John Lipsey v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 17-1063

JOHN LIPSEY, Individually and as fa-

ther and next friend of J.L., a disabled

minor,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Central District of Illinois.

No. 2:12-cv-02100-JES-EIL — James E. Shadid, Chief Judge.

ARGUED SEPTEMBER 19, 2017 — DECIDED JANUARY 4, 2018

Before WOOD, Chief Judge, and EASTERBROOK and ROVNER,

Circuit Judges.

ROVNER, Circuit Judge. In this appeal, John Lipsey seeks

relief on behalf of his minor daughter J.L., for tragic injuries

suffered by J.L. at birth. The district court granted summary

2 No. 17-1063

judgment to the defendants, and Lipsey appeals that determi-

nation.

The facts underlying the grant of summary judgment are

set forth in detail in the district court opinion, and in relevant

part are as follows. On June 8, 2009, a criminal complaint was

filed against Wenona White in federal court alleging charges of

federal bank fraud. At the time, White was pregnant with her

tenth child. White was scheduled to self-surrender on July 6,

2009, but she failed to appear and was not located and taken

into custody until September 10, 2009. On September 11, the

district court judge in Hammond, Indiana ordered her re-

manded to the custody of the United States Marshals Service.

Because White was 35 weeks pregnant by the time she was

apprehended, the Marshals Service faced the challenge of

finding a detention facility that was able to meet her late-

pregnancy healthcare needs. The Marshals Service arranged for

her to be housed at the Jerome Combs Detention Center

(“JCDC”), a Kankakee County facility which has an intergov-

ernmental agreement with the Marshals Service. The JCDC had

a full-time medical staff, and a relationship with an obstetrics

practice to handle the obstetric needs of its population.

When White arrived at the JCDC on September 11, the

JCDC intake officer obtained information from her and

completed an intake form with her. That form indicated that

her due date was October 18, her last medical exam was in

August, and that she took prenatal vitamins. The intake officer

also took her blood pressure, which was high at 161/86. No

medical history was taken. White does not recall whether she

told that intake officer of any problems with her ninth preg-

No. 17-1063 3

nancy, but she acknowledges that she did not inform the intake

officer that with her ninth pregnancy, she had placenta previa.

That ninth pregnancy had resulted in an emergency cesarean

section at 34 weeks, but there is no evidence that such informa-

tion was ever communicated to any of the defendants. White

signed a HIPAA release authorizing the release of her hospital

records from Provident Hospital, where she received her

prenatal care earlier in her pregnancy. Ivette Charee Sangster,

a nurse at the JCDC, testified that she sought such records and

was told by the hospital that they had no records of White as

a patient there, but other evidence indicated that when the

same request was made by a doctor from St. Mary’s Hospital

after J.L.’s birth, the records were promptly sent.

Over the next 10 days, White had a number of contacts with

the JCDC medical staff. A nurse saw White in her housing unit

on September 12 and White reported that she was not having

any problems with her pregnancy. On September 16, another

JCDC nurse, Heather Gill, met with White in the JCDC clinic.

According to Gill’s notes, White reported that it was her tenth

pregnancy and that she had regular checkups with an obstetri-

cian in Indiana, and she denied having any problems with the

pregnancy. Nonetheless, a logbook entry stated that White

reported labor pains on September 16. Gill ordered prenatal

vitamins for White and indicated that she would try to

schedule an appointment with the obstetrician. White admits

that she told a female nurse that she was not having any

problems with her pregnancy.

That appointment with the obstetrician proved problem-

atic, however. The obstetrician who routinely provided care to

JCDC patients refused to take White as a patient that late in her

4 No. 17-1063

pregnancy. According to JCDC Chief of Corrections Michael

Downey’s report at a September 17 medical staff meeting, he

contacted the Marshals Service to ask that White be transferred

to a different facility where obstetrical care might prove more

accessible, and was informed that it would be impossible to

move White at that time. The Marshals Service employees

deny having received that request, but we assume the facts in

Lipsey’s favor on summary judgment. In any event, Downey

resolved to continue to seek a transfer, and in addition ordered

an emergency delivery kit and close monitoring of White by

the health care staff.

The next day, September 18, JCDC physician assistant

Timothy Menard attempted to have White come to the health

care unit. A log note written by Menard indicates that White

refused to be seen and that she signed a refusal form indicating

that she was informed of the risks to her health and the health

of her pregnancy. She was informed that without weekly

gynecological exams there was no way to determine cervical

dilation or position of the fetus. White admits that she signed

a refusal form.

On September 21, Gill wrote a log note indicating that an

obstetrician at Westwood OB had called back and agreed to see

White “next Tuesday.” Before that could happen, however, on

September 22, White awoke with abdominal and back pain and

called for assistance at 5:10 a.m. The fire department received

a dispatch at 5:13 a.m., the ambulance crew arrived at 5:22

a.m., and White arrived at St. Mary’s Hospital in Kankakee at

5:52 a.m. The hospital staff took her medical history at that

time and she denied having any complications during her

pregnancy or any chronic medical problems. At 6:07 a.m., the

No. 17-1063 5

nurse was unable to find any fetal heart tones, and a bedside

ultrasound a minute later revealed a very slow fetal heart rate.

At 6:13 a.m., the doctor decided to perform an emergency

cesarean section and J.L. was delivered at 6:33 a.m. During that

cesarean section, it was discovered that White had suffered a

complete abruption of the placenta which stopped the flow of

oxygen to J.L. Although J.L. was not breathing when she was

delivered, the doctors were able to resuscitate her and trans-

ported her to the neonatal intensive care unit at the University

of Chicago Hospitals. Tragically, as a result of the oxygen

deprivation, J.L. has severe, permanent physical and mental

disabilities. The abruption that resulted in the oxygen depriva-

tion likely occurred either in the ambulance or at the hospital,

because J.L. would not have survived if it had occurred earlier

than that.

Lipsey filed suit on behalf of his minor child, J.L., against

the United States pursuant to the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2671 et seq., and against the “Kankakee

Defendants”—consisting of: Kankakee County; Timothy

Bukowski, Sheriff of Kankakee County; Michael Downey,

Chief of Corrections; Heather Gill, R.N.; Timothy Menard,

P.A.; Dr. Clyde Dayhoff, JCDC’s medical co-director; and

Ivette Charee Sangster, L.P.N.—alleging medical malpractice

and pendent claims under the Family Expense Act and for

willful and wanton conduct. Judge Baker granted the motion

for summary judgment of the defendant United States, and a

subsequent district court judge, Judge Shadid, granted sum-

mary judgment on behalf of the Kankakee Defendants on the

remaining claims. Lipsey now appeals both decisions.

6 No. 17-1063

We turn first to the claims against the United States. The

United States as sovereign is immune from suit unless it has

consented to be sued. The FTCA provides a limited waiver of

immunity and provides for a cause of action for tort claims

“caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of

his office or employment … .” 28 U.S.C. § 1346(b)(1); United

States v. Orleans, 425 U.S. 807, 813 (1976). It defines government

employees under the Act as including officers and employees

of any federal agency but excludes “any contractor with the

United States.” Id. at 813–14; 28 U.S.C. § 2671. In applying that

independent contractor exception to the waiver of immunity,

“[a] critical element in distinguishing an agency from a

contractor is the power of the Federal Government ‘to control

the detailed physical performance of the contractor.’” Orleans,

425 U.S. at 814, quoting Logue v. United States, 412 U.S. 521, 528

(1973).

The Supreme Court in Logue addressed a situation factually

analogous to the present one. In Logue, the Court held that the

employees of a county jail which contracted with the Federal

Bureau of Prisons to house federal prisoners were not federal

employees, and therefore the United States could not be liable

for their torts. Logue, 412 U.S. at 532; Orleans, 425 U.S. at 814–15.

Even though the county jail was required by the terms of the

contract to comply with Bureau of Prisons rules and regula-

tions prescribing standards of treatment and to allow inspec-

tions to ensure compliance, the United States was not autho-

rized to physically supervise the jail employees or control the

day-to-day operations, and therefore the county jail was an

No. 17-1063 7

independent contractor for purposes of the FTCA. Logue, 412

U.S. at 531–32.

That reasoning applies equally here. The Marshals Service

maintained an intergovernmental agreement with the JCDC

which required the JCDC to provide appropriate medical care,

and the Marshals Service conducted inspections to ensure

compliance but was removed from the day-to-day operations

of the facility. In fact, the Marshals Service had conducted an

inspection of the JCDC two weeks before White was placed

there, and the JCDC was found fully compliant with the

federal health standards mandated by that agreement. Lipsey

has failed to argue that the contract in this case is distinguish-

able from Logue or that the JCDC should not be considered an

independent contractor under the same reasoning. Accord-

ingly, the United States cannot be held liable under the FTCA

for the actions of the Kankakee Defendants, and liability must

be premised solely on the actions of the federal employees.

The only actions that fall within that category are the

decision by Jeffrey Goble, a supervisory deputy marshal, as to

where to place White initially, and the subsequent refusal to

transfer White from that facility at the request of Downey. As

to those placement and transfer decisions, liability under the

FTCA is impacted by the discretionary function exception,

which shields the government from liability for “an act or

omission of an employee of the Government, exercising due

care, in the execution of a statute or regulation, whether or not

such statute or regulation be valid, or based upon the exercise

or performance or the failure to exercise or perform a discre-

tionary function or duty on the part of a federal agency or an

8 No. 17-1063

employee of the Government, whether or not the discretion

involved be abused.” 28 U.S.C. § 2680(a).

The discretionary function exception is an affirmative

defense to liability, and two requirements must be met under

that exception. Keller v. United States, 771 F.3d 1021, 1023 (7th

Cir. 2014). First, the act at issue must be discretionary rather

than mandatory, in that it involves an element of judgment or

choice. Id. Accordingly, if the act at issue “deviates from a

course of action prescribed by federal statute, regulation or

policy,” the employee’s acts are not discretionary and therefore

are not immune from suit. Id.; United States v. Gaubert, 499 U.S.

315, 322 (1991). Second, in order to fall within the discretionary

function exception, the government actions and decisions must

be based on considerations of public policy. Keller, 771 F.3d at

1023.

The Marshals Service has a statutory duty to “provide for

the safe-keeping of any person arrested … pending commit-

ment to an institution,” and it is authorized to fulfill that duty

by placing prisoners in federal institutions or by contracting

with state and local governments to house those prisoners. 18

U.S.C. §§ 4086, 4002. Those contracts with local facilities, called

Intergovernmental Agreements (IGAs), ensure that minimum

standards of confinement and services are provided, including

requiring that detainees receive medically necessary health

care services whether within the institution itself or at a remote

location such as at a hospital. The JCDC, for instance, had a

larger medical staff on site, and offered more extensive medical

services, than other available facilities according to Goble. And

it is undisputed that the JCDC officials had the authority to

No. 17-1063 9

send any inmate to the emergency room without approval

from the Marshals Service.

The Marshals Service monitors compliance with those

conditions through inspections that occur at least once a year.

In choosing where to place a detainee, therefore, the Marshals

Service chooses among federal institutions or those state or

local facilities with which it has an IGA. But no provision,

statutory or otherwise, mandates the specific facility in which

to place an individual prisoner. The determination as to where

to house a federal prisoner is precisely the sort of discretionary

act that falls within the discretionary function exception.

Although Lipsey points to the requirement to provide ade-

quate medical care to inmates, that obligation is met in the IGA

which imposes that obligation on the facilities and which is

monitored through inspection. The decision at issue here is not

the choice as to whether to provide medical care; it is the

determination as to which—among the qualified facilities—is

most appropriate for a particular inmate. That is quintessen-

tially a discretionary decision. See Bailor v. Salvation Army, 51

F.3d 678, 685 (7th Cir. 1995) (decision to transfer an inmate to

a halfway house falls within discretionary function exception

because the decision is a discretionary one and involved

considerations of public policy)

Moreover, the second prong of the discretionary function

exception is met as well. Inherent in such placement and

transfer decisions are considerations of public policy such as

concerns with security, cost, overcrowding, medical care, and

the suitability of each facility to meet the needs of the prisoner.

See Bailor, 51 F.3d at 685 (decision to transfer inmates to

halfway house involves policy considerations such as social

10 No. 17-1063

considerations of integrating prisoners into society and the

costs of incarceration); see also Meachum v. Fano, 427 U.S. 215,

225 (1976) (in a different context, noting that the transfer of a

prisoner is the type of discretionary action made for varied

reasons and involving considerations of what would best serve

institutional security or the safety and welfare of the inmate).

In fact, Goble based the placement decision on one of those

concerns, the availability of medical care for White’s preg-

nancy. He chose the JCDC because, among the jails with which

the Marshals Service had an IGA, he believed that it had the

best medical facilities. The evidence of record indicates that his

belief was not unfounded. The JCDC had a larger on-site

medical staff including two doctors, a physician assistant, a

registered nurse, a licensed practical nurse, and two on-call

nurses. None of the available IGA facilities had an on-site

obstetrician, but the JCDC had an ongoing relationship with

off-site obstetricians to provide such services to its inmates.

The record is clear that the placement decision rests on

considerations of public policy such as the provision of

adequate medical care. The same policy considerations inhere

in any decision as to whether to transfer a prisoner. Accord-

ingly, the district court properly determined that the actions in

deciding to place White at JCDC and in retaining her there

rather than transferring her at that late stage in her pregnancy

fell within the discretionary function exception to the waiver

of sovereign immunity in the FTCA. As to those actions the

United States retains sovereign immunity, and the district

court properly granted summary judgment to the United States

on that ground.

No. 17-1063 11

We turn then to the district court’s grant of summary

judgment to the Kankakee Defendants, some of whom pro-

vided medical care (“the medical defendants”) and some of

whom did not (“the non-medical defendants”). Lipsey argued

that all of the Kankakee defendants were negligent in the

management, monitoring, care and treatment of White’s

pregnancy. The district court based its decision on § 4-105 of

the Tort Immunity Act, which provides that “[n]either a local

public entity nor a public employee is liable for injury proxi-

mately caused by the failure of the employee to furnish or

obtain medical care for a prisoner in his custody; but this

Section shall not apply where the employee, acting within the

scope of his employment, knows from his observation of

conditions that the prisoner is in need of immediate medical

care and, through willful and wanton conduct, fails to take

reasonable action to summon medical care.” 745 ILCS 10/4-105.

As the district court held, that provision establishes that as to

injuries that resulted from the failure to furnish or obtain

medical care for a prisoner in custody, a public employee is

liable only if two criteria are met: first, that she knew based on

her observation that immediate medical care was needed, and

second, that the failure to take reasonable action to provide

that medical care was willful and wanton. The district court

determined that neither step was met here.

We look first at the medical defendants. The court held that

there was no evidence that any of the medical providers at

JCDC were aware from personal observation that White or her

pregnancy were in danger or required immediate medical care

prior to the morning of September 22, 2009. According to the

court, “[t]he evidence … shows, at best, that Defendants were

12 No. 17-1063

aware that White was in her last trimester of pregnancy, had

blood pressure of 161/86 on admission, repeatedly denied

experiencing any problems or complications with her preg-

nancy, and made no request for medical attention until the

morning of September 29, 2009.”

At worst, up until that time the medical defendants may

have been negligent in overlooking the significance of White’s

elevated blood pressure when she arrived at JCDC and her

September 16 labor pains. But mere negligence is not enough.

The district court held that Lipsey failed to establish that the

medical defendants’ failure to provide the necessary medical

care was willful and wanton. At the first instance in which the

need for immediate care was apparent, the morning of Septem-

ber 22, 2009, the medical providers immediately summoned

such medical care, calling for paramedics within three minutes

of being notified that White was in pain, with the result that

the ambulance arrived at the JCDC only twelve minutes after

they were first alerted to her condition. Accordingly, the court

held that there was no evidence that the medical defendants

willfully and wantonly failed to summon immediate care when

needed.

After two pages of analysis applying § 4-105 of the Tort

Immunity Act, the district court determined that the Kankakee

Defendants were entitled to immunity under that provision. In

one ensuing sentence, the court considered §§ 6-105 and 6-106

of the Tort Immunity Act, concluding that, “[g]iven this record,

the Court also finds that they would be entitled to immunity

under §§ 6-105 and 6-106, as there is no evidence establishing

that they should have made a different diagnosis before White

began having problems on September 22, 2009, or failed to

No. 17-1063 13

administer prescribed treatment.” The court then held that the

Kankakee Defendants were therefore entitled to summary

judgment.

Although the district court based its decision of immunity

on § 4-105 of the Tort Immunity Act, with only a passing nod

to immunity under §§ 6-105 and 6-106 as well, the plaintiff

failed to assert any argument concerning § 4-105. That statu-

tory provision is not cited in the appellant’s opening brief, nor

is the willful and wanton standard discussed or applied. By

failing to attack the basis of the district court’s grant of sum-

mary judgment, the plaintiff has waived such argument on

appeal. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 571 (7th

Cir. 2012). But we note that as stated above, even if we were to

consider that standard, the district court properly held that

there is no genuine issue of fact as the evidence at best showed

mere negligence not willful and wanton conduct as required to

avoid immunity under § 4-105.

The district court also properly granted summary judgment

as to the non-medical defendants, as to whom a negligence

standard applies. The plaintiff argues that the non-medical

defendants were negligent in failing to confirm the availability

of necessary care before accepting the transfer, but the record

does not support such a determination. At the time White was

accepted into the JCDC, the non-medical defendants knew that

that the JCDC had housed pregnant inmates in the past and

had provided medical care to those inmates. They had no

reason to believe they would be unable to provide that same

care for White as well. To the extent that they had any personal

involvement after that point, they were entitled to rely on the

judgment of their medical staff thereafter and nothing indicates

14 No. 17-1063

that they failed to do so. Therefore, the district court properly

granted summary judgment to the non-medical defendants as

well.

In a case such as this one, with tragic injuries to a newborn,

the weight of the situation is ever-present in our minds. But we

are entrusted here to determine only whether the district court

properly applied the law to the defendants who are before us

in this case. We hold that the district court properly granted

summary judgment.

Accordingly, the decision of the district court is

AFFIRMED.