Gary Orlowski v. Milwaukee County, Wisconsin

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-2166

GARY ORLOWSKI, et al.,

Plaintiffs-Appellants,

v.

MILWAUKEE COUNTY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin

No. 13-cv-1318 — Pamela Pepper, District Judge.

____________________

ARGUED NOVEMBER 7, 2016 — DECIDED SEPTEMBER 18, 2017

____________________

Before EASTERBROOK and WILLIAMS, Circuit Judges and

FEINERMAN, District Court Judge.* 1

WILLIAMS, Circuit Judge. Alexander Orlowski died of a

methadone overdose while in custody at the Milwaukee

County House of Correction. Before his death, correctional of-

ficer Irby Alexander observed Orlowski sleeping and was

* Of the Northern District of Illinois, sitting by designation.

2 No. 16-2166

concerned that he was having a difficult time breathing. Al-

exander tried to wake Orlowski up, but was unable to do so,

so he called to inform his supervisor, Sergeant Anthony

Manns, about the situation. They decided not to call for med-

ical attention. Three hours later, Orlowski was dead.

Orlowski’s estate (the “Estate”) and his father, Gary Or-

lowski (“Gary”), filed this lawsuit pursuant to 42 U.S.C.

§ 1983 claiming that Alexander and Manns violated Orlowski

and Gary’s constitutional rights. The district court rejected all

claims and granted summary judgment in favor of Alexander

and Manns, and determined that evidence was insufficient to

sustain the Estate’s Eighth Amendment claim. The court also

concluded that there was no evidence Alexander or Manns

intended to deprive Gary of his relationship with his son, so

his Fourteenth Amendment substantive due process claim

failed. This appeal followed.

We affirm in part and reverse in part. The record demon-

strates that there is a material dispute of fact as to whether

Alexander and Manns were deliberately indifferent to Or-

lowski’s severe medical condition. It is up to the jury to deter-

mine the credibility of witnesses and weigh the evidence, and

there is sufficient evidence to go to trial here. So we reverse

the district court’s judgment on the Estate’s Eighth Amend-

ment claim. However, we agree with the district court that

the law of this circuit forecloses Gary Orlowski’s Fourteenth

Amendment substantive due process claim. Because there is

no evidence that Alexander or Manns intentionally interfered

in Gary’s familial relationship with his adult son, summary

judgment was appropriate.

No. 16-2166 3

I. BACKGROUND

A. Factual History

Taking the facts and evidence in the light most favorable

to the non-moving party, the following occurred on Novem-

ber 22, 2007.

Twenty-year-old Orlowski was an inmate at the Milwau-

kee House of Correction (“HOC”) where he resided in the

Zebra-2 dorm. Just past midnight, he was asleep in his bunk

when dorm supervisor Irby Alexander began his shift. Alex-

ander had no prior experience with Orlowski, and had not

observed Orlowski sleeping (or awake) before. At approxi-

mately 12:28 a.m., as was his routine duty for the night, Alex-

ander conducted a security check of the dorm, and did not

notice anything unusual. He conducted another security

check at 1:36 a.m., and again saw nothing unusual. Another

HOC official, Sergeant Anthony Manns, also toured the dorm

around the same time, and did not note anything unusual.

At approximately 3:45 a.m., Alexander received a call

from the HOC kitchen to request workers for the morning’s

breakfast, so he began awakening inmates for kitchen duty.

Orlowski was one of the kitchen workers, but when Alexan-

der got to Orlowski’s bunk, he was troubled by what he saw.

Orlowski was breathing abnormally, making noises from

hard and loud to very soft, and “at times his body would

make sudden moves and he would again start breathing

loudly.” Larry Green, another inmate residing in a nearby

bunk, tried to wake Orlowski up, but Orlowski would not

wake up. Green, who was a chef for HOC’s breakfast, was

concerned because Orlowski had always gotten up for work

in the kitchen, so he told Alexander that something was

4 No. 16-2166

wrong with Orlowski. Because Green persisted in voicing his

concern for Orlowski, Alexander (or another HOC official)

disciplined him by putting him in the “hole.”

Alexander was concerned. He thought that Orlowski

might have a sleep disorder such as sleep apnea because of

his “intermittent-type breathing” and because he stopped

breathing at times. Alexander tried to wake him by shaking

his bunk and calling his name. How forcefully Alexander was

trying to wake Orlowski is unclear, but Orlowski responded,

at most, with changed breathing patterns and slight move-

ment. Despite Alexander’s efforts to wake him up, Orlowski

remained unconscious and unresponsive. Alexander left him

in his troubled state. However, when he returned to his desk,

Alexander noted in the Zebra-2 dorm logbook:

Z2 Orlowski #719775403 appears to [have] a se-

vere sleeping disorder. Inmate appears not to be

breathing at times. Inmate makes a lot of noise

while trying to breath [sic] and[/]or when he is

breathing. Inmate appears to have a lot of diffi-

culties sleeping.

Alexander then called his supervisor, Sergeant Manns. Al-

exander told him everything written in the log book, includ-

ing Orlowski’s trouble breathing. However, Manns denies

that Alexander told him this information, asserting that if Al-

exander had told him Orlowski appeared to have a severe

sleeping disorder and was not breathing, he would have

called for a medical emergency. But, either way, no medical

emergency was called. Instead, Mann told Alexander that if

Orlowski woke up for breakfast or later in the morning, they

would talk to him.

No. 16-2166 5

At 4:05 a.m., Alexander announced that it was breakfast

time in Zebra-2, and at 4:20 a.m., the inmates went to break-

fast. Orlowski, who had missed his kitchen duty, did not

wake up for the scheduled breakfast and remained in bed.

At 4:35 a.m., HOC Corrections Manager, Virginia Ertman,

toured the Zebra-2 dorm, and read Alexander’s log book en-

try regarding Orlowski’s condition. Alexander took her to Or-

lowksi’s bunk and they observed him in the same state. Alex-

ander told Ertman that he had told Manns about the issue,

and that Manns would speak with Orlowski after breakfast.

Time passed and nothing was done. Alexander observed

Orlowski at 4:55 a.m. and again at 5:48 a.m. in the same state.

At approximately 6:10 a.m., the inmates returned from break-

fast and Alexander heard someone shouting “man down,

man down!” near Orlowski’s bunk. Alexander went to inves-

tigate, and saw Orlowski, who looked dead. Alexander then

called a medical emergency, and the medical unit came and

attempted CPR and defibrillation, but it was too late. Or-

lowski was pronounced dead at 6:54 a.m. The cause of his

death was a methadone overdose, caused by pills Orlowski

had purchased from another inmate. According to medical

experts, Orlowski would have survived and made a full re-

covery if he had received medical care between 3:45 and 5:48

a.m.

B. Procedural History

On November 21, 2013, Alex Orlowski’s estate (the “Es-

tate”) and his father, Gary (collectively the “Plaintiffs”),

brought this civil suit against Milwaukee County, Irby Alex-

ander, Anthony Manns, Ronald Malone, and Wisconsin

County Mutual Insurance Corporation. Before the summary

6 No. 16-2166

judgment motion was filed, the Plaintiffs dropped their

claims against Malone and the Wisconsin County Mutual In-

surance Company, and two of their Monell claims against Mil-

waukee County.

At summary judgment, the district court granted judg-

ment in favor of the remaining defendants (Manns, Alexan-

der, and Milwaukee County) on all of the Plaintiffs’ remain-

ing claims. This appeal followed, and Plaintiffs challenge the

district court’s decision on two claims: (1) the Estate’s Eighth

Amendment claim that Alexander and Manns were deliber-

ately indifferent to Orlowski’s serious medical condition; and

(2) Gary’s Fourteenth Amendment substantive due process

claim that Alexander and Manns interfered with his familial

relationship with his son. The Estate did not appeal its Monell

claims against Milwaukee County. The Plaintiffs further re-

quested remand of their indemnification claim against Mil-

waukee County for claims surviving summary judgment pur-

suant to Wis. Stat. § 895.46.

II. ANALYSIS

We review the district court’s grant of summary judgment

de novo, reviewing the evidence in the light most favorable to

the non-moving parties, here the Plaintiffs. McDonald v.

Hardy, 821 F.3d 882, 885 (7th Cir. 2016). Summary judgment is

only appropriate where, “construing the record in the light

most favorable to the party opposing summary judgment, no

jury could reasonably find in favor of that party.” Id. at 888

(citing Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d

866, 879 (7th Cir. 2016)).

No. 16-2166 7

A. Defendants Not Entitled to Qualified Immunity

The first question we must address is whether Alexander

and Manns (“Defendants”) are entitled to qualified immun-

ity. Qualified immunity protects public officials, like Alexan-

der and Manns, from suit where their challenged actions were

reasonable mistakes made while performing their jobs.

Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013). How-

ever, a public official’s immunity is not absolute, and no im-

munity exists where: (1) his or her conduct violates a plain-

tiff’s constitutional or statutory right; and (2) the right was

clearly established at the time of the violation such that a “rea-

sonable official would understand what he is doing violates

that right.” Id. (quoting Denius v. Dunlap, 209 F.3d 944, 950

(7th Cir. 2000)) (internal quotation marks and additional cita-

tion omitted). For a right to be clearly established there does

not have to be a prior case that is indistinguishable from the

current case; instead, what is required is that the officials were

on notice that their conduct was a constitutional or statutory

violation. See Miller v. Jones, 444 F.3d 929, 934 (7th Cir. 2006).

We consider Defendants’ assertion of qualified immunity de

novo, and draw all factual inferences in favor of Plaintiffs.

Findlay, 722 F.3d at 899.

For purposes of qualified immunity analysis, we focus on

the Estate’s claim that the Defendants violated Orlowski’s

Eighth Amendment rights by being deliberately indifferent to

his serious medical needs. 2 “[D]eliberate indifference to seri-

ous medical needs of prisoners constitutes the ‘unnecessary

2 Plaintiff Gary Orlowski also argues that qualified immunity should

not bar suit with respect to his substantive due process claim. But because

8 No. 16-2166

and wanton infliction of pain,’ proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (cita-

tion omitted). And, as we discuss more below, we find there

is sufficient evidence to raise a triable issue of fact with respect

to whether or not Defendants violated this constitutional

principle.

So, we turn to the second prong—whether the constitu-

tional violation was “clearly established.” The violation al-

leged by the Estate is “clearly established” if Alexander and

Manns had fair and clear warning that their alleged actions

(or inaction) would be constitutionally offensive. We find

that, assuming the facts most favorable to the Estate, they did.

Correctional officials have long been warned that they cannot

ignore an inmate’s known serious medical condition. Bd. v.

Farnham, 394 F.3d 469, 485 (7th Cir. 2005) (“[T]he right to re-

ceive adequate treatment for serious medical needs is a clearly

established constitutional right.”). Where a duty imposed by

law is obvious to a reasonable officer, we consider it “clearly

established.” See White v. Pauly, 137 S. Ct. 548, 552 (2017).

Here, the Estate’s evidence indicates that Orlowski presented

obvious symptoms of a serious medical condition. So, if we

accept these facts as true, any reasonable officer would know

he had a duty to seek medical attention. If Alexander and

Manns chose to do nothing despite this duty, 3 they violated

“clearly established” Eight Amendment law.

Defendants did not raise qualified immunity as a defense below, we find

it is waived and we address the merits of this claim infra.

3 We note that there is conflicting evidence regarding what Alexander

communicated to Manns that could impact qualified immunity analysis.

If, as Alexander testified, he told Manns everything he witnessed and was

No. 16-2166 9

Defendants’ construction of the “clearly established” law

at issue here is narrow to the point of meaninglessness. De-

fendants assert that there is no clearly established right for “a

convicted prisoner to be awoken and told that he is snoring

or breathing irregularly” or “to receive immediate medical at-

tention simply because he is snoring or breathing inconsist-

ently in his sleep.” This inaccurately construes the Estate’s

claim. We cannot assume the Defendants’ version of the facts

that Orlowski was only snoring. The Estate provides evidence

that Alexander knew, and told Manns, that Orlowski was

breathing irregularly, appeared to have a severe sleeping dis-

order, and could not be woken up. Any reasonable officer

would know that these observations indicated a serious med-

ical condition and the law required them to seek medical at-

tention. But, Alexander and Manns instead ignored Or-

lowski’s condition. Because the facts proffered by the Estate

could demonstrate a violation of Orlowski’s clearly estab-

lished Eighth Amendment rights, factual disputes prevent a

finding that Defendants are entitled to qualified immunity.

B. Material Dispute of Fact for Eighth Amendment Fail-

ure to Provide Medical Care Claim

The Supreme Court has made clear that the “unnecessary

and wanton infliction of pain” proscribed by the Eighth

Amendment includes a prohibition on deliberate indifference

to the serious medical needs of prisoners. Estelle, 429 U.S. at

instructed to do nothing by his superior, Alexander may be entitled to im-

munity. However, if Alexander chose not to tell Manns the extent of Or-

lowski’s medical distress, he cannot claim qualified immunity for defer-

ring to a supervisor. This factual dispute forecloses summary judgement

in favor of either Alexander or Manns, and the question of which official,

if either, violated clearly established law remains to be decided by a jury.

10 No. 16-2166

104. To establish such a claim, the Estate must demonstrate

(1) Orlowski’s condition was objectively serious; and (2) the

Defendants were deliberately indifferent to his health or

safety. Pinkston v. Madry, 440 F.3d 879, 891 (7th Cir. 2006).

1. Orlowski Presented Evidence of Serious Medical

Condition

A serious medical condition is one that “has been diag-

nosed by a physician … or one that is so obvious that even a

lay person would perceive the need for a doctor’s attention.”

Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (quoting

Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008)) (internal quo-

tation marks omitted). “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.” Id. (citing Reed v.

McBride, 178 F.3d 849, 852 (7th Cir. 1999)).

In hindsight, we are painfully aware of how serious Or-

lowski’s medical condition was because his methadone over-

dose led to an untimely death. However, we must look at Or-

lowski’s medical condition as Alexander observed it and pos-

sibly reported it to Manns, before Orlowski’s health took a fa-

tal turn. Orlowski was not diagnosed with sleep apnea, a drug

overdose, or any other serious medical condition before his

death. Instead, the Estate asserts that the serious medical con-

dition was obvious. We find that there is sufficient evidence

to create a material dispute as to whether it was.

A condition can be “obvious” to a layperson even where

he or she is unable to diagnose or properly identify the cause

of an observed ailment. Because the Defendants here were not

No. 16-2166 11

medical professionals, we focus on their observations to de-

termine whether a jury could find Orlowski’s condition objec-

tively serious. The record contains ample evidence that Alex-

ander observed a situation that he, as a layperson, identified

as concerning, and which lead him to guess a diagnosis of a

serious health condition, sleep apnea. While sleep apnea can

result in death, the seriousness of sleep apnea is not the ques-

tion to be decided. In fact, Orlowski did not have sleep apnea.

What is important is that Alexander saw tell-tale signs of a

serious medical condition including that Orlowski was

breathing inconsistently and would not regain consciousness

despite Alexander banging on his bunk and calling to wake

him up. Failure to breathe and failure to regain consciousness

are undoubtedly life-threatening medical conditions that are

obvious to a layperson. Further, there is additional evidence

that at least one inmate emphatically told Alexander that

something was very wrong with Orlowski. Alexander was

clearly concerned enough by what he saw to report Or-

lowski’s symptoms to his supervisor, Manns. The Estate’s ev-

idence is sufficient to survive summary judgment on this is-

sue.

2. Orlowski Presented Evidence of Defendants’ Delib-

erate Indifference

The test for deliberate indifference is a subjective test, and

to survive summary judgment, the Estate needed to show ev-

idence that the officials were both “aware of facts from which

the inference could be drawn that a substantial risk of serious

harm exists,” and that they actually drew the inference.

Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Gayton, 593

F.3d at 620 (the “deliberate indifference” prong is met where

“[t]he official must have subjective knowledge of the risk to

12 No. 16-2166

the inmate's health, and the official also must disregard that

risk”). This standard exists between the standards of negli-

gence and intent. See McDonald, 821 F.3d at 888; see also Knight

v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). “Even if a de-

fendant recognizes the substantial risk, he is free from liability

if he ‘responded reasonably to the risk, even if the harm ulti-

mately was not averted.’” Gayton, 593 F.3d at 620 (quoting

Farmer, 511 U.S. at 843). Whether an official was deliberately

indifferent is a question of fact. See id.

We start by looking at whether there was evidence that

Alexander was deliberately indifferent. The Estate provides

evidence that beginning before 4:00 a.m., Alexander became

aware of facts that alerted him to a serious risk of serious

harm. He saw Orlowski struggling to breathe, making “sud-

den moves,” and making loud sounds. He approached Or-

lowski and tried to wake him up, but even with his name

called and bed shaken, Orlowski did not regain conscious-

ness. Green told Alexander that there was something wrong

with Orlowski. 4 There is also evidence that Alexander drew

the inference that Orlowski might have a serious medical con-

dition, including his log book entry noting that Orlowski had

a “severe sleeping disorder” and was “not breathing at times”

and reported his observations to his supervisor, Manns

(though it is unclear what he told Manns). Accordingly, the

Estate provides some evidence that Alexander subjectively

knew Orlowski was suffering a serious medical condition.

4 While a police report in the record indicates that more than one in-

mate reported concerns about Orlowski’s health to Alexander and wit-

nessed Orlowski’s serious medical condition, we are unable to consider

these statements at summary judgment because they are inadmissible

hearsay. See Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016).

No. 16-2166 13

The more difficult question is whether Alexander disre-

garded Orlowski’s serious medical condition. Evidence in the

record suggests that Alexander witnessed Orlowski’s inter-

mittent breathing, thought he had a “severe sleep disorder,”

and remained unconscious despite attempts to wake him up.

In response to his concern, he wrote notes in a log book and

reported his concern to Manns and later discussed it with Ert-

man, two supervisors with no medical training or expertise.

The evidence does not show that he told either of these super-

visors of his failed attempt to awaken Orlowski or about the

other inmate’s concern for Orlowski’s health.

We find that there are factual disputes with respect to

whether Alexander was deliberately indifferent. A jury could

credit Green’s testimony that he persisted in telling Alexan-

der that there was something unusual and frightening about

how Orlowski was sleeping that night, and that Alexander

opted to send Green to the “hole” rather than call for medical

attention for Orlowski. Or a jury could credit Alexander’s tes-

timony that other inmates told him Orlowski always slept this

way. It would be reasonable for a jury to find that the Estate’s

evidence proves that Alexander knew or suspected that Or-

lowski’s condition was imminently dangerous yet allowed it

to persist for several hours without informing a medical pro-

fessional or even telling other officers about Orlowski’s ina-

bility to regain consciousness. This would be deliberate indif-

ference. Failing to consult or alert a medical professional

where an inmate is unconscious and barely breathing “sur-

passe[s] mere negligence and enter[s] the realm of deliberate

indifference.” Gayton, 593 F.3d at 624. Nothing in the record

indicates that it would have taken any great effort to alert a

medical professional here, and the record is clear that had Al-

exander done so, Orlowski would have survived.

14 No. 16-2166

Similarly, there is evidence that Manns was deliberately

indifferent to Orlowski’s medical condition. Viewing the evi-

dence in the light most favorable to the Estate shows that

Manns was aware of Orlowski’s intermittent breathing and

limited responsiveness (if not complete unresponsiveness)

because Alexander told him. 5 Manns stated that he would

have immediately called for medical attention if he was aware

that Orlowski was not breathing. However, a jury could credit

Alexander’s testimony and infer that Manns was fully aware

of Orlowski’s serious medical condition and failed to take ac-

tion. Instead, Manns, without visiting the inmate identified as

at risk or notifying someone with medical training, postponed

any potential investigation until when (and if) Orlowski woke

up for breakfast. It would be reasonable for a jury to find this

crossed the line from negligence to deliberate indifference.

Therefore, we conclude that there are material disputes of

facts that foreclose summary judgment on the Estate’s Eighth

Amendment claims against both Alexander and Manns.

Defendants note that the district court was correct to rely

on another district court opinion, Estate of Crouch v. Madison

County, 682 F. Supp. 2d 862 (S.D. Ind. 2010), in finding that

there was insufficient evidence to show Defendants were de-

liberately indifferent here. However, we find that case is un-

helpful. In Estate of Crouch, the record provided that the plain-

tiff exhibited several symptoms that could have led officials

to conclude that he was suffering from drug use, but found

5 As noted by the district court, Manns testified that he believed Al-

exander called him because other inmates were complaining about Or-

lowski’s snoring and not to report a medical problem. This is directly con-

tradicted by Alexander’s testimony, which further supports that factual

disputes remain for fact-finders to weigh at trial.

No. 16-2166 15

the officers did not have sufficient facts to draw an inference

of a need for medical attention before they found him unre-

sponsive. Id. at 871–72. When they later found him unrespon-

sive, they “immediately addressed the obviously dire situa-

tion.” Id. at 871. Here, the facts proffered by the Estate show

that Alexander found Orlowski unresponsive, yet failed to

take necessary immediate action. Such facts are easily distin-

guished from the facts found in Estate of Crouch.

C. No Violation of Due Process in Gary Orlowski’s Loss

of Familial Relationship with Adult Son

Orlowski’s father, Gary, also appeals the district court’s

judgment dismissing his loss of familial relationship claim.

Gary asserts that the Defendants violated his substantive due

process rights by interfering with his relationship with his

son, who was 20 years old. This court does not recognize “a

constitutional right to recover for the loss of the companion-

ship of an adult child when that relationship is terminated as

an incidental result of state action.” Russ v. Watts, 414 F.3d

783, 791 (7th Cir. 2005). But we view the facts in the light most

favorable to Gary in considering whether he met his burden

to withstand summary judgment.

Gary’s argument that Orlowski was not an adult at the

time of his death is not persuasive. While it is true that levels

of maturity can differ drastically between 20-year-olds, the

law makes clear that the age of majority is 18, and therefore

Orlowski was an adult. See Wis. Stat. § 990.01(3). The record

is undisputed that Orlowski lived at home and was finan-

cially dependent on Gary before his incarceration, but noth-

ing in the record indicates that Orlowski could not function

16 No. 16-2166

as an adult. In fact, he was serving time in an adult facility, 6

for a crime he committed as an adult. While Gary may have

been an exceptionally helpful and supportive parent, this

does not lower the age of majority, nor blur the court’s view

of Orlowski’s adulthood. Because Orlowski was an adult,

Gary was required to provide evidence of the Defendants’ in-

tent to interfere with the familial relationship. No such evi-

dence exists in the record, and the district court properly

found that Gary’s substantive due process claim cannot with-

stand summary judgment.

III. CONCLUSION

The decision below is REVERSED with respect to the Estate’s

Eighth Amendment claim against Alexander and Manns, and

AFFIRMED with respect to Gary Orlowski’s substantive due

process claim. The Estate’s indemnity claim against Milwau-

kee County pursuant to Wis. Stat. § 895.46 is remanded as its

outcome is dependent on the success of the Estate’s Eighth

Amendment claim at trial.

6 We note that juveniles incarcerated in adult facilities are not adults

for the purposes of similar analysis.