Ricardo Glover v. Kevin A. Carr

In the

United States Court of Appeals

For the Seventh Circuit

No. 18‐3028

RICARDO GLOVER,

Plaintiff‐Appellant,

v.

KEVIN CARR, Secretary of the

Wisconsin Department of Corrections,

in his official capacity, et al.,

Defendants‐Appellees.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:16‐cv‐01048‐LA — Lynn Adelman, Judge.

ARGUED NOVEMBER 5, 2019 — DECIDED FEBRUARY 6, 2020

Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. Ricardo Glover, a Wisconsin inmate,

sued prison medical staff and Wisconsin Department of

Corrections officials for deliberate indifference and for violat‐

ing his right to equal protection after they denied him medicine

2 No. 18‐3028

prescribed for post‐surgical erectile dysfunction. See 42 U.S.C.

§ 1983; Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291

(1976) (deliberate indifference to a prisoner’s serious medical

needs constitutes unnecessary and wanton infliction of pain

proscribed by Eighth Amendment). Glover alleges that

treatment of his erectile dysfunction was both necessary for

penile rehabilitation and time sensitive in the sense that he was

at risk of suffering permanent loss of erectile function if his

condition was left untreated for too long following surgery.

The defendants argued at summary judgment that the Depart‐

ment’s then‐current medical director was wholly responsible

for the challenged decision, but Glover had sued only the

former director and other uninvolved parties. Glover moved

to substitute the new director as a defendant, but the court

(twice) denied the motion. It entered summary judgment for

the defendants on Glover’s claim for damages and then

deemed his claim for injunctive relief voluntarily withdrawn,

in order to finalize the decision for appeal.

Glover appealed the judgment pro se. Following our review

of the initial briefing, we appointed counsel to represent

Glover, ordered re‐briefing, and set the case for argument. We

now conclude that the district court abused its discretion by

not allowing Glover to amend his complaint. We vacate the

judgment and remand the case in order to allow Glover to

proceed against the appropriate medical director in his

individual capacity. We affirm the remainder of the judgment.

I.

In December 2015, while he was incarcerated with the

Wisconsin Department of Corrections (“WDOC”), Glover was

No. 18‐3028 3

diagnosed with an aggressive form of prostate cancer, and he

elected to have surgery to remove his prostate the following

month; since that time he has suffered from erectile dysfunc‐

tion. After the surgery, Glover’s off‐site urologist recom‐

mended that Glover medically rehabilitate his penile function

by taking Cialis (tadalafil). To be clear, the purpose of this

recommendation was to preserve Glover’s long‐term erectile

function, as opposed to facilitating any sexual activity while

Glover remained incarcerated.1 As noted, Glover alleges that

he was at risk of losing his erectile function permanently if he

did not receive timely treatment.

Because Cialis was not on the WDOC’s formulary of

approved medications, Glover’s prison physician instead

prescribed Tolterodine, which addresses not erectile dysfunc‐

1

By way of background, we note that tadalafil is one of several phospho‐

diasterase type 5 (or PDE5) inhibitors which promote and prolong erections

by increasing the flow of blood to the penis upon sexual stimulation. “PDE5

inhibitors are considered by most investigators and clinicians as the first‐

line treatment for [erectile dysfunction] after [radical prostatectomy], and

remain the common element in most rehabilitation programs.” Ateş

Kadio™lu, et al., Tadalafil therapy for erectile dysfunction following prostatectomy,

7(3) THERAPEUTIC ADVANCES IN UROLOGY 146, 150 (June 2015). PDE5

inhibitors like tadalafil are thought, but not known, to aid in penile

rehabilitation by facilitating the delivery of oxygenated blood to the penile

tissues, which in turn may help to preserve penile structures, length, and

smooth muscle. Id. at 147–49. “There is little consensus on the optimal

management [of post‐surgical erectile dysfunction]; however, it is agreed

that treatment must be prompt to prevent fibrosis and increase oxygenation

of penile tissue.” Alan Saleh, et al., Management of erectile dysfunction post‐

radical prostatectomy, 7 RESEARCH AND REPORTS IN UROLOGY 19, 19 (Feb.

2015); see also id. at 20.

4 No. 18‐3028

tion but urinary incontinence, another common side effect of

prostate removal—and one which Glover initially experienced.

But after Glover suffered from back pain while taking Toltero‐

dine, his prison physician wrote him a prescription for Cialis

and completed a form requesting approval for the prescription

notwithstanding its absence from the WDOC formulary.2

Dr. Ryan Holzmacher, the medical director of the WDOC’s

Bureau of Health Services at all relevant times, co‐chaired the

committee that decides which medications to list on the

formulary, and he was responsible for reviewing requests for

non‐formulary medication on a case‐by‐case basis. Glover’s

request for Cialis was passed on to Dr. Holzmacher, who

denied it. After a follow‐up examination, Glover’s urologist

again recommended that Glover be prescribed Cialis for

rehabilitation and preservation of his erectile function,3 and the

prison physician followed suit. But Glover was never given the

prescribed medication.

After exhausting his administrative remedies, Glover sued

prison medical staff and WDOC officials in their personal and

official capacities, including Dr. Holzmacher’s predecessor,

who personally played no role in these events. Glover alleged

that they were deliberately indifferent to his erectile dysfunc‐

tion in violation of the Eighth Amendment. He also alleged

that they violated his right to equal protection by treating him

2

Although the district court assumed that Cialis would be prescribed

solely for erectile dysfunction, R.120 at 2 n. 1, there is nothing in the record

indicating that Cialis was not part of a plan to treat all of Glover’s symp‐

toms, including urinary incontinence and erectile dysfunction.

3

By this time, Glover’s urinary continence had substantially improved.

No. 18‐3028 5

worse than transgender inmates who received transition‐

related hormonal treatment. Glover sought damages and a

preliminary and permanent injunction requiring the Depart‐

ment to provide him Cialis. The district court denied Glover’s

motion for an emergency preliminary injunction without a

hearing because, it determined, Glover was unlikely to

establish that erectile dysfunction was a serious medical

condition, as required to succeed on his deliberate indifference

claim. R. 106 at 3.

During discovery, Glover authorized the defendants to

access his medical records. He later revoked that authorization,

however, because he was convinced that they submitted to the

court inauthentic, incomplete, and improperly redacted

versions.

The defendants moved for summary judgment. Regarding

Glover’s deliberate indifference claim, they argued that

Dr. Holzmacher, whom Glover did not sue, was responsible

for denying the Cialis. They also asserted that erectile dysfunc‐

tion is not a serious medical need. Glover’s equal protection

claim, they continued, failed because inmates with erectile

dysfunction are not comparable to transgender inmates, so he

had not shown that he was treated differently from similarly

situated inmates.

Glover then moved the district court to substitute

Dr. Holzmacher for the former medical director as a defendant.

Glover explained that the defendants had not informed him

until summary judgment that Dr. Holzmacher was the medical

director who denied his request. The district court denied his

motion, explaining that “defendants have a right to defend

6 No. 18‐3028

themselves,” and “[Dr.] Holzmacher will be unable to defend

himself” because Glover had revoked access to his records.

R. 106 at 5.

The court then entered partial summary judgment for the

defendants. It agreed with the defendants that Glover had not

shown that any of them was personally involved in depriving

him of Cialis. R. 120 at 3. It also agreed with their argument

that erectile dysfunction treatment was not comparable to

hormone therapy, so Glover had not shown a violation of

equal protection. R. 120 at 8–9. The court, however, concluded

that there was a material factual dispute about whether

Glover’s erectile dysfunction presented a serious medical need,

R. 120 at 5–6, and it allowed Glover to continue pursuing

injunctive relief from two defendants in their official capacities,

R. 120 at 3–4, 7–8. It recruited counsel to help Glover prepare

for trial, but counsel soon moved to withdraw.

The district court held a status hearing during which it

made two pertinent rulings. (The telephonic hearing was

neither recorded nor transcribed, so we recite the events as the

district court described them in an order.) First, the court

denied Glover’s renewed request to seek damages from

Dr. Holzmacher, instead of the former director, in his personal

capacity. This time, it reasoned that substitution would be

futile because Dr. Holzmacher merely enforced the Depart‐

ment’s policy against providing erectile dysfunction medica‐

tion to inmates, and thus Glover could not recover damages.

R. 129 at 3.

Second, because Glover wanted to appeal the decision on

his claim for damages, the court allowed Glover to voluntarily

No. 18‐3028 7

dismiss the pending official‐capacity claim for injunctive relief.

R. 129 at 3–4. The court inferred that Glover was willing to

forgo permanent injunctive relief because he said that he was

“mostly healed now.” R. 129 at 3. (According to Glover, he

expressed that he already had healed “incorrectly,” such that

“it may be impossible for him to achieve an erection” and

injunctive relief “could not help him now.” R. 131‐1 at 16.) The

district court then finalized its summary judgment decision

and dismissed the case with prejudice. R. 129 at 4; R. 130.

II.

The issues posed in this appeal are narrow. We are in‐

formed that Glover is no longer in custody, and consequently

he has no basis on which to seek injunctive relief against any

of the defendants. His sole interest is in bringing Dr.

Holzmacher into the case in his individual capacity so that he

may sue the doctor for damages for denying his request for a

non‐formulary drug. His appeal is therefore limited to the

contention that the district court erroneously denied him leave

to amend his complaint to name Dr. Holzmacher. The district

court should freely give leave to amend a complaint “when

justice so requires,” FED. R. CIV. P. 15(a)(2), but it may deny

leave to amend a complaint if the amendment would be futile,

see Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010). We

review a district court’s decision to deny a motion to amend

the complaint for an abuse of discretion. See Dubicz v. Common‐

wealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004).

Before we turn to the district court’s rationale for denying

Glover’s requests to amend his complaint, we must address the

defendants’ threshold argument that any such amendment

8 No. 18‐3028

would be pointless, as Dr. Holzmacher would surely be

entitled to qualified immunity. In order for Dr. Holzmacher to

be held personally liable, existing precedent must have made

it clear to a reasonable level of specificity that Glover’s condi‐

tion amounted to a serious medical need requiring treatment.

See Campbell v. Kallas, 936 F.3d 536, 545–47 (7th Cir. 2019); Estate

of Clark v. Walker, 865 F.3d 544, 552–53 (7th Cir. 2017). The

defendants reason that in the absence of precedent specifically

recognizing that erectile dysfunction amounts to a serious

medical need, it would not have been clear to Dr. Holzmacher

that the prison was obligated to heed the advice of Glover’s

off‐site urologist and prison physician and approve the

prescription for Cialis. Cf. Michtavi v. Scism, 808 F.3d 203,

206–07 (3d Cir. 2015) (prison officials entitled to qualified

immunity for failure to treat condition which might lead to

impotence and infertility).

As Dr. Holzmacher is not presently a party to the litigation,

we decline to resolve the matter of qualified immunity.

Qualified immunity is a personal defense, Walker v. Snyder,

213 F.3d 344, 346 (7th Cir. 2000), overruled on other grounds by

Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374

n.9, 121 S. Ct. 955, 968 n.9 (2001), and because it is

Dr. Holzmacher who potentially faces individual liability on

Glover’s claim, the defense is one for him to assert. As defense

counsel conceded at oral argument, the defendants—and,

presumably, Dr. Holzmacher himself—certainly would not

want us to resolve the immunity question adversely to

Dr. Holzmacher in his absence. For its part, the district court

did not rely on qualified immunity as a reason not to allow

Glover to bring Dr. Holzmacher into the case.

No. 18‐3028 9

At this juncture, it is enough for us to say that the answer

to the question is not so obvious that permitting Glover to hale

Dr. Holzmacher into the case would necessarily constitute a

futile act. Two different physicians, one of them a specialist

and one the WDOC’s own in‐house physician, deemed a Cialis

prescription necessary to address a known side effect of a

radical prostatectomy. See Gutierrez v. Peters, 111 F.3d 1364,

1373 (7th Cir. 1997) (serious medical need is, inter alia, one that

has been diagnosed by a physician as requiring treatment or

one which could result in further significant injury if left

untreated); Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011)

(refusing to provide prescribed medication or heed specialist’s

advice can violate Eighth Amendment); Estate of Clark, 865 F.3d

at 553 (for qualified immunity purposes, duty to treat prison‐

ers’ serious medical needs “need not be litigated and then

established disease by disease or injury by injury”).4 Moreover,

as Judge Adelman pointed out, a factfinder could infer from

the present record that Dr. Holzmacher’s refusal to approve

the prescription was based not on the exercise of individual‐

ized medical judgment but rather rote enforcement of a WDOC

policy that “categorically precludes treatment for [erectile

dysfunction],” on the premise that prisoners have no right to

engage in sexual activity so long as they remain incarcerated.

4

Cf. Lyons v. Brandly, 430 F. App’x 377, 381 (6th Cir. 2011) (non‐preceden‐

tial decision) (prisoner’s erectile dysfunction could not be said to be serious

medical condition where, inter alia, no physician indicated that its

treatment was required); Neal v. Suliene, 2008 WL 4167930, at *3 (W.D. Wis.

April 22, 2008) (prisoner’s erectile dysfunction could not be considered to

be serious medical condition where there was nothing to suggest, inter alia,

that if diagnosed by physician it would mandate treatment).

10 No. 18‐3028

R. 120 at 7 (citing Holzmacher Affidavit, R. 86 ¶ 8); compare

Campbell, 936 F.3d at 545–49 (granting qualified immunity to

prison officials who recognized prisoner’s need for treatment

but opted for one form of treatment over another), with Roe v.

Elyea, 631 F.3d 843, 859–60, 863 (7th Cir. 2011) (sustaining

district court’s denial of qualified immunity to prison physi‐

cian who denied treatment altogether based on prison medical

protocol categorically foreclosing antiviral treatment for

prisoners with fewer than 18 months remaining on their prison

terms). We hasten to add that nothing we have just said in that

regard should be read as pre‐judging the merits of any

invocation of qualified immunity. Our analysis, as we have

indicated, goes no farther than to conclude the answer to

whether Dr. Holzmacher would be entitled to qualified

immunity is not so obvious as to render the proposed amend‐

ment of Glover’s complaint futile. We otherwise leave the

matter of qualified immunity to the district court in the first

instance, without prejudice to any argument that Dr.

Holzmacher may wish to make in that regard, and we proceed

to consider whether the reasons the district court articulated

for rejecting Glover’s requests to bring Dr. Holzmacher into the

case in his personal capacity constitute an appropriate exercise

of the court’s discretion.

We agree with Glover that the court abused its discretion in

barring his efforts to name Dr. Holzmacher as an additional

defendant.5 The district court gave two reasons why the

5

Glover’s motion was styled not as a Rule 15 motion to amend but

rather as one to substitute parties pursuant to Federal Rule of Civil

(continued...)

No. 18‐3028 11

proposed amendment of the complaint was futile, but both rely

on faulty assumptions. It first determined that Dr. Holzmacher

would not be able to defend himself because Glover would not

let the other defendants access his medical records. The court

certainly had reason to be concerned on this point. But Glover

disallowed the other defendants, not Dr. Holzmacher, from

viewing his records after he suspected them of misusing the

documents. Indeed, the court never instructed Glover that he

would need to authorize Dr. Holzmacher to access the records

in order to sue him, and rather than giving Glover the opportu‐

nity to do so, the court assumed that he would refuse. The

parties agree that under 45 C.F.R. § 164.512(e), the court has the

authority to order the production of Glover’s medical records

to Dr. Holzmacher. Of course, if Glover withholds or interferes

with the production of any relevant records, the court has the

authority to present him with a choice: cooperate in the

production of his records or suffer an appropriate sanction, up

to and including the dismissal of his complaint. See Fed. R. Civ.

P. 37(b)(2)(A)(v); Collins v. Illinois, 554 F.3d 693, 696–97 (7th Cir.

2009) (per curiam).

(...continued)

Procedure 25(d). The latter rule was inapplicable here, as Glover was not

seeking to replace a public officer named in his official capacity who

ceased to hold office while the case was pending. Rule 25(d); see Hafer v.

Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991). But a pro se litigant’s

mistaken choice of rule should not be deemed fatal when the aim of his

request was clear. See Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir.

1998). The defendants concede (Appellee’s Br. 15 n.3) that Glover’s

request was properly construed as one to amend the complaint pursuant

to Rule 15(a)(2), and indeed, it appears that the district court understood

it as such.

12 No. 18‐3028

Second, the district court concluded that Glover could not

win damages because Dr. Holzmacher was merely enforcing

a policy against providing erectile dysfunction medications.

The record shows, however, that Dr. Holzmacher co‐chaired

the committee that creates the formulary and that he had the

authority to approve off‐formulary medicine. Indeed, the

defendants argued at summary judgment that only

Dr. Holzmacher was personally responsible for denying

Glover’s request for Cialis.

The defendants respond that Glover’s request to amend his

complaint was untimely, but the district court did not “base[]

its decision” on the motion’s timeliness, Watkins v. Trans Union,

LLC, 869 F.3d 514, 518 (7th Cir. 2017), so that point is irrelevant

to whether the court abused its discretion. In any case, the

argument is weak. Although Dr. Holzmacher’s name had

surfaced in discovery, it was not clear to Glover until summary

judgment that it was Dr. Holzmacher who was responsible for

denying him Cialis. Moreover, the existing defendants in their

individual capacities have no interest in any suit that Glover

may bring against Dr. Holzmacher. They can suffer no possible

prejudice from the amendment. And neither they nor the

district court offered any reason to believe that Glover was

dilatory or strategic in leaving Dr. Holzmacher out of the

lawsuit, rather than simply ignorant of his role. See Bausch, 630

F.3d at 562. Leave to amend a complaint should be granted

liberally. See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230

(1962). It is difficult to see why, under these circumstances, it

would not be in the interest of justice for Glover to be able to

sue the person that all agree is responsible for denying him

No. 18‐3028 13

access to Cialis. The court should have granted him leave to

amend his complaint.

With that point resolved, we need proceed no further.

Glover does not contest the district court’s decision to enter

summary judgment in favor of the originally‐named defen‐

dants for want of evidence that any of them were responsible

for denying him Cialis. Nor, at this point, does he challenge the

district court’s decisions to deny him a preliminary injunction

or to enter summary judgment in favor of the defendants on

his class‐of‐one equal protection claim.

Glover’s briefs do make the case that he has a valid Eighth

Amendment claim based on the prison’s refusal to fill his

prescription for Cialis in order to preserve his long‐term sexual

function. But we agree with the defendants that because it was

Dr. Holzmacher, rather than any defendant presently before

this court, who was responsible for the decision not to fill that

prescription, and because we have concluded Glover should be

permitted to amend his complaint in order to name

Dr. Holzmacher, the merits of Glover’s Eighth Amendment

claim should await the initiation of proceedings against

Dr. Holzmacher.

III.

We REVERSE the denial of leave to amend the complaint

and REMAND the case with instructions to allow Glover to

add Dr. Holzmacher as a defendant in his individual capacity.

The judgment is otherwise AFFIRMED. We thank Glover’s

appointed counsel for his vigorous advocacy on Glover’s

behalf.