James Lewis v. Angela McLean

In the

United States Court of Appeals

For the Seventh Circuit

No. 16-1220

JAMES A. LEWIS,

Plaintiff-Appellant,

v.

ANGELA MCLEAN, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 14 CV 280 — James D. Peterson, Chief Judge.

ARGUED APRIL 20, 2017 — DECIDED JULY 21, 2017

Before MANION and ROVNER, Circuit Judges, and COLEMAN,

District Judge.*

ROVNER, Circuit Judge. James Lewis, a Wisconsin prisoner,

claimed in this action under 42 U.S.C. § 1983 that staff at the

*

The Honorable Sharon Johnson Coleman, of the Northern District of

Illinois, sitting by designation.

2 No. 16-1220

Wisconsin Secure Program Facility violated the Eighth Amend-

ment by delaying medical attention for a painful back condi-

tion and then using excessive force when eventually taking

him to the hospital. Lewis also claimed that two of the defen-

dants, a nurse and a physician, committed malpractice under

state law. The district court granted summary judgment for the

defendants on the constitutional claims and relinquished

supplemental jurisdiction over the state-law claim, and Lewis

appeals. We conclude that a jury reasonably could find that

two of the defendants were deliberately indifferent to Lewis’s

serious medical need.

I.

The facts are largely undisputed, and we recount them, as

we must at this stage of the proceedings, in the light most

favorable to Lewis, noting disputes where relevant. In Febru-

ary 2014, Lewis was an inmate in the Wisconsin Secure

Program Facility in Boscobel, Wisconsin. On February 8, he

woke up at approximately 5:15 a.m. and experienced a sharp

pain shooting from the base of his neck to his tailbone when he

attempted to get out of bed. On account of the pain, he could

neither lie back down or stand up. He remained immobilized

by pain until approximately thirty minutes later, when at 5:39

a.m., he leaned forward just far enough to press the emergency

call button on the wall of his cell. Lewis was housed in segre-

gation (the reason is not disclosed in the record and when

asked at oral argument the state did not know), and the guard

who answered the call looked at the live video feed from the

security camera in Lewis’s cell and saw him sitting on the bed.

The guard asked what the emergency was, and Lewis replied

No. 16-1220 3

that he was suffering from extreme pain in his back that left

him unable to move.

The guard relayed this information to Lieutenant Joseph

Cichanowicz, a security supervisor. After some time passed,

Cichanowicz went to Lewis’s cell, where Lewis explained that

he was in terrible pain and could not stand up or lie back

down. Lewis told Cichanowicz that he needed a nurse. After

another ten or fifteen minutes passed and no nurse appeared,

Lewis carefully eased himself forward again to push the

emergency call button and request medical assistance. Some-

time thereafter, Cichanowicz visited Lewis’s cell with Nurse

Angela McLean. According to McLean’s progress report, she

visited Lewis’s cell at approximately 6:05 a.m., although in her

answers to interrogatories she claimed that she went to his cell

at 6:30 a.m. When Lewis saw McLean he told her that he was

experiencing “terrible pain in his back” and “couldn’t move.”

Prison policy discourages staff from examining an inmate in

his cell, so McLean told Lewis that guards would escort him to

the infirmary after head count, which was typically conducted

at 6:15 a.m. McLean and Cichanowicz added, however, that

Lewis would first have to stand with his back to the cell door

so that he could be cuffed from behind through a slot in the

door. Lewis again told them that he was in terrible pain in his

back and neck and that he could not move or stand.

Cichanowicz replied that he must be able to stand because he

had pressed the emergency call button. Lewis then demon-

strated that he could lean forward slightly to press the call

button, and told them yet again that he was unable to stand or

move.

4 No. 16-1220

Cichanowicz warned Lewis that if correctional officers had

to be sent into the cell without first shackling Lewis that they

would throw him to the ground and cuff him from behind, but

that if he would come to the cell door they could cuff him from

the front through the slot in the door. When Lewis replied that

he was unable to stand or to reach the slot, Cichanowicz told

him to get on his knees and crawl to the door. Lewis again told

them he was in severe pain and unable to move. McLean

reiterated to Lewis that if he wanted help he needed to follow

Cichanowicz’s orders, and then they walked away. The head

count occurred as scheduled at approximately 6:15 a.m., but no

one came to check on Lewis or take him to the infirmary.

After Cichanowicz and McLean left Lewis’s cell,

Cichanowicz viewed the video footage from Lewis’s cell.

Around 6:40 a.m., Cichanowicz told McLean that Lewis had

not moved from a seated position on his bed since 5:15 a.m.,

but she still did nothing. Close to an hour later, Sergeant

Wayne Primmer heard from other staff that Lewis was

complaining about being in pain and unable to stand. Primmer

checked the live video feed from Lewis’s cell and saw him

edge himself off the bed, fall to the floor on his knees, and then

fall over onto his side on the floor. Lewis then cried out and

pulled a blanket over himself. Primmer contacted Lieutenant

Joni Shannon-Sharpe and briefed her about Lewis’s earlier

encounter with Cichanowicz and his continuing complaints of

pain and inability to stand or walk. Primmer added that Lewis

now was lying on the floor.

Shannon-Sharpe went to Lewis’s cell at approximately 7:30

a.m. Like Cichanowicz, she told Lewis that guards could not

enter the cell to take him to the infirmary unless he was

No. 16-1220 5

restrained. Lewis repeated that he could not reach the door

because of excruciating pain in his back, and also told her that

Cichanowicz told him no one would help him unless he

crawled to the cell door and that being on the floor was

increasing his pain. Shannon-Sharpe then conferred with

McLean, and someone (we are not told who) directed McLean

to contact the on-call physician, Dr. Meena Joseph.

McLean telephoned Dr. Joseph around 7:40 a.m.—over an

hour and a half after Lewis had told her and Cichanowicz that

he was in severe pain and could not move. Dr. Joseph directed

that Lewis be taken to a hospital, and Shannon-Sharpe gath-

ered five guards, two of them with medical training, to

transport Lewis. They entered his cell at 7:58 a.m., restrained

him, placed him in a wheelchair, searched him with a hand-

held metal-detector (after abandoning the effort to force him

into a standing position for a search when Lewis screamed that

they were causing him extreme pain), lifted him into a van,

and drove him to a local hospital. Lewis was admitted to the

emergency room at 8:53 a.m. Doctors gave him morphine for

his back pain, Ativan for his agitation, and diagnosed him with

muscle spasms of the neck and upper back and myalgia

(muscle pain). An hour later, Lewis was able to stand and walk

again. He was prescribed ibuprofen and a muscle relaxant, and

was discharged from the hospital at 10:24 a.m.

Lewis filed this suit two months later, naming as defen-

dants Lieutenants Cichanowicz and Shannon-Sharpe, Nurse

McLean, Dr. Joseph, and the five guards who removed him

from his cell. He claimed that all of the defendants had shown

deliberate indifference to his severe back pain by delaying his

access to medical care, and that Shannon-Sharpe and the five

6 No. 16-1220

guards had been indifferent to his pain because they restrained

him and did not take him to the hospital on a stretcher. Lewis

also claimed that Shannon-Sharpe and the guards had used

excessive force when cuffing him and transporting him to the

hospital. Additionally, he asserted state-law medical malprac-

tice claims against Nurse McLean and Dr. Joseph.

During discovery Lewis asked the district court to recruit

counsel. The court declined after expressing doubt about the

complexity of the medical issues and noting that Lewis had

“not shown that the legal and factual difficulty of the case

actually exceed his ability to prosecute it.” Although Lewis

obtained his medical records and the incident reports from

February 8, he encountered difficulty getting the video from

that day. He asked for “[a]ll video footage of the Plaintiff in his

cell on February 8, 2014,” but the defendants released only

twenty-four minutes of clips run together into a single file,

which Lewis could watch by contacting the prison's complaint

examiner. The first eighteen minutes show snippets of what

occurred in the cell between 7:12 and 8:00 a.m., including

Lewis sliding off his bed to the floor; the last six minutes show

Lewis being removed from the cell.

Lewis moved to compel discovery, explaining that he

believed additional video evidence existed because of a

notation Nurse McLean had written in her treatment notes

from February 8. According to that notation, Cichanowicz had

called her at 6:40 a.m (thirty minutes after she and

Cichanowicz had met with Lewis) and said that recorded video

from his cell showed Lewis sit up “from lying position” at 5:15

a.m. and “then not move again” except when “leaning forward

to push intercom button.” In response, their lawyer insisted

No. 16-1220 7

that the defendants were “not in possession of any other video

evidence depicting Lewis on the date of the subject incident.”

The defendants later submitted a declaration from Douglas

Konichek, who maintains the prison's video-monitoring

system, explaining that the in-cell cameras do not record sound

and “do not record during times when there is no movement.”

According to Konichek, the prison’s digital video recorders

automatically overwrite the oldest recording on the hard drive

“when the drive’s storage capacity is reached, and thus all

recordings are overwritten unless someone downloads a

recording … and saves it on a separate database.” Konichek is

not specific in the declaration about the storage capacity of the

hard drive but does state that the “earliest recordings” avail-

able when the declaration was filed were from 20 days earlier.

His declaration does not explain why the prison saved video

of Lewis’s removal from his cell but not video covering the

time frame referenced in McLean’s treatment notes—video

apparently showing Lewis sitting immobile for nearly 25

minutes before he managed to reach the emergency call button.

Before the district judge ruled on the motion to compel or

Lewis’s renewed motion for counsel, the parties filed cross-

motions for summary judgment. Lewis relied on documents

obtained during discovery, including incident reports, re-

sponses to interrogatories, and McLean’s treatment notes,

along with his verified complaint (the equivalent of an affida-

vit for purposes of summary judgment, see 28 U.S.C. § 1746;

Devbruw v. Gallegos, 735 F.3d 584, 587 (7th Cir. 2013)). In his

complaint, Lewis explains that when he talked to Cichanowicz

and McLean he was “sobbing and crying” because of his back

pain and the “frustration of trying to get them to understand”

8 No. 16-1220

his need for medical care. Cichanowicz’s response, avers

Lewis, was to tell him to “crawl to the door” on his knees. At

that point, Lewis says in his complaint, he “finally shouted,

‘What part of I can't move don't y’all understand?’” Then, after

Cichanowicz and McLean had departed and he realized he

“would not get help,” he “eased” himself from the bed to the

floor “in the hope of being able to make it to the door.” But

once his knees hit the floor, Lewis recounts in his complaint,

“the pain immediately increased” and he collapsed to the

ground. Lewis emphasized Cichanowicz’'s admission in

response to an interrogatory that he “could have instructed an

emergency cell extraction” of Lewis at 6:00 a.m He did not do

so, Cichanowicz insists in that response, because Lewis “did

not appear to be in medical distress.” Lewis also maintained

that the guards who had transported him used excessive force

because they restrained him, moved his limbs, made him stand

up, and did not place him on a stretcher. And he argued that

Nurse McLean and Dr. Joseph had committed medical mal-

practice by not ensuring that he was treated promptly and

transported appropriately.

The defendants asserted that Lewis could not establish an

Eighth Amendment violation based on deliberate indifference

to a need for medical care because he lacked evidence of a

serious medical need and because they were making “mean-

ingful and reasoned decisions and following the institution

policies and procedures that were designed to protect both the

staff and inmates.” The “undisputed evidence,” according to

the defendants, establishes that Lewis was not taken to the

infirmary and treated when he first complained of pain only

because he “refused repeated requests by the officers for him

No. 16-1220 9

to present his extremities to the cell trap doors.” As evidence

of this “refusal to be restrained,” the defendant guards

submitted declarations averring that they had seen him move

his arms and legs.

Shannon-Sharpe and the defendant guards also contended

that the force used in restraining and taking Lewis to the

hospital was minimal and necessary. They submitted the six

minutes of video of the cell extraction as evidence that “"the

officers entered the cell in a calm and directed manner, and did

not ‘throw’ themselves upon Lewis or ‘twist’ or ‘snatch’ his

legs” as he alleged in his complaint. As for the claim of medical

malpractice, Dr. Joseph and Nurse McLean asserted that Lewis

lacked expert testimony establishing the standard of care,

which, in any event, they had satisfied.

Among the documents submitted by the defendants is an

incident report by Primmer, the sergeant who alerted Shannon-

Sharpe after seeing Lewis on the floor of his cell around 7:20

a.m. Primmer wrote that he “informed Lieutenant

Cichanowicz of the situation,” but Cichanowicz’s declaration

does not mention this. In his declaration, Cichanowicz does not

deny watching the video recording of Lewis sitting in his cell

from 5:15 to 6:40 a.m. (indeed, he fails to mention it at all); he

also fails to mention that he called Nurse McLean and told her

about it, as documented in McLean’s treatment notes. Instead,

Cichanowicz simply repeats in his declaration that he never

ordered an emergency cell extraction because he “did not

observe a medical emergency that required an emergency

extraction.” And in her declaration, McLean similarly avers

that, after meeting with Lewis around 6:00 a.m., she “did not

believe Lewis had an urgent medical need that required

10 No. 16-1220

emergency assistance.” She, too, is silent about the account in

her progress notes of the telephone call from Cichanowicz.

The district court denied Lewis’s renewed request for

counsel and entered summary judgment for the defendants.

The court acknowledged that Lewis was in pain while re-

strained and transported, but reasoned that the undisputed

evidence establishes that only “a modest amount of force” was

used, and none of it was applied “maliciously or sadistically

for the purpose of inflicting pain.” The court further reasoned

that, even if Lewis's back pain was a serious medical need, a

jury could not reasonably find from the evidence “that defen-

dants took longer than was necessary to assess plaintiff’s

medical issue and get him treatment” or that they “treated him

unnecessarily roughly in restraining him.” Finally, the district

court relinquished supplemental jurisdiction over Lewis’s

claim of medical malpractice.

II.

With the assistance of court-appointed counsel on appeal,

Lewis now argues that summary judgment was inappropriate

on his Eighth Amendment deliberate indifference claim and

that the district court should have recruited counsel to assist

him with obtaining necessary discovery to support that claim.

Lewis has narrowed his arguments on appeal to focus primar-

ily on his claim of deliberate indifference against McLean and

Cichanowicz.

The Eighth Amendment’s proscription against “unneces-

sary and wanton infliction of pain” is violated when prison

officials demonstrate “deliberate indifference to serious

medical needs” of prisoners—whether the indifference “is

No. 16-1220 11

manifested by prison doctors in response to prison needs or by

prison guards in intentionally denying or delaying access to

medical care.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A claim

of deliberate indifference to a serious medical need contains

both an objective and a subjective component. Thus, a prisoner

must first establish that his medical condition is “objectively,

‘sufficiently serious,’” Farmer v. Brennan, 511 U.S. 825, 834

(1994), and second, that prison officials acted with a “suffi-

ciently culpable state of mind,” id., at 834 (citations omit-

ted)—i.e., that they both knew of and disregarded an excessive

risk to inmate health. see id. at 837; see also Greeno v. Daley, 414

F.3d 645, 653 (7th Cir. 2005).

As for the objective component, we conclude that there is

enough evidence to support a finding that Lewis’s medical

condition—his muscle spasm and the accompanying back

pain—was serious. A medical need is sufficiently serious if the

inmate’s condition “has been diagnosed by a physician as

mandating treatment or … is so obvious that even a lay person

would perceive the need for a doctor’s attention.” Greeno, 414

F.3d at 653. Moreover, a “medical condition need not be life-

threatening to be serious; rather, it could be a condition that

would result in further significant injury or unnecessary and

wanton infliction of pain if not treated.” Gayton v. McCoy, 593

F.3d 610, 620 (7th Cir. 2010); see also Roe v. Elyea, 631 F.3d 843,

857 (7th Cir. 2011). The defendants no longer appear to be

contending that Lewis’s condition was not serious. We assume

given the excruciating pain that Lewis described being in as

well as the ultimate diagnosis of a muscle spasm treated with

morphine that Lewis has established that he had a serious

medical condition. See Gomez v. Randle, 680 F.3d 859, 865 (7th

12 No. 16-1220

Cir. 2012) (concluding that plaintiff alleged serious medical

condition by stating in complaint that “he was in pain” from

wound he believed “was becoming infected”).

We thus move to the question whether Lewis presented

enough evidence of deliberate indifference to survive sum-

mary judgment. As discussed above, counsel for Lewis has

wisely limited his deliberate indifference claim primarily to

McLean and Cichanowicz . Any discussion of the remaining

defendants in Lewis’s brief is limited. In any event, we agree

with the district court that a jury could not reasonably find that

Lieutenant Shannon-Sharpe, Dr. Joseph, and the guards who

transported Lewis from his cell were deliberately indifferent in

assessing Lewis's medical condition or in restraining and

transporting him to the emergency room. The evidence at

summary judgment shows that Shannon-Sharpe immediately

went to talk to Lewis after learning of his distress. Within ten

minutes of her arrival, Dr. Joseph had been called and directed

that Lewis be taken to the emergency room. Shannon-Sharpe

then assembled a team of guards who restrained Lewis and

transported him to the emergency room. These defendants’

response to Lewis's distress was reasonable, and the district

judge correctly entered summary judgment in their favor.

The deliberate-indifference claim against Lieutenant

Cichanowicz and Nurse McLean, however, is another matter.

“A delay in treatment may show deliberate indifference if it

exacerbated the inmate’s injury or unnecessarily prolonged his

pain,” and “even brief, unexplained delays in treatment may

constitute deliberate indifference.” Perez v. Fenoglio, 792 F.3d

768, 777–78 (7th Cir. 2015) (emphasis added); see also McGowan

v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010); Grieveson v. Ander-

No. 16-1220 13

son, 538 F.3d 763, 779 (7th Cir. 2008); Williams v. Liefer,491 F.3d

710, 715–16 (7th Cir. 2007). Here, a jury reasonably could find

that Cichanowicz and McLean exhibited deliberate indifference

by delaying Lewis's treatment for approximately one and a half

hours—the time that passed between their learning of Lewis’s

condition and Dr. Joseph’s directive prompting action—thus

causing Lewis unnecessary suffering.

Rather than provide a sensible explanation for their

inaction, Cichanowicz and McLean blame Lewis for the delay.

They assert in their brief that it is irrelevant whether McLean

should have known that Lewis was unable to follow com-

mands because she was “assessing and responding to the

circumstances as they unfolded.” We reject this characteriza-

tion of the evidence. By contending that they were entitled to

do nothing because Lewis failed to comply with their orders (a

shift in their characterization of the evidence in the district

court, where they insisted that Lewis bore responsibility

because he “refused” to comply) Cichanowicz and McLean are

asking us to construe the evidence against Lewis rather than in

his favor and thus attempting to turn summary judgment on

its head. See Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014)

(“We must … construe the record in the light most favorable to

the nonmovant and avoid the temptation to decide which

party’s version of the facts is more likely true.”).

Construed in the light most favorable to Lewis, the evi-

dence at summary judgment shows that Lewis experienced

severe back pain from 5:15 a.m. until after he received a

morphine injection at the hospital approximately 4 hours later;

that he told Cichanowicz and McLean around 6:00 a.m.; that

his back pain was severe and that he could not reach the cell

14 No. 16-1220

door; and that he started sobbing and begged Cichanowicz and

McLean for help after they had told him that he would not

receive treatment unless he came to the door to be restrained.

Yet Cichanowicz did nothing to help Lewis, and McLean

likewise did nothing until Shannon-Sharpe’s involvement

prompted her to call Dr. Joseph. Their failure to act is all the

more puzzling given the indication in McLean’s treatment

notes that, 30 minutes after visiting Lewis, Cichanowicz called

McLean to tell her that he had watched recorded video from

Lewis’s cell and had confirmed that he had been sitting

motionless on his bed since 5:15 a.m. Neither of these defen-

dants has acknowledged this video or their apparent conversa-

tion about it, and certainly they do not suggest that what

Cichanowicz saw on the video reinforced their purported

belief that Lewis could get to the door and was stubbornly

refusing to do so. This evidence, when construed in Lewis’s

favor, does not square with the defendants’ insistence on

appeal that they were working with Lewis and attempting to

assist him given his inability to comply with their demands on

account of his crippling pain.

Furthermore, these two defendants have never explained

why Sergeant Primmer’s report to Cichanowicz and Shannon-

Sharpe that Lewis was prone on the floor prompted Shannon-

Sharpe, a supervising officer who held the same rank as

Cichanowicz, to spring into action while Cichanowicz contin-

ued to do nothing. In their declarations, Cichanowicz and

McLean both aver that they did not believe Lewis needed

emergency assistance, but a jury reasonably could disbelieve

them given Dr. Joseph’s unequivocal opinion that Lewis

should be taken to the emergency room and the disparity

No. 16-1220 15

between Cichanowicz's inaction and the initiative demon-

strated by Shannon-Sharpe. Moreover, Cichanowicz has never

stated that his inaction was based on any medical opinion

expressed by McLean, and McLean has offered no reason why

she didn't call Dr. Joseph until an hour and a half after her first

encounter with Lewis. See Berry v. Peterman, 604 F.3d 435, 443

(7th Cir. 2010) (explaining, when analyzing deliberate-indiffer-

ence claim against nurse, that “a nurse confronted with an

inappropriate or questionable practice should not simply defer

to that practice, but rather has a professional obligation to the

patient to take appropriate action, whether by discussing the

nurse’s concerns with the treating physician or by contacting

a responsible administrator or higher authority” (internal

quotation marks omitted)). Viewing the facts in the light most

favorable to Lewis, Cichanowicz and McLean encountered an

inmate in severe distress, sobbing in pain and complaining that

he was unable to move, and did, literally, nothing. Indeed, had

Sergeant Primmer not reported his own observations to

Shannon-Sharpe, it is unclear if McLean and Cichanowicz

would have assisted Lewis at all. See Liefer, 491 F.3d at 716

(upholding a jury’s finding that prison employees had violated

the Eighth Amendment by delaying treatment for an inmate’s

chest pain and causing him “six extra hours of pain and

dangerously elevated blood pressure for no good reason”).

In short, the disputed facts surrounding McLean and

Cichanowicz’s state of mind preclude a grant of summary

judgment in their favor on Lewis’s claim of deliberate indiffer-

ence to a serious medical need. On remand, the district court

may also wish to reassess its decision to relinquish jurisdiction

over the medical-malpractice claim against McLean and

16 No. 16-1220

consider recruiting counsel to represent Lewis. See Miller v.

Campanella, 794 F.3d 878, 880 (7th Cir. 2015) (explaining that

district court should appoint counsel in potentially complex

medical case, especially one that has advanced to discovery or

trial); Perez, 792 F.3d at 785; Greeno, 414 F.3d at 658.

On a closing note, we are troubled by the failure to preserve

the video from Lewis’s cell recorded between 5:15 a.m. (when

he sat up) and 7:12 a.m. (when the clips provided by the

defendants begin). See Trask-Morton v. Motel 6 Operating L.P.,

534 F.3d 672, 681 (7th Cir. 2008) (noting that courts have

imposed spoliation sanctions “where a party has a duty to

preserve evidence because it knew, or should have known, that

litigation was imminent”); Guzman v. ]ones, 804 F.3d 707, 713

(5th Cir. 2015) (“A party’s duty to preserve evidence comes

into being when the party has notice that the evidence is

relevant to the litigation or should have known that the

evidence may be relevant.”). The missing recordings, which

McLean’s treatment notes tell us that Cichanowicz viewed at

some point, could help Lewis at trial by corroborating his

statements that he was immobilized for two hours and that he

cried and begged for help when talking to Cichanowicz and

McLean. And yet there is no explanation in the record why the

defendants did not preserve this video but did preserve the six

minutes of favorable video showing Lewis being removed

from his cell. Konichek's declaration suggests that the record-

ings are stored for approximately twenty days before being

erased, so whoever preserved the video of the cell extraction

likewise could have saved the video covering the preceding 3

hours. On remand, the district court should consider reopening

discovery so that Lewis—possibly aided by recruited coun-

No. 16-1220 17

sel—can successfully depose Cichanowicz and McLean as to

their state of mind and explore more fully whether additional

recordings exist and, if not, why more video was not pre-

served.

Finally, we reject the defendants’ claim that they are

entitled to qualified immunity from Lewis’s suit. Qualified

immunity protects government employees from liability for

civil damages for actions taken within the scope of their

employment unless their conduct violates “clearly established

… constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Viewing the facts in the light most favorable to Lewis, we ask

whether the defendants violated a clearly established constitu-

tional right. See, e.g., Saucier v. Katz, 533 U.S. 194, 201 (2001); see

also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (establishing

that Saucier’s two-step sequence is not mandatory). In estab-

lishing whether a constitutional right has been clearly estab-

lished, it is unnecessary for the particular violation in question

to have been previously held unlawful. Anderson v. Creighton,

483 U.S. 635, 640 (1987). Instead, we ask whether the “contours

of the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Id.

It has long been clear that deliberate indifference to an inmate’s

serious medical needs violates the Eighth Amendment. As for

whether Cichanowicz and McLean’s delay in assisting Lewis

ran afoul of that clearly established right, as the discussion

above makes clear, when viewed in the light most favorable to

Lewis, his factual allegations could demonstrate a constitu-

tional violation. Thus, the defendants are not entitled to

immunity from suit.

18 No. 16-1220

III.

The district court's judgment is VACATED to the extent

that it grants summary judgment on the deliberate-indifference

claim against Cichanowicz and McLean. On remand, the

district court should consider whether to reinstate the medical-

malpractice claim against McLean. The remainder of the

judgment is AFFIRMED, and the case is REMANDED to the

district court for further proceedings.

No. 16-1220 19

MANION, Circuit Judge, concurring. Because the court’s

opinion correctly applies our controlling precedent, I join it in

full. A reasonable juror could conclude from the record pre-

sented that Lieutenant Cichanowicz and Nurse McLean de-

layed Lewis’s treatment by more than an hour when they

knew that he was in severe pain. Such a juror could infer de-

liberate indifference because both defendants were aware that

the video feed from Lewis’s cell showed that he had not

moved since 5:15 a.m., but they still chose to do nothing rather

than move the extraction process along. Under our case law,

that would constitute deliberate indifference.

I write separately to make two points. First, I don’t read

the court’s opinion as being contingent on the length of the

delay the defendants caused. On another set of facts, an hour

or so delay of treatment for a similar condition may not be

enough to establish deliberate indifference. The particular

facts of this case—namely that Cichanowicz and McLean ap-

pear to have confirmed that Lewis was suffering severe pain

via the video feed—are what permit Lewis to survive sum-

mary judgment. Because a jury could view these facts as es-

tablishing the reckless state of mind necessary for liability, the

court is correct to send this case to trial.

Second, and more broadly, although I think the court cor-

rectly applies controlling precedent, this case is a striking ex-

ample of how far we have departed from the text of the Eighth

Amendment. We should not forget that the Amendment pro-

hibits the imposition of “cruel and unusual punishment.” The

deliberate indifference standard is at best tangentially related

to the text. It seems quite unlikely to me that a prisoner who

20 No. 16-1220

was taken to the hospital and entirely cured within five hours

of suffering pain has endured anything “cruel and unusual”

in the context of the prison system. We should eventually re-

turn to faithfully applying the text of the Constitution.

With these reservations, I concur.