Tyrone Gabb v. Wexford Health Sources, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-2351

TYRONE GABB,

Plaintiff-Appellant,

v.

WEXFORD HEALTH SOURCES,

INC., et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois

No. 15-cv-01415 — J. Phil Gilbert, Judge.

____________________

ARGUED MARCH 28, 2019 — DECIDED JUNE 17, 2019

____________________

Before RIPPLE, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge. While serving a prison sentence at

the Lawrence Correctional Center in Illinois, Tyrone Gabb ex-

perienced severe back pain whenever he stood too long (15 to

20 minutes). After treatments he received did not relieve his

pain, Gabb sued two members of the medical staff at Law-

rence, Dr. John Coe and Nurse Tammy Kimmel, alleging they

were deliberately indifferent to his back pain in violation of

2 No. 18-2351

his constitutional right to be free from cruel and unusual pun-

ishments. Gabb also sued Wexford Health Sources, Inc., the

private company that provided medical services at Lawrence.

The district court granted summary judgment to all defend-

ants, and Gabb appeals. Because Gabb has not presented any

evidence showing the defendants caused him any harm, we

affirm.

I.

This case comes to us on appeal from the grant of sum-

mary judgment, so we present the facts “in the light most fa-

vorable to [Gabb] and draw all inferences in [Gabb’s] favor.”

Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017).

Dr. Coe was the medical director at Lawrence. He first saw

Gabb for back pain in January 2014. Coe performed an x-ray,

but he did not prescribe medication. When he saw Gabb a

month later, Coe confirmed Gabb had pain in his lower back,

but he again did not prescribe medication.

In September 2014, Gabb underwent another x-ray. This

time, Coe diagnosed Gabb with chronic back pain and pre-

scribed the painkiller Motrin and the muscle-relaxer Robaxin.

When Gabb saw Coe again a month later, he told Coe the

medications did little. Coe ordered Gabb a back support and

changed Gabb’s painkiller prescription from Motrin to

Naproxen. Later that month, Gabb complained to a nurse the

back support and the painkillers were not providing relief. In

February 2015, a physician’s assistant discontinued Gabb’s

Naproxen and prescribed Tylenol instead.

In March 2015, Gabb reported to the infirmary with ab-

dominal pain and encountered Nurse Kimmel. Gabb told

No. 18-2351 3

Kimmel he had osteoarthritis in his lower back and he be-

lieved the Tylenol was causing his stomach pain. He re-

quested a referral to a doctor so he could get a different med-

ication. Because Gabb’s reason for seeking treatment was ab-

dominal pain, the only medication Kimmel could have ad-

ministered pursuant to protocol was an antacid. Kimmel did

not refer Gabb to a doctor or give him an antacid, but instead

told him “to (1) lower his dose of Tylenol; (2) drink plenty of

fluids and eat properly; (3) plan on attending his follow-up

appointment with the physician’s assistant in June; and (4)

come back to the infirmary if his symptoms worsened.”

In early April 2015, Gabb reported to the infirmary again

complaining of abdominal pain he believed was caused by the

Tylenol. Gabb testified in his deposition that as he came to the

room, Kimmel “immediately notified [him] that she was not

going to refer [him] to any physician because [he] was not in

pain.” Gabb says he tried to tell Kimmel about his back pain,

but “she verbally abused” and swore at him. She did not refer

Gabb to a physician or consult with one concerning an appro-

priate course of treatment.

At the end of April, Gabb reported to the infirmary for ab-

dominal pain a third time. On this occasion, because he had

reported more than twice with the same complaint, he re-

ceived a referral to Dr. Coe. When he saw Coe a week later,

Coe re-prescribed Naproxen, prescribed Vitamin D (which

Coe believed could help with muscle spasms and tightness),

and tightened Gabb’s back support. Coe told Gabb better

treatment was available, but Wexford would not pay for it.

Coe saw Gabb again in the summer of 2015. Gabb com-

plained the Naproxen was not working. Coe tightened Gabb’s

4 No. 18-2351

back brace, demonstrated therapy exercises that could reduce

the pain, and suggested Gabb exercise.

In August 2015, a physician’s assistant saw Gabb. The

physician’s assistant reported Gabb’s pain was increasing and

he suffered from a decreased range of motion. Gabb also had

a slower gait and reported tingling in his toes. The physician’s

assistant prescribed Mobic, an anti-inflammatory drug.

In September 2015, Coe saw Gabb again. Gabb reported

the pain was creeping into his middle back from his lower

back. Coe discontinued the Mobic and re-prescribed Robaxin.

In October 2015, Coe diagnosed Gabb with mild degenerative

disk disease and again prescribed Robaxin. He again told

Gabb better treatments were available, but he would not refer

Gabb because those treatments were too expensive. He also

told Gabb that Wexford did not run a pain clinic. Later that

month, Coe again prescribed Naproxen. In November 2015,

Coe declined a low-bunk request for Gabb. That was the last

of Coe’s interactions with Gabb. At the time of his deposition

in 2017, Gabb testified he was under the care of a different

physician and was still prescribed Naproxen, though he was

not taking it because it was ineffective.

Gabb sued Coe, Kimmel, and their employer, Wexford, in

December 2015, claiming they violated his right to be free

from cruel and unusual punishments. The district court re-

ferred the case to a magistrate judge. Coe and Kimmel moved

for summary judgment. The magistrate judge recommended

denying the motion. The judge found evidence showing Gabb

suffered from a serious medical condition. The judge con-

cluded a reasonable jury could find Coe was deliberately in-

different to that condition because he continued to prescribe

the same medication knowing it was ineffective and made

No. 18-2351 5

treatment decisions based on costs, not medical judgment.

The judge also concluded a reasonable jury could find Kim-

mel deliberately indifferent because she was aware of Gabb’s

back pain, yet refused to provide any medication or refer

Gabb to a doctor.

Coe and Kimmel objected to the magistrate judge’s con-

clusions on deliberate indifference. The district court sus-

tained the objections, rejected the magistrate judge’s recom-

mendation, and granted the motion for summary judgment.

In doing so, the district court catalogued the medical care Coe

provided Gabb, concluding it represented a “thorough exer-

cise of medical discretion via numerous treatment strategies,”

not “dogged persistence.” The district court wrote off Coe’s

comments about the availability of “better treatment” because

“[a]ll of the evidence indicates that Dr. Coe’s medical treat-

ment of Gabb involved the exercise of medical discretion and

was not blatantly inappropriate.” The district court also con-

cluded Kimmel had provided constitutionally sufficient care;

Gabb was just disagreeing with his treatment plan by request-

ing a different pain medication. Having concluded there was

no underlying constitutional violation, the district court

granted summary judgment sua sponte to Wexford.

II.

Gabb appeals the entry of summary judgment for the de-

fendants. We review de novo. Estate of Simpson, 863 F.3d at 745.

We will affirm “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” See FED. R. CIV. P. 56(a). “By its

very terms, this standard provides that the mere existence of

some alleged factual dispute between the parties will not de-

feat an otherwise properly supported motion for summary

6 No. 18-2351

judgment; the requirement is that there be no genuine issue of

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–

48 (1986). Thus, “summary judgment must be entered ‘against

a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.’” Cooper

v. Lane, 969 F.2d 368, 371 (7th Cir. 1992) (quoting Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986)). “We may affirm the grant

of summary judgment on any ground supported by the rec-

ord, as long as the parties adequately presented the issue be-

fore the district court and the nonmoving party had an oppor-

tunity to contest it.” de Lima Silva v. Dept. of Corrections, 917

F.3d 546, 558 (7th Cir. 2019).

A. Coe and Kimmel

Gabb brings this suit under 42 U.S.C. § 1983, which creates

a tort remedy for those injured by the deprivation of a consti-

tutional right. See Roe v. Elyea, 631 F.3d 843, 863–64 (7th Cir.

2011). In order to succeed in a § 1983 suit, a plaintiff must “es-

tablish not only that a state actor violated his constitutional

rights, but also that the violation caused the plaintiff injury or

damages.” Id. at 864.

Gabb claims his medical treatment at Lawrence violated

his right to be free from cruel and unusual punishments. The

Eighth Amendment to the United States Constitution reads:

“Excessive bail shall not be required, nor excessive fines im-

posed, nor cruel and unusual punishments inflicted.” The Su-

preme Court tells us the proscription of cruel and unusual

punishments creates an “obligation to provide medical care”

to prisoners. Estelle v. Gamble, 429 U.S. 97, 102–03 (1976); John-

son v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006). This does

not mean prisoners are “entitled to receive unqualified access

No. 18-2351 7

to healthcare.” Burton v. Downey, 805 F.3d 776, 785 (7th Cir.

2015) (internal quotation marks omitted) (quoting Hudson v.

McMillian, 503 U.S. 1, 9 (1992)). Nor does it turn medical mal-

practice into a constitutional violation. See Snipes v. DeTella, 95

F.3d 586, 590–91 (7th Cir. 1996) (“Such matters are questions

of tort, not constitutional law.”). Instead, the Eighth Amend-

ment, as the Supreme Court has interpreted it, “protects pris-

oners from prison conditions that cause ‘the wanton and un-

necessary infliction of pain,’ including … grossly inadequate

medical care.” Pyles v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014)

(citations omitted) (quoting Rhodes v. Chapman, 452 U.S. 337,

347 (1981)).

We use a two-part test to determine if medical care

amounted to cruel and unusual punishment. Petties v. Carter,

836 F.3d 722, 727–28 (7th Cir. 2016) (en banc). We ask

“whether a plaintiff suffered from an objectively serious med-

ical condition” and “whether the individual defendant was

deliberately indifferent to that condition.” Id. at 728.

In this case, the magistrate judge found evidence to con-

clude Gabb’s back pain qualified as an objectively serious

medical condition. Coe and Kimmel did not object to that

finding to the district court, and do not argue the point here.

See generally Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th

Cir. 1999) (“If a party fails to object to a magistrate judge’s re-

port and recommendation in the district court, in this Circuit

he waives appellate review of both factual and legal ques-

tions.”). So, we turn to deliberate indifference.

In Petties, this court, sitting en banc, expounded on the de-

liberate indifference standard at length. 836 F.3d at 728–31.

“[D]eliberate indifference” requires a “subjective state of

mind” somewhere between negligence and intention. Id. at

8 No. 18-2351

728. To show deliberate indifference, “a plaintiff must pro-

vide evidence that an official actually knew of and disre-

garded a substantial risk of harm.” Id.

Gabb charges Coe and Kimmel with deliberate indiffer-

ence. He maintains Coe was deliberately indifferent by per-

sisting in a course of ineffective treatment despite available

alternatives because of cost, and he maintains Kimmel was

deliberately indifferent by failing to refer him to a physician

or prescribe him pain medication. However, we need not de-

cide whether Coe and Kimmel’s conduct rose to the level of

deliberate indifference because, even if it did, Gabb has not

shown an injury as a result of their actions.

1. Coe

Gabb has not presented any evidence by which a jury

could reasonably find Gabb experienced harm at Coe’s hands.

Gabb’s entire argument is he suffered because of Coe’s refusal

to adopt a “better” course of treatment because it was too ex-

pensive. But Gabb does not tell us what that specific treatment

was or how it would have alleviated his back pain. Gabb tes-

tified Coe mentioned surgery and medications (though he

cannot remember which ones) and now tells us the “better”

treatment could also have been cortisone shots or a referral to

a specialist, but he provides no details. And even if he was

more specific about the “better” treatments, Gabb has no evi-

dence that any course of treatment, be it as simple as referral

to a chiropractor or as involved as surgery at the finest hospi-

tal in Illinois, would have provided him any relief from his

chronic back pain. See Petties, 836 F.3d at 733 (concluding the

plaintiff could not pursue his claim against the prison doctor

for failing “to explore surgery as an option” in part because

No. 18-2351 9

the plaintiff “did not produce medical evidence confirming

that he would have benefited from surgery”).

It is not enough that Coe referred to these other, unknown

treatments as “better.” “Better” is not synonymous with

“good” or “effective.” Most people would consider falling

from five feet as better than falling from twenty, but neither

would likely be good for one’s health. Gabb’s evidence sug-

gesting his condition declined during the relevant time pe-

riod—he suffered a reduced range of motion, experienced tin-

gling in his toes, and the pain spread to his middle back—is

also insufficient to show harm as a result of Coe’s treatment.

He has no evidence by which a reasonable jury could con-

clude Coe’s alleged failure to refer him to “better” treatment

caused that decline. See Langston v. Peters, 100 F.3d 1235, 1240

(7th Cir. 1996) (“[A]n inmate who complains that delay in

medical treatment rose to a constitutional violation must

place verifying medical evidence in the record to establish the

detrimental effect of delay in medical treatment to succeed.”

(quoting Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995))).

At oral argument, Gabb compared his situation to that of

the plaintiff in Berry v. Peterman, 604 F.3d 435, 438–39 (7th Cir.

2010), whose persistent complaints of tooth pain were even-

tually remedied by a root canal. But unlike the plaintiff in

Berry, Gabb cannot show he suffered from “serious but avoid-

able pain.” Id. at 438 (emphasis added). There is no evidence

Coe’s decision to continue conservative forms of treatment in

any way negatively affected Gabb’s health.

The lack of evidence of what the “better” treatments were

and whether they would have been effective would leave a

jury entirely to its own imagination about what could have

10 No. 18-2351

been done. Such unmitigated speculation cannot defeat sum-

mary judgment. See Austin v. Walgreen Co., 885 F.3d 1085, 1089

(7th Cir. 2018).

2. Kimmel

The same evidentiary deficiency dooms Gabb’s claim

against Kimmel. Gabb faults Kimmel for not referring him to

a doctor or giving him a different pain medication when Kim-

mel saw him in 2015. But even if those omissions amounted

to deliberate indifference, there is no evidence they harmed

Gabb. Gabb has presented nothing suggesting that if he had

seen a doctor or received different medication soon after see-

ing Kimmel it would have reduced his back pain. See Lang-

ston, 100 F.3d at 1240. With no evidence that Kimmel’s con-

duct harmed him, he is not entitled to recovery under § 1983.

B. Wexford

We must also address the district court’s sua sponte grant

of summary judgment to Wexford. The court’s authority to

enter judgment sua sponte comes from Federal Rule of Civil

Procedure 56(f), which provides: “After giving notice and a rea-

sonable time to respond, the court may: (1) grant summary judg-

ment for a nonmovant … ” (emphasis added).

We emphasize the prefatory phrase because the district

court did not give notice of its intent to grant summary judg-

ment for Wexford before it did so. That was error. Cf. Williams

v. City of Chicago, 733 F.3d 749, 755 (7th Cir. 2013) (“It is not

appropriate to grant summary judgment based on facts the

moving party did not rely on, at least without giving the los-

ing party advance notice and an opportunity to be heard.”).

The court should have given the parties notice of some sort

before it entered summary judgment for Wexford. See, e.g.,

No. 18-2351 11

Baemmert v. Credit One Bank, N.A., 271 F. Supp. 3d 1043, 1053,

1054 (W.D. Wis. 2017) (giving the plaintiff one week to explain

why the court should not grant summary judgment); Cook v.

Knight (In re Knight), 574 B.R. 800, 818 (Bankr. N.D. Ga. 2017)

(giving the plaintiff 24 days to show cause why the court

should not grant summary judgment).

Nevertheless, that technical error does not compel a re-

mand. Summary judgment for Wexford was clearly appropri-

ate because Gabb has no evidence of harm. A plaintiff can

bring a Monell-style claim against a private corporation acting

under color of state law. Whiting v. Wexford Health Sources,

Inc., 839 F.3d 658, 664 (7th Cir. 2016). To be liable, the corpo-

ration must have “maintained an unconstitutional policy or

custom.” Perez v. Fenoglio, 792 F.3d 768, 780 (7th Cir. 2015).

That policy or custom must cause the injury that is the basis

of the plaintiff’s § 1983 claim. See Woodward v. Correctional

Med. Servs. of Ill., Inc., 368 F.3d 917, 928 (7th Cir. 2004). Because

Gabb cannot show he suffered any injury based on his medi-

cal treatment at Lawrence, he cannot show any Wexford pol-

icy or custom harmed him. Accordingly, his claim against

Wexford is bound to fail. As we know Gabb cannot win, we

will not go through the pointless exercise of remanding the

case. See Hassebrock v. Bernhoft, 815 F.3d 334, 343 n.3 (7th Cir.

2016) (declining to “remand a case for trial when we know the

plaintiffs cannot win,” calling it “a waste of time, money, and

judicial resources”).

III.

The judgment of the district court is AFFIRMED.