Angel Rodriguez v. Plymouth Ambulance Service ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-4260
A NGEL L. R ODRIGUEZ,
Plaintiff-Appellant,
v.
P LYMOUTH A MBULANCE
S ERVICE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:06-CV-01091-AEG—Charles N. Clevert, Jr., Judge.
A RGUED S EPTEMBER 19, 2008—D ECIDED A UGUST 18, 2009
Before P OSNER, R IPPLE and E VANS, Circuit Judges.
R IPPLE, Circuit Judge. Angel Rodriguez, proceeding in
forma pauperis, filed this action under 42 U.S.C. § 1983
against Plymouth Ambulance Service, St. Agnes Hospital,
Waupun Memorial Hospital and various Plymouth em-
ployees. Mr. Rodriguez claims that the medical providers,
while acting under color of state law, violated the
Eighth Amendment’s prohibition against cruel and un-
2 No. 06-4260
usual punishment by exhibiting deliberate indifference
to his serious medical needs. The district court, screening
the complaint under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1), dismissed the case for failure to state a
claim upon which relief could be granted. For the
reasons given in this opinion, we affirm in part and
vacate and remand in part the judgment of the district
court.
I
BACKGROUND
A.1
Mr. Rodriguez is an inmate at the Kettle Moraine Correc-
tional Institution (“KMCI”) in Wisconsin. On October 8,
2005, he began spitting up blood and experiencing ab-
dominal pain. An ambulance from the Plymouth Ambu-
lance Service (“Plymouth”), with emergency medical
technician-paramedics (“EMT”) Mike Lubbert and Nadie
Becker aboard, arrived at KMCI to transport Mr. Rodriguez
to St. Agnes Hospital (“St. Agnes”). In the ambulance,
Mr. Lubbert inserted a temporary intravenous line (“IV”)
into Mr. Rodriguez’s right arm. The IV caused Mr. Rodri-
guez pain, and he notified Mr. Lubbert and Ms. Becker.
Mr. Rodriguez also complained about the “serious pain”
he was experiencing to the nurses at the emergency
1
Given the procedural posture of this case, we must accept
as true the factual account in Mr. Rodriguez’s complaint.
No. 06-4260 3
department of St. Agnes and asked that they adjust the
IV. R.1 at 6. However, Mr. Rodriguez was informed by a
nurse that St. Agnes did not have an active medical
account with the prison system and that he therefore
would be transferred to Waupun Memorial Hospital
(“Waupun Memorial”). During the hour that Mr. Rodri-
guez waited to be transferred, he continued to ex-
perience pain.2
At Waupun Memorial, Mr. Rodriguez informed the
nurses that he was in pain from the IV. The nurses
flushed and adjusted the IV, causing his arm to bleed
profusely and causing him “more severe pain.” R.1 at 6A.
The IV was not removed until four days after its insertion.
By that time, Mr. Rodriguez’s arm was swollen and
completely immobile. When he complained to the staff
at Waupun Memorial and requested pain relief medica-
tion, they provided him with an ice bag and stated that
they could do nothing more. Id.
Upon his return to KMCI, the prison’s medical staff
noticed that Mr. Rodriguez’s arm was severely infected
and that pus was oozing from the site where the IV had
been inserted. After running a test, the staff determined
that Mr. Rodriguez had contracted methicillin-resistant
staphylococcus aureus. Mr. Rodriguez was treated at the
prison with antibiotics, but he continues to experience
pain in his arm.
2
It appears from the medical records attached to Mr. Rodri-
guez’s complaint that, while at St. Agnes, he received some
medication by IV.
4 No. 06-4260
B.
The district court took the view that the allegations of
the complaint arguably suggest that the named
defendants had operated under the color of state law.
Relying on our decisions in Burrell v. City of Mattoon, 378
F.3d 642, 650 (7th Cir. 2004), and Proffitt v. Ridgeway, 279
F.3d 503, 507 (7th Cir. 2002), the court based its conclusion
on the principles that a private person can become liable
under section 1983 by conspiring with a public official
to deprive a person of a constitutional right or by be-
coming a willful participant with the state or its agents in
such a deprivation.
The district court then turned to the merits of Mr. Rodri-
guez’s Eighth Amendment claim. It determined that
there was no arguable basis for relief and dismissed the
complaint.
II
DISCUSSION
This case is significantly more complex than the
district court’s opinion suggests. To ensure clarity of
analysis and of presentation, we shall discuss the princi-
ples of law that guide our decision in Sections A through
C and then apply those principles to the facts of this case
in Section D.
A.
As a threshold matter, we shall address the appropriate
standard of review and the sufficiency of Mr. Rodriguez’s
complaint.
No. 06-4260 5
We review de novo a district court’s dismissal of a
complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).
DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000);
Sanders v. Sheahan, 198 F.3d 626, 626 (7th Cir. 1999). We
must accept the facts alleged in Mr. Rodriguez’s com-
plaint as true and draw all reasonable inferences in
Mr. Rodriguez’s favor. See DeWalt, 224 F.3d at 612.
The sufficiency of a complaint is governed by Federal
Rule of Civil Procedure 8(a). That rule provides that to
state a claim for relief, a complaint must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
Supreme Court has stated that “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550
U.S. at 556). Additionally, because Mr. Rodriguez filed
his complaint without the assistance of counsel, we
construe liberally the factual allegations of his complaint.
See Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001).
The complaint in this case is certainly adequate under
these standards.
We do note, however, that Mr. Rodriguez mentions in
the text of his pro se complaint several individuals
whom he believes were responsible for his injury, but
6 No. 06-4260
whose names he does not know. In Billman v. Indiana
Department of Corrections, 56 F.3d 785 (7th Cir. 1995), we
addressed at some length the principles that must
govern our consideration of this situation:
Ordinarily a tort victim who does not know who
the tortfeasor is cannot sue. To know that one has
been injured tortiously but not by whom is a ground
for tolling the statute of limitations, but it is not a
ground for filing suit before the plaintiff knows
who injured him and who therefore should be named
as the defendants. But this is not an ordinary case.
Billman is a prison inmate. His opportunities for
conducting a precomplaint inquiry are, we assume,
virtually nil. . . . Even without doing any investigating,
Billman knew enough to know that a terrible thing
had been done to him. But he did not know enough
to identify the culprits or to determine whether they
had the confluence of knowledge . . . and power . . .
necessary to hold them liable for inflicting a cruel
and unusual punishment.
We do not think that the children’s game of pin the
tail on the donkey is a proper model for constitutional
tort law. If a prisoner makes allegations that if true
indicate a significant likelihood that someone em-
ployed by the prison system has inflicted cruel and
unusual punishment on him, and if the circum-
stances are such as to make it infeasible for the pris-
oner to identify that someone before filing his com-
plaint, his suit should not be dismissed as frivolous.
The principle is not limited to prisoner cases. It applies
No. 06-4260 7
to any case in which, usually because the plaintiff
has been injured as the consequence of the actions of
an unknown member of a collective body, identifica-
tion of the responsible party may be impossible with-
out pretrial discovery. . . . Of course, eventually the
plaintiff must discover the names of the defendants
in order to serve summonses on them and thus estab-
lish the court’s personal jurisdiction, without which
the suit must be dismissed. But his initial inability
to identify the injurers is not by itself a proper
ground for the dismissal of the suit. Dismissal would
gratuitously prevent him from using the tools of
pretrial discovery to discover the defendants’ identity.
Our point is not that Billman should be given a
break because he lacks legal skills. Or that his com-
plaint should, like any complaint governed by the
Federal Rules of Civil Procedure, be read gener-
ously. . . . Our point is that because Billman is a pris-
oner he may not be in a position to identify the proper
defendants, or all of them, in his complaint. . . . We
think it is the duty of the district court to assist
him, within reason, to make the necessary investiga-
tion.
Id. at 789-90 (citations omitted).
B.
Mr. Rodriguez brought this claim under 42 U.S.C. § 1983.
To state a claim under this section, the plaintiff must
establish the deprivation of a right secured by the Con-
8 No. 06-4260
stitution or laws of the United States. Daniels v. Williams,
474 U.S. 327, 330-31 (1986). He also must show that the
alleged deprivation was committed by a person acting
under the color of state law. Reynolds v. Jamison, 488 F.3d
756, 764 (7th Cir. 2007). We now examine the two basic
principles of section 1983 jurisprudence that must
govern our decision: (1) that there is no respondeat supe-
rior liability under section 1983 and (2) that a plaintiff
must show that a private entity acted under the color
of state law to state a claim under section 1983.
1.
It has long been established that there is no respondeat
superior liability under section 1983.3 Although this
principle typically surfaces in the context of municipal
corporations,4 we have applied the same principle to
situations where the employer is an individual.5 The
same is true of a private corporation. As we noted in
Johnson v. Dossey, 515 F.3d 778 (7th Cir. 2008):
The corporate defendants require a bit more attention.
Both [defendants] claim to be sued solely under a
theory of respondeat superior or vicarious liability.
Like public municipal corporations, they cannot be
sued solely on that basis: a “private corporation is
3
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978).
4
See, e.g., id. at 694.
5
See, e.g., Ryan v. Mary Immaculate Queen Ctr., 188 F.3d 857 (7th
Cir. 1999).
No. 06-4260 9
not vicariously liable under § 1983 for its employees’
deprivations of others’ civil rights.” Iskander v. Vill. of
Forest Park, 690 F.2d 126, 128 (7th Cir. 1982); see also
Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760 (7th
Cir. 2002). However, like a municipality, a private
corporation can be liable if the injury alleged is the
result of a policy or practice, or liability can be “dem-
onstrated indirectly ‘by showing a series of bad acts
and inviting the court to infer from them that the
policy-making level of government was bound to
have noticed what was going on and by failing to do
anything must have encouraged or at least con-
doned . . . the misconduct of subordinate offi-
cers.’ ” Woodward v. Corr. Med. Servs., 368 F.3d 917,
927 (7th Cir. 2004).
Id. at 782 (alteration in original).
2.
We next consider the principle that, to be held liable
under section 1983, a private entity must have acted
under color of state law.
a.
When a plaintiff brings a section 1983 claim against a
defendant who is not a government official or employee,
the plaintiff must show that the private entity acted under
10 No. 06-4260
the color of state law.6 This requirement is an important
statutory element because it sets the line of demarcation
between those matters that are properly federal and those
matters that must be left to the remedies of state tort
law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999); Jackson v. Metro. Edison Co., 419 U.S. 345, 349-51
(1974). Both the Supreme Court and the lower federal
courts have acknowledged the difficulty of determining
whether a private entity has acted under the color of
state law. As our colleagues on the Second Circuit have
noted, this determination constitutes “one of the more
slippery and troublesome areas of civil rights litigation.”
Int’l Soc’y for Krishna Consciousness v. Air Canada, 727
F.2d 253, 255 (2d Cir. 1984) (quotation marks omitted).
However, we have not been left foundering in uncharted
waters; recent years have witnessed a long line of deci-
sions in which the Supreme Court has given us signifi-
cant guidance.7
At its most basic level, the state action doctrine
requires that a court find such a “close nexus between the
6
The Supreme Court has said, in its more recent cases, that
this statutory criterion is the equivalent of the “state action”
requirement in Fourteenth Amendment analysis. See, e.g., NCAA
v. Tarkanian, 488 U.S. 179, 182 n.4 (1988); see also West v. Atkins,
487 U.S. 42, 49 (1988); Georgia v. McCollum, 505 U.S. 42, 53
n.9 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 641
n.* (1991).
7
See generally Martin A. Schwartz and Erwin Chemerinsky,
Dialogue on State Action, 16 Touro L. Rev. 775 (2000).
No. 06-4260 11
State and the challenged action” that the challenged
action “may be fairly treated as that of the State itself.”
Jackson, 419 U.S. at 351 (citing Moose Lodge No. 107 v. Irvis,
407 U.S. 163, 176 (1972)). In Rendell-Baker v. Kohn, 457
U.S. 830 (1982), the Supreme Court wrote that “[t]he
ultimate issue in determining whether a person is
subject to suit under § 1983 is the same question posed in
cases arising under the Fourteenth Amendment: is the
alleged infringement of federal rights ‘fairly attributable
to the State?’ ” Id. at 838 (quoting Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1981)). In most cases, the state
actor is an officer or employee of state government, and
it is easy to conclude that the person’s actions are fairly
attributable to the state. However, the Court has long
recognized that, on some occasions, the acts of a private
party are fairly attributable to the state because the
party has acted in concert with state actors. See Adickes v.
S. H. Kress & Co., 398 U.S. 144, 170 (1970) (observing that
“a State is responsible for the discriminatory act of a
private party when the State, by its law, has compelled
the act”). In Blum v. Yaretsky, 457 U.S. 991 (1982), the
Supreme Court held that “a State normally can be held
responsible for a private decision only when it has exer-
cised coercive power or has provided such significant
encouragement, either overt or covert, that the choice
must in law be deemed to be that of the State.” Id. at 1004.
Moreover, the Court has set forth several tests for us to
employ in evaluating the “range of circumstances” that
might constitute state action. Brentwood Acad. v. Tenn.
Secondary Sch. Ath. Ass’n, 531 U.S. 288, 295 (2001). We
recognize that these formulations are susceptible to
12 No. 06-4260
semantic variations, conflations and significant overlap
in practical application; we further recognize that they
“lack rigid simplicity.” Brentwood Acad., 531 U.S. at 294.
Nevertheless, we believe that it is useful to describe
these tests as the symbiotic relationship test,8 the state
command and encouragement test,9 the joint participa-
tion doctrine 10 and the public function test.1 1
8
See Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961).
The Court did not use the term “symbiotic relationship” in
Burton, but later referred to Burton as establishing such a test.
See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175 (1972).
9
See Moose Lodge No. 107, 407 U.S. at 176-77 (holding that a
private club, which had refused to admit African-American
members, was not a state actor because, although the club
was subject to a state’s “detailed” regulation of liquor
licenses, the state regulation did not “foster or encourage
racial discrimination”).
10
See Lugar v. Edmondson Oil Co., 457 U.S. 922, 931 (1982) (noting
that a “private party’s joint participation with a state official
in a conspiracy to discriminate would constitute both ‘state
action essential to show a direct violation of petitioner’s Four-
teenth Amendment equal protection rights’ and action ‘under
color of law for purposes of the statute’ ” (quoting Adickes v. S.
H. Kress & Co., 398 U.S. 144, 152 (1970) (internal quotation
marks omitted))).
11
See Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974)
(declining to hold that the supplying of utility service is a
state action, because it “is not traditionally the exclusive
prerogative of the State”). We noted in Vickery v. Jones, 100
F.3d 1334 (7th Cir. 1996), that the court has rarely found this
test met in modern times. See id. at 1345 (collecting cases).
No. 06-4260 13
b.
The Supreme Court also has provided us with some
guidance for determining when nongovernmental health
care providers that serve state prisoners should be con-
sidered state actors. Nevertheless, we still remain, to
some degree, in uncharted waters.
Our analytical voyage must begin with West v. Atkins,
487 U.S. 42 (1988). In West, the Supreme Court held that,
when a physician is employed by the state to provide
medical services to state prison inmates, that physician
acts under the color of state law for purposes of section
1983. The physician’s conduct in providing medical
services, said the Court, “is fairly attributable to the
State.” 487 U.S. at 54. In West, the Court primarily was
addressing the state’s argument that Polk County v.
Dodson, 454 U.S. 312 (1981), controlled the situation
before it. In Polk, the Court had held that “a public de-
fender does not act under color of state law when per-
forming a lawyer’s traditional functions as counsel to
a defendant in a criminal proceeding.” 454 U.S. at 325.1 2
In West, the state had argued that, because the physician
also exercises independent professional judgment, he
cannot be considered a state actor. In disagreeing with
this argument, the Court relied upon its decision in
Estelle v. Gamble, 429 U.S. 97 (1976). In Estelle, the Court
12
In Montano v. Hedgepeth, 120 F.3d 844, 851 (8th Cir. 1997), the
Court of Appeals for the Eighth Circuit applied the Supreme
Court’s decision in Polk County v. Dodson, 454 U.S. 312 (1981), to
the ecclesiastical activities of a prison chaplain.
14 No. 06-4260
had held that a medical director of a state prison, who
was also the treating physician, could be held liable
under section 1983 as a state actor for allegedly adminis-
tering substandard medical treatment to a prisoner.
The Court explained its rationale by noting that “[a]n
inmate must rely on prison authorities to treat his med-
ical needs; if the authorities fail to do so, those needs
will not be met.” Id. at 103.
Turning to the facts before it, the Court in West reasoned
that, because the state controls the medical care of
inmates to the exclusion of all other sources, the state
has a constitutional obligation under the Eighth Amend-
ment to provide adequate medical care. The physician
employed by the state is therefore obliged to treat
prison inmates in fulfillment of the state’s responsibility.
When he does so, the Court concluded, he is “ ‘clothed with
the authority of state law.’ ” West, 487 U.S. at 55 (quoting
United States v. Classic, 313 U.S. 299, 326 (1941)).
Notably, in West, the Court did not rely on the
particular contractual arrangement that the physician
had with the state, but, rather, emphasized the function
of the physician:
It is the physician’s function within the state system,
not the precise terms of his employment, that deter-
mines whether his actions can fairly be attributed to
the State. Whether a physician is on the state payroll
or is paid by contract, the dispositive issue concerns
the relationship among the State, the physician, and the
prisoner. Contracting out prison medical care does not
relieve the State of its constitutional duty to pro-
No. 06-4260 15
vide adequate medical treatment to those in its cus-
tody, and it does not deprive the State’s prisoners
of the means to vindicate their Eighth Amendment
rights. The State bore an affirmative obligation to
provide adequate medical care to West. The State
delegated that function to respondent Atkins; and
respondent voluntarily assumed that obligation by
contract.
487 U.S. at 55-56 (emphasis added) (footnote omitted).
This emphasis on the function performed by the
physician as opposed to the physician’s particular con-
tractual relationship with the state was the subject of
further elaboration by the Court:
It is the physician’s function while working for the
State, not the amount of time he spends in the perfor-
mance of those duties or the fact that he may be em-
ployed by others to perform similar duties, that deter-
mines whether he is acting under color of state law.
In the State’s employ, respondent worked as a physi-
cian at the prison hospital fully vested with state
authority to fulfill essential aspects of the duty,
placed on the State by the Eighth Amendment and
state law, to provide essential medical care to those
the State had incarcerated.
Id. at 56-57 (emphasis added) (footnote omitted).
The situation before us today is not identical to the one
before the Court in West. However, in applying West, our
focus must be on the particular function of the medical
care provider in the fulfillment of the state’s obliga-
16 No. 06-4260
tion to provide health care to incarcerated persons. 1 3 In
addressing this problem, we have no definitive guidance
from our own circuit. Nevertheless, some of our earlier
cases, decisions from other circuits1 4 and helpful con-
tributions from district courts across the Country 1 5 light
the way. With this assistance, we now turn to an exam-
ination of West in an effort to identify the considerations
that must guide our decision.
13
The Supreme Court has applied this functional approach to
determine whether a particular individual acted under the
color of state law in a variety of contexts. See, e.g., Georgia v.
McCollum, 505 U.S. 42, 54 (1992) (defendant’s exercise of
peremptory challenges); Branti v. Finkel, 445 U.S. 507, 517 (1980)
(public defender making personnel decisions on behalf of the
state).
14
Styles v. McGinnis, 28 Fed. App’x 362 (6th Cir. 2001); Connor
v. Donnelly, 42 F.3d 220 (4th Cir. 1994).
15
See, e.g., Estate of Rice v. Corr. Med. Servs., 596 F. Supp. 2d 1208,
1218-19 (N.D. Ind. 2009) (collecting cases). See also Wendt v.
Hutchinson, No. 4:08-CV-12485, 2008 WL 4280117 (E.D. Mich.
Sept. 11, 2008); Gallegos, Jr. v. Slidell Police Dep’t, et al.,
No. 07-6636, 2008 WL 1794170 (E.D. La. April 18, 2008); Anglin
v. Aspen, Colo., 552 F. Supp. 2d 1229 (D. Colo. 2008); Neal v.
Anspaugh-Kisner, et al., No. 07-10671, 2008 WL 506336 (E.D. Mich.
Feb. 22, 2008); Griffis v. Medford, et al., No. 05-3040, 2007 WL
2752373 (W.D. Ark. Sept. 20, 2007); Williams v. Brann,
No. 02-C-940, 2006 WL 1518979 (E.D. Wis. May 30, 2006);
Sykes v. McPhillips, 412 F. Supp. 2d 197 (N.D.N.Y. 2006); Callahan
v. Sw. Med. Ctr., et al., No. CIV-03-1434-F, 2005 WL 1238770
(W.D. Okla. April 29, 2005); Martinson v. Bruce, et al.,
No. 88-3243-S, 1991 WL 241857 (D. Kan. Oct. 22, 1991); McIlwain
v. Prince William Hosp., et al., 774 F. Supp. 986 (E.D. Va. 1991).
No. 06-4260 17
i.
At the outset, we note that in West, the Supreme Court
did not rely explicitly on any of the tests that it had
developed in earlier cases to discern whether private
activity could be “fairly attributable to the State.” Rendell-
Baker, 457 U.S. at 838 (quotation marks omitted). It was not
until the Court’s later decision in American Manufacturers
Mutual Co. v. Sullivan, 526 U.S. 40 (1999), that it said
explicitly that its holding in West was based on the
public function test. The Court simply noted that in West,
“the State was constitutionally obligated to provide
medical treatment to injured inmates, and the delegation
of that traditionally exclusive public function to a private
physician gave rise to a finding of state action.” Id. at 55.1 6
In discerning how to apply West to other medical care
situations involving incarcerated persons, we therefore
must keep in mind the theoretical underpinnings of the
public function test. As one scholar has summarized:
The theory is that if the government must satisfy
certain constitutional obligations when carrying out
its functions, it cannot avoid those obligations and
deprive individuals of their constitutionally pro-
tected rights by delegating governmental functions
to the private sector. The delegation of the function
should be accompanied with a delegation of constitu-
tional responsibilities.
16
The Supreme Court’s statement in American Manufacturers
Mutual Co. v. Sullivan, 526 U.S. 40 (1999), was foreshadowed
by our holding in Wade v. Byles, 83 F.3d 902, 906 n.6 (7th Cir.
1996).
18 No. 06-4260
Martin A. Schwartz, 1 Section 1983 Litigation Claims
and Defenses § 5.14 [A] at 5-100 (4th ed. 2003).
ii.
West tells us that the functional analysis ought to focus
on the relationship among the state, the health care pro-
vider and the prisoner. West also tells us that one of the
factors that we must weigh, in assessing that trilateral
relationship, is the setting in which the medical care is
rendered. The Court emphasized that a medical care
provider in the correctional setting inevitably is affected by
that setting in the performance of his medical functions.
“Unlike the situation confronting free patients, the
nonmedical functions of prison life inevitably influence
the nature, timing, and form of medical care provided to
inmates.” West, 487 U.S. at 56-57 n.15. Medical care is
simply “not unaffected by the fact that the State con-
trolled the circumstances and sources of a prisoner’s
medical treatment.” Id.
We do not read this statement as indicating that all
medical advice rendered outside of the prison walls is
exempt from the state action doctrine simply because it
is provided outside the prison. Indeed, the Court’s state-
ment makes clear that state control is highly relevant.
In the context of modern American medical practice, it
is not feasible to render a great deal of medical care
within the confines of a penal institution. The state
clearly does not relieve itself of its responsibility to
provide medical care solely on account of the venue
where those services are rendered. See Conner v. Donnelly,
No. 06-4260 19
42 F.3d 220, 225-26 (4th Cir. 1994) (holding that a
private physician who treated a prisoner’s orthopedic
problem in the physician’s office outside the prison was
acting under color of state law). Rather, it seems that the
Court’s admonition in West is intended to remind us to
assess the degree to which the professional decisions
made in rendering the care are influenced by the status
of the patient as a prisoner and the directives of the
state, as the ultimate responsible party for the prisoner’s
health care, with respect to the manner and the mode of
care.
Giving significant weight to the degree to which the
work of the private medical provider is controlled or
influenced by the state simply acknowledges the general
concern, in any state action analysis, that the degree of
state control or coercion is a very significant factor in
determining whether the private individual’s actions
can be “fairly attributable to the state.” Lugar v. Edmondson
Oil, 457 U.S. 922, 937 (1982). While this factor is not often
articulated in applying the public function test in other
contexts, it certainly must be weighed in the medical
context when assessing the relationship among the state,
the private actor and the prisoner.
iii.
Although West tells us that the contractual relation-
ship between the state and the medical care provider
cannot be the focus of our inquiry, see West, 487 U.S. at 55,
it nevertheless must be an important factor in deter-
mining whether the private health care provider has
20 No. 06-4260
entered into its relationship with the state and the prisoner
on a voluntary basis. We see no basis in the Supreme
Court’s case law for concluding that a private entity can
be burdened with the responsibilities of the state for
the care of its prisoners unless the entity assumes that
responsibility voluntarily, and one of the principal ways,
indeed the principal way, by which a private entity would
undertake such a responsibility is by entering into a
contractual relationship.1 7 When a party enters into a
contractual relationship with the state penal institution
to provide specific medical services to inmates, it is
undertaking freely, and for consideration, responsibility
for a specific portion of the state’s overall obligation to
provide medical care for incarcerated persons. In such a
circumstance, the provider has assumed freely the same
liability as the state. Similarly, when a person accepts
employment with a private entity that contracts with
the state, he understands that he is accepting the respon-
sibility to perform his duties in conformity with the
Constitution.
In contrast, private organizations and their employees
that have only an incidental and transitory relationship
with the state’s penal system usually cannot be said to
have accepted, voluntarily, the responsibility of acting
for the state and assuming the state’s responsibility
17
There may be other methods by which an individual can
enter into such a relationship with the state, such as accepting
certain benefits under a regulatory scheme in return for the
assumption of such a responsibility.
No. 06-4260 21
for incarcerated persons. For instance, an emergency
medical system that has a preexisting obligation to serve
all persons who present themselves for emergency treat-
ment hardly can be said to have entered into a specific
voluntary undertaking to assume the state’s special
responsibility to incarcerated persons. See Emergency
Medical Treatment and Active Labor Act (“EMTALA”), 42
U.S.C. § 1395dd et seq. Rather, it has undertaken to
provide a specific service, emergency medical care, to all
who need those services. The fact that it does not, and
cannot, discriminate against incarcerated individuals
does not mean that it has agreed to step into the shoes
of the state and assume the state’s responsibility toward
these persons. It has not “ ‘assume[d] an obligation to the
[penological] mission that the State, through the [prison],
attempts to achieve.’ ” West, 487 U.S. at 51 (quoting Polk
County, 454 U.S. at 320). In these circumstances, matters
of professional judgment do in fact predominate over
the achievement of state objectives. See id. at 52 n.10.
iv.
We believe that it is also important to emphasize that
the Supreme Court in West did not focus simply on the
relationship of the private medical provider to the state.
It also considered the relationship of the private pro-
vider to the prisoner. In doing so, we think that the
Court meant to emphasize that, in order to be liable as the
state for the provision of medical services, the private
provider must have a direct, not an attenuated, relation-
ship with the prisoner-patient. In the fulfillment of its
22 No. 06-4260
responsibilities to the state’s prison population, a state
must arrange for goods and services with many entities. To
the degree that a private entity does not replace, but
merely assists the state in the provision of health care to
prisoners, the private entity’s responsibility for the level
of patient care becomes more attenuated, and it becomes
more difficult to characterize its actions as the assumption
of a function traditionally within the exclusive province
of the state.18 Such a situation simply does not implicate
the basic concern of West that a state ought not be able
to contract away its responsibility for providing adequate
prisoner health care.
These considerations do not provide us, however, with
a pat answer as to whether any particular medical care
arrangement constitutes state action through the applica-
tion of the public function doctrine. They are, however,
the factors that West indicates that we must apply
in our assessment of the individual case. As the
Supreme Court told us in Brentwood Academy, what is
fairly attributable to the state “is a matter of normative
judgment, and the criteria lack rigid simplicity.” 531
U.S. at 295.
18
If the assistance is undertaken under the affirmative
direction of the state, or in collaboration with the state, the
activity may be considered to be a state action, independent of
the public function doctrine. See Lugar, 457 U.S. at 941; Moose
Lodge No. 107, 407 U.S. at 177.
No. 06-4260 23
C.
The Eighth Amendment’s prohibition against cruel and
unusual punishment, which embodies “broad and idealis-
tic concepts of dignity, civilized standards, humanity,
and decency,” prohibits punishments which are incom-
patible with “the evolving standards of decency that
mark the progress of a maturing society.” Estelle, 429
U.S. at 102 (quotation marks omitted). It thus requires
that the government provide “medical care for those
whom it is punishing by incarceration.” Id. at 103. The
Eighth Amendment safeguards the prisoner against
a lack of medical care that “may result in pain
and suffering which no one suggests would serve any
penological purpose.” Id. Accordingly, “deliberate indif-
ference to serious medical needs” of a prisoner con-
stitutes the unnecessary and wanton infliction of pain
forbidden by the Constitution. Id. at 104. This indifference
includes intentionally denying or delaying access to
medical care or intentionally interfering with prescribed
treatment. Id. at 104-05. By contrast, mere negligence in
the provision of medical care does not constitute a viola-
tion of the Amendment. Id. at 105. Rather, “a plaintiff
must show (1) an objectively serious medical condition
to which (2) a state official was deliberately, that is sub-
jectively, indifferent.” Duckworth v. Ahmad, 532 F.3d 675,
679 (7th Cir. 2008) (citing Sherrod v. Lingle, 223 F.3d 605, 610
(7th Cir. 2000)).
In Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997), we
addressed the appropriate principles to be applied in
cases involving delays in the treatment of painful
24 No. 06-4260
medical conditions. In applying the standard articulated
in Estelle—deliberate indifference to a serious medical
need—we noted that it contained both objective
and subjective elements. “The former requires that the
deprivation suffered by the prisoner be ‘objectively,
sufficiently serious.’ ” Gutierrez, 111 F.3d at 1369 (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation
marks omitted). The latter requires that the state official,
or the person acting in his stead, act with deliberate
indifference. Id. We also recognized that delays in
treating painful medical conditions, even if not life-
threatening, may support an Eighth Amendment claim.
Id. at 1371; see also Walker v. Benjamin, 293 F.3d 1030, 1040
(7th Cir. 2002) (holding that a complaint alleging that
a prison nurse refused to give pain medication
prescribed by a physician stated a claim under the
Eighth Amendment); Edwards v. Snyder, 478 F.3d 827, 830-
32 (7th Cir. 2007) (holding that a prisoner’s claim against
a doctor survived dismissal under 28 U.S.C. § 1915A
where the prisoner was forced to wait two days for
proper treatment of his severely injured finger, leading
to “permanent disfigurement, loss of range of motion,
and the infliction of unnecessary pain”). By contrast,
minor pains cannot give rise to such a claim:
Deliberately to ignore a request for medical assistance
has long been held to be a form of cruel and unusual
punishment . . . but this is provided that the illness
or injury for which assistance is sought is suf-
ficiently serious or painful to make the refusal of
assistance uncivilized. . . . A prison’s medical staff
that refuses to dispense bromides for the sniffles or
No. 06-4260 25
minor aches and pains or a tiny scratch or a mild
headache or minor fatigue—the sorts of ailments for
which many people who are not in prison do not
seek medical attention—does not by its refusal
violate the Constitution.
Id. at 1372. (alterations in the original) (quoting Cooper
v. Casey, 97 F.3d 914, 916 (7th Cir. 1996)).
D.
Having set forth the principles of law that must govern
our decision, we now turn to the narrative in Mr. Rodri-
guez’s complaint to determine whether any of his claims
should have survived the screening process under
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
1.
Plymouth Ambulance Service and its Employees
In his complaint, Mr. Rodriguez claims that an ambu-
lance from Plymouth, with EMT Lubbert and EMT
Becker aboard, transported him from the prison to St.
Agnes. Mr. Rodriguez further claims that EMT Lubbert
“inserted a temporary I.V. in [his] right arm [which was]
stable only enough to get some fluids running until
the transport caravan arrive[d] at St. Agnes Hospital.” R.1
at 6. This initial insertion of the IV, therefore, was per-
formed for a legitimate medical reason and not to
inflict gratuitously pain on Mr. Rodriguez. At worst, it
was a negligent act.
26 No. 06-4260
Mr. Rodriguez’s second allegation is more serious.
He alleges that after EMT Lubbert inserted the IV, both
EMTs ignored his complaints of pain. As we already
have discussed in detail, the turning of a blind eye to
the legitimate medical needs of a prisoner-patient, in-
cluding his complaints of pain, can constitute a violation
of the Eighth Amendment. We also have recognized
that delays in treating non-life-threatening but painful
conditions constitute a failure to address a serious
medical need. Gutierrez, 111 F.3d at 1371. See also
Edwards, 478 F.3d at 831 (holding that a plaintiff who
dislocated his finger and was forced to wait two days
for treatment, leading to the infliction of unnecessary
pain, permanent disfigurement and the loss of range
of motion, suffered a painful medical condition and
stated an Eighth Amendment claim); O’Malley v. Litscher,
465 F.3d 799, 805 (7th Cir. 2006) (holding that pain
from minor burns which resulted from plaintiff lying
in vomit constituted an “objectively serious medical
condition”) (internal quotation marks omitted).
We think that this allegation is sufficient to state a
claim under the Eighth Amendment. The misinsertion of
an IV needle may be simple negligence, but allowing
the situation to go unremedied may well produce signifi-
cant pain and result in a serious medical situation. De-
pending on the evidence produced at later stages of the
litigation, an Eighth Amendment violation may well be
established.
However, before this claim may survive screening,
another issue must also be resolved through limited
No. 06-4260 27
discovery: Whether Plymouth, EMT Lubbert and EMT
Becker are state actors. We cannot tell, on the face of the
complaint alone, the relationship of Plymouth, and
through it, the EMTs, to the prison system or to
Mr. Rodriguez. West requires that this trilateral relation-
ship be analyzed in order to determine whether their
actions fairly can be attributed to the state. Some parts
of this relationship are evident in the complaint. The
transport was conducted in a custodial atmosphere: A
correctional officer was present, and the ambulance was
escorted by a prison vehicle. However, whether this
arrangement in any way contributed to the EMTs’ inat-
tention to Mr. Rodriguez’s complaints of pain is not
discernible from the complaint. We cannot tell, nor do
we believe that Mr. Rodriguez can be charged fairly with
knowing, whether Plymouth rendered this service by
contract with the prison system or as part of a municipal
service available to all persons needing emergency
medical care in the area.
Finally, we must address whether this claim may pro-
ceed against all the defendants involved in the transporta-
tion of Mr. Rodriguez to St. Agnes. In the complaint,
Mr. Rodriguez named as defendants the EMTs who
attended to him, as well as Plymouth. However, he
alleges no wrongdoing on the part of the corporation, no
failure to train its employees and no policy of the corpora-
tion that violated his constitutional rights. The company
is not liable under section 1983 for the actions of its em-
ployees under a theory of respondeat superior. Conse-
quently, the district court properly dismissed Plymouth.
28 No. 06-4260
Mr. Rodriguez also named Plymouth’s Director of
Operations, Kyle Marohl, as a defendant. He alleges,
however, no personal wrongdoing by Mr. Marohl, and
Mr. Marohl can incur no liability under a theory of
respondeat superior. There is no allegation that he failed
to train the EMTs or that their actions in ignoring
Mr. Rodriguez’s claims of pain were based on a policy
for which Mr. Marohl had any responsibility. The district
court therefore properly dismissed the complaint with
respect to him.
2.
St. Agnes Hospital
The next defendant named by Mr. Rodriguez is St.
Agnes. Mr. Rodriguez alleges that, upon his arrival at St.
Agnes, a nurse drew blood and injected him with pain
medication. He states that he “pleaded to the emergency
nurses to adjust or fix the temporary I.V. so it wouldn’t
cause him pain,” but that the nurse declined to do so
because the hospital did not have “an active medical
account” with KMCI. R.1 at 6. He states that he waited
for an hour at St. Agnes, in pain, before an ambulance
arrived to transfer him to another hospital.
We do not believe that the allegations against St. Agnes
state a cause of action under section 1983. The complaint
notes that St. Agnes affirmatively declined to assume
the state’s responsibility to provide medical care to
Mr. Rodriguez. Whatever may have been the hospital’s
responsibilities under other provisions of law, a question
No. 06-4260 29
not before us today, it is clear that it is not alleged to
have been acting in the state’s stead. St. Agnes had not
assumed voluntarily any of the state’s duties. Any care
that it did render, it undertook in its own facility in
response to an emergency.1 9 We must conclude, therefore,
that the complaint makes clear that St. Agnes did not
operate under the color of state law.2 0
3.
Waupun Memorial Hospital
Finally, Mr. Rodriguez alleges that treatment of his arm
by the staff at Waupun Memorial constituted deliberate
indifference to his serious medical needs and con-
stituted the gratuitous infliction of pain.
With respect to Waupun Memorial, we believe that the
allegations of the complaint are sufficient to allege state
19
The clinical notes attached to Mr. Rodriguez’s complaint
suggest that some testing was performed at St. Agnes prior to
his transport to Waupun Memorial and that Mr. Rodriguez
received some medication through the IV.
20
Mr. Rodriguez does not name as defendants any specific
members of the staff of St. Agnes. He specifically does relate,
however, that he complained of his pain to the nurses assigned
to service emergencies and that they refused to relieve his
suffering. While we believe that his narrative would be suf-
ficient to permit him to engage in limited discovery to learn
the names of the individuals, the lack of an affirmative assump-
tion of any voluntary state action on their part precludes
the necessity of such a step.
30 No. 06-4260
action. Here, an examination of the trilateral relationship
of the state, Waupun Memorial and the prisoner-
patient demonstrates that the provider was acting in
the stead of the state in providing medical care to
Mr. Rodriguez. The complaint affirmatively alleges that
he was placed in a prison ward of the hospital, an allega-
tion that suggests strongly that Waupun Memorial,
unlike St. Agnes, had an ongoing relationship with the
prison authorities for the care of prisoner-patients in
need of hospitalization. Additionally, the complaint
makes clear that his stay at this facility was not simply
for emergency treatment, but rather involved a stay of
several days. Under these circumstances, therefore, it is
clear that Mr. Rodriguez has alleged that his treatment
at Waupun Memorial was tied to the state’s responsibil-
ity for his overall medical care. See Skelton v. Pri-Cor, Inc.,
963 F.2d 100, 102 (6th Cir. 1991) (holding that a private
company that administers a prison can be held liable
under section 1983); cf. Richardson v. McKnight, 521 U.S.
399, 412-13 (1997) (holding that private prison guards
were not entitled to assert the defense of qualified immu-
nity, but leaving open the question of whether the opera-
tions of a private prison company constitute state action).
In his complaint, Mr. Rodriguez specifically mentions
only the hospital as a defendant. As in the case of Plym-
outh and St. Agnes, however, there is no allegation that
his alleged maltreatment was due to a policy of the in-
stitution or to a failure to train its personnel. There can be
no respondeat superior liability for the actions of the
staff members under section 1983. We therefore must
conclude that the district court properly dismissed the
hospital as a defendant.
No. 06-4260 31
Mr. Rodriguez’s complaint, however, also includes
specific allegations against individual staff members. 2 1 Mr.
Rodriguez alleges that the Waupun Memorial staff mem-
bers made several inept attempts to correct the IV inser-
tion, including pushing the IV into his arm “as far as it
[could be] pushed,” R.1 at 6A, and refused to treat the
attendant pain. The only relief administered, according to
the complaint, was an ice pack. At this stage, we cannot
say that these allegations describe only simple negligence,
as opposed to deliberate inattention to a worsening
medical condition (that later resulted in a serious infec-
tion and at least temporary loss of use of an arm) and
deliberate indifference to continuing pain. Notably, the
complaint explicitly contrasts the ice pack treatment
administered by the Waupun Memorial staff to the antibi-
otic therapy and laboratory analysis initiated by the
prison hospital staff shortly thereafter. This contrast
does not suggest a simple professional disagreement as
to choice of remedies, but the difference between mean-
ingful treatment and non-treatment. As we stated in
Gutierrez, 111 F.3d at 1371, “delays in treating painful
medical conditions that are not life-threatening can
support Eighth Amendment claims.” In this case, Mr.
Rodriguez has alleged that Waupun Memorial failed to
treat his arm during the entire duration of his hospital
stay, causing him extreme pain and resulting in the
21
See Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th
Cir. 2003) (holding that “private prison-management corpora-
tions and their employees may be sued under § 1983 by a prisoner
who has suffered a constitutional injury” (emphasis added)).
32 No. 06-4260
development of a serious and contagious infection. He
further has alleged implicitly that his treatment at
Waupun Memorial was not based on a legitimate
medical judgment, given the aggressive treatment he
subsequently received at the KMCI infirmary. See
Duckworth, 532 F.3d at 679 (“A jury can ‘infer deliberate
indifference on the basis of a physician’s treatment deci-
sion [when] the decision [is] so far afield of accepted
professional standards as to raise the inference that it was
not actually based on a medical judgment.’ ” (quoting
Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006) (alter-
ations in the original)).
Under these circumstances, we believe that Mr. Rodri-
guez should have the opportunity to engage in limited
discovery to ascertain the identity of these staff members,
whose conduct he has explicitly described. If he does so,
the allegations of the complaint with respect to the conduct
of those individuals are sufficient to state a claim
under section 1983.
Conclusion
The judgment of the district court is affirmed in part and
vacated and remanded in part for further proceedings
consistent with this opinion. No costs are assessed in
this case.
A FFIRMED in part,
V ACATED and R EMANDED in part
8-18-09