holding that county can be held liable for deliberate indifference if “it was on notice that [the contractor]’s physician- and medication-related policies” had “violated inmates’ constitutional rights” at jail where plaintiff presented sufficient evidence that the County’s policy requiring that medications come from the formulary, which caused plaintiff to come off of his medication at booking, had caused “severe seizures that ultimately contributed to his death”
How later courts described this case
- holding that county can be held liable for deliberate indifference if “it was on notice that [the contractor]’s physician- and medication-related policies” had “violated inmates’ constitutional rights” at jail where plaintiff presented sufficient evidence that the County’s policy requiring that medications come from the formulary, which caused plaintiff to come off of his medication at booking, had caused “severe seizures that ultimately contributed to his death”
- finding that “the county cannot shield itself from § 1983 liability by contracting out its duty to provide medical services . . . The underlying rationale is not based on respondeat superior, but rather on the fact that the private company’s policy becomes that of the County if the County delegates final decision-making authority to it.”
- finding that the publication of several newspaper articles about an agent’s policy and the sheriffs knowledge “of the discussions involving the jail’s problems” related to the policy was enough evidence to survive the county’s motion for summary judgment on the Mo-nell claim
- holding that a county could not “shield itself from § 1983 liability by contracting out its duty to provide medical services ... [because] the private company’s policy becomes that of the County if the County delegates final decision-making authority to it”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2204
L ISA K ING, as Special Administrator
for the Estate of John P. King,
Plaintiff-Appellant,
v.
S UE K RAMER, K AREN M ONDRY-A NDERSON,
W ILLIAM J. O LSON, JENNIFER K OBY-G OBEL and
L A C ROSSE C OUNTY, W ISCONSIN,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:10-cv-00123—William M. Conley, Chief Judge.
A RGUED O CTOBER 17, 2011—D ECIDED M AY 25, 2012
Before B AUER, P OSNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. John P. King died while incarcer-
ated at the infirmary in the jail operated by La Crosse
County, Wisconsin. King’s widow, Lisa King, brought an
action under 42 U.S.C. § 1983 against five defendants:
Officer William Olson, Officer Jennifer Koby-Gobel,
2 No. 11-2204
Nurse Sue Kramer, Nurse Karen Mondry-Anderson, and
La Crosse County. For the reasons discussed below, we
affirm in part and reverse in part the district court’s
grant of the defendants’ motion for summary judgment.
I
Our account of the facts proceeds, as it must, in the
light most favorable to King; as usual, we are not
vouching for anything. Righi v. SMC Corp., 632 F.3d 404,
408 (7th Cir. 2011). On April 7, 2007, King was booked
at the La Crosse County Jail to await trial. The County
contracts with a private company, Health Professionals
Ltd. (HPL), to provide medical care for the inmates. The
2007 contract makes HPL responsible for providing a
physician to attend weekly sick call “for an estimated
minimum of one hour and an estimated maximum of
three hours except as is medically necessary.” Dr. Erickson
was the physician under contract with HPL to conduct
on-site visits for at least two and no more than four
hours a week; he typically came on Tuesdays. No other
physician was physically present at the jail during the
week. The contract also gave HPL the authority to
develop a preferred drug list, the so-called formulary.
King suffered from serious medical problems, including
severe anxiety, at the time of his incarceration. His
doctor at the Tomah Veterans Hospital had prescribed
for him a daily regimen of medications that included
five milligrams of alprazolam, a benzodiazepine. King
brought with him to the jail two grocery bags full of his
No. 11-2204 3
medications, including a bottle with 115 one-milligram
tablets of alprazolam. Nurse Karen Mondry-Anderson
conducted his initial health screening. King told her that
he had asthma, diabetes, a heart problem, high blood
pressure, seizures, and mental health problems. He also
said that he had mental health issues that would
require attention while he was at the jail.
Mondry-Anderson contacted the on-call physician,
Dr. Stephen Cullinan, who was based nearly 300 miles
away in Peoria, Illinois. She informed him that King had
a large bottle of alprazolam in his possession, but that
she was not certain of his prescribed daily dosage. Obvi-
ously unable to examine King, and not bothering to
obtain the details about the VA prescription, Dr. Cullinan
nevertheless scheduled him to be weaned off the
alprazolam, a drug excluded from HPL’s formulary,
over a three-day period. This was a dangerously rapid
reduction given King’s existing prescription. Dr. Cullinan
ordered King to be switched to a beta blocker, Inderal,
that was on HPL’s formulary, rather than another benzo-
diazepine. Beta blockers may be used off-label to treat
performance anxiety. They are often helpful to performers
and public speakers because they block the physical
symptoms of anxiety, notably tremors and short-
ness of breath. Dr. Brian Brennan, What Are
Beta Blockers, How Do They Work, and How Are Beta
Blockers Used in the Treatment of Anxiety Disorders? ABC
N EWS, http://abcnews.go.com/Health/AnxietyTreating/
story?id=4664801 (last visited May 22, 2012). They do
little to reduce the feeling of anxiety, and are not rec-
ommended for patients with heart conditions or
4 No. 11-2204
asthma. Lundbeck Institute, Anxiety Disorders,
http://www.brainexplorer.org/an xiety/A nxiety_
Treatment.shtml (last visited May 22, 2012). Given that
King was not seeking short-term performance anxiety
relief and that he did suffer from a heart problem and
asthma, it is not clear why Inderal was chosen for him.
The jail medical staff failed to give King any alprazolam
on his first day. On the second and third days, he
received two doses, and he received one final dose on
the fourth day, April 10.
Abrupt withdrawal from alprazolam can be
life-threatening. Associated symptoms include agitation,
elevated blood pressure, elevated pulse, tremors, delu-
sions, hallucinations, and seizures. The severity of such
symptoms requires medical providers to monitor the
patient closely, preferably in a hospital. No member of
the jail’s medical staff prepared a plan to monitor
King’s withdrawal.
King was housed in Receiving Cell C with four other
inmates: Michael Kleiber, John Gerke, Jesse Reid, and
Clinton Stevens. King’s health appeared to deteriorate
in the days following his arrival at the jail. His shaking
became more severe, and he became less and less coher-
ent. King told Kleiber that he had been given a replacement
medication that made him feel shaky and caused him to
hallucinate.
On April 10, Nurse Deb Baker faxed a medical release
to Tomah Veterans Hospital for a complete list of
King’s prescriptions. The Hospital provided the jail
No. 11-2204 5
with the requested information later that day. The docu-
mentation stated that King was prescribed five milligrams
of alprazolam daily. The list of medications was placed
in King’s medical file, where it remained available for
the physician at his weekly on-site visit.
King submitted a health request the following day
indicating that he wanted to be seen by a physician. He
stated that he had not slept in at least 96 hours, among
other concerns. He complained to jail staff that he was
suffering from side effects of the medication, but they
informed him that he needed to wait for the doctor.
Again on April 13, King requested health care and
was informed that he would meet with a physician at
the next available appointment. He was seen by a social
worker on April 13, who noted that King appeared
anxious and was perspiring. King was not finally seen
by a physician until April 17, ten days after he was ad-
mitted to the jail. The physician, Dr. Erickson, noted
that King had pressured speech and flights of ideas
with manic insomnia.
The critical events forming the basis of this action
took place on April 18. In the morning, Officers Brian
Olson and Jennifer Koby-Gobel conducted a cell check
and saw King lying in his bed. He made eye contact with
Olson and then closed his eyes and twitched his arm.
At approximately 10:30 a.m., Gerke, one of King’s
cellmates, called for help. Olson and Koby-Gobel found
King convulsing on the floor, screaming and foaming at
the mouth. They called for a nurse.
Nurse Sue Kramer, the site director, was with three
nursing students at the time and responded to the call.
6 No. 11-2204
On their way to King’s cell, Kramer told the nursing
students that inmates fake seizures. When Kramer
arrived, she tried to put a pulse oximeter on King’s toe,
but his shaking was too intense to keep it on. Olson told
King to “quit acting like a child and get up” and accused
him of faking the seizure. Kramer was unable to get a
blood pressure reading because King was shaking too
hard. She then used smelling salts to look for a reaction,
but there was none. Failure to respond to smelling salts
is consistent with seizures. King’s face turned blue.
Kramer and the officers, convinced that King was
faking, left King lying on the floor. They did not contact
the on-call physician, Dr. Cullinan, or emergency
medical services.
An hour later, Stevens, another cellmate, called out for
help because King was again convulsing. Kramer and
the officers returned. Kramer again chose not to contact
Dr. Cullinan or emergency medical services. Kramer
was aware that King was being tapered off alprazolam
and understood that alprazolam withdrawal can cause
seizures, hallucination, and death. Interestingly, she
ordered that the officers move him to a padded cell.
After King was moved, Kramer did nothing else. She
did not have the authority to open the door of the
padded cell. She testified that she wanted to take his
vitals, but the officers were too busy to let her in. The
nursing staff was able to observe King only on a small
screen in the nurse’s station, but the quality of the image
was very poor. There was an intercom system in the
cell, but it was very difficult to hear with the echo.
No. 11-2204 7
Kramer was relieved by Mondry-Anderson at around
5:00 p.m. Kramer informed her that King had faked a
seizure earlier in the day. She said that King had re-
sponded to smelling salts by turning away from
them. Mondry-Anderson was not particularly con-
cerned about King’s condition, given Kramer’s misleading
account of the day’s events.
At around 5:30 that afternoon, King called the jailers
on the intercom. Jailer Annie Corcoran was unable to
understand him because of the echo in the cell. She
spoke with him directly through the food slot 15
minutes later. He told her that it was fine for her to
look around his cell. He then said that his cell door was
locked, he could not get out, and that he was hearing
voices. When Corcoran asked him what the voices said,
he did not answer. He asked if he could use the toilet,
and Corcoran instructed him to use the grate in the
back of the cell.
At 6:00 p.m. Mondry-Anderson checked on King
using the television monitor in the nurse’s station. She
could not see the image well, but she noted that King
appeared to be lying on the floor and then was able to
walk around seemingly without any difficulty. One of
the jailers notified her that King had eaten about half
of his dinner.
At 7:30 p.m., Mondry-Anderson went to give King his
medication, but he was unresponsive when she called out
to him. She called for officers to open his cell and at-
tempted resuscitative efforts. King was pronounced dead
at 7:58 p.m. Alprazolam withdrawal probably caused
8 No. 11-2204
King’s seizures and was a contributing factor to
King’s death.
II
Pre-trial detainees, who are not yet being punished
for anything, are protected from cruel and unusual punish-
ment through the Fourteenth Amendment. Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976); Minix v. Canarecci, 597
F.3d 824, 831 (7th Cir. 2010). Detainees are entitled to
no less protection than prisoners whose treatment must
meet the standards of the Eighth Amendment. Minix,
597 F.3d at 831. For convenience, we therefore refer to
cases brought under either theory.
To defeat summary judgment on the individual claims,
King must satisfy both an objective and a subjective
element. Estelle, 429 U.S. at 105; Roe v. Elyea, 631 F.3d
843, 857 (7th Cir. 2011). He must first present evidence
supporting the conclusion that he had an “objectively
serious medical need.” Wynn v. Southward, 251 F.3d 588,
593 (7th Cir. 2001). An objectively serious medical
need is “one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity
for a doctor’s attention.” Zentmyer v. Kendall Cnty., 220
F.3d 805, 810 (7th Cir. 2000) (citations omitted). He
must also demonstrate a genuine issue of fact on the
question whether the nurses and officers were aware
of this serious medical need and were deliberately indif-
No. 11-2204 9
ferent to it. Wynn, 251 F.3d at 593. Negligence—even
gross negligence—is insufficient to meet this standard,
but the plaintiff is not required to show intentional
harm. Farmer v. Brennan, 511 U.S. 825, 836 (1994). The
standard is comparable to that required for criminal
recklessness. Id. at 839.
King has met his burden of presenting evidence ade-
quate to support a finding that he had a serious
medical condition. King’s medical expert stated that he
suffered from severe seizures that contributed to his
death. Medical conditions much less serious than
seizures have satisfied the standard. Elyea, 631 F.3d at 861
(noting that “our cases demonstrate a broad range
of medical conditions may be sufficient to meet the ob-
jective prong of a deliberate indifference claim, in-
cluding a dislocated finger, a hernia, arthritis, heartburn
and vomiting, a broken wrist, and minor burns sustained
from lying in vomit”). We can thus pass quickly to the
question whether he has presented enough evidence
of deliberate indifference to survive summary judgment.
The answer, as we explain, varies from defendant to
defendant.
III
A
Turning first to King’s claims against Officers Olson
and Koby-Gobel, we find that the district court correctly
granted summary judgment in their favor. The officers
were not responsible for administering medical care
10 No. 11-2204
to King; rather, they were “entitled to defer to the judg-
ment of jail health professionals so long as [they] did not
ignore [the prisoner].” Berry v. Peterman, 604 F.3d 435,
440 (7th Cir. 2010). Olson and Koby-Gobel immediately
notified the nursing staff when King’s seizures began
at 10:30 a.m. and resumed at 11:30 a.m. They monitored
King while waiting for Kramer to arrive.
The only exception to this rule is that nonmedical
officers may be found deliberately indifferent if “they
have a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not
treating) a prisoner.” Hayes v. Snyder, 546 F.3d 516, 527
(7th Cir. 2008) (citations omitted). King does not present
any evidence that Olson and Koby-Gobel were
aware that Kramer was improperly treating King. They
were not trained to assess whether an inmate is
genuinely experiencing seizures, and so they lacked the
capacity to judge whether Kramer made an inappro-
priate diagnosis.
B
The standard for deliberate indifference is different
for the medical staff. A medical professional’s deliberate
indifference may be inferred when “the medical profes-
sional’s decision is such a substantial departure from
accepted professional judgment, practice, or standards
as to demonstrate that the person responsible did not
base the decision on such a judgment.” Estate of Cole
by Pardue v. Fromm, 94 F.3d 254, 261-62 (7th Cir. 1996).
No. 11-2204 11
Nevertheless, “[m]edical malpractice does not become
a constitutional violation merely because the victim is
a prisoner.” Estelle, 429 U.S. at 106. In evaluating the
evidence, we must remain sensitive to the line between
malpractice and treatment that is so far out of bounds
that it was blatantly inappropriate or not even
based on medical judgment. Although this is a high
standard, King is not required to show that he was
“literally ignored.” Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005).
There is a question of material fact whether Kramer’s
actions were so far afield from an appropriate medical
response to King’s seizures that they fell outside the
bounds of her professional judgment. Kramer’s state-
ments to the nursing students suggests that she had
already decided that King was faking seizures even
before she saw him. She was aware that he was with-
drawing from alprazolam, and that seizures can result
from withdrawal. Upon arriving at the cell, she was
unable to get reliable oximeter and blood pressure read-
ings because King’s convulsions were too severe. When
she then employed the smelling salts test, his response
was consistent with a seizure. His face turned blue,
which we note is one of the symptoms that
requires immediate medical attention, according to
the MedlinePlus service of the U.S. National Library
of Medicine at the National Institutes of Health. See
http://www.nlm.nih.gov/medlineplus/ency/article/00306
9.htm (last visited May 22, 2012). Kramer deliberately
ignored the results of the tests she was able to administer.
This evidence is enough to raise a question of material
12 No. 11-2204
fact whether Kramer was subjectively aware that King
faced a serious risk of a medical emergency. Collignon
v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998).
If Kramer had chosen to leave King lying on the cell
floor after she tried to check on him, perhaps we could
have found that her actions amounted to nothing more
than gross medical negligence. But Kramer took matters
further when she chose to remove King from his
cell—where his cellmates could call for help if he ex-
perienced another seizure—to a padded cell where the
intercom system was difficult to hear, the camera
image quality was too poor to clearly identify his move-
ments, and the nurses did not have direct access to
him. (And why put him in a padded cell if this was all
an act? A jury might see this as evidence that she was
aware of a high risk that the seizures were genuine.)
This is not a case where reasonable medical minds
may differ over the appropriate treatment for King. Snipes
v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996). It is, rather,
analogous to the hypothetical nurse who knows that
an inmate faces a serious risk of appendicitis, but never-
theless gives him nothing but an aspirin. Sherrod v.
Lingle, 223 F.3d 605, 611-12 (7th Cir. 2000). Unlike an
inmate suffering from a tooth abscess or broken arm,
King was not suffering from a condition that allowed
him to call for help. He depended on others to notice
his severe hallucinations or seizures and to request emer-
gency care on his behalf.
As for Mondry-Anderson, we agree with the dis-
trict court that she was not deliberately indifferent to
No. 11-2204 13
King’s serious medical condition. She did not directly
observe his seizures, but instead relied on Kramer’s
characterization of the morning’s events when she
arrived for work that evening. Kramer informed Mondry-
Anderson that King responded to the smelling salts,
walked normally, and had normal oxygen levels. Mondry-
Anderson had no reason to disbelieve Kramer. She
thus lacked the requisite subjective knowledge that King
suffered from a serious medical condition or faced a
serious medical risk.
C
The final question is whether King has presented
enough evidence to survive summary judgment with
respect to his claim against La Crosse County. The County
cannot be held liable for the unconstitutional acts of its
employees unless those acts were part of an official
custom or policy. Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 690 (1978); see Grieveson v. Anderson, 538 F.3d 763,
771 (7th Cir. 2008). It is not enough to assert that the
municipality is responsible under a theory of respondent
superior. Monell, 436 U.S. at 691. To survive sum-
mary judgment, therefore, King “must present evidence
demonstrating the existence of an official policy, wide-
spread custom, or deliberate act of a county deci-
sion-maker of the municipality or department.” Grieveson,
538 F.3d at 771 (internal citations omitted). King must
also show that the official policy or custom caused his
constitutional violation. Id.
14 No. 11-2204
The Supreme Court has confirmed that the infliction
of unnecessary suffering through the failure to provide
adequate medical care for inmates is covered by the
Eighth Amendment (and thus, in our setting, by the
Fourteenth). Estelle, 429 U.S. at 104-05. The County
cannot shield itself from § 1983 liability by contracting
out its duty to provide medical services. (Indeed, the
Court’s recent decision in Filarsky v. Delia, 132 S. Ct. 1657
(2012), to the effect that private contractors are entitled
to assert qualified immunity, suggests by parity of rea-
soning that they are state actors for other purposes as
well.) The underlying rationale is not based on respondent
superior, but rather on the fact that the private
company’s policy becomes that of the County if the
County delegates final decision-making authority to it.
Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 705-06
(11th Cir. 1985).
The evidence presented for summary judgment
purposes shows that the County’s policy was to entrust
final decision-making authority to HPL over inmates’
access to physicians and medications. Nothing in the
record as of now suggests that the County had
higher aspirations for the care it was providing, but
that those standards were not met. The contract the
County had with HPL at the time of King’s incarcera-
tion states that HPL was responsible for providing a
physician to attend weekly sick call “for an estimated
minimum of one hour and an estimated maximum of
three hours except as is medically necessary.” The
contract also states that “HPL shall provide monitoring
No. 11-2204 15
of pharmacy usage as well as development of a preferred
drug list.”
HPL’s practice at the time of King’s incarceration was
to have Dr. Erickson at the jail for visits with patients
for no more than four hours a week. The on-call physi-
cian, Dr. Cullinan (who was in Peoria and thus not
able to back up Dr. Erickson for personal visits), was
not expected to prescribe medications in person.
HPL trained its nurses to follow a protocol when
inmates arrived with medications excluded from HPL’s
formulary: Ask the inmate how long he has been on
the medication and then notify Dr. Cullinan so that he
would be in a position to write orders over the phone
to transfer the inmate to a permitted drug.
We are not saying here that prescription formularies
are per se unconstitutional, or that restricted physician
access is by definition inappropriate. It is instead the
County’s endorsement of the particulars of the arrange-
ments in this case and the way the two policies
interacted, that caused it to run afoul of the Constitution
(if we believe King’s account). The County’s express
policies as embodied in the contract show that the
County delegated to HPL final authority to make
decisions about inmates’ medical care. We have
previously said that a municipality would violate the
Eighth Amendment under Monell if it had a policy re-
quiring jail staff to throw away all prescription medica-
tions without implementing an appropriate mechanism
for providing alternative treatment. Calhoun v. Ramsey,
408 F.3d 375, 379-80 (7th Cir. 2005). This case eerily
16 No. 11-2204
tracks that hypothetical example: HPL routinely switched
patients off prescribed medications without appropriate
oversight by a physician.
Even if the County had not delegated final deci-
sion-making authority to HPL, it was on notice that
HPL’s physician- and medication-related policies were
causing problems at the jail. If the County is “faced with
actual or constructive knowledge that its agents will
probably violate constitutional rights, [it] may not adopt
a policy of inaction.” Warren v. District of Columbia, 353
F.3d 36, 39 (D.C. Cir. 2004). There were at least seven
articles published by the La Crosse Tribune expressing
alarm over HPL’s medication policy. Steve Helgeson,
who became the Sheriff on January 1, 2007, testified
that he was aware of the discussions involving the
jail’s problems with medication distribution to inmates
in 2004 and 2005. This is enough evidence to create a
question of material fact whether the County was aware
at the relevant time that HPL had policies that
violated inmates’ constitutional rights.
In summary, King has pointed to significant evidence
that the County’s policies violated his constitutional
rights. Mondry-Anderson was concerned about taking
King off alprazolam at booking, but she was required to
abide by HPL’s policy of switching him to the formulary.
King was prescribed dramatic changes in his medication
by an “on-call” physician nearly 300 miles away who
took no steps to educate himself about King’s condition.
These policies caused King to suffer severe seizures
No. 11-2204 17
that ultimately contributed to his death. We therefore
hold that King has presented sufficient evidence to
survive summary judgment with respect to the County.
IV
We A FFIRM the district court’s grant of summary judg-
ment in favor of Olson, Koby-Gobel, and Mondry-Ander-
son, but we R EVERSE with respect to King’s claims against
Kramer and the County. All parties are to bear their
own costs on appeal.
5-25-12