can rely on the expertise of medical

personnel and will generally be justified in believing that the

prisoner is in capable hands). While Dr. Elyea and Dr. Blank

were themselves medical professionals who might

ordinarily be held to a different standard than a non-medical

prison official, in this case Rasho seeks to hold Dr. Elyea and

Dr. Blank accountable as prison administrators and

policymakers, not treaters. Rasho has not presented evidence

that either of them should have realized that something was

amiss with Dr. Massa’s and Dr. Garlick’s transfer

recommendation. Accordingly, the grant of summary

judgment in their favor was appropriate as well.

IV.

As the district court found that Rasho could not show

that any of the defendants acted with deliberate indifference

to his serious medical needs, the court did not reach the

issue of qualified immunity. But in light of our

determination that the district court erred in granting

summary judgment on that basis as to Dr. Massa and Dr.

Garlick, the qualified-immunity defense warrants some

discussion.

This Court has construed the Supreme Court’s holding

that employees of privately-operated prisons may not assert

a qualified-immunity defense also to deny that defense to

employees of private corporations that contract with the

state to provide medical care for prisoners. Zaya, 836 F.3d at

807 (citing Richardson v. McKnight, 521 U.S. 399, 412, 117 S.

Ct. 2100, 138 L. Ed. 2d 540 (1997)). Thus, Dr. Massa and Dr.

No. 14-1902 17

Garlick, as employees of the private contractor Wexford,

cannot assert qualified immunity as a defense to Rasho’s

claims. See Petties, 836 F.3d at 734 (“[Q]ualified immunity

does not apply to private medical personnel in prisons.”)

(citing Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 794 (7th Cir.

2014)); see also Currie v. Chhabra, 728 F.3d 626, 632 (7th Cir.

2013) (citing with approval the Sixth Circuit’s holding in

McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), that “a

[private] doctor providing psychiatric services to inmates at

a state prison is not entitled to assert qualified immunity”).

But even if a qualified-immunity defense were available

to them, it would be inappropriate to award summary

judgment in Dr. Massa’s and Dr. Garlick’s favors on that

basis while such threshold factual questions as their states of

mind remain disputed. See Petties, 836 F.3d at 734; see also

Zaya, 836 F.3d at 807 (finding summary judgment on a

qualified-immunity defense inappropriate because the

plaintiff’s claim turned on the defendant’s mental state and

“it is well established what the law requires in that regard”).

If Dr. Massa and Dr. Garlick denied Rasho mental health

treatment to retaliate against him for his grievances, then

their conduct violates clearly-established law under the

Eighth Amendment. For reasons we have discussed above,

that is a question of fact for the jury to decide.

V.

For the reasons stated above, we AFFIRM the district

court’s grant of summary judgment in favor of Defendants

Elyea, Blank, and Jones, but REVERSE the grant of summary

judgment in favor of Defendants Massa and Garlick. This

case is REMANDED for further proceedings.