Donald McDonald v. Marcus Hardy ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1102
DONALD L. MCDONALD,
Plaintiff-Appellant,
v.
MARCUS HARDY, Warden, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-02046 — Joan B. Gottschall, Judge.
____________________
∗
SUBMITTED JANUARY 7, 2016 — DECIDED MAY 9, 2016
____________________
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
RIPPLE, Circuit Judge. Donald McDonald was diagnosed
with arthritis and high cholesterol while serving a life sen-
∗ After examining the briefs and record, we have concluded that oral ar-
gument is unnecessary. Thus the appeal is submitted on the briefs and
record. See FED. R. APP. P. 34(a)(2)(C).
2 No. 15-1102
tence at Stateville Correctional Center (“Stateville”), a maxi-
mum-security prison in Illinois. Over the ten years following
his diagnosis, he received a low-cholesterol diet planned by a
dietician at the facility. In 2009, however, a new warden took
the helm at Stateville, and he promptly discharged the dieti-
cian and cancelled all special diets, including Mr. McDon-
ald’s. The new warden also decreased the frequency of out-
door recreation for inmates to two days each week and altered
the prison’s job-assignment policy to restrict inmates from
working in a particular job for more than one year.
As a result of these changes, Mr. McDonald brought this
action under 42 U.S.C. § 1983 against Marcus Hardy, the new
warden, Daryl Edwards, an assistant warden, and Salvador
Godinez, then the director of the Illinois Department of Cor-
rections. 1 Mr. McDonald claimed that Warden Hardy, with
the support of Assistant Warden Edwards, had violated the
Eighth Amendment’s prohibition on cruel and unusual pun-
ishment by cancelling his prescribed low-cholesterol diet, de-
creasing his outdoor-recreation time, and changing the job-
assignment system. Mr. McDonald also alleged that Director
Godinez had violated the Equal Protection Clause by allow-
ing inmates at the other maximum-security prisons in Illinois
to have prescription diets and more time for outdoor recrea-
tion. Mr. McDonald sought both damages and injunctive re-
lief.
1 After this appeal was filed, Director Godinez retired from the Illinois
Department of Corrections, and Warden Hardy accepted a different posi-
tion within the Department. It is unclear whether Assistant Warden Ed-
wards still works for the Department. For simplicity we refer to the three
defendants by the titles they held at the times relevant to Mr. McDonald’s
complaint.
No. 15-1102 3
The district court granted the defendants’ motion for sum-
mary judgment on each of Mr. McDonald’s four claims. In this
appeal, Mr. McDonald challenges the grant of summary judg-
ment only as to his claims concerning the cancellation of his
low-cholesterol diet, the limited time given for outdoor recre-
ation, and the purported disparity of treatment of inmates at
different Illinois maximum-security prisons. Mr. McDonald
does not mention the district court’s rejection of his claim
about the new system for assigning prison jobs; that claim
therefore has been abandoned. See Thornton v. M7 Aerospace
LP, 796 F.3d 757, 771 (7th Cir. 2015); Hentosh v. Herman M.
Finch Univ. of Health Scis./The Chicago Med. Sch., 167 F.3d 1170,
1173 (7th Cir. 1999).
We conclude that Warden Hardy and Assistant Warden
Edwards are not entitled to summary judgment on
Mr. McDonald’s claim concerning the cancellation of his pre-
scription diet, and we remand that claim for further proceed-
ings. In all other respects we affirm the judgment of the dis-
trict court.
I
BACKGROUND
A. Facts
Because the district court ruled in favor of the defendants
at summary judgment, we view the following facts in the light
most favorable to Mr. McDonald, the nonmoving party. See
Riker v. Lemmon, 798 F.3d 546, 551 (7th Cir. 2015).
Mr. McDonald, who has been incarcerated at Stateville for
twenty years, was diagnosed with high cholesterol in 1998. A
4 No. 15-1102
physician at the prison prescribed a low-cholesterol diet,
along with cholesterol-lowering medication. 2 Mr. McDonald
remained on that prescription diet until the end of 2009, when
Warden Hardy took charge. Warden Hardy then fired
Stateville’s dietician and cancelled all medical diets. Since
then, Mr. McDonald has eaten the regular diet at Stateville,
which includes foods that the dietician had warned him to
avoid, including cheese, eggs, and foods containing high
amounts of mayonnaise. 3 Medical providers working at State-
ville repeatedly have told Mr. McDonald that they cannot re-
instate his prescription for a low-cholesterol diet because the
cafeteria staff does not have the means to satisfy the prescrip-
tion.
During a January 2014 deposition, Mr. McDonald
acknowledged that his total cholesterol level had decreased at
some point during the two years preceding the deposition,
perhaps because doctors continued experimenting with dif-
ferent cholesterol medications. 4 Specifically, Mr. McDonald
2 At summary judgment, Mr. McDonald submitted an excerpt from what
he referred to as the American College of Physicians’ “Complete Home
Medical Guide,” which supports his contentions that “changes in diet and
exercise habits” typically are the first line of defense against high choles-
terol and that medications are prescribed only if “these measures fail,” on
their own, at lowering total cholesterol to a safe level. R.50 at 7–8; R.51 at
11.
3 The excerpt submitted by Mr. McDonald, see supra note 2, also asserts
that “[a] high cholesterol level is associated with a diet that is high in fats,
particularly saturated fats,” R.51 at 10–11.
4 Mr. McDonald is also litigating a separate lawsuit alleging that many of
the medications doctors prescribed were ineffective at lowering his cho-
lesterol and, in some instances, have caused harmful side effects. See
No. 15-1102 5
stated that his total cholesterol level had gone “down from
400” milligrams per deciliter (“mg/dL”) to “around three.” 5
That level, he added, was “still too high.” 6 There is no evi-
dence in the record, however, about Mr. McDonald’s choles-
terol level when his diet was cancelled four years before that
deposition.
Mr. McDonald also has been diagnosed with arthritis, for
which physicians have recommended exercises and some-
times prescribed pain medication. Stateville provides inmates
with outdoor recreation twice each week for two and one-half
hours each day, but Mr. McDonald alleges that this time is in-
sufficient to provide therapeutic treatment for his arthritis. He
also asserts that other maximum-security Illinois prisons pro-
vide “full yard,” meaning “they have sometimes three and
four times a day exercise programs where [inmates] might get
three yards and a gym.” 7
McDonald v. Wexford Health Sources, Inc., No. 09 C 4196, 2015 WL 3896929
(N.D. Ill. June 23, 2015) (denying defendants’ motion for summary judg-
ment).
5 R.44-1 at 20 (11:18).
6 Id. (11:19).
7 Id. at 22 (21:5–8). Mr. McDonald purportedly learned this information
from inmates incarcerated at Menard Correctional Center and Pontiac
Correctional Center, the other maximum-security prisons in Illinois.
6 No. 15-1102
B. Earlier Proceedings
Mr. McDonald brought this action in March 2013. He first
alleged that Warden Hardy had violated the Eighth Amend-
ment by “maintain[ing] and enforc[ing an] institutional pol-
icy denying Plaintiff a low cholesterol diet.” 8 He also asserted
that Warden Hardy was “the moving force behind the Policy
of two (2) days of recreation, two hours each day,” which, he
said, caused him “to aggravate his medical conditions of high
cholesterol, arth[ritis] and borderline diabetes.” 9 Mr. McDon-
ald next contended that Assistant Warden Edwards had vio-
lated the Eighth Amendment when he “failed to create pro-
grams that offered medical diets” and failed to provide suffi-
cient time for outdoor recreation. 10 Finally, Mr. McDonald al-
leged that Director Godinez unconstitutionally discriminated
against similarly situated Illinois inmates “by allowing
Menard Correctional Center and Pontiac Correctional Center
to provide special medical diets and yard or gym (exercise)
more than two (2) times a we[e]k.” 11 He sought damages
against the individual defendants as well as “an injunction
[r]equiring Stateville Correctional Center [to] provide [s]pe-
cial diets for high cholesterol [and] diabetes, and an oppor-
tunity for plaintiff to exercise five (5) days a week.” 12
8 R.1 at 8.
9 Id. at 8–9.
10 Id. at 9.
11 Id. at 10.
12 Id. at 12.
No. 15-1102 7
In August 2013, five months after Mr. McDonald brought
this action, he requested various documents from the defend-
ants, including a “complete copy” of his medical file at State-
ville, policies and procedures concerning medical diets and
opportunities for exercise at Stateville, and policies and pro-
cedures concerning opportunities for exercise throughout the
Illinois Department of Corrections. 13 When the defendants
failed to respond with all of the requested documents,
Mr. McDonald twice asked the district court to compel pro-
duction, and both times the court ordered the defendants to
comply with Mr. McDonald’s discovery requests.
Three months after the second order compelling discov-
ery, and without complying with that order, the defendants
moved for summary judgment. Warden Hardy and Assistant
Warden Edwards did not dispute that Mr. McDonald had a
medical prescription for a low-cholesterol diet when Warden
Hardy arrived at Stateville in late 2009. Instead, these defend-
ants simply asserted that “[n]o physician ha[d] prescribed a
low cholesterol diet for Plaintiff in the last several years.”14
These defendants also did not dispute that Warden Hardy
had given (and Assistant Warden Edwards had carried out)
the order to cancel Mr. McDonald’s prescription. Nor did they
offer evidence that Warden Hardy had consulted Mr. McDon-
ald’s physicians (or any medical source) before cancelling
Mr. McDonald’s prescription diet. And these defendants did
not offer a medical expert’s opinion that Mr. McDonald’s low-
cholesterol diet was unnecessary or that cancelling it had not
13 R.21 at 10.
14 R.43 at 4 (emphasis added).
8 No. 15-1102
harmed him and had not placed him at a greater risk of suf-
fering a heart attack or stroke.
Rather, the only relevant evidence submitted by any of the
defendants was the transcript of Mr. McDonald’s deposition.
Warden Hardy and Assistant Warden Edwards—without
producing any evidence showing what Mr. McDonald’s cho-
lesterol level had been before his diet was cancelled—asserted
that Mr. McDonald did not have a valid claim because during
his deposition he had acknowledged that his cholesterol level
decreased from 400 mg/dL to 300 mg/dL in the two years pre-
ceding that January 2014 deposition. The defendants con-
tended that this decrease established that Mr. McDonald’s
high cholesterol was being treated adequately “by physicians
at Stateville with medication.” 15 The defendants did not ex-
plain, though, how Mr. McDonald’s claim could be defeated
by evidence that his cholesterol level remained at least as high
as 300 mg/dL two years or more after they had ended his diet.
Mr. McDonald countered with medical literature (accepted by
the district court without objection from the defendants) ex-
plaining that the optimal cholesterol range for someone of
middle age is 115 mg/dL to 200 mg/dL. The defendants did
not offer evidence, or even suggest, that a cholesterol level of
either 300 mg/dL or 400 mg/dL is safe.
In granting summary judgment for the defendants on all
claims, the district court first rejected Mr. McDonald’s conten-
tion that the amount of outdoor recreation available to State-
ville inmates is constitutionally deficient. The court reasoned
that Mr. McDonald’s evidence concerning his opportunities to
exercise both in his cell and outdoors defeated his claim of an
15 Id.
No. 15-1102 9
Eighth Amendment violation, particularly because
Mr. McDonald had not presented evidence “that the limita-
tion on his yard time adversely affected his cholesterol level
or his arthritis.” 16 The court then turned to the cancellation of
Mr. McDonald’s low-cholesterol diet. In rejecting that claim,
the court asserted that Mr. McDonald lacked “evidence show-
ing that a doctor has prescribed him a low cholesterol diet or
that the lack of such a diet has hindered his ability to control
his cholesterol levels.” 17 Mr. McDonald simply disagreed, the
court reasoned, with the medical treatment provided by doc-
tors at Stateville. And, the court emphasized, because the de-
fendants are not physicians, they are permitted to “reason-
ably rely on the judgment of medical professionals regarding
the care provided to an inmate.” 18 Finally, the court concluded
that Director Godinez was entitled to summary judgment on
Mr. McDonald’s equal protection claim; Director Godinez’s
decisions concerning inmates at different prisons in Illinois
are presumed to be rational, the court explained, and
Mr. McDonald’s “belief” that Stateville inmates are unfairly
allowed less time for recreation and deprived of prescription
diets was insufficient to overcome that presumption. 19
16 R.55 at 7.
17 Id. at 10.
18 Id. at 11.
19 Id. at 12.
10 No. 15-1102
II
DISCUSSION
We review the district court’s decision granting summary
judgment de novo. Riker, 798 F.3d at 551. Summary judgment
is appropriate only if, construing the record in the light most
favorable to the party opposing summary judgment, no jury
could reasonably find in favor of that party. Bagwe v. Sedgwick
Claims Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016).
A. Eighth Amendment Claim Based on Cancellation of
Low-Cholesterol Diet
Mr. McDonald submits that the district court improperly
granted summary judgment on his claim that Warden Hardy
and Assistant Warden Edwards displayed deliberate indiffer-
ence to his high cholesterol by cancelling his prescription diet.
The Eighth Amendment, which applies to the states
through the Due Process Clause of the Fourteenth
Amendment, requires that inmates receive adequate medical
care. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976); Pyles v.
Fahim, 771 F.3d 403, 408 (7th Cir. 2014); Knight v. Wiseman, 590
F.3d 458, 463 (7th Cir. 2009). However, an inmate claiming a
violation of the Eighth Amendment must do more than show
negligence, medical malpractice, or disagreement with a pre-
scribed course of treatment; the inmate must demonstrate that
prison staff was deliberately indifferent to an objectively seri-
ous medical condition. See Pyles, 771 F.3d at 409; Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). 20 Where, as here, an
20 See also Johnson v. Doughty, 433 F.3d 1001, 1012–13 (7th Cir. 2006); Kelley
v. McGinnis, 899 F.2d 612, 616 (7th Cir. 1990).
No. 15-1102 11
inmate sues prison employees who are not part of the medical
staff, deliberate indifference can be shown with evidence that
those employees ignored or interfered with a course of treat-
ment prescribed by a physician. See Estelle, 429 U.S. at 104–05
(explaining that deliberate indifference can be “manifested by
prison doctors in their response to the prisoner’s needs or by
prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment
once prescribed” (footnotes omitted)). 21
An objectively serious medical condition is one that “a
physician has diagnosed as needing treatment” or that is so
obviously serious “that even a lay person would easily recog-
nize the necessity for a doctor’s attention.” Knight, 590 F.3d at
463 (internal quotation marks omitted). 22 Prisoners typically
point to acute problems that, because of inadequate treat-
ment, already have caused or aggravated pain or other harm.
See, e.g., Conley v. Birch, 796 F.3d 742, 744–45, 747 (7th Cir.
2015) (fractured hand); Perez v. Fenoglio, 792 F.3d 768, 774, 776
(7th Cir. 2015) (torn ligament in hand, dislocated thumb, tis-
sue damage, and open wound). 23 No less objectively serious,
21 See also Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828–29 (7th
Cir. 2009); Chapman v. Keltner, 241 F.3d 842, 845–46 (7th Cir. 2001); Burgess
v. Fischer, 735 F.3d 462, 476 (6th Cir. 2013).
22See also Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010); Edwards v.
Snyder, 478 F.3d 827, 830–31 (7th Cir. 2007).
23 See also Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (shotgun
wound); Rodriguez, 577 F.3d at 830 (incorrect insertion of IV needle);
Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008) (nasal fracture); Ed-
wards, 478 F.3d at 831 (dislocated and fractured finger); O'Malley v.
Litscher, 465 F.3d 799, 805 (7th Cir. 2006) (burns).
12 No. 15-1102
though, are chronic or degenerative conditions that cause
harm that may escalate and have significant future repercus-
sions unless adequately treated. For example, high choles-
terol, known as “the silent killer,” can progress over an ex-
tended period of time without apparent side effects before
eventually reaching a crisis point and causing potentially
deadly health problems, including heart attacks and strokes.24
Custodians are not excused from ensuring adequate treat-
ment for inmates with chronic or degenerative conditions
simply because any resulting harms may remain latent or
have not yet reached the point of causing acute or life-threat-
ening injuries. See Miller v. Campanella, 794 F.3d 878, 878, 880
(7th Cir. 2015) (gastroesophageal reflux disease); Ortiz v. City
of Chicago, 656 F.3d 523, 526, 533 (7th Cir. 2011) (diabetes, thy-
roid condition, hypertension, and asthma); Roe v. Elyea, 631
F.3d 843, 861–62 (7th Cir. 2011) (hepatitis C); Gayton v. McCoy,
593 F.3d 610, 620–21 (7th Cir. 2010) (congestive heart failure);
Greeno v. Daley, 414 F.3d 645, 648, 653 (7th Cir. 2005) (severe
heartburn and frequent vomiting); Reed v. McBride, 178 F.3d
849, 851, 853 (7th Cir. 1999) (paralysis, heart disease, Hunt’s
syndrome, high blood pressure, rheumatoid arthritis, and
“other crippling diseases”). 25 Indeed, it is precisely the latent
24 See High Cholesterol: The Silent Killer, HEALTH CENT. (Mar. 23, 2011),
http://www.healthcentral.com/cholesterol/c/684890/134294/cholesterol/;
High Cholesterol Overview, MAYO CLINIC (Feb. 9, 2016), http://www.mayo-
clinic.org/diseases-conditions/high-blood-cholesterol/home/ovc-
20181871.
25 See also Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 487–88, 498 (1st Cir.
2011) (HIV); Johnson v. Wright, 412 F.3d 398, 400 (2d Cir. 2005) (hepatitis C);
Hunt v. Uphoff, 199 F.3d 1220, 1222–24 (10th Cir. 1999) (hypertension and
No. 15-1102 13
and incremental nature of the harms associated with such
conditions that makes the provision of adequate medical care
so important. 26
With that in mind, we turn to the merits of Mr. McDonald’s
claim of deliberate indifference. We first note that the hurdles
Mr. McDonald encountered in developing evidence to flesh
out this claim are troubling, particularly with respect to essen-
tial medical records. Twice the district court had to direct the
defendants to comply with Mr. McDonald’s discovery re-
quests, yet Mr. McDonald informs us that the defendants
never fully complied with the court’s orders. The defendants
do not deny this accusation or explain their conduct. Instead,
they insist that, “other than his two motions to compel,”
Mr. McDonald “identifies nothing in the record to show that
he brought any of the…claimed discovery ‘violations’ to the
attention of the district court.” 27 The defendants add that
diabetes); Rouse v. Plantier, 182 F.3d 192, 195, 198–99 (3d Cir. 1999) (diabe-
tes); Aswegan v. Bruhl, 965 F.2d 676, 677 (8th Cir. 1992) (coronary artery
disease, chronic obstructive pulmonary disease, and arthritis); McCarthy
v. Weinberg, 753 F.2d 836, 836–37 (10th Cir. 1985) (multiple sclerosis); cf.
Helling v. McKinney, 509 U.S. 25, 35 (1993) (holding that inmate can state
claim of deliberate indifference by alleging “unreasonable risk of serious
damage to his future health” (emphasis added)).
26 Adequate treatment of chronic conditions is a serious concern in correc-
tional institutions, where, at least one study has shown, there is a signifi-
cantly higher prevalence of hypertension, asthma, arthritis, cervical can-
cer, and hepatitis. Ingrid A. Bingswanger, Chronic Medical Diseases Among
Jail and Prison Inmates, CORRECTIONS.COM (Oct. 25, 2010), http://www.cor-
rections.com/news/article/26014-chronic-medical-diseases-among-jail-
and-prison-inmates.
27 Appellees’ Br. 28. This assertion is puzzling; by filing two motions com-
plaining of inadequate responses to his discovery requests, Mr. McDonald
14 No. 15-1102
Mr. McDonald “does not explain how not having the particu-
lar documents he complains Defendants never produced—
e.g., his medical records showing that he had been prescribed
a low-cholesterol diet years ago and the prior policy of seven
hours of recreation per week—prejudiced him in any way on
summary judgment.” 28 Finally, the defendants point out that
Mr. McDonald did not ask for additional time to complete dis-
covery or submit an affidavit swearing that he could not ade-
quately oppose summary judgment without the documents.
See FED. R. CIV. P. 56(d); First Nat’l Bank & Trust Corp. v. Am.
Eurocopter Corp., 378 F.3d 682, 693–94 (7th Cir. 2004). Litigants,
however, cannot ignore legitimate discovery requests based
on a unilateral belief that flouting the rules of procedure will
not harm their opponents, 29 and continued intransigence after
the district court has compelled compliance is inexcusable. 30
In any event, what little evidence Warden Hardy and As-
sistant Warden Edwards did submit in opposing Mr. McDon-
ald’s claim about his prescription diet actually supports, ra-
ther than defeats, that claim, and thus we must overturn the
grant of summary judgment regardless whether the docu-
did bring the alleged discovery violations to the attention of the district
court.
28 Id. at 28–29.
29 SeeSentis Grp., Inc. v. Shell Oil Co., 763 F.3d 919, 925 (8th Cir. 2014); Farm
Constr. Servs., Inc. v. Fudge, 831 F.2d 18, 20–21 (1st Cir. 1987).
30See Negrete v. Nat'l R.R. Passenger Corp., 547 F.3d 721, 723–24 (7th Cir.
2008); Israel Travel Advisory Serv., Inc. v. Israel Identity Tours, Inc., 61 F.3d
1250, 1254–55 (7th Cir. 1995); Fair Hous. of Marin v. Combs, 285 F.3d 899,
905–06 (9th Cir. 2002).
No. 15-1102 15
ments withheld by the defendants were material. The evi-
dence is undisputed that when Warden Hardy arrived at Stat-
eville in late 2009 he cancelled (and Assistant Warden Ed-
wards refused to reinstate) all prescription diets, including
Mr. McDonald’s. These defendants, however, are not physi-
cians, and there is no evidence in the record that they ever
consulted a medical professional about the advisability of
cancelling the allowance for low-cholesterol diets at the
prison. Interference with prescribed treatment is a well-recog-
nized example of how nonmedical prison personnel can dis-
play deliberate indifference to inmates’ medical conditions.
See Estelle, 429 U.S. at 104–05; Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 828–29 (7th Cir. 2009). 31
Warden Hardy and Assistant Warden Edwards fall back
on their contention that nothing was taken away from
Mr. McDonald because he “presented no evidence that a med-
ical professional has prescribed a low-cholesterol diet for
him.” 32 First, we note the obvious conflict that this statement
presents with the defendants’ assertion in the same brief that
full compliance with Mr. McDonald’s discovery requests,
which included requests for medical records proving the ex-
istence of the prescription, would not have changed the result
at summary judgment. In any event, this characterization of
the evidence at summary judgment is wrong: Mr. McDonald
testified at his deposition that he was given a prescription diet
when he was diagnosed with high cholesterol and that he was
still receiving that low-cholesterol diet when Warden Hardy
31See also Chapman, 241 F.3d at 845–46; Williams v. Ramos, 71 F.3d 1246,
1250 (7th Cir. 1995); Burgess, 735 F.3d at 476.
32 Appellees’ Br. 18.
16 No. 15-1102
took it away. The defendants did not introduce evidence that
prescription diets expire or must be renewed periodically, nor
did they introduce evidence that an inmate could have been
receiving a nonstandard, low-cholesterol diet without a pre-
scription. Rather, their statement of uncontested facts at sum-
mary judgment stated only that Mr. McDonald had not been
prescribed a low-cholesterol diet “in the last several years,”33
i.e., since Warden Hardy fired the prison dietician. But this
fact does not help the defendants. That Mr. McDonald was not
given a prescription after Warden Hardy took over is not evi-
dence that a prescription was medically unnecessary; in fact,
the absence of a prescription after Warden Hardy’s arrival is
the very reason for Mr. McDonald’s lawsuit. No physician
would give him a prescription, he explained at his deposition,
because after Warden Hardy’s arrival four years earlier a pre-
scription for a low-cholesterol diet would have been ignored
by the cafeteria staff.
Warden Hardy and Assistant Warden Edwards next point
to the medical treatment for high cholesterol that Mr. McDon-
ald had been receiving—a variety of prescription medicines—
and contend that this claim of deliberate indifference amounts
to nothing more than Mr. McDonald’s disagreement with the
medical staff’s chosen course of treatment. Despite the fact
that eliminating Mr. McDonald’s prescription diet was not the
medical staff’s choice, the district court was persuaded by the
defendants’ reasoning. At his deposition, however,
Mr. McDonald testified that medication alone was ineffective
at lowering his cholesterol to a safe level. A level of 300 mg/dL
33 R.44 at 2.
No. 15-1102 17
is “too high,” he stated. 34 The defendants did not submit any
evidence challenging that statement. 35 A jury reasonably
could find that Warden Hardy and Assistant Warden Ed-
wards were deliberately indifferent to Mr. McDonald’s condi-
tion when they ignored his pleas to honor the medical staff’s
inclusion of a low-cholesterol diet in his treatment plan. See
Smego v. Mitchell, 723 F.3d 752, 758 (7th Cir. 2013) (explaining
that “[a] physician is deliberately indifferent when he persists
in an ineffective treatment”). 36 Moreover, Mr. McDonald in-
troduced evidence, again without contradiction, that a com-
bination of medication, a low-cholesterol diet, and exercise is
the medically accepted method of lowering high cholesterol.
Warden Hardy and Assistant Warden Edwards touch on,
but have not developed, an argument concerning causation.
See Flint v. City of Belvidere, 791 F.3d 764, 770 (7th Cir. 2015)
(explaining that plaintiff alleging constitutional tort must
34 R.44-1 at 20 (11:19).
35 Indeed, it is apparent after browsing readily available sources targeted
at lay persons that a total cholesterol level above 240 mg/dL is high. See
High Blood Cholesterol Levels In-Depth Report, N.Y. TIMES, http://www.ny-
times.com/health/guides/disease/high-blood-cholesterol-and-triglycer-
ides/print.html (last visited Apr. 20, 2016); High Cholesterol, U.S. DEP’T OF
VETERANS AFFAIRS, NAT’L CTR. FOR HEALTH PROMOTION & DISEASE
PREVENTION (April 2009), http://www.ahrq.gov/sites/default/files/
wysiwyg/patients-consumers/prevention/disease/cholpatient.pdf; Know
the Facts About High Cholesterol, CTRS. FOR DISEASE CONTROL & PREVENTION
1, http://www.cdc.gov/cholesterol/docs/ConsumerEd_Cholesterol.pdf
(last visited Apr. 20, 2016).
36 See also Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011) (same); Greeno
v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (same); Kelley, 899 F.2d at 616–17
(same).
18 No. 15-1102
show that defendant caused injury); Roe, 631 F.3d at 863–64.
In their summary judgment motion, the defendants stated
only that Mr. McDonald “can provide no evidence that his
cholesterol level has been affected by not having a low cho-
lesterol diet.” 37 However, given the diagnosis of a serious
medical condition and the interference by Warden Hardy and
Assistant Warden Edwards with a physician’s assessment that
a low-cholesterol diet was necessary in treating that condi-
tion, a jury reasonably could infer that Mr. McDonald was,
and continues to be, harmed by the lack of a low-cholesterol
diet. See Gayton, 593 F.3d at 624–25 (concluding that jury could
infer causation from evidence of serious medical condition
and requests for treatment that were ignored); Grieveson v. An-
derson, 538 F.3d 763, 779 (7th Cir. 2008) (explaining that jury
could infer that delay in providing treatment caused harm).
The defendants made no effort to establish that Mr. McDon-
ald’s level of total cholesterol remained steady after his pre-
scription diet was taken away. Nor did they offer an expert’s
opinion that Mr. McDonald could not have been harmed by
the defendants’ actions. 38 Accordingly, we must return this
claim to the district court for further proceedings.
37 R.43 at 4.
38 We note that evidence in the public record of a separate lawsuit, McDon-
ald v. Wexford Health Sources, Inc., No. 09 C 4196 (N.D. Ill.), supports
Mr. McDonald’s contention that he has been harmed by the defendants’
actions. According to a medical report submitted in response to the de-
fendants’ motion for summary judgment in that lawsuit, Mr. McDonald
has been diagnosed with atherosclerosis of the aorta, a “hardening and
narrowing of the arteries” that can be caused by high cholesterol and “is
the usual cause of heart attacks, strokes, and peripheral vascular disease,”
What Is Atherosclerosis, WEBMD (May 26, 2014), http://www.webmd.com/
heart-disease/what-is-atherosclerosis.
No. 15-1102 19
B. Eighth Amendment Claim Based on Outdoor Recrea-
tion
Mr. McDonald contends that the court erroneously
granted summary judgment to Warden Hardy and Assistant
Warden Edwards on his claim that the five hours they allow
for outdoor recreation each week is constitutionally deficient.
In contrast with the claim about his low-cholesterol diet, how-
ever, Mr. McDonald presented no evidence that a physician
had specified a minimum level of outdoor recreation to treat
either his arthritis or high cholesterol. See Jackson v. Kotter, 541
F.3d 688, 697–98 (7th Cir. 2008) (explaining that
Eighth Amendment does not give inmates right to dictate
course of treatment); Forbes v. Edgar, 112 F.3d 262, 266–67 (7th
Cir. 1997) (same). These defendants therefore are entitled to
summary judgment on this claim.
C. Equal Protection Claim
Mr. McDonald additionally argues that the district court
improperly granted summary judgment on his claim that Di-
rector Godinez, the former director of the Illinois Department
of Corrections, discriminated against Stateville inmates in vi-
olation of the Equal Protection Clause by denying them med-
ical diets and greater opportunities for outdoor recreation,
both of which, he says, are available at the other two maxi-
mum-security prisons in Illinois. Mr. McDonald, however, ad-
mitted during his deposition that he lacks personal
20 No. 15-1102
knowledge of the conditions at the state’s other maximum-se-
curity prisons, which dooms his claim at summary judg-
ment. 39
D. Remaining Issues
Three other matters remain. First, because Mr. McDonald
seeks injunctive relief on his claim that Warden Hardy inter-
fered with his prescribed diet, the district court on remand
should add as a defendant, in his official capacity, the current
warden of Stateville.
Second, we note that Mr. McDonald currently has pending
before the same district judge a second, related lawsuit claim-
ing that Wexford Health Sources (a company that contracts
with Illinois to provide medical care to its prisoners), along
with its employees, was deliberately indifferent to his high
cholesterol by prescribing ineffective and harmful medica-
tions. McDonald v. Wexford Health Sources, Inc., No. 09 C 4196
(N.D. Ill.). In that second suit the district court recruited coun-
sel for Mr. McDonald. That lawyer retained a medical expert,
and the district court recently denied the defendants’ motion
for summary judgment. Because the legal issues and facts
overlap significantly, the district court on remand should con-
sider consolidating the two lawsuits and requesting that
counsel also represent Mr. McDonald in this one. See FED. R.
CIV. P. 42(a)(2) (allowing district court to consolidate actions
that “involve a common question of law or fact”); Blair v.
39 See Markel v. Bd. of Regents of Univ. of Wis. Sys., 276 F.3d 906, 912 (7th Cir.
2002); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989).
No. 15-1102 21
Equifax Check Servs., Inc., 181 F.3d 832, 839 (7th Cir. 1999) (ex-
plaining that consolidation is “[b]y far the best means of
avoiding wasteful overlap when related suits are pending in
the same court”).
Finally, on remand the district court should resolve
Mr. McDonald’s assertion that the defendants have stone-
walled his discovery demands despite two orders from the
court directing compliance.
Conclusion
The district court erred in granting the defendants’ motion
for summary judgment on Mr. McDonald’s claim that Warden
Hardy and Assistant Warden Edwards displayed deliberate
indifference to his high cholesterol by cancelling and refusing
to reinstate his low-cholesterol diet. Accordingly, we vacate
the grant of summary judgment on that claim, and we remand
that claim for further proceedings. In all other respects we af-
firm the district court’s judgment.
AFFIRMED in part, REVERSED and
REMANDED in part