Scott Hildreth v. Kim Butler

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-2660

SCOTT HILDRETH,

Plaintiff-Appellant,

v.

KIM BUTLER, LORI OAKLEY, and

WEXFORD HEALTH SOURCES, INC.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:15-cv-00831-NJR-DGW — Nancy J. Rosenstengel, Chief Judge.

____________________

ARGUED SEPTEMBER 19, 2019 — DECIDED MAY 19, 2020

____________________

Before SYKES, HAMILTON, and BRENNAN, Circuit Judges.

BRENNAN, Circuit Judge. Scott Hildreth, an inmate at an Il-

linois maximum-security prison, suffers from Parkinson’s

disease. He takes a prescription medication distributed by the

prison three times a day to manage his symptoms. On three

occasions Hildreth received his medication refill a few days

late, causing him to experience withdrawal symptoms. His

symptoms also render his handwriting illegible, so Hildreth

2 No. 18-2660

uses a typewriter to draft documents. He requested to keep

that typewriter in his cell, which the prison denied because it

was considered contraband. Instead, the prison provided Hil-

dreth with an assistant to help him draft documents and in-

creased access to the library where he can use a typewriter.

Feeling his treatment was lacking, Hildreth sued Wexford

Health Sources, Inc. and two jail administrators under 42

U.S.C. § 1983 and the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101 et seq., alleging they violated his

constitutional and statutory rights. The district court granted

summary judgment to the defendants. Because Hildreth has

not shown medication delays were a widespread practice or

custom at the prison, and he received reasonable accommo-

dations for his Parkinson’s disease, we affirm the district

court’s decision.

I. Background

A. Delays in Hildreth’s Medication

Hildreth’s Parkinson’s disease causes him to lose his bal-

ance, move uncontrollably, and occasionally fall. To alleviate

these symptoms, a prison doctor prescribed Mirapex, which

Hildreth contends made a “day and night” difference. As a

specialty prescription, Mirapex was not kept in stock at the

prison; instead, it was filled by an outside pharmacy. The

prison allows Hildreth to keep a monthly supply of 90

Mirapex pills in his cell.

To refill his prescription, Hildreth must submit a refill

sticker within seven days of the end of the prescription to a

nurse, who takes it to an outside pharmacy. Hildreth usually

receives his refill when he has three to five days of medication

left.

No. 18-2660 3

According to Hildreth, his prescription refill was delayed

“at least three times,” causing him to experience withdrawal

symptoms within a day or two. In each instance, he informed

his gallery officer, who instructed him to tell the nurse. The

nurse often told him to wait and see if the prescription would

arrive on time. When his medication was late, Hildreth would

file a grievance. For two of the three grievances, Hildreth re-

ceived his medication within a few days of his prescription

lapsing. Wexford’s medical director, Dr. Roderick Matticks,

testified the third lapse occurred in part because Hildreth

failed to attend the chronic clinic, where a Wexford physician

evaluates chronically ill inmates to assess their condition and

whether prescriptions should be continued. Dr. Matticks was

aware of these two or three instances in which Hildreth “had

some perceived delays in obtaining refills on his medica-

tions.”

B. Hildreth’s Request for a Typewriter

Hildreth used a typewriter instead of handwriting docu-

ments because his Parkinson’s symptoms rendered them il-

legible. But the prison, a maximum-security facility, banned

the typewriter from his cell as contraband. Hildreth also

claimed the prison discriminated against him based on his

Parkinson’s disease by failing to reasonably accommodate

him for his inability to write legibly.

To accommodate Hildreth’s request to draft documents,

he was placed on the automatic call line to the law library

when he was 90 days away from a court deadline. A counselor

was available to help him draft documents, and he could con-

tact an officer for emergencies. Hildreth also could use a type-

writer whenever he had access to the law library. Kim Butler,

the former assistant warden and ADA coordinator, granted

4 No. 18-2660

Hildreth access to the law library three days per week from

8:00 a.m. to 2:00 p.m. to use the typewriter.

In the summer of 2012, Hildreth filed a grievance request-

ing a permit allowing him to possess the typewriter in his cell.

Over two years later, on October 30, 2014, Hildreth filed a

grievance stating he needed staff assistance to file grievances.

Defendant Lori Oakley, a grievance officer, reviewed the com-

plaint and found it moot because Butler had provided Hil-

dreth with increased law library access and assistance to draft

grievances. Hildreth’s extra library access was later rescinded

after he was provided an ADA attendant to help write griev-

ances and pleadings. According to Hildreth, the ADA at-

tendant did not have a high school degree, could not spell,

and had sloppy handwriting. Hildreth concluded it was “not

even worth it” to use the attendant. The current ADA coordi-

nator, Angela Crain, noted if Hildreth did not want the at-

tendant, “he can simply request extra library time again in

lieu of the attendant and the ADA attendant will then be as-

signed to another inmate.”

Hildreth has not missed any court deadlines due to the

prison’s actions. Still, he testified he can do only a portion of

what he used to, which was to spend at least six hours a day

working on court filings with a typewriter in his cell. While

other inmates can draft handwritten court filings at any time

in their cells, Hildreth is limited to his time with the type-

writer in the library.

C. District Court Proceedings

Hildreth sued under 42 U.S.C. § 1983 alleging Wexford vi-

olated his Eighth Amendment right by intentionally not refill-

ing his Parkinson’s medication on time, and under the ADA

No. 18-2660 5

that defendants Butler and Oakley discriminated against him

by denying him access to a typewriter in his cell. Hildreth

sought damages for past harm as well as prospective injunc-

tive relief. While Hildreth initially sued pro se, the district

court appointed counsel for him. Through that counsel Hil-

dreth filed an amended complaint and engaged in discovery,

including deposing Wexford’s Rule 30(b)(6) designee.1

Wexford moved for summary judgment on Hildreth’s

§ 1983 claim. According to Wexford, Hildreth’s medication

was late only three times over a period of nineteen months,

too infrequent from which to infer a widespread practice or

custom of deliberate indifference. The district court agreed

and found only three documented instances when Hildreth

experienced medication delays over a period of nineteen

months:

 On April 8, 2014, Hildreth submitted a grievance

noting he was out of medication. The Warden de-

termined this was an emergency. A doctor saw Hil-

dreth the next day and renewed his medication for

1 Our dissenting colleague in Section I of his opinion sends out a warn-

ing “of obvious implications for discovery in the district courts” in future

cases. That section of the dissent references reports and other materials

which, the dissenting opinion admits, are outside of this case’s record.

Neither the result of this case nor this majority opinion’s reasoning opens

any doors to future similar litigation or expands the discovery in which

parties may engage. The scope of discovery is defined by the claims pur-

sued and the defenses raised. For the plaintiff’s part, he set those parame-

ters with the help of counsel. This majority opinion does not address dis-

covery because it was not an issue in this appeal.

6 No. 18-2660

one year, but Hildreth did not receive his medica-

tion until a later date. The record does not indicate

when he received this prescription.

 On October 25, 2014, Hildreth submitted another

grievance stating he was about to run out of his pre-

scription and had a couple days’ worth left. The

warden expedited this as an emergency. The griev-

ance officer then contacted the healthcare unit,

which stated Hildreth received the medication on

October 30, 2014.

 On November 16, 2015, Hildreth submitted a griev-

ance stating he had been out of his medication since

November 13. The Warden expedited this griev-

ance. The healthcare unit administrator advised the

grievance officer that Hildreth’s prescription had

expired and the request to continue using Mirapex

was sent to the pharmacy. The grievance officer re-

sponded on November 23, 2015, finding this griev-

ance moot. The record does not indicate when he

received this prescription.

Hildreth did not present evidence that any other inmates

experienced medication delays.2 The district court found that

three delays over the period of a year and a half involving

only Hildreth did not support an inference of a widespread

2 Hildreth’s other grievances did not relate to medication refill delays

or were inadmissible hearsay. For example, Hildreth’s October 30, 2014

grievance complained about the need for assistance in writing grievances,

not about refill delays. And Hildreth’s January 15, 2016 grievance referred

to the return of his November 16, 2015 grievance—again, not about refill

delays.

No. 18-2660 7

practice or custom, so summary judgment was granted to

Wexford.

Defendants Butler and Oakley also moved for summary

judgment on Hildreth’s ADA claim, arguing they reasonably

accommodated his disability. The district court considered

whether Hildreth, given his disability, was able to participate

in the activities in question with or without reasonable accom-

modations. The district court found he was able to use the law

library and access a typewriter three times per week for six

hours a day from August 2013 to July 2015. He also could con-

tact an officer in emergency situations, and a counselor was

available to assist. The increased library access was rescinded

only after Hildreth was assigned a personal ADA attendant.

Nevertheless, Hildreth could have requested extra library

time in lieu of using the attendant. Although Hildreth com-

plained the attendant was inadequate, Hildreth did not miss

any court deadlines.

Considering the prison’s security concerns and the fact

that Hildreth was able to successfully draft documents, the

district court found the prison’s accommodations reasonable

as a matter of law and granted summary judgment to Butler

and Oakley on this claim. Hildreth appealed.

II. Discussion

Summary judgment is proper when the admissible evi-

dence shows no genuine dispute as to any material fact and

the moving party is entitled to judgment as a matter of law.

See FED. R. CIV. P. 56; Barnes v. City of Centralia, 943 F.3d 826,

830 (7th Cir. 2019). We review de novo the district court’s

8 No. 18-2660

grant of summary judgment and construe all facts and rea-

sonable inferences in Hildreth’s favor. See Barnes, 943 F.3d at

828.

A. Section 1983 Claim

We start with Hildreth’s Eighth Amendment claim against

Wexford, which he brought under § 1983’s policy-or-custom

framework of Monell v. NYC Soc. Serv., 436 U.S. 658 (1978).3

Deliberate indifference to a prisoner’s serious medical needs

may constitute cruel and unusual punishment under the

Eighth Amendment. Campbell v. Kallas, 936 F.3d 536, 544–45

(7th Cir. 2019) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)).

To prevail on such a claim, a plaintiff must show his condition

was objectively, sufficiently serious and that the prison offi-

cials manifested deliberate indifference to his serious medical

needs. Id. at 545. To be sure, negligence, gross negligence, or

even recklessness as the term is used in tort cases is not

enough—the prison officials’ state of mind must rise to the

level of deliberate indifference. Burton v. Downey, 805 F.3d

776, 785 (7th Cir. 2015) (holding alleged two-day delay

3 In the alternative, Hildreth asks this court to apply a respondeat supe-

rior theory of liability to private corporations, like Wexford. This argument

is new on appeal and thus forfeited. See Hahn v. Walsh, 762 F.3d 617, 639

(7th Cir. 2014) (holding “plaintiffs have waived the issue of [a private com-

pany’s] respondeat superior liability [under § 1983] because they failed to

raise it before the district court”). While courts, including ours, have at

times used the terms waiver and forfeiture interchangeably, this court re-

cently clarified that forfeiture occurs where, as here, a party inadvertently

fails to raise an argument in the district court. United States v. Flores, 929

F.3d 443, 447 (7th Cir. 2019) (“Waiver occurs when a party intentionally

relinquishes a known right and forfeiture arises when a party inadvert-

ently fails to raise an argument in the district court.”).

No. 18-2660 9

providing medication to detainee was not deliberate indiffer-

ence).

Because Wexford is a “private corporation that has con-

tracted to provide essential government services [it] is subject

[under § 1983] to at least the same rules that apply to public

entities.” Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 378–79 (7th

Cir. 2017) (en banc). Hildreth does not point to an official un-

constitutional policy; instead, he claims Wexford has a cus-

tom of delaying prescriptions.4

To support a § 1983 claim on this theory, Hildreth must

show: (1) defendants’ practice in refilling prescriptions vio-

lated his constitutional rights; and (2) that practice was “so

pervasive that acquiescence on the part of policymakers was

apparent and amounted to a policy decision.” Phelan v. Cook

Cty., 463 F.3d 773, 789, 790 (7th Cir. 2006). This requires “more

than a showing of one or two missteps.” Id. There must be

“systemic and gross deficiencies.” Id. Even if such deficiencies

exist, Hildreth must show policymakers knew of the deficien-

cies and failed to correct them, manifesting deliberate indif-

ference. Id.

We put the first requirement to the side because Hildreth

has not provided enough evidence on the second to show a

practice of delaying prescriptions was widespread, which is

4 Our dissenting colleague labels Hildreth’s allegations a “policy”

claim, although the dissent admits Hildreth uses the term “custom” in his

briefing, and Hildreth states “[a] corporate ’custom’ is at issue here.” Ap-

pellant’s Br. at 31.

10 No. 18-2660

the “pivotal requirement” of his § 1983 claim.5 Grieveson v.

Anderson, 538 F.3d 763, 774 (7th Cir. 2008) (holding 4 incidents

over about 11 months involving only plaintiff was insufficient

to show a widespread practice or custom).

Hildreth’s claim fails on two axes: first, his allegations of

delays are insufficiently widespread, as they involve only

him; and second, the alleged delays are insufficiently numer-

ous, as he has substantiated only three.

1. Incidents involving only Hildreth

Hildreth provides evidence of delays in only his personal

prescriptions. While it is not “impossible” for a plaintiff to

demonstrate a widespread practice or custom with evidence

limited to personal experience, “it is necessarily more difficult

… because ‘what is needed is evidence that there is a true mu-

nicipal policy at issue, not a random event.’” Id. (quoting

Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005)); see

Winkler v. Madison Cty., 893 F.3d 877, 902 (6th Cir. 2018) (af-

firming summary judgment in county’s favor when plaintiff

“discusses only [her son’s] treatment, and therefore cannot es-

tablish that the County had a custom of deliberate indiffer-

ence to the serious healthcare needs of all the inmates”);

Denham v. Corizon Health, Inc., 675 F. App’x 935, 944 (11th Cir.

2017) (holding plaintiff failed to show a custom of providing

inadequate medical care when plaintiff’s claims rest only on

one inmate’s experiences); Payne v. Servier Cty., 681 F. App’x

443, 446–47 (6th Cir. 2017) (holding “five instances of alleged

5Because there was not enough evidence of a custom, we also need

not address whether Wexford acted with deliberate indifference. See

Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008).

No. 18-2660 11

misconduct, over three months, all involving the plaintiff

himself is not enough to prove a custom”); Culbertson v. Lykos,

790 F.3d 608, 629 (5th Cir. 2015) (holding allegations “limited

to the events surrounding the plaintiffs” are insufficient to es-

tablish a widespread practice or custom). This is not a case

where the incidents are so numerous to satisfy the “more dif-

ficult” task of proving a custom with only evidence of per-

sonal experience. Grieveson, 538 F.3d at 774.

2. Insufficient Number of Delays

Hildreth alleges his prescription lapsed “at least three

times.” And the district court found three grievances for

Hildreth’s lapsed medication on April 8, 2014, October 25,

2014, and November 16, 2015. Other than these three personal

experiences, Hildreth has not provided evidence that any

other inmates experienced prescription delays.

Three instances of prescription delays over nineteen

months involving solely one inmate fail to qualify as a wide-

spread unconstitutional practice so well-settled that it consti-

tutes a custom or usage with the force of law. Although this

court has not adopted any “bright-line rules” defining a wide-

spread practice or custom, we have acknowledged that the

frequency of conduct necessary to impose Monell liability

must be more than three. Thomas v. Cook Cty. Sheriff’s Dep’t,

604 F.3d 293, 303 (7th Cir. 2010) (noting “there is no clear con-

sensus as to how frequently such conduct must occur to

impose Monell liability, ‘except that it must be more than one

instance,’ or even three”) (citations omitted); see also, e.g., Doe

v. Vigo Cty., 905 F.3d 1038, 1045 (7th Cir. 2018) (holding a

“handful of incidents of misconduct,” including three inci-

dents of sexual contact, two incidents of inappropriate com-

ments, and two allegations of harassment over two decades

12 No. 18-2660

“is not enough to establish a custom or practice”); Estate of

Moreland v. Dieter, 395 F.3d 747, 760 (7th Cir. 2005) (holding

three incidents of improper pepper-spraying over a three-

year period did not amount to a widespread custom); Gable v.

City of Chicago, 296 F.3d 531, 538 (7th Cir. 2002) (holding three

incidents of erroneously denying to vehicle owners that their

vehicles were in the impoundment lot over a four-year period

did not amount to a persistent and widespread practice).

We agree with the district court that this case is compara-

ble to Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008). In

Grieveson, on four occasions over a period of about eleven

months, jail guards gave the plaintiff his entire prescription at

once, exposing him to the risk of theft by other inmates. Those

four instances were insufficient to establish a widespread

practice or custom. 538 F.3d at 774. As Grieveson explained,

“evidence of four incidents that [plaintiff] alone experienced”

is “simply not enough to foster a genuine issue of material fact

that the practice was widespread.” Id. at 774–75. Accordingly,

granting summary judgment in Wexford’s favor was proper.

Our dissenting colleague attempts to distinguish

Grieveson. Grieveson complained once, while Hildreth com-

plained three times, and Grieveson did not allege widespread

non-compliance with official policy. But a single complaint of

four incidents over eleven months is not materially different

than three complaints, each of a single incident, over nineteen

months. And like Grieveson, Hildreth did not allege a wide-

spread failure. Hildreth’s allegations concern only himself.

He sued on his own behalf and not for others. Indeed, the

term “widespread” is absent from Hildreth’s amended com-

plaint, which was filed with the assistance of counsel.

No. 18-2660 13

Our reasoning and conclusion here agree with other

circuits that have considered the frequency of instances to es-

tablish a widespread practice or custom. Those cases have

concluded that four or more incidents over varying periods—

sometimes less than nineteen months—are insufficient to

qualify as a widespread practice or custom.6

6 Evidence of four incidents fell “far short” of proving a widespread

practice or custom. See Jones v. Town of E. Haven, 691 F.3d 72, 85 (2d Cir.

2012) (holding four incidents over approximately four years “fell far

short” of showing a custom); Giaccio v. City of New York, 308 F. App’x 470,

472 (2d Cir. 2009) (holding “only four examples” of misconduct fell “far

short” of establishing a widespread practice).

Evidence of five incidents involving only the plaintiff was not enough

to prove a widespread practice or custom, even when those incidents oc-

curred in a short three-month period. See Payne v. Servier Cty., 681 F. App’x

443, 446–47 (6th Cir. 2017) (holding “five instances of alleged misconduct,

over three months, all involving the plaintiff himself is not enough to

prove a custom” and that “plaintiff cannot establish a custom solely by

pointing to the facts of his own case”).

Evidence of more than five incidents was insufficient to prove a wide-

spread practice or custom over a variety of time frames. See, e.g., Ruiz-

Bueno v. Scott, 639 F. App’x 354, 364 (6th Cir. 2016) (holding 10 incidents

in the past 18 years did not demonstrate pattern of constitutional viola-

tions); Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th Cir. 2009) (hold-

ing 27 complaints of excessive force over 3 years were insufficient to

establish a pattern); Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir.

2002) (holding 11 incidents of warrantless entry did not support an uncon-

stitutional pattern), 124 F. Supp. 2d 1057, 1070 (S.D. Tex. 2000) (illustrating

a four-year period for the incidents of warrantless entry); Mettler v.

Whitledge, 165 F.3d 1197, 1204–05 (8th Cir. 1999) (holding 16 incidents

ranging between August 1982 and January 1994 were insufficient to prove

a custom); Silva v. Worden, 130 F.3d 26, 32 (1st Cir. 1997) (finding insuffi-

cient evidence of a custom when witnesses “could only remember a few

instances over the last twenty years”); Carter v. District of Columbia, 795

F.2d 116, 123 (D.C. Cir. 1986) (holding six prior incidents of alleged

14 No. 18-2660

3. Other Alleged Incidents

Hildreth cites other incidents which he says qualify as part

of a widespread practice or custom. But due to failures of

proof and forfeiture, those incidents cannot be considered.

Hildreth argues the district court erred in excluding evidence

of two more delays in prescription refills discussed in another

inmate’s affidavit. Michael McGowan attested he overheard

conversations between Hildreth and people whom McGowan

believed to be Wexford nurses. The affidavit describes an Oc-

tober 2015 incident, when a nurse refused to accept Hildreth’s

medication refill slip because of Hildreth’s demeanor. The af-

fidavit also describes an undated incident, when a nurse said

she was not going to “check on the status” of Hildreth’s med-

ication and that he needed to wait for it to arrive.

Hildreth submitted McGowan’s affidavit in response to

Wexford’s motion for summary judgment. The district court

excluded the affidavit as inadmissible hearsay. We review a

district court’s evidentiary decision for an abuse of discretion.

See Bordelon v. Bd. of Educ. of the City of Chi., 811 F.3d 984, 991

(7th Cir. 2016). Hildreth argues the district court abused its

discretion by excluding this affidavit because the statements

in McGowan’s affidavits were made by an agent of a party

misconduct over approximately two years did not establish pattern of ex-

cessive force); cf. Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989)

(finding a widespread practice or custom when doors were broken down

by officers without a warrant with a sledge hammer provided by the city

and the sergeant was present at “about 20 or 30” or “50, 60” instances over

his 24-year tenure as a police officer).

No. 18-2660 15

opponent under Federal Rule of Evidence 801(d)(2)(D) and

are not hearsay.

We conclude the district court did not abuse its discretion

by not considering the McGowan affidavit because there was

insufficient evidence to establish that Wexford employed the

nurses referenced in the affidavit. Hildreth failed to show that

the nurses who allegedly made these statements were em-

ployed by Wexford, and he failed to confirm that the state-

ments were made within the scope of employment. Id. at 992.

Even if a Wexford nurse did make these comments, “not eve-

rything that relates to one’s job falls within the scope of one’s

agency or employment.” Williams v. Pharmacia, Inc., 137 F.3d

944, 950 (7th Cir. 1998). While the “precise reach of Rule

801(d)(2)(D) is sometimes difficult to discern,” the inquiry is

easy where, as here, the affidavit does not establish an em-

ployment relationship and does not establish the statements

were made within the scope of such relationship. Id.

Even if the district court had abused its discretion and im-

properly excluded these two other incidents, Hildreth’s claim

still fails because the “practice” of medication delay was not

widespread. Importantly, neither of these incidents describe

a delay in the delivery of Hildreth’s prescription. The first re-

lates to a nurse refusing to accept the medication refill slip due

to Hildreth’s demeanor—not an allegation concerning a med-

ication delay. The second undated incident refers to a nurse

saying she would not “check on the status” of Hildreth’s med-

ication—again, not a medication delay. Without knowing

when the prescription was due to be delivered, a delay cannot

be presumed. So neither of these incidents can support Hil-

dreth’s claim that Wexford has an unconstitutional practice or

custom of delaying prescriptions.

16 No. 18-2660

On appeal, Hildreth employs a kitchen-sink strategy by

arguing there were three more delays (beyond the five dis-

cussed so far) for a total of eight delays that the district court

failed to consider. These three further instances were not ar-

gued in the district court, so we cannot consider them. See,

e.g., Scheidler v. Indiana, 914 F.3d 535, 540, 544 (7th Cir. 2019)

(holding plaintiff forfeited her argument by not developing it

in the district court); Flournoy v. Schomig, 418 F. App’x 528, 531

(7th Cir. 2011) (refusing to consider new evidence of deliber-

ate indifference under § 1983 when plaintiff did not raise the

issue before the district court); see also United States v. Flores,

929 F.3d 443, 447 (7th Cir. 2019) (explaining forfeiture arises

when a party inadvertently fails to raise an argument in the

district court).

Even if we were to review these three additional allega-

tions on appeal, they are vague, they lack sufficient connec-

tion to Wexford, and at least two occurred sporadically sev-

eral years before the other alleged incidents. Specifically, two

incidents are dated November 3, 2009 and January 28, 2011

and were included in the “cumulative counseling summary”

to Hildreth’s summary judgment response on the issue of ex-

haustion of administrative remedies. Hildreth failed to dis-

cuss any of these incidents in his summary judgment

response on the issue of inadequate care, the issue under con-

sideration. The third incident is an undated occurrence when

his medication lapsed because it was not renewed, which was

also not discussed in his summary judgment response on the

issue of inadequate care. The district court did not err in not

considering them, as it is not the court’s job to “scour the rec-

ord in search of evidence to defeat a motion for summary

judgment.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d

1099, 1104 (7th Cir. 2008).

No. 18-2660 17

Even if the hearsay, forfeiture, and relevance rules were

put to the side, and we considered all eight incidents which

occurred over a period of six years, courts have concluded

that more than eight incidents over a shorter time period does

not constitute a “widespread” practice or custom. See, e.g.,

Pittman ex rel Hamilton v. Cty. of Madison, 746 F.3d 766, 780 (7th

Cir. 2014) (holding 36 suicide attempts and 3 suicides in a

5-year period was not enough evidence of a widespread inad-

equate suicide policy); Peterson v. City of Fort Worth, 588 F.3d

838, 851 (5th Cir. 2009) (holding 27 complaints of excessive

force over 3 years were insufficient to establish a pattern);

Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002)

(holding 11 incidents of warrantless entry over a 4-year pe-

riod did not support an unconstitutional pattern).

The dissent states we adopt a “bright-line rule” as to the

number of incidents to establish an unconstitutional custom

under Monell.7 But rather than set a number, we have consid-

ered and applied the precedents of this and other courts to

7 The dissent asserts this opinion “is at odds with our approach to

Monell, which focuses broadly on indicia of municipal or corporate re-

sponsibility rather than just the number of incidents.” For this proposition

the dissent cites Dixon v. County of Cook, 819 F.3d 343 (7th Cir. 2016), and

Daniel v. Cook County, 833 F.3d 728 (7th Cir. 2016), but neither case is avail-

ing here. Dixon included an institutional claim—the implementation of a

medical records policy—from which the dissent’s quote emanates. 819

F.3d at 348–49. In contrast, Hildreth brought an individual claim. And the

claim in Daniel concerned whether Cook County Jail’s scheduling and rec-

ord keeping resulted in medical care falling below constitutional stand-

ards as a matter of official policy, custom, or practice. 833 F.3d at 734. As

Daniel stated, “[t]o prove an official policy, custom, or practice within the

meaning of Monell, Daniel must show more than the deficiencies specific

to his own experience, of course.” 833 F.3d at 734. Again, Hildreth’s claim

is limited to his own experience.

18 No. 18-2660

these facts, nothing less and nothing more. Hildreth has not

shown five incidents of prescription refill delay, much less

eight. And under that law three delays over nineteen months

for a single individual does not establish a widespread cus-

tom or practice of delaying medication. So we affirm the dis-

trict court’s grant of summary judgment to Wexford on

Hildreth’s § 1983 claim.

B. ADA Claim

We turn next to Hildreth’s statutory claim under the

ADA.8 Under the Act, “no qualified individual with a disabil-

ity shall, by reason of such disability, be excluded from par-

ticipation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. To es-

tablish a violation, a plaintiff must show “he is a qualified in-

dividual with a disability, that he was denied the benefits of

the services, programs, or activities of a public entity or oth-

erwise subjected to discrimination by such an entity, and that

the denial or discrimination was by reason of his disability.”

Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (internal

quotations omitted). The ADA imposes a duty to provide rea-

sonable accommodations to disabled persons. 42 U.S.C.

§ 12182(b)(2)(A)(ii) (“[D]iscrimination includes … a failure to

8This claim raises a “thorny question of sovereign immunity.” Jaros v.

Ill. Dep’t of Corr., 684 F.3d 667, 671–72 (7th Cir. 2012); see also Morris v.

Kingston, 368 F. App’x 686, 689 (7th Cir. 2010) (observing the Supreme

Court “left open the question whether the ADA could validly abrogate

sovereign immunity for non-constitutional violations”). We need not ad-

dress this question, though, because we conclude the defendants’ accom-

modations were reasonable as a matter of law.

No. 18-2660 19

make reasonable modifications in policies, practices, or pro-

cedures.”); see A.H. by Holzmueller v. Ill. High Sch. Ass’n, 881

F.3d 587, 594 (7th Cir. 2018). To receive compensatory

damages, Hildreth must show deliberate indifference, which

occurs when defendants “knew that harm to a federally pro-

tected right was substantially likely and … failed to act on that

likelihood.” Lacy v. Cook Cty., 897 F.3d 847, 862 (7th Cir. 2018)

(quoting Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 344

(7th Cir. 2012)).

The key question here is whether Hildreth, given his disa-

bility, was able to draft his legal documents, with or without

reasonable accommodations from the prison. See Love v.

Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996). As a result

of the Parkinson’s disease and its effect on his handwriting,

Hildreth requested a typewriter in his cell to draft court doc-

uments and correspondence. Because a typewriter is prohib-

ited in a cell, the prison officials instead provided him with an

assistant to help him draft documents. They also increased his

access to the library to eighteen hours per week where he

could use a typewriter. Hildreth’s extra library access was

withdrawn only when he received an assistant. While not the

around-the-clock, easy access Hildreth wants to word pro-

cessing, or the well-trained writer whom he might like, Hil-

dreth successfully drafted legal documents and never missed

a court deadline. Further, he could have asked for more li-

brary time, but the record shows no such request.

The question is not whether other modifications could

have been made, such as those Hildreth seeks, but whether

the accommodations made were reasonable. We conclude

they were. The defendants’ accommodations allowed

Hildreth sufficient time and access to a typewriter to draft and

20 No. 18-2660

file documents while taking into account the prison’s reason-

able security concerns with contraband. Love, 103 F.3d at 561

(noting the ADA’s “reasonableness requirement must be

judged in light of the overall institutional requirements. Secu-

rity concerns, safety concerns, and administrative exigencies

would all be important considerations to take into account”

(citation omitted)).

Even if Butler and Oakley failed to make these reasonable

accommodations, Hildreth would still not be entitled to dam-

ages because he has not shown deliberate indifference.

Hildreth admits he has been moved to a different area of the

prison where he may now possess a typewriter in his cell. This

renders moot his claim for prospective injunctive relief. See

Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (noting

for a plaintiff to have standing for prospective injunctive

relief, he “must face a ‘real and immediate’ threat of future

injury as opposed to a threat that is merely ‘conjectural or hy-

pothetical’” (quoting City of Los Angeles v. Lyons, 461 U.S. 95,

102 (1983)). So Hildreth can now seek only compensatory

damages, provided he shows deliberate indifference. See Lacy,

897 F.3d at 862 (7th Cir. 2018) (agreeing with the majority of

circuits that “deliberate indifference [is] the proper standard

for obtaining compensatory damages” under the ADA). But

Hildreth never argued Butler or Oakley were deliberately in-

different and thus cannot recover compensatory damages.

Accordingly, we affirm the summary judgment in defend-

ants’ favor on the ADA claim.

III. Conclusion

The district court concluded correctly that Hildreth did

not show a widespread practice or custom of the defendant

No. 18-2660 21

delaying medication, and that prison officials reasonably ac-

commodated his Parkinson’s disease. So we AFFIRM the dis-

trict court’s grant of summary judgment in defendants’ fa-

vor.9

9 Hildreth moved to supplement the record on appeal with an October

10, 2018 letter from the Illinois Supreme Court, which stated the Illinois

Supreme Court was returning his petition for leave to appeal because it

was “mostly illegible” and requested that Hildreth type or rewrite his pe-

tition. Because this letter was not submitted (or in existence) during the

district court proceedings, it is not permitted under Federal Rule of Ap-

pellate Procedure 10, so we deny this motion.

22 No. 18-2660

HAMILTON, Circuit Judge, dissenting. Plaintiff Hildreth has

offered sufficient evidence that Wexford knew of his serious

health needs—which required reliable, timely refills of his

Parkinson’s medication—and acted unreasonably in response

to those needs. Wexford established prescription refill and re-

newal systems, i.e., policies, that did not include warnings

and back-ups to correct inevitable and serious mistakes.

That’s enough to show deliberate indifference under Farmer

v. Brennan, 511 U.S. 825, 843–44 (1994), and Glisson v. Indiana

Dep’t of Corrections, 849 F.3d 372, 382 (7th Cir. 2017) (en banc).

I respectfully dissent.

I. Discovery in Future Cases

Before explaining where the majority opinion errs, how-

ever, I must highlight the opinion’s obvious implications for

discovery in the district courts. Wexford should be careful

what it asks for. Its lawyers have won this case, but on theo-

ries and arguments that invite—indeed, virtually require—

much broader, more intrusive, and more expensive discovery

in similar cases. Plaintiffs like Hildreth will need to pursue

discovery into the medical care of other prisoners and even

into Wexford’s personnel records. The need for district courts

to recruit counsel in such cases will be even more compelling.

Consider the grounds for Wexford’s victory. The first is

the simplest. Important evidence is deemed inadmissible

hearsay because plaintiff does not have evidence that the

speakers, prison nurses whose employment shifted back and

forth between Wexford and the Illinois Department of Cor-

rections, were employees of Wexford on the days they made

the disputed statements. That’s incorrect as a matter of evi-

dence law in two ways: these were not “statements” offered

for their truth, and even if they had been, a person can be an

No. 18-2660 23

agent of a party under Federal Rule of Evidence 801(d)(2)(D)

without being an employee. Nevertheless, other plaintiffs will

need to prepare to meet such arguments in other cases. The

only fair way to let them meet them, if Wexford or similar

prison health-care companies will not stipulate, is to let plain-

tiffs have access to personnel records. Given Wexford’s argu-

ments and the majority opinion’s reasoning here, it would be

an abuse of discretion to deny such discovery in a similar case.

Second, Wexford argues and the majority opinion agrees

that plaintiff does not offer evidence of sufficiently wide-

spread problems with timely refills of critical, life-changing

prescriptions at Menard or other prisons where Wexford has

contracts. I explain below why I disagree. But if a similar

plaintiff must prove that the system in fact fails more fre-

quently, and not just for him, his demands for broad discov-

ery into other inmates’ experiences with Wexford and its refill

system should be undeniable.

Moreover, a good deal of such evidence appears to be dis-

coverable. Other federal lawsuits provide sources of such ev-

idence and describe prescription refill problems at Menard

during times relevant here. See, e.g., First Annual Report of

Monitor Pablo Stewart, MD, at 47, Rasho v. Walker, No. 07-cv-

1298 (C.D. Ill. May 22, 2017) (“Medication orders often ex-

pired and the offender may or may not continue receiving his

or her medication … . At Menard, psychotropic medication

orders were allowed to expire, and often staff did not correct

the problem until an inmate had already missed a week or

two of medication.”); Final Report of the Court Appointed Ex-

pert, at 23, Lippert v. Godinez, No. 1:10-cv-4603 (N.D. Ill. Dec.

2014) (“In the course of our reviews we noted multiple in-

24 No. 18-2660

stances in which patients experienced medication discontinu-

ity for a variety of reasons, yet this went unrecognized and

therefore unaddressed by the treating clinicians. Part of the

problem seems to be dysfunctional medical record keeping

… .”); Barrow v. Wexford Health Sources, Inc., No. 3:14-cv-800,

2017 WL 784562, at *4 (S.D. Ill. Mar. 1, 2017) (plaintiff claimed

he did not receive medication prescribed by Wexford physi-

cian at Menard in 2014; summary judgment granted for Wex-

ford but denied for physician).

There is evidence that these conditions have persisted for

years, with expert findings almost perfectly mirroring Hil-

dreth’s experiences. See Report of the 2nd Court Appointed

Expert, at 83, Lippert v. Godinez, No. 1:10-cv-4603 (N.D. Ill. Oct.

2018) (“We found many examples of patients whose ordered

medications were never provided, were delayed starting, and

were stopped because the patient had not been seen by a pro-

vider to renew medication. Record reviews indicated that ap-

pointments for chronic care are not scheduled to take place

prior to expiration of chronic disease medication orders.”).

The expert reports from the Lippert litigation excoriate Wex-

ford for its oversight of Illinois prison health care—including

the delivery of medication—and the first report was pub-

lished in December 2014, between plaintiff Hildreth’s second

and third grievances.

These reports are not in this record, were not raised in

these briefs, and are not appropriate subjects for judicial no-

tice. But they may be available in future cases. They would

face hearsay objections if offered to prove the matters as-

serted. See Wilson v. Wexford Health Sources, Inc., 932 F.3d 513,

522 (7th Cir. 2019) (holding district court did not abuse its dis-

cretion excluding the Lippert Report when offered as proof

No. 18-2660 25

that Wexford provided substandard care). But these reports

would be admissible to show corporate knowledge of Wex-

ford’s policy failings and of the risks that inmates faced. Dan-

iel v. Cook County, 833 F.3d 728, 743 (7th Cir. 2016) (holding

documents from other jail-condition case were “inadmissible

hearsay to the extent they are offered to prove the truth of the

statements they contain” but “may be admissible to show that

the defendants were on notice of their contents”).

In addition, plaintiffs in similar cases should be able to

find ways to put these reports (or testimony from their au-

thors) into evidence for the truth of the matters asserted to

establish a more extensive record of Wexford’s similar fail-

ures with other prisoners. And of course, evidence about

Wexford’s contracts and the financial incentives it faces in de-

livering, or not delivering, health care to Illinois prisoners

would also be relevant in evaluating the company’s policies

and whether they amount to deliberate indifference to serious

health risks. Given the majority opinion’s reasoning here,

these additional paths of discovery should be available and

would potentially be compensable by Wexford in the end. See

42 U.S.C. § 1988. Given the majority opinion’s reasoning, it

would be an abuse of discretion to deny similar plaintiffs ac-

cess to these lines of discovery to satisfy the standard applied

in this case.

II. Wexford’s Prescription Policies and the Lapses in Hildreth’s

Prescription

Returning to this case and this record, plaintiff Hildreth

has come forward with evidence that defendant Wexford’s

policies for renewing and refilling prescriptions reflect delib-

erate indifference to the serious medical needs of Hildreth

himself and other prisoners who depend on reliable refills of

26 No. 18-2660

prescriptions for medicines that are not kept on-site at the

prison. In reviewing a grant of summary judgment, we view

the facts in the light most reasonably favorable to plaintiff as

the non-moving party. Dixon v. County of Cook, 819 F.3d 343,

346 (7th Cir. 2016).

Hildreth suffers from Parkinson’s disease, a neurological

disease that causes reduced levels of dopamine in the brain,

causing in turn tremors and problems in movement and bal-

ance, among other serious symptoms. Parkinson’s has no

known cure, but medication can help control the symptoms

by mimicking the effects of dopamine.

Hildreth needs a drug called Mirapex to manage his

symptoms. Without Mirapex, his Parkinson’s symptoms re-

turn within a day or two, and he suffers from poor balance,

stiffness, shaking, fevers, memory problems, and freezing ep-

isodes. This leaves him “immobile” and “balled up in bed.”

Any lapse in medication causes pain and puts him at risk of

injury. During one such lapse, he lost his balance and fell in

the shower. For Hildreth, the difference between having med-

ication and not having it is “night and day.”

As an inmate at the Menard Correctional Center, Hildreth

must rely on Wexford—a private health-care contractor—and

the Illinois Department of Corrections (IDOC) to provide him

with health care, including his Parkinson’s medication.1 Both

1

Since the late 1970s, states have increasingly contracted with private

corporations to provide health-care services in prisons. The Pew Charita-

ble Trusts, Prison Health Care: Cost and Quality 11 (2017). As of 2015,

twenty-eight states either contracted out most health-care delivery ser-

vices or split responsibility between state employees and contractors.

Many states, including Illinois, have a capitated payment model, which

means that they pay contractors a fixed per-patient rate for care. Id. at 98.

No. 18-2660 27

Wexford and IDOC play a role in providing health care, and

IDOC employs some health-care workers. Wexford, however,

has primary responsibility for overseeing prisoner treatment,

including prescribing medication and setting prescription

policies. The site medical director at Menard, a Wexford em-

ployee, was supposed to provide oversight. During the events

of this lawsuit, however, this key position was first vacant,

then filled temporarily, occupied briefly by one doctor, and

then by another doctor who soon left the position because he

was not working the required 40 hours per week and “would

leave early.”

Wexford treats the Mirapex that Hildreth needs as a “non-

formulary medication.” This means that the drug is not kept

in stock at the prison but is shipped as needed from an outside

provider, Boswell Pharmacy Services. Wexford’s nonformu-

lary medication refill policy requires a sequence of actions to

get the medicine to an inmate. Hildreth receives one month’s

supply of Mirapex at a time. When he receives the pack of

pills, he also receives a sticker that he must turn in to a nurse

at most seven days before he runs out. After he returns the

sticker to a nurse, Wexford is supposed to send the sticker to

Boswell. Boswell is then supposed to ship a refill to Menard,

and the nursing staff is supposed to deliver the refill to Hil-

dreth. Nurses can be employed by either Wexford or IDOC.

Illinois prisons have among the lowest per-inmate staffing and spending

levels in the country. In 2015, Illinois had the second-lowest per-inmate

staffing and the eighth-lowest per-inmate health-care spending. Its spend-

ing of $3,619 per year was 37 percent below the national median. Id. at 8,

20.

28 No. 18-2660

In addition to the refill policy, Wexford has a prescription

renewal policy for inmates like Hildreth with chronic ill-

nesses. Such inmates are supposed to be signed up automati-

cally for clinic visits at least every six months. These visits

serve a key function in coordinating care for chronically ill pa-

tients and making sure their medical needs are met. At these

clinics, patients are seen by a Wexford physician or nurse

practitioner who will then write any necessary prescriptions,

which will last between six months and one year.

These policies look good on paper, but these are human

systems and people make mistakes. Hildreth did not regu-

larly receive passes for the chronic clinic and did not go every

six months. Instead, he was seen by doctors at irregular inter-

vals and was sometimes just told that his prescription was be-

ing renewed “automatically.” At least one time, Hildreth did

not receive his medication on time because his prescription

had lapsed. Another time, a Wexford nurse refused to accept

Hildreth’s renewal sticker because “she did not like Scott Hil-

dreth’s demeanor.”2

In effect, Wexford policy relied on what a manufacturer

would call “just-in-time” supply control. When a manufac-

turer relies on such a system, it knows it must monitor pro-

gress closely so that mistakes don’t shut down the assembly

line. When the just-in-time system is used to provide critical

medicine, the stakes are even higher. The need for a policy to

catch and correct mistakes before they cause harm is greater.

Without such elements in the Wexford policy, plaintiff was

left without medication he needed to control his Parkinson’s

2 The majority opinion treats this statement as inadmissible. Ante at

15. I disagree for reasons explained below.

No. 18-2660 29

symptoms for days and sometimes more than a week at a

time. As applied, then, the formal policies did not reliably

supply Hildreth with his Parkinson’s medication. The record

contains evidence of at least three medication lapses over a

period of nineteen months. In each instance, Hildreth did the

only things he could to bring the lapse to the attention of those

responsible for his care—speaking to the nurses on duty and

filing grievances.

On April 8, 2014, Hildreth filed his first grievance in the

record about a medication lapse: “I am out of my Parkinsons

meds (AGAIN) … I have serious mobility problems … I’ve

been telling C/Os [correctional officers] and nurses for days I

did not get refill[.] I turned in sticker on time[.] Been without for

days.” (Emphasis added). The next day, Hildreth’s prescrip-

tion was renewed, indicating that the lapse took place because

his prescription had expired and had not been renewed on

time. The record does not indicate when Hildreth received his

refill, but he likely would have gone at least another couple of

days because of the turnaround time from Boswell.

On October 25, 2014, he filed another grievance: “I have

gone thru this before?! I don’t know why I bother with your

griev[ance] syst[em]? I am about to run out of my [] Mirapex

for Parkison’s … I’ve told the nurses for a couple days now.”

Hildreth received the medication on October 30, and Hildreth

said that this meant he had a lapse of two or three days. Hil-

dreth had become so accustomed to medication delays that he

had started preemptively telling nurses about lapses. When

he was told to “wait and see” if the medication came in, he

would preemptively file a grievance to help ensure that he

had only a minimal lapse.

30 No. 18-2660

On November 16, 2015, Hildreth filed yet another griev-

ance regarding the same problem: “Been without Parkinsons

meds again! Since Friday 13th. This is why I filed law suit.”

He said that he had “told nurses” about the situation, but to

“no avail as usual.” This grievance was not reviewed until a

full week later, on November 23. Upon review, the Healthcare

Unit Administrator—an IDOC employee—noted that the

“non-formulary for his meds have expired. The request to

continue use was sent into the pharmacy. We are waiting to

hear back.” During this incident, Hildreth went without his

medication for at least ten days. In reviewing the grant of

summary judgment, we must assume that such a long lapse

was exceptionally painful and dangerous for Hildreth. We

must also assume that Hildreth did his part by complying

with Wexford’s prescription refill and renewal policies.

III. Analysis — The Eighth Amendment and Monell

It’s worth remembering why modern federal courts de-

vote so much attention to health care in prisons. “An inmate

must rely on prison authorities to treat his medical needs; if

the authorities fail to do so, those needs will not be met. In the

worst cases, such a failure may actually produce physical ‘tor-

ture or a lingering death’ … . In less serious cases, denial of

medical care may result in pain and suffering which no one

suggests would serve any penological purpose. The infliction

of such unnecessary suffering is inconsistent with contempo-

rary standards of decency … .” Estelle v. Gamble, 429 U.S. 97,

103 (1976) (citations omitted). That’s why deliberate indiffer-

ence to inmates’ serious medical needs violates the Eighth

Amendment’s prohibition on cruel and unusual punishment.

Daniel v. Cook County, 833 F.3d 728, 733 (7th Cir. 2016), citing

No. 18-2660 31

Estelle, 429 U.S. at 104. A plaintiff shows deliberate indiffer-

ence by establishing that those responsible for inmate health

know that an inmate faces a “substantial risk of serious harm”

and disregard that risk by “failing to take reasonable

measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847

(1994).

For claims against municipal governments under 42

U.S.C. § 1983, we apply the familiar Monell standard: re-

spondeat superior liability does not apply, and the plaintiff

must show instead that the constitutional violation was

caused by a municipal policy or a custom or practice so per-

vasive as to reflect municipal policy. Monell v. Dep’t of Social

Services, 436 U.S. 658, 691 (1978). The Supreme Court has not

applied the Monell standard to private corporations that act

under color of state law, like prison and jail health-care pro-

viders. Our precedents have applied Monell to such private

corporations, though that doctrine has been questioned

within the court and the academy. See Shields v. Illinois Dep’t

of Corrections, 746 F.3d 782, 789–90 (7th Cir. 2014).

In this case, the correct focus is on Wexford’s systems (i.e.,

its policies) for prescription refills and renewals. Monell liabil-

ity may apply even in the absence of individual liability

where the institutional policies themselves show deliberate

indifference to inmates’ serious medical needs. Glisson v. Indi-

ana Dep’t of Corrections, 849 F.3d 372, 378 (7th Cir. 2017) (en

banc) (contractor chose not to provide for coordinated care for

prisoners with multiple, complex illnesses); see also Daniel,

833 F.3d at 733–34 (“individual defendants can defend them-

selves by shifting blame to other individuals or to problems

with the ‘system,’ particularly where no one individual seems

to be responsible for an inmate’s overall care”).

32 No. 18-2660

This doctrinal niche is often relevant in prison health-care

cases, particularly where health care is delivered by a combi-

nation of government employees and a private contractor like

Wexford. The combination diffuses responsibility between

government and contractor and among many individuals. In-

mates can suffer because of health-care providers’ lack of pol-

icy, systematic failures to follow official policy, or obvious

gaps in policy. E.g., Glisson, 849 F.3d at 378; Daniel, 833 F.3d at

735; Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 303

(7th Cir. 2010). In such cases, it may be that no facially uncon-

stitutional policy tells employees to take actions that violate

someone’s constitutional rights. Instead, the government or

its contractor adopts or tolerates practices that predictably

lead to constitutional harms.

A. Evidentiary Dispute

I need to address briefly the erroneous exclusion of evi-

dence that helps demonstrate why Wexford’s system needs to

have warning systems and back-ups. In opposing summary

judgment, Hildreth offered an affidavit from another inmate,

Michael McGowan, who testified that he overheard two rele-

vant conversations. In October 2015, Susan Kirk—a nurse

who McGowan believed worked for Wexford—refused to ac-

cept Hildreth’s medication refill sticker, “indicating she did

not like Scott Hildreth’s demeanor.” In a second encounter,

Angie Walters—another nurse who McGowan believed

worked for Wexford—refused to check on the status of Hil-

dreth’s medication refill when he reported that he had run

out. The district court excluded McGowan’s testimony about

these statements as hearsay, and the majority opinion up-

holds those rulings.

No. 18-2660 33

As a matter of elementary evidence law, this is just clearly

wrong. Hildreth did not offer the affidavit to prove that what

the nurses said was true. He offered the affidavit to prove

their actions. One nurse refused to accept plaintiff’s refill

sticker. The other refused to check on the status of his refill

when he had already run out. The conversations were not

hearsay at all but instead verbal acts—refusals—falling com-

pletely outside the definition of hearsay in Federal Rule of Ev-

idence 801(c): an out-of-court “statement” offered “to prove

the truth of the matter asserted in the statement.” See Carter

v. Douma, 796 F.3d 726, 735 (7th Cir. 2015) (informant request

for drugs was not hearsay because it was a verbal act);

Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007) (verbal

acts are not hearsay because they “are not offered for their

truth”); see generally 30B Wright & Bellin, Federal Practice &

Procedure, Evidence § 6722 at 66 (2017). The affidavit was of-

fered as evidence that the system (read, policy) that Wexford

had designed could fail and did fail plaintiff because of emi-

nently human failings like impatience and perhaps spite. The

affidavit offered admissible evidence to oppose summary

judgment.3

3 The parties have skipped the “statement” issue and debated whether

Federal Rule of Evidence 801(d)(2)(D) should apply. It excludes from the

definition of hearsay statements by an opposing “party’s agent or em-

ployee on a matter within the scope of that relationship and while it ex-

isted.” As noted above, the debate on this issue shows the need for broader

discovery into Wexford’s or similar contractors’ personnel files to deter-

mine who employed the nurses at the relevant times. The only evidence is

that the affiant said that he believed they were Wexford employees. Wex-

ford obviously has records that could settle that issue, but it has not come

forward with them. Future plaintiffs facing similar gamesmanship will

have to obtain personnel records to prepare to meet such arguments. At a

more fundamental level, however, employment is not the issue. Agency is

34 No. 18-2660

B. Unreasonable Response to Danger of Inevitable Mistakes

Hildreth has presented sufficient evidence of a Monell pol-

icy or custom for his claim to survive. A jury could conclude

that “the failure to establish adequate systems” for providing

essential medication “was so pervasive that acquiescence on

the part of policymakers was apparent and amounted to a

policy decision.” Daniel, 833 F.3d at 734, citing Dixon v. County

of Cook, 819 F.3d 343, 348 (7th Cir. 2016). Hildreth has identi-

fied a policy—or rather, a network of policies and key policy

gaps—that can form the basis of Wexford’s Eighth Amend-

ment liability. The issue is not exactly how often the policy

failed Hildreth. The issue is whether the system established

by Wexford policymakers reflected deliberate indifference to

the inevitability of human mistakes.

A prisoner asserting a deliberate-indifference claim must

show that the defendant had actual knowledge of the danger

or serious condition the prisoner faced, and that the defend-

ant failed to take reasonable steps in the face of the risk.

Farmer v. Brennan, 511 U.S. 825, 843–44 (1994); Ortiz v. Jordan,

562 U.S. 180, 190 (2011) (reinforcing Farmer’s reasonableness

requirement); LaBrec v. Walker, 948 F.3d 836, 841 (7th Cir.

the issue. See, e.g., Mister v. Northeastern Illinois Commuter R.R. Corp., 571

F.3d 696, 698 (7th Cir. 2009); United States v. Swan, 486 F.3d 260, 264–65

(7th Cir. 2007); Young v. James Green Mgmt., Inc., 327 F.3d 616, 622 (7th Cir.

2003). The majority opinion further speculates that the statements may not

have been within the scope of the nurses’ employment (or agency). Ante

at 15. Even Wexford didn’t try to make this argument, and it’s hard to

imagine how these statements or actions by nurses responsible for refilling

prescriptions and dispensing drugs could fall outside the scope of their

agency or employment. See Thomas, 604 F.3d at 309–10 (prison nurse’s

statement that an ill inmate was “just dope sick” was “not hearsay” under

Rule 801(d)(2)(D)).

No. 18-2660 35

2020); Glisson, 849 F.3d at 381. The Supreme Court explained

in Farmer that a plaintiff can prove actual knowledge with cir-

cumstantial evidence, of course, and that the very obvious-

ness of the danger can support an inference of actual

knowledge. 511 U.S. at 842; see also LaBrec, 948 F.3d at 841

(citing Farmer); Petties v. Carter, 836 F.3d 722, 729 (7th Cir.

2016) (en banc) (“If a risk from a particular course of medical

treatment (or lack thereof) is obvious enough, a factfinder can

infer that a prison official knew about it and disregarded it.”).

Hildreth has offered evidence to satisfy this demanding

standard. Ample evidence showed that Wexford had actual

knowledge of Hildreth’s Parkinson’s disease, his prescrip-

tion, and the need to ensure a steady supply of the medicine.

Wexford surely had actual knowledge that some prisoners

would have similarly urgent needs for critical prescriptions

not available on-site at the prison. Given that actual

knowledge of serious medical needs, Wexford had a constitu-

tional duty to take reasonable steps to avoid or minimize the

risk of lapses in medication. In other words, Wexford had a

constitutional duty to put in place a reasonably reliable sys-

tem for renewing and refilling such critical non-formulary

drugs and to monitor the performance of that system.

A jury could easily find that Wexford’s system was not

reasonably calculated to be reliable because the system had

no warning channel and back-up mechanisms by which it

could fix mistakes without unnecessary suffering. Wexford’s

system is not required to be perfect and fail-safe. But for a sys-

tem so critical to health—and one with many possible points

of failure—it lacked warnings to alert Wexford to inevitable

mistakes or oversights. This not only prevented Wexford

36 No. 18-2660

from catching mistakes before patients suffered but appar-

ently prevented Wexford from learning about even repeated

failures. Such an unreasonable “conscious decision not to take

action” in the face of a serious medical risk is akin to the deci-

sion of the defendant in Glisson to forgo a protocol for coordi-

nated care to chronically ill inmates. 849 F.3d at 381. Where

there is an obvious risk created by a health-care policy gap—

like coordinated care in Glisson or medication refill oversight

here—a plaintiff need not show some minimum number of

injuries to prevail. Id. at 382, citing Woodward v. Correctional

Medical Services, 368 F.3d 917, 929 (7th Cir. 2004) (“CMS does

not get a ‘one free suicide’ pass.”).

Compare Hildreth’s situation to that of a hospital patient

on a ventilator that is keeping the patient alive. The machine

runs on electricity. Electrical power will be interrupted from

time to time by storms and equipment failures. Machines like

ventilators occasionally break down. Any reasonable hospital

must anticipate the possibility of those interruptions and

breakdowns, and it must have alerts and a back-up system in

place. Similarly here, Wexford may be deemed to have actual

knowledge of both the obvious possibility, even the inevita-

bility, of mistakes or lapses in its renewal and refill systems

and of the serious consequences for patients if those were not

corrected. Wexford thus had a constitutional duty to take rea-

sonable steps—warnings and back-up systems—to mitigate

the effects of inevitable mistakes and oversights.

In Hildreth’s case, Wexford’s system for providing medi-

cation led to a series of serious delays in providing him with

his medication—at least three times in nineteen months. Each

time this happened, we must assume, Hildreth did every-

No. 18-2660 37

thing he could to avoid the problem and then to make Wex-

ford aware of it. He told the nurses and filed formal griev-

ances. In these grievances, he said that this was an ongoing

problem and that the nurses were not responsive to his needs.

The longest lapse in medication—at least ten days—occurred

after he had recently submitted two grievances related to

other lapses.

Wexford argues that Hildreth’s grievances cannot be used

to infer that it knew about the systemic failure of its medica-

tion policies and that this precludes liability:

Wexford is not involved in the grievance pro-

cess, and would not know of the contents of a

grievance unless an IDOC employee notifies

Wexford about it. Even then, that individual

would have been a member of the onsite

healthcare staff, not necessarily a policymaker.

As such, Wexford policymakers had no reason

to know that any alleged issue existed.

Brief for Appellee Wexford at 21. This argument has things

exactly backwards: Wexford’s lack of involvement in the

grievance process makes it more culpable and strengthens Hil-

dreth’s claim. Humans make mistakes. In implementing sys-

tems known to be critical to life, health, and safety, a company

like Wexford must allow for such mistakes and take reasona-

ble steps to provide warnings and back-up systems. Federal

courts do not and should not design the specifics. As noted,

though, the Eighth Amendment requires reasonable re-

sponses to known risks where prisoners cannot protect their

own health and safety. Wexford’s admission that it lacked any

policy to learn about inmates’ complaints supports the con-

clusion that its prescription policies created an unacceptable

38 No. 18-2660

risk of harm resulting from this form of deliberate indiffer-

ence to Hildreth’s serious medical needs.

Daniel v. Cook County addressed this point: “If a grievance

system is part of a jail’s or prison’s system for communicating

and responding to health care requests, and if the system fails

in a way that causes a deprivation of needed health care, then

the problem with the grievance system may be an important

part of the plaintiff’s case for deliberate indifference to his

health care needs.” 833 F.3d at 737. We have also said, of

course, that “the dangers of delayed responses to medical re-

quests are readily apparent.” Thomas, 604 F.3d at 304. In the

face of such danger, it is unreasonable for a medical policy-

maker to cut itself off from important feedback about failures

or lapses in its policies.

Dividing responsibility between private contractors and

state agencies can increase these risks. In such cases, the law

should and does provide incentives for actors to take reason-

able steps to mitigate known dangers. The law should not do

what the majority opinion’s reasoning does here: reward di-

vided responsibility and deliberate ignorance by those who

control prisoners’ only access to health care. Hildreth’s griev-

ances give the impression of a person in pain, screaming into

a void. Wexford ignored Hildreth’s grievances, seemingly by

design. And when Hildreth used the only other avenue avail-

able—communication with nurses—he was told only to “wait

and see” if the refill would come. On this record, we should

reverse summary judgment for Wexford.

No. 18-2660 39

C. The Majority Opinion’s Approach to Custom

The majority opinion adopts a highly restricted approach

to establishing a Monell custom that is at odds with our prec-

edent. The majority looks only to the raw number of alleged

failures and the time period over which they took place. Ante

at 11–13. It views the broader policy decisions and context

surrounding the violations as immaterial. This approach di-

vorces the legal doctrine from its purpose of identifying those

cases in which a government or corporate policy causes and

fails to address predictable failures to provide needed medi-

cal care. After acknowledging that we have adopted no

“bright-line rules” for establishing a Monell custom, the ma-

jority opinion adopts one by saying that the number of possi-

bly unconstitutional incidents “must be more than three.”

Ante at 11.

There are at least two problems with the approach. First,

Hildreth does not present the kind of pure custom case where

institutional culpability is inferred solely from repeated em-

ployee misconduct and the question is whether the corpora-

tion can be held liable for tolerating them. While Hildreth

uses the term “custom” in his briefing—presumably because

he asks us to infer something from the repeated medication

lapses he experienced—his theory of Monell liability impli-

cates both official policies and unofficial customs. Hildreth

specifically points to Wexford’s admission that it is “not in-

volved in the grievance process” as evidence of its deliberate

indifference. He asks us to infer from Wexford’s medication

refill policy, its prescription renewal policy, a pattern of non-

compliance with each of those policies, a pattern of medica-

tion lapses, and—importantly—the utter failure of Wexford

to provide a functioning pathway to fix these problems, that

40 No. 18-2660

Wexford tolerated “systematic and gross deficiencies” in its

process for providing inmates with medication. Dixon, 819

F.3d at 348. And as described above, the lack of a policy for

reporting and correcting failures—undoubtedly a failing at-

tributable to Wexford itself rather than a rogue employee—

should be decisive.

Second, even when addressing what could be called pure

custom cases, we have never held that some minimum num-

ber of incidents is needed to establish municipal liability. Ra-

ther, the question is one of corporate knowledge and respon-

sibility, as is always the case under Monell. “[M]unicipal lia-

bility can … be demonstrated indirectly ‘by showing a series

of bad acts and inviting the court to infer from them that the

policymaking level of government was bound to have noticed

what was going on.’” Woodward, 368 F.3d at 927, quoting Es-

tate of Novack v. County of Wood, 226 F.3d 525, 530 (7th Cir.

2000). The majority opinion’s per se rule is at odds with our

approach to Monell, which focuses broadly on indicia of mu-

nicipal or corporate responsibility rather than just the number

of incidents. E.g., Dixon, 819 F.3d at 348 (“[W]e look to see if a

trier of fact could find systemic and gross deficiencies in staff-

ing, facilities, equipment, or procedures in a detention cen-

ter's medical care system.”) (internal quotation marks omit-

ted); Daniel, 833 F.3d at 734 (“[A]n inmate can meet this bur-

den by offering ‘competent evidence tending to show a gen-

eral pattern of repeated behavior (i.e., something greater than

a mere isolated event).’”), quoting Davis v. Carter, 452 F.3d

686, 694 (7th Cir. 2006). As we said in Woodward, a prison

health-care company “does not get a ‘one free suicide’ pass.”

368 F.3d at 929.

No. 18-2660 41

Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008), which

the majority opinion treats as controlling, is easily distin-

guishable. An inmate alleged that the jail maintained a cus-

tomary practice of failing to distribute inmate prescriptions

properly after four instances in which his entire prescription

was distributed at once and then stolen by other inmates. Id.

at 774. We held that these four incidents were insufficient to

establish a custom. Grieveson differs in two critical ways from

this case: the inmate complained to the prison officials only

once, and the inmate did not allege widespread noncompli-

ance with official policy. Here, by contrast, Hildreth filed at

least three grievances and made even more frequent com-

plaints to nurses where Wexford’s system failed, and nothing

happened. And he described frequent noncompliance with

Wexford’s refill and renewal policies. Wexford’s just-in-time

refill system left little room for mistakes, and such a system

demands warnings and back-ups where health and safety are

at stake. The repeated and foreseeable mistakes in refilling

Hildreth’s prescription and the failure to respond to his com-

plaints make for a much stronger case of systemic deficiencies

here than in Grieveson.

I would reverse and remand for trial, and I would add a

strong suggestion that Hildreth be permitted to pursue addi-

tional discovery to expand the evidence of deliberate indiffer-

ence.