Alma Glisson v. Correctional Medical Services ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1419
ALMA GLISSON, Personal Representative
of the Estate of NICHOLAS L. GLISSON,
Plaintiff-Appellant,
v.
INDIANA DEPARTMENT OF CORRECTIONS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cv-1418-SEB-MJD — Sarah Evans Barker, Judge.
____________________
ARGUED SEPTEMBER 7, 2016 — DECIDED FEBRUARY 21, 2017
____________________
Before WOOD, Chief Judge, and BAUER, POSNER, FLAUM,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and
HAMILTON, Circuit Judges.
WOOD, Chief Judge. Nicholas Glisson entered the custody
of the Indiana Department of Corrections on September 3,
2010, upon being sentenced for dealing in a controlled sub-
stance (selling one prescription pill to a friend who turned out
to be a confidential informant). Thirty-seven days later, he
2 No. 15-1419
was dead from starvation, acute renal failure, and associated
conditions. His mother, Alma Glisson, brought this lawsuit
under 42 U.S.C. § 1983. She asserts that the medical care Glis-
son received at the hands of the Department’s chosen pro-
vider, Correctional Medical Services, Inc. (known as Corizon)
violated his rights under the Eighth Amendment to the U.S.
Constitution (made applicable to the states by the Fourteenth
Amendment). A panel of this court concluded that Corizon
was entitled to summary judgment in its favor. See Glisson v.
Indiana Dep’t of Corr., 813 F.3d 662 (7th Cir. 2016). The court
decided to rehear the case en banc in order to examine the
standards for corporate liability in such a case. We conclude
that Glisson presented enough evidence of disputed, material
issues of fact to proceed to trial, and we therefore reverse the
district court’s judgment.
I
There is no doubt that Glisson had long suffered from se-
rious health problems. He had been diagnosed with laryngeal
cancer in 2003. In October of that year, he had radical surgery
in which his larynx and part of his pharynx were removed,
along with portions of his mandible (jawbone) and 13 teeth.
He was left with a permanent stoma (that is, an opening in his
throat), into which a tracheostomy tube was normally in-
serted. He needed a voice prosthesis to speak.
And that was not all. Glisson’s 2003 surgery and follow-up
radiation left his neck too weak to support his head; this in
turn made his head slump forward in a way that impeded his
breathing. Because physical therapy and medication for this
condition were ineffective, he wore a neck brace. He also de-
veloped cervical spine damage. In 2008 doctors placed a gas-
trojejunostomy tube (“G-tube”) in his upper abdomen for
No. 15-1419 3
supplemental feeding. In addition to the problems attributa-
ble to the cancer, Glisson suffered from hypothyroidism, de-
pression, and impairments resulting from his smoking and
excessive alcohol use. Finally, there was some evidence of cog-
nitive decline.
Despite all this, Glisson was able to live independently. He
learned to clean and suction his stoma. With occasional help
from his mother, he was able to use his feeding tube when
necessary. He was able to swallow well enough to take his
food and other supplements by mouth most of the time. His
hygiene was fine, and he helped with household chores such
as mowing the lawn, cleaning, and cooking. He also provided
care to his grandmother and his dying brother.
The events leading up to Glisson’s death began when a
friend, acting as a confidential informant for the police, con-
vinced Glisson to give the friend a prescription painkiller.1
Glisson was charged and convicted for this infraction, and on
August 31, 2010, he was sentenced to a period of incarceration
and transferred to the Wayne County Jail. (All relevant dates
from this point onward were in 2010.) Before sentencing, Dr.
Richard Borrowdale, one of his physicians, wrote a letter to
the court expressing serious concern about Glisson’s ability to
survive in a prison setting. Dr. Borrowdale noted Glisson’s se-
1 It is not entirely clear from the record on appeal when this offense
took place. Glisson’s arrest record indicates that he was arrested for deal-
ing in a controlled substance on July 31, 2007, and was released the same
day on a $25,000 bond. The next entry is on August 31, 2010—the day he
was sentenced and entered custody. The sentencing information sheet
gives him one day’s credit for jail time. It thus appears that the incarcera-
tion at issue in this case was based on this three-year-old arrest.
4 No. 15-1419
vere disabilities from cancer and alcohol dependence, his dif-
ficulty speaking because of the laryngectomy, his trouble
swallowing, his severe curvature of the spine (kyphosis), and
his problems walking. The conclusion of the letter was, unfor-
tunately, prophetic: “This patient is severely disabled, and I
do not feel that he would survive if he was incarcerated.” Dr.
William Fisher, another of Glisson’s physicians, also warned
that Glisson “would not do well if incarcerated.”
Many of Glisson’s disabilities were apparent at a glance,
and his family tried to prepare him (and his custodians) for
his incarceration. They brought his essential supplies, includ-
ing his neck brace and the suction machine, mirror, and light
that he used for his tracheostomy, to the Jail. When he was
transferred on September 3 to the Reception Diagnostic Cen-
ter of the Indiana Department of Corrections (“INDOC”), the
Jail sent along his mirror, light, and neck brace. It is unclear
what happened next to these items, but Glisson never re-
ceived the neck brace, nor was he given a replacement.
At INDOC’s Diagnostic Center, Glisson first came under
Corizon’s care, when upon his arrival Nurse Tim Sanford as-
sessed his condition. Sanford recorded Glisson’s account of
his medication regimen and noted that Glisson appeared to
be alert and able to communicate. Sanford noted that Glisson
had a tracheostomy that had to be suctioned six times a day,
and that Glisson had a feeding tube but that he took food
through it only when he had difficulty swallowing. While
Glisson was at the Diagnostic Center, medical personnel
noted occasional problems with his blood pressure, pulse,
and oxygen saturation level, as well as some signs of confu-
sion and anger.
No. 15-1419 5
Several different medical providers saw Glisson while he
was at the Diagnostic Center: Drs. Jill Gallien and Steven Co-
nant (a psychiatrist); Nurses Rachel Johnson, Carla DeWalt,
and Victoria Crawford; and mental health counselor Mary
Serna. In addition, Health Services Administrator Kelly Kurtz
contacted Glisson’s mother to ask about his medical history
and his behavior at home. Her inquiry was the only one that
occurred throughout Glisson’s incarceration, and there is no
evidence that Mrs. Glisson’s response (that Glisson did not be-
have oddly at home) was communicated to anyone else.
Ultimately the Diagnostic Center decided to place Glisson
in INDOC’s Plainfield Correctional Facility. Glisson was
transferred there on September 17; an intake examination per-
formed by Licensed Practical Nurse (LPN) Nikki Robinson re-
vealed that he weighed 119 pounds and had normal vital
signs. On September 21, Dr. James Mozillo ordered Glisson to
be placed in the general population with a bottom-bunk pass.
Upon reaching Plainfield, Glisson’s medical care—again
furnished by Corizon—began to resemble the blind men’s de-
scription of the elephant. A host of Corizon providers at Plain-
field had a hand in Glisson’s treatment. As far as we can glean
from the record, they include the following: Drs. Malak Her-
mina (the lead physician at Plainfield), Mozillo, and Conant
(again); Director of Nursing Rhonda Kessler; Registered
Nurses (RNs) Mary Combs, Carol A. Griffin, Melissa Pearson,
and Jennifer Hoffmeyer; LPNs Robinson, Allison M. Ortiz,
and Paula J. Kuria; and mental health professional Catherine
Keefer. Andy Dunnigan, Plainfield’s Health Services Admin-
istrator, also played some part. We assume for the sake of ar-
gument here that none of these people, and none of the indi-
6 No. 15-1419
vidual providers at the Diagnostic Center, personally did an-
ything that would qualify as “deliberate indifference” for
Eighth Amendment purposes. Most of them had so little to do
with Glisson that such a conclusion is quite unlikely. The
question before us is instead whether, because of a deliberate
policy choice pursuant to which no one was responsible for
coordinating his overall care, Corizon itself violated Glisson’s
Eighth Amendment rights.
Predictably, given the number of actors, Glisson’s care over
the first few weeks of his residence at Plainfield was dis-
jointed: no provider developed a medical treatment plan, and
thus no one was able to check Glisson’s progress against any
such plan. In fact, for his first 24 days in INDOC custody (in-
cluding the time at the Diagnostic Center), no Corizon pro-
vider even reviewed his medical history. Granted, before Glis-
son arrived at Plainfield, Dr. Gallien had requested his medi-
cal history on September 10. But there is no evidence that an-
yone responded to this request. Indeed, no one at the Center
followed up, nor did anyone at Plainfield do anything until
September 27, when Dr. Hermina saw Glisson and asked for
the records; he received them within several hours.
At that visit, Dr. Hermina made an alarming observation
about Glisson’s weight. As we noted, when Glisson arrived at
Plainfield he weighed only 119 pounds. On September 27, Dr.
Hermina noted that Glisson appeared cachectic, which means
undernourished to the point that the person has physical
wasting and loss of weight and muscle mass—in a word, he
is starving. See MedicineNet, Definition of Cachec-
tic, http://www.medicinenet.com/script/main/art.asp?arti-
clekey=40464 (last visited on February 21, as were all websites
cited in this opinion). Although the medical personnel at the
No. 15-1419 7
Diagnostic Center had ordered the nutritional supplement
Ensure for Glisson, and apparently that order carried over to
Plainfield, Dr. Hermina ordered a second nutritional supple-
ment, Jevity. Remarkably, it appears that he did not weigh
Glisson—at least, there is no record of a September 27 weight.
He did, however, review Glisson’s earlier lab work, which
showed anemia and high creatinine (a sign of impaired kid-
ney function). Later that day, Dr. Hermina reviewed the med-
ical records he had just received and learned that Glisson suf-
fered from (among other things) kyphosis and back pain (for
which he was treated with the opioids OxyContin and Oxyco-
done), gastroparesis (partial paralysis of the stomach), neck
pain, and several mental conditions (depression, poor
memory, mild cognitive decline).
As time went on, along with the physical problems of ca-
chexia, renal decline, and neck weakness (in part attributable
to the fact that no one ever gave him his neck brace), Glisson’s
mental status was deteriorating. Dr. Hermina wondered if
Glisson belonged in the psychiatric unit at a different prison,
but he displayed no awareness of the fact that Dr. Conant had
just conducted a mental-health evaluation on Glisson on Sep-
tember 23. Dr. Conant’s findings were worrying, but no one
connected them with any of the physical data on file, such as
Glisson’s tendency to have inadequate oxygen profusion and
his cachexia. Dr. Conant found that Glisson was restless, par-
anoid, delusional, hallucinating, and insomniac. He placed
Glisson under close observation and settled on a diagnosis of
unspecified psychosis; he saw no need for medication. (This
too is odd: Glisson was actually already on psychotropic med-
ications; while at Plainfield he was abruptly switched from
Effexor to Prozac without any evaluation, weaning, or moni-
toring. The two drugs work quite differently, and Dr. Diane
8 No. 15-1419
Sommer, the expert retained by Glisson’s estate, concluded
that “[t]his abrupt change in medication contributed to [Glis-
son’s] acute decline in function.”)
Had Dr. Conant looked at something resembling a com-
plete chart, he would have seen that Glisson had no history
of psychosis, and he might have considered, as the post-mor-
tem experts did, the more obvious possibility that lack of ox-
ygen and food was affecting Glisson’s mental performance.
Dr. Conant noted that Glisson had been experiencing halluci-
nations, which the doctor thought were caused by morphine.
This observation was reached in an information vacuum. In
fact, as the medical records Dr. Hermina reviewed just days
later show, Glisson had been on narcotic medication without
adverse effects for quite a while prior to his incarceration.
Had Dr. Conant known of Glisson’s medical history, he would
have known that morphine was an unlikely cause for the hal-
lucinations and he would have looked further.
The Corizon providers never took any steps to integrate
the growing body of evidence of Glisson’s malnutrition with
his overall mental and physical health. The physical signs
were clear even before he arrived at Plainfield. On September
4, Glisson’s urinalysis results showed the presence of ketones
and leukocytes. Dr. Sommer’s report notes that
“[k]etones suggest the presence of other medical conditions
such as anorexia, starvation, acute or severe illness and hyper-
thyroidism to name a few.” The Corizon staff at the Diagnos-
tic Center did nothing to address either potential problem,
even though a second urine sample taken on September 5
showed an increase in ketones and leukocytes. No physician
reviewed either of those lab results, despite the fact that a note
dated September 5 says that Glisson was not eating and
No. 15-1419 9
seemed confused. Rather than probing the signs of infection,
starvation, and dehydration further, the staff opted to put
Glisson in the psychiatric unit under suicide watch.
The blood work at the Center continued to raise red flags.
On September 9, it came back with signs of abnormal renal
function. Although Glisson met with Dr. Gallien the next day,
no one looked at the bloodwork until ten days after Glisson’s
transfer to Plainfield, at his September 27 visit with Dr. Her-
mina. At that point, Dr. Hermina ordered fasting labs for Sep-
tember 28. When the results were returned on September 29,
they showed acute renal failure—information that prompted
Dr. Hermina to send Glisson immediately to Wishard Hospi-
tal. Taking the facts favorably to Glisson, the record indicates
that he was already slipping into renal distress as early as Sep-
tember 4 or 9, and that the uncoordinated care Corizon fur-
nished was a central cause for the increasing acuteness of his
condition.
Glisson was discharged from Wishard and returned to
Plainfield shortly after midnight on October 7. The discharge
summary included the following diagnoses:
x Acute renal failure/acidosis/hyperkalemia on top of
chronic kidney disease
x Acute respiratory insufficiency/pneumonia
x Tracheoesophageal voice prosthesis replacement
x Hypothyroidism
x Malnutrition
x Squamous cell carcinoma of left lateral tongue
x Hypertension
10 No. 15-1419
x Chronic pain
x Dementia/psychological disorder/depression
x Pressure wound on the sacrum
The morning after Glisson’s return, Dr. Hermina saw him and
reviewed the Wishard summary. He ordered the continuation
of the medications prescribed at Wishard. RN Griffin saw him
later that day, and the next day both Dr. Hermina and several
nurses saw him. LPN Ortiz noted that he did not eat any of
his breakfast. In fact, Dr. Hermina had ordered G-tube feed-
ing only (which does not seem to have happened), and so it is
not clear why he had a tray.
On October 10, around 6:00 a.m., RN Combs was told that
Glisson had been wandering about in a disoriented way. She
tried to talk to him, but he apparently did not understand her.
At 8:30 a.m., the staff notified RN Combs that Glisson was not
moving and that there seemed to be blood in his bed. She
found him unresponsive and called 911. The emergency team
responded, and he was pronounced dead at 8:35 a.m.
The county coroner, Joseph Neuman, concluded that the
cause of Glisson’s death was complications from laryngeal
cancer, with contributory chronic renal disease. He also ob-
served that Glisson had extreme emaciation and cachexia. He
then asked Dr. Steven Radentz, a forensic pathologist, to ren-
der a more detailed opinion. Dr. Radentz agreed with Neu-
man’s overall assessment and added that Glisson’s rapid-on-
set altered mental state could have resulted from hypoxia (in-
sufficient oxygen saturation) and acute renal failure. Compli-
cations from laryngeal cancer include, Dr. Radentz said, aspi-
ration pneumonia, acute renal failure, and hyperkalemia (el-
evated blood potassium, which can lead to cardiac arrest, see
No. 15-1419 11
MedicineNet, Definition of Hyperkalemia, http://www.medi-
cinenet.com/hyperkalemia/article.htm).
II
Alma Glisson filed this suit in state court in her capacity
as Personal Representative of Glisson’s Estate. She raised
claims under both state law and 42 U.S.C. § 1983 against sev-
eral of the doctors and nurses who were involved in Glisson’s
care, against INDOC, and against Corizon. The district court
granted summary judgment in favor of the defendants on all
of her federal claims, and it remanded the state-law claims to
the state court. See Glisson v. Indiana Dep’t of Corr., No. 1:12-
cv-1418-SEB-MJD, 2014 WL 2511579 (S.D. Ind. June 4, 2014).
On appeal, Mrs. Glisson has limited her arguments to her
claim against Corizon. As noted earlier, a panel of this court
ruled that Mrs. Glisson failed to present enough evidence to
defeat summary judgment in Corizon’s favor. That conclusion
rested on both a legal conclusion about what it takes to find
an entity such as Corizon liable, as well as the characterization
of the facts in the summary judgment record.
It is somewhat unusual to see an Eighth Amendment case
relating to medical care in a prison in which the plaintiff does
not argue that the individual medical provider was deliber-
ately indifferent to a serious medical need. See Estelle v. Gam-
ble, 429 U.S. 97 (1976); Farmer v. Brennan, 511 U.S. 825 (1994).
But unusual does not mean impossible, and this case well il-
lustrates why an organization might be liable even if its indi-
vidual agents are not. Without the full picture, each person
might think that her decisions were an appropriate response
to a problem; her failure to situate the care within a broader
context could be at worst negligent, or even grossly negligent,
but not deliberately indifferent. But if institutional policies are
12 No. 15-1419
themselves deliberately indifferent to the quality of care pro-
vided, institutional liability is possible.
Ever since the Supreme Court decided Monell v. New York
City Dep’t of Soc. Servs., 436 U.S. 658 (1978), the availability of
entity liability under section 1983 has been established. This
rule is not limited to municipal corporations, although that
was the type of entity involved in Monell itself. As we and our
sister circuits recognize, a private corporation that has con-
tracted to provide essential government services is subject to
at least the same rules that apply to public entities. See, e.g.,
Shields v. Illinois Dep’t of Corr., 746 F.3d 782, 789–90 (7th Cir.
2014); Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir.
1982); Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408–
09 (2d Cir. 1990); Harvey v. Harvey, 949 F.2d 1127, 1129–30 (11th
Cir. 1992) (citing cases); Street v. Corr. Corp. of Am., 102 F.3d
810, 818 (6th Cir. 1996). (We questioned in Shields whether pri-
vate corporations might also be subject to respondeat superior
liability, unlike their public counterparts, see 746 F.3d at 790–
92, but we have no need in the present case to address that
question and we thus leave it for another day.)
The critical question under Monell, reaffirmed in Los Ange-
les Cnty. v. Humphries, 562 U.S. 29 (2010), is whether a munic-
ipal (or corporate) policy or custom gave rise to the harm (that
is, caused it), or if instead the harm resulted from the acts of
the entity’s agents. There are several ways in which a plaintiff
might prove this essential element. First, she might show that
“the action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or deci-
sion officially adopted and promulgated by that body’s offic-
ers.” Humphries, 562 U.S. at 35 (quoting Monell, 436 U.S. at
No. 15-1419 13
690). Second, she might prove that the “constitutional depri-
vation[] [was] visited pursuant to governmental ‘custom’
even though such a custom has not received formal approval
through the body’s official decisionmaking channels.” Monell,
436 U.S. at 690–91. Third, the plaintiff might be able to show
that a government’s policy or custom is “made … by those
whose edicts or acts may fairly be said to represent official
policy.” Id. at 694. As we put the point in one case, “[a] person
who wants to impose liability on a municipality for a consti-
tutional tort must show that the tort was committed (that is,
authorized or directed) at the policymaking level of govern-
ment … .” Vodak v. City of Chicago, 639 F.3d 738, 747 (7th Cir.
2011). Either the content of an official policy, a decision by a
final decisionmaker, or evidence of custom will suffice.
The central question is always whether an official policy,
however expressed (and we have no reason to think that the
list in Monell is exclusive), caused the constitutional depriva-
tion. It does not matter if the policy was duly enacted or writ-
ten down, nor does it matter if the policy counsels aggressive
intervention into a particular matter or a hands-off approach.
One could easily imagine either kind of strategy for a police
department: one department might follow a policy of zero-
tolerance for low-level drug activity in a particular area, ar-
resting every small-time seller; while another department
might follow a policy of by-passing the lower-level actors in
favor of a focus on the kingpins. The hands-off policy is just
as much a “policy” as the 100% enforcement policy is.
Mrs. Glisson asserts that Corizon had a deliberate policy
not to require any kind of formal coordination of medical care
either within an institution (such as the Diagnostic Center or
14 No. 15-1419
Plainfield) or across institutions for prisoners who are trans-
ferred. This is not the same as an allegation that Corizon was
oblivious to the entire issue of care coordination. Read fairly,
she is saying that Corizon consciously decided not to include
this service, not that it had never thought about the issue and
thus had nothing that could be called a policy.
In some cases, it may be difficult to tell the difference be-
tween inadvertence and a policy to omit something, but on
the facts presented by Mrs. Glisson, this is not one of them.
INDOC has Chronic Disease Intervention Guidelines, which
explain what policies its health-care providers are required to
implement. Healthcare Directive HCSD-2.06 states that each
facility must adopt instructions for proper management of
chronic diseases, and it spells out what those instructions
should address. Among other things, it calls for “planned care
in a continuous fashion” and care that is “organized and …
consistent across facility lines.” It specifically mandates a
treatment plan for chronic cases—both an initial plan and one
that is updated as care needs change. In the face of this di-
rective, which appeared seven years before Glisson showed up
in prison, Corizon consciously chose not to adopt the recom-
mended policies—not for Glisson, not for anyone. As relevant
to Glisson’s case, it admitted that his care at INDOC was
based only on general standards of medical and nursing care,
not on any “written policies, procedures, or protocols.” It re-
lied on none of the Health Care Service Directives in the
course of his treatment.
That in itself, of course, does not describe an Eighth
Amendment violation. Nothing in the U.S. Constitution re-
quired Corizon to follow INDOC’s policies. The point is a
more subtle one: the existence of the INDOC Guidelines, with
No. 15-1419 15
which Corizon was admittedly familiar, is evidence that could
persuade a trier of fact that Corizon consciously chose the ap-
proach that it took. That approach itself may or may not have
led to a constitutional violation. Suppose, for instance, that
the state guidelines call for a primary-care physician to coor-
dinate all care, both basic and specialized, and a company
such as Corizon decides to ignore the guidelines and instead
to hire hospitalists to coordinate care. This would represent a
conscious policy choice, but in all likelihood one that does not
violate any inmate’s constitutional rights. Moving closer to
the facts of this case, it is also possible that a health-care pro-
vider’s deliberate policy choice not to implement the state’s
guidelines does not lead to dire results. Some guidelines may
be foolish or ineffective. A decision not to implement them
would be a deliberate policy choice, but in such a case not one
that gave rise to an Eighth Amendment violation.
Other courts have endorsed the distinction we are draw-
ing in their decisions. For example, in Long v. Cnty. of Los An-
geles, 442 F.3d 1178 (9th Cir. 2006), an elderly man reported to
the county jail to begin serving a 120-day sentence. At that
time, as his attorney informed the Director of the Jail Medical
Services Division, he weighed more than 350 pounds and was
suffering from congestive heart failure (among other ail-
ments). He had been under the care of a doctor affiliated with
the Department of Veterans Affairs. During the ensuing 18
days, he received uncoordinated and inadequate care, was ul-
timately transferred to a hospital by ambulance, but died 14
hours later. The district court granted summary judgment for
the county, but the Ninth Circuit reversed. It began by ac-
knowledging that “[a] policy can be one of action or inaction.”
Id. at 1185. The plaintiff (the decedent’s widow) attacked the
16 No. 15-1419
county’s “policies of inaction in the following areas: (1) its fail-
ure adequately to train MSB medical staff, and (2) an absence
of adequate general policies to guide the medical staff’s exer-
cise of its professionally-informed discretion.” Id. at 1190.
With respect to the second ground, the court held that there
was a triable issue on whether the county’s failure to imple-
ment several policies amounted to deliberate indifference. Id.The Third Circuit also encountered a similar case and re-
solved it in favor of the plaintiff: Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575 (3d Cir. 2003). In that case a diabetic in-
mate brought a Monell suit in which he asserted that he suf-
fered a stroke because New Jersey’s Prison Health Service
failed to provide him with insulin. Addressing Natale’s claim
against the Health Service itself, the court began with the
common observation that “the Natales must provide evi-
dence that there was a relevant PHS policy or custom, and
that the policy caused the constitutional violation they al-
lege.” Id. at 583–84. It then recalled this point from City of Can-
ton, Ohio v. Harris, 489 U.S. 378 (1989):
But it may happen that in light of the duties as-
signed to specific officers or employees the need
for more or different training is so obvious, and
the inadequacy so likely to result in the viola-
tion of constitutional rights, that the policymak-
ers of the city can reasonably be said to have
been deliberately indifferent to the need. In that
event, the failure to provide proper training
may fairly be said to represent a policy for
which the city is responsible, and for which the
city may be held liable if it actually causes in-
jury.
No. 15-1419 17
Id. at 390. The Third Circuit applied that principle to the facts
before it and concluded that “[a] reasonable jury could con-
clude that the failure to establish a policy to address the im-
mediate medication needs of inmates with serious medical
conditions creates a risk that is sufficiently obvious as to con-
stitute deliberate indifference to those inmates’ medical
needs.” Natale, 318 F.3d at 585; see also Warren v. District of
Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004) (ex-prisoner stated
claim in Monell suit alleging that the District’s policy or cus-
tom caused constitutional violations in prison conditions and
medical care; “faced with actual or constructive knowledge
that its agents will probably violate constitutional rights, the
city may not adopt a policy of inaction”).
We are not breaking new ground in this area; to the con-
trary, this court has recognized these principles for years. In
Sims v. Mulcahy, 902 F.2d 524 (7th Cir. 1990), we observed that
“in situations that call for procedures, rules or regulations, the
failure to make policy itself may be actionable.” Id. at 543 (cit-
ing Avery v. Cnty. of Burke, 660 F.2d 111, 114 (4th Cir. 1981);
Murray v. City of Chicago, 634 F.2d 365, 366–67 (7th Cir. 1980)).
In the same vein, we said in Thomas v. Cook Cnty. Sheriff’s Dep’t,
604 F.3d 293 (7th Cir. 2010), that “in situations where rules or
regulations are required to remedy a potentially dangerous
practice, the County’s failure to make a policy is also actiona-
ble.” Id. at 303; see also King v. Kramer, 680 F.3d 1013, 1021 (7th
Cir. 2012) (where municipality has “actual or constructive
knowledge that its agents will probably violate constitutional
rights, it may not adopt a policy of inaction”).
Notably, neither the Supreme Court in Harris, nor the
Ninth Circuit, nor the Third Circuit, said that institutional li-
18 No. 15-1419
ability was possible only if the record reflected numerous ex-
amples of the constitutional violation in question. The key is
whether there is a conscious decision not to take action. That
can be proven in a number of ways, including but not limited
to repeated actions. A single memo or decision showing that
the choice not to act is deliberate could also be enough. The
critical question under Monell remains this: is the action about
which the plaintiff is complaining one of the institution itself,
or is it merely one undertaken by a subordinate actor?
We reiterate that the question whether Corizon had a pol-
icy to eschew any way of coordinating care is not the only
hurdle plaintiff faces: she must also prove that the approach
Corizon took violated her son’s constitutional rights. At trial,
there is no reason why Corizon would not be entitled to intro-
duce evidence of its track record, if it believes that this evi-
dence will vindicate its decision not to follow the INDOC
guidelines. (If it does so, it presumably would also have to
face less flattering news about its record. See, e.g., David
Royse, “Medical battle behind bars: Big prison healthcare firm
Corizon struggles to win contracts,” Modern Healthcare,
April 11, 2015, at http://www.modernhealthcare.com/arti-
cle/20150411/MAGAZINE/304119981; Matt Stroud, “Why
Are Prisoners Dying in County Jail?” Bloomberg, June 2, 2015,
at https://www.bloomberg.com/news/articles/2015-06-
02/why-are-prisoners-dying-in-county-jail-. That issue, like
the others we have identified, must await development at a
trial.)
One does not need to be an expert to know that complex,
chronic illness requires comprehensive and coordinated care.
In Harris, the Court recognized that because it is a “moral cer-
tainty” that police officers “will be required to arrest fleeing
No. 15-1419 19
felons,” “the need to train officers in the constitutional limita-
tions on the use of deadly force … can be said to be ‘so obvi-
ous,’ that failure to do so could properly be characterized as
‘deliberate indifference’ to constitutional rights.” 489 U.S. at390 n. 10. A jury could find that it was just as certain that Cori-
zon providers would be confronted with patients
with chronic illnesses, and that the need to establish protocols
for the coordinated care of chronic illnesses is obvious. And
in the final analysis, if a jury reasonably could find that Cori-
zon’s “policymakers … [were] deliberately indifferent to the
need” for such protocols, and that the absence of protocols
caused Glisson’s death. Id. at 390.
A jury could further conclude that Corizon had actual
knowledge that, without protocols for coordinated, compre-
hensive treatment, the constitutional rights of chronically ill
inmates would sometimes be violated, and in the face of that
knowledge it nonetheless “adopt[ed] a policy of inac-
tion.” Kramer, 680 F.3d at 1021. Finally, that jury could con-
clude that Corizon, indifferent to the serious risk such a
course posed to chronically ill inmates, made “a deliberate
choice to follow a course of action … from among various al-
ternatives” to do nothing. Harris, 489 U.S. at 389. Monell re-
quires no more.
In closing, we reiterate that we are not holding that the
Constitution or any other source of federal law required Cori-
zon to adopt the Directives or any other particular document.
But the Constitution does require it to ensure that a well-rec-
ognized risk for a defined class of prisoners not be deliber-
ately left to happenstance. Corizon had notice of the problems
posed by a total lack of coordination. Yet despite that
20 No. 15-1419
knowledge, it did nothing for more than seven years to ad-
dress that risk. There is no magic number of injuries that must
occur before its failure to act can be considered deliberately
indifferent. See Woodward v. Corr. Med. Servs., 368 F.3d 917, 929
(7th Cir. 2004) (“CMS does not get a ‘one free suicide’ pass.”).
Nicholas Glisson may not have been destined to live a long
life, but he was managing his difficult medical situation suc-
cessfully until he fell into the hands of the Indiana prison sys-
tem and its medical-care provider, Corizon. Thirty-seven days
after he entered custody and came under Corizon’s care, he
was dead. On this record, a jury could find that Corizon’s de-
cision not to enact centralized treatment protocols for chroni-
cally ill inmates led directly to his death. The judgment of the
district court is REVERSED and the case is REMANDED for fur-
ther proceedings consistent with this opinion.
No. 15-1419 21
SYKES, Circuit Judge, with whom BAUER, FLAUM, and
KANNE, Circuit Judges, join, dissenting. Today the court
endorses Monell liability without evidence of corporate fault
or causation. That contradicts long-settled principles of
municipal liability under § 1983. The doctrinal shift is subtle
but significant. The court rests its decision on the conceptual
idea that a gap in official policy can sometimes be treated as
an actual policy for purposes of municipal liability under
Monell v. Department of Social Services, 436 U.S. 658 (1978). I
have no quarrel with that as a theoretical matter. A munici-
pality’s failure to have a formal policy in place on a particu-
lar subject may represent its intentional decision not to have
such a policy—that is, a policy not to have a policy—and that
institutional choice may in appropriate circumstances form
the basis of a Monell claim. The Supreme Court’s cases, and
ours, leave room for this theory of institutional liability
under § 1983.
But identifying an official policy is just the first step in
Monell analysis; it is not the whole ballgame. Evidence of an
official policy or custom is a necessary but not sufficient
condition to advance a Monell claim to trial. The plaintiff also
must adduce evidence on two additional elements:
(1) institutional fault, which in this context means the munic-
ipality’s deliberate indifference to a known or obvious risk
that its policy will likely lead to constitutional violations;
and (2) causation. Because Monell doctrine applies to private
corporations that contract to provide essential governmental
services, see Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 789–90
(7th Cir. 2014); Iskander v. Village of Forest Park, 690 F.2d 126,
128 (7th Cir. 1982), these requirements apply in full to
Mrs. Glisson’s claim against Corizon, Indiana’s prison
22 No. 15-1419
healthcare provider, for the death of her son while in state
custody.
But Mrs. Glisson produced no evidence to support the
fault and causation elements of her claim. My colleagues
identify none, yet they hold that a reasonable jury could find
in her favor. I do not see how, without evidence on two of
the three elements of the claim. The court’s decision thus
materially alters Monell doctrine in this circuit. With respect,
I cannot join it.
To understand how the court’s decision works a change
in the law, it’s helpful to begin with Monell itself. The familiar
holding of the case is that § 1983 provides a remedy against
a municipality for its own constitutional torts but not those of
its employees or agents; the statute doesn’t authorize vicari-
ous liability under the common-law doctrine of respondeat
superior. Monell, 436 U.S. at 691–92.
To separate direct-liability claims from vicarious-liability
claims, the Supreme Court announced the now-canonical
“policy or custom” requirement:
Local governing bodies … can be sued directly
under § 1983 for monetary, declaratory, or in-
junctive relief where, as here, the action that is
alleged to be unconstitutional implements or
executes a policy statement, ordinance, regula-
tion, or decision officially adopted and prom-
ulgated by that body’s officers. Moreover, alt-
hough the touchstone of the § 1983 action
against a government body is an allegation that
official policy is responsible for a deprivation
of rights protected by the Constitution, local
No. 15-1419 23
governments, like every other § 1983 “person,”
by the very terms of the statute, may be sued
for constitutional deprivations visited pursuant
to governmental “custom” even though such a
custom has not received formal approval
through the body’s official decisionmaking
channels.
Id. at 690–91 (footnote omitted). Put more succinctly, Monell
holds that when a plaintiff seeks to impose liability on a
municipality under § 1983, he must have evidence that a
municipal policy or custom—or the act of an authorized
final policymaker, which amounts to the same thing—
actually caused his constitutional injury.
But Monell sketched only the outlines of the doctrine; it
took later decisions to fill in the details. Most pertinent here
is Board of County Commissioners of Bryan County v. Brown,
520 U.S. 397 (1997). There the Court provided a primer for
how to apply Monell doctrine in actual practice. But first the
Court elaborated on the rationale for the policy-or-custom
requirement:
Locating a “policy” ensures that a municipality
is held liable only for those deprivations result-
ing from the decisions of its duly constituted
legislative body or of those officials whose acts
may fairly be said to be those of the municipal-
ity. Similarly, an act performed pursuant to a
“custom” that has not been formally approved
by an appropriate decisionmaker may fairly
subject a municipality to liability on the theory
that the relevant practice is so widespread as to have
the force of law.
24 No. 15-1419
Id. at 403–04 (emphasis added) (citation omitted).
The Court made it clear, however, that identifying an of-
ficial policy or widespread custom is not sufficient to sup-
port a finding of liability:
[I]t is not enough for a § 1983 plaintiff merely
to identify conduct properly attributable to the
municipality. The plaintiff must also demon-
strate that, through its deliberate conduct, the
municipality was the “moving force” behind
the injury alleged. That is, a plaintiff must show
that the municipal action was taken with the requi-
site degree of culpability and must demonstrate a
direct causal link between the municipal action and
the deprivation of federal rights.
Id. at 404 (second emphasis added). The culpability require-
ment—what I’ve referred to as “corporate fault” or “institu-
tional fault”—must be tied to the specific alleged constitu-
tional violation. Id. at 405. The causation element requires
evidence that the municipality’s own action directly caused
the constitutional injury.
Brown involved a Monell claim by a plaintiff who was in-
jured when a sheriff’s deputy pulled her from a car and
forced her to the ground during an arrest after a high-speed
chase. Id. at 400–01. The deputy had amassed a criminal
record before joining the sheriff’s department—
misdemeanor convictions for battery, resisting arrest, and
public drunkenness—but the sheriff hadn’t reviewed it
closely before hiring him. Id. at 401. The injured plaintiff
sued the county under Monell, attributing her injury to the
sheriff’s lax hiring practices. Id.
No. 15-1419 25
The Court rejected the claim, holding that a single in-
stance of excessive force—the plaintiff’s own injury—wasn’t
enough to trigger municipal liability. Id. at 415. The Court
began by tracing Monell’s basic requirements—an express
policy or widespread custom, municipal fault, and causa-
tion—and then explained how these elements apply in
different types of cases. First up were the obvious cases. The
Court explained that when a Monell claimant alleges that “a
particular municipal action itself violates federal law, …
resolving … issues of fault and causation is straightfor-
ward.” Id. at 404. “[P]roof that a municipality’s legislative
body or authorized decisionmaker has intentionally de-
prived a plaintiff of a federally protected right necessarily
establishes that the municipality acted culpably.” Id. at 405
(emphasis added). In the same way, when a legislative
decision or an act of a final policymaker itself violates federal
law, causation is clear and nothing more is needed; in that
situation the act is necessarily the “moving force” behind the
plaintiff’s injury. Id.
Most Monell claims are more complicated, however, and
Mrs. Glisson’s claim is not in this straightforward category.
She does not contend that Corizon’s failure to promulgate
formal protocols for chronically ill inmates itself violated the
Constitution. My colleagues concede the point, acknowledg-
ing that Corizon’s failure to adopt protocols for chronically
ill inmates “does not [in itself] describe an Eighth Amend-
ment violation.” Majority Op. at p. 15. Where, as here, the
challenged policy or custom is not itself unlawful, something
more is required to establish corporate culpability and
causation.
26 No. 15-1419
Helpfully, Brown contains further instructions for Monell
claims like this one that do not rest on allegations that a
municipal policy on its face violates federal law. This part of
Brown begins with a warning that’s worth repeating here.
The Court cautioned that Monell claims “not involving an
allegation that the municipal action itself violated federal
law … present much more difficult problems of proof.”
Brown, 520 U.S. at 406. Difficulties arise because claims of
this type necessarily rest on the theory that a municipal
policy or custom, though not itself unconstitutional, none-
theless led to constitutional torts by municipal employees
acting in accordance with it. Monell claims in this category
blur the line between municipal liability and respondeat
superior liability; the Court worried that the line would
collapse in actual practice. Id. at 407–08. To guard against
that risk, the Court instructed the judiciary to “adhere to
rigorous requirements of culpability and causation” when
evaluating Monell claims of this kind. Id. at 415 (“Where a
court fails to adhere to rigorous requirements of culpability
and causation, municipal liability collapses into respondeat
superior liability.”).
More specifically, the Court held that
a plaintiff seeking to establish municipal liabil-
ity on the theory that a facially lawful munici-
pal action has led an employee to violate a
plaintiff’s rights must demonstrate that the mu-
nicipal action was taken with deliberate indifference
as to its known or obvious consequences. A show-
ing of simple or even heightened negligence
will not suffice.
No. 15-1419 27
Id. at 407 (emphasis added) (citation omitted) (internal
quotation marks omitted). For this holding the Court drew
on principles announced in its earlier decision in City of
Canton v. Harris, 489 U.S. 378 (1989), which involved a claim
that shift supervisors at a city jail were inadequately trained
to recognize an inmate’s need for psychiatric intervention.
Brown described Harris’s holding this way:
We concluded [in Harris] that an “inadequate
training” claim could be the basis for § 1983 li-
ability in “limited circumstances.” [489 U.S.] at
387. We spoke, however, of a deficient training
“program,” necessarily intended to apply over
time to municipal employees. Id. at 390. Exist-
ence of a “program” makes proof of fault and
causation at least possible in an inadequate
training case. If a program does not prevent consti-
tutional violations, municipal decisionmakers may
eventually be put on notice that a new program is
called for. Their continued adherence to an ap-
proach that they know or should know has
failed to prevent tortious conduct by employ-
ees may establish the conscious disregard for
the consequences of their action—the “deliber-
ate indifference”—necessary to trigger munici-
pal liability. … In addition, the existence of a
pattern of tortious conduct by inadequately
trained employees may tend to show that the
lack of proper training, rather than a one-time
negligent administration of the program or fac-
tors peculiar to the officer involved in a partic-
ular incident, is the “moving force” behind the
plaintiff’s injury.
28 No. 15-1419
Brown, 520 U.S. at 407–08 (emphasis added).
Harris, in turn, drew on City of Oklahoma City v. Tuttle,
471 U.S. 808 (1985). There a plurality of the Court observed
that “where the policy relied upon is not itself unconstitu-
tional, considerably more proof than the single incident will
be necessary in every case to establish both the requisite
fault on the part of the municipality, and the causal connec-
tion between the ‘policy’ and the constitutional deprivation.”
Id. at 824 (opinion of Rehnquist, J.) (footnotes omitted).
Together these decisions stand for the proposition that a
Monell plaintiff’s own injury, without more, is insufficient to
establish municipal fault and causation. The plaintiff must
instead present evidence of a pattern of constitutional inju-
ries traceable to the challenged policy or custom—or at least
more than one. Only then is the record sufficient to permit
an inference that the municipality was on notice that its
policy or custom, though lawful on its face, had failed to
prevent constitutional torts. Put slightly differently, the
plaintiff’s own injury, standing alone, does not permit an
inference of institutional deliberate indifference to a known
risk of constitutional violations. “Nor will it be readily
apparent that the municipality’s action caused the injury in
question, because the plaintiff can point to no other incident
tending to make it more likely that the plaintiff’s own injury
flows from the municipality’s action, rather than from some
other intervening cause.” Brown, 520 U.S. at 408–09.
In short, except in the unusual case in which an express
policy (or an act of an authorized policymaker) is itself
unconstitutional, a Monell plaintiff must produce evidence of
a series of constitutional injuries traceable to the challenged
municipal policy or custom; the failure to do so means a
No. 15-1419 29
failure of proof on the fault and causation elements of the
claim. Brown is unequivocal on this point: If the plaintiff can
point only to his own injury, “the danger that a municipality
will be held liable without fault is high” and the claim
ordinarily fails. Id. at 408.
It’s true that Brown and Harris do not foreclose the possi-
bility that the requirement of pattern evidence might be
relaxed in a narrow set of circumstances where the likeli-
hood of recurring constitutional violations is an obvious or
“highly predictable consequence” of the municipality’s
policy choice. Id. at 409–10. Addressing the inadequate-
training context in particular, Brown acknowledged the
“possibility” that “evidence of a single violation of federal
rights, accompanied by a showing that a municipality has
failed to train its employees to handle recurring situations
presenting an obvious potential for such violation, could
trigger municipal liability.” Id. at 409. But the Court took
great pains to emphasize the narrowness of this “hypothe-
sized” exception:
In leaving open [in Harris] the possibility that a
plaintiff might succeed in carrying a failure-to-
train claim without showing a pattern of con-
stitutional violations, we simply hypothesized
that, in a narrow range of circumstances, a viola-
tion of federal rights may be a highly predictable
consequence of a failure to equip law enforcement
officers with specific tools to handle recurring situa-
tions. The likelihood that the situation will re-
cur and the predictability that an officer lack-
ing specific tools to handle that situation will
violate citizens’ rights could justify a finding
30 No. 15-1419
that [the] policymakers’ decision not to train
the officer reflected “deliberate indifference” to
the obvious consequence of the policymakers’
choice—namely, a violation of a specific consti-
tutional or statutory right. The high degree of
predictability may also support an inference of
causation—that the municipality’s indifference
led directly to the very consequence that was
so predictable.
Id. at 409–10.
Despite the contextual language, I see no reason to think
that this hypothetical path to liability in the absence of
pattern evidence is open only in failure-to-train cases. So I
agree with my colleagues that evidence of repeated constitu-
tional violations is not always required to advance a Monell
claim to trial. But it’s clear that this path to corporate liability
is quite narrow. If the plaintiff lacks evidence of a pattern of
constitutional injuries traceable to the challenged policy or
custom, Monell liability is not possible unless the evidence
shows that the plaintiff’s situation was a recurring one (i.e.,
not unusual, random, or isolated) and the likelihood of
constitutional injury was an obvious or highly predictable
consequence of the municipality’s policy choice. The Court’s
use of the terms “obvious” and “highly predictable” is
plainly meant to limit the scope of this exception to those
truly rare cases in which the policy or custom in question is
so certain to produce constitutional harm that inferences of
corporate deliberate indifference and causation are reasona-
ble even in the absence of any prior injuries—that is, in the
absence of the kind of evidence normally required to estab-
lish constructive notice.
No. 15-1419 31
Our cases have always followed this understanding of
Monell doctrine. We have held that a gap in municipal policy
can sometimes support a Monell claim. See, e.g., Dixon v.
County of Cook, 819 F.3d 343, 348 (7th Cir. 2016); Thomas v.
Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2009);
Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005). But we
have also recognized that claims grounded on the failure to
have a policy must be scrutinized with great care. Calhoun,
408 F.3d at 380 (“At times, the absence of a policy might
reflect a decision to act unconstitutionally, but the Supreme
Court has repeatedly told us to be cautious about drawing
that inference.” (citing Brown, 520 U.S. at 409; Harris, 489 U.S.
at 388)).
And in all cases we have consistently required Monell
plaintiffs to produce evidence of more than one constitu-
tional injury traceable to the challenged policy or custom
(unless, of course, the policy or custom is itself unconstitu-
tional, in which case the singular wrong to the plaintiffs is
clearly attributable to the municipality rather than its em-
ployees). See, e.g., Chatham v. Davis, 839 F.3d 679, 685 (7th Cir.
2016) (explaining that Monell claims “normally require
evidence that the identified practice or custom caused
multiple injuries”); Daniel v. Cook County, 833 F.3d 728, 734
(7th Cir. 2016) (explaining that a Monell plaintiff “must show
more than the deficiencies specific to his own experience”
and allowing the claim to proceed based on a Department of
Justice report documenting multiple instances of inadequate
medical care in the jail); Dixon, 819 F.3d at 348–49 (same);
Calhoun, 408 F.3d at 380 (explaining that a Monell claim
ordinarily “requires more evidence than a single incident to
establish liability”); Palmer v. Marion County, 327 F.3d 588,
596 (7th Cir. 2003) (same); Gable v. City of Chicago, 296 F.3d
32 No. 15-1419
531, 538 (7th Cir. 2002) (same); Estate of Novack ex rel. Turbin v.
County of Wood, 226 F.3d 525, 531 (7th Cir. 2000) (A Monell
plaintiff must show that “the policy itself is unconstitution-
al” or produce evidence of “a series of constitutional viola-
tions from which [institutional] deliberate indifference can
be inferred.”).
Finally, following the Supreme Court’s lead in Brown and
Harris, we have left open the possibility that a Monell claim
might proceed to trial based on the plaintiff’s injury alone,
but only in rare cases where constitutional injury is a mani-
fest and highly predictable consequence of the municipality’s
policy choice. See Chatham, 839 F.3d at 685–86; Calhoun,
408 F.3d at 381. So far, we’ve allowed recovery under this
exception only once, in a case involving a jail healthcare
provider’s failure to ensure that its suicide-prevention
protocols were scrupulously followed. See Woodward v. Corr.
Med. Servs. of Ill., Inc., 368 F.3d 917 (7th Cir. 2004).
To be more specific, in Woodward a jail’s private
healthcare provider had guidelines in place for inmate
suicide risk identification and prevention. Id. at 921. An
inmate committed suicide 16 days after he was booked into
the jail; his estate sued the corporate healthcare provider
alleging a systemic failure to enforce compliance with the
guidelines. Id. at 919–20. The evidence at trial established
that the provider neither trained its employees on how to
use the guidelines nor monitored their compliance with
them, and in fact had long condoned widespread violations
of the nominally mandatory procedures. Id. at 925–29. A jury
returned a verdict for the estate and we affirmed. Although
there was no evidence of prior suicides at the jail, we held
that Monell liability was appropriate because inmate suicide
No. 15-1419 33
is an obvious and highly predictable consequence of a jail
healthcare provider’s thoroughgoing failure to enforce its
suicide-prevention program. Id. at 929.
This case is not at all like Woodward. While it’s patently
obvious that a systemic failure to enforce a jail suicide-
prevention program will eventually result in inmate suicide,
inmate death is not an obvious or highly predictable conse-
quence of the alleged policy lapse at the center of this case.
Mrs. Glisson claims that Corizon’s failure to promulgate
formal guidelines for the care of chronically ill inmates as
required by INDOC Directive HCSD-2.06 caused her son’s
death. Everyone agrees that nothing in “the Constitution or
any other source of federal law required Corizon to adopt
the Directive[] or any other particular document.” Majority
Op. at p. 19. So evidence is needed to prove corporate culpa-
bility and causation; in the usual case, this means evidence
of a series of prior similar injuries. But Mrs. Glisson present-
ed no evidence that other inmates were harmed by the
failure to have protocols in place as required by the
Directive.
In the absence of prior injuries, Corizon was not on notice
that protocols were needed to prevent constitutional torts. So
Mrs. Glisson cannot prevail unless she can show that inmate
death was an obvious or highly predictable consequence of
the failure to promulgate formal protocols of the type speci-
fied in HCSD-2.06.
She has not done so. Her expert witness, Dr. Dianne
Sommer, did not offer an opinion on the subject; the doctor’s
declaration states only that certain aspects of Nicholas
Glisson’s treatment fell below the standard of care. My
colleagues insist that “[o]ne does not need to be an expert to
34 No. 15-1419
know that complex, chronic illness requires comprehensive
and coordinated care.” Majority Op. at p. 18. Perhaps not,
but it’s conceptually improper to frame the issue at that level
of generality.
This is a complicated medical-indifference case. It’s far
from obvious that formal protocols of the sort required by
Directive HCSD-2.06 were needed to prevent constitutional
torts of the kind allegedly suffered by Nicholas Glisson. The
Directive itself is entirely nonspecific. It contains only the
following instructions: (1) “[o]ffenders with serious chronic
health conditions need to receive planned care in a continu-
ous fashion”; (2) chronic conditions must be identified and
“a treatment plan must be established”; and (3) the treat-
ment plan “should be maintained current” and “[a]s care
needs change, the treatment plan should be updated.” In
other words: Have a treatment plan and update it as needed.
During discovery Mrs. Glisson asked Corizon to produce
“all policies, procedures, and/or protocols relied on in
developing the course of treatment for Nicholas Glisson.”
Corizon objected based on overbreadth and asked for a more
targeted document request. Subject to the objection, Corizon
gave this response: “Mr. Glisson’s medical care and treat-
ment at IDOC were based on standards of medical and
nursing care, and generally were not dictated by written
policies, procedures or protocols.”
My colleagues do not explain how Corizon’s adherence
to professional standards of medical and nursing care
amounts to deliberate indifference to a known or obvious
risk of harm. More to the point, they do not explain how
inmate death was an obvious or highly predictable conse-
quence of Corizon’s failure to promulgate protocols in
No. 15-1419 35
compliance with the very loose and highly generalized
instructions contained in Directive HCSD-2.06. Unlike the
jail-suicide case, it is neither self-evident nor predictable—let
alone highly predictable—that Corizon’s reliance on profes-
sional standards of medical and nursing care (instead of
HCSD-2.06-compliant protocols) would lead to constitution-
al injuries of the sort suffered by Nicholas Glisson.
My colleagues say that the absence of formal protocols
for chronically ill inmates created “a well-recognized risk”
and “Corizon had notice of the problems posed by a total
lack of coordination.” Majority Op. at p. 19. No evidence
supports these assertions. No expert testified that the stand-
ard of care requires a corporate healthcare provider to
promulgate formal protocols on this subject, so the record
doesn’t even clear the bar for simple negligence. Monell
liability requires proof of culpability significantly greater
than simple negligence. It also requires evidence that Cori-
zon’s action—not the actions of its doctors and nurses—
directly caused the injury. There is no such evidence here.
Without the necessary evidentiary support, a jury cannot
possibly draw the requisite inferences of corporate fault and
causation. On this record, a verdict for Mrs. Glisson is not
possible.
More broadly, by eliding the normal requirement of pat-
tern evidence and relying instead on sweeping and unsub-
stantiated generalizations about the obviousness of the risk,
my colleagues have significantly expanded a previously
narrow exception to the general rule that a valid Monell
claim requires evidence of prior injuries in order to establish
corporate deliberate indifference and causation. The
Supreme Court has instructed us to rigorously enforce the
36 No. 15-1419
requirements of corporate culpability and causation to
ensure that municipal liability does not collapse into vicari-
ous liability. Today’s decision does not heed that instruction.
Nicholas Glisson arrived in Indiana’s custody suffering
from complicated and serious medical conditions. Some of
Corizon’s medical professionals may have been negligent in
his care, as Dr. Sommer maintains, and their negligence may
have hastened his death. That’s a tragic outcome, to be sure;
if substantiated, the wrong can be compensated in a state
medical-malpractice suit. Under traditional principles of
Monell liability, however, there is no basis for a jury to find
that Corizon was deliberately indifferent to a known or
obvious risk that its failure to adopt formal protocols in
compliance with HCSD-2.06 would likely lead to constitu-
tional violations. Nor is there a factual basis to find that this
alleged gap in corporate policy caused Glisson’s death.
Accordingly, I would affirm the summary judgment for
Corizon.