Danny Richards v. Wexford of Indiana LLC ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 15, 2021 *
Decided October 20, 2021
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-2567
DANNY R. RICHARDS, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Terre Haute Division.
v. No. 2:18-cv-00165-JPH-DLP
WEXFORD OF INDIANA LLC, et al., James P. Hanlon,
Defendants-Appellees. Judge.
ORDER
Danny Richards, an Indiana inmate, sued three prison doctors and their
employers under 42 U.S.C. § 1983 for deliberate indifference to his serious health needs.
The district court entered summary judgment for the defendants. But a fact question
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-2567 Page 2
remains over whether one doctor conducted a rectal exam in a way that violated
Richards’s rights, so we vacate the judgment on that issue. Otherwise, we affirm.
I
A
While incarcerated at the Wabash Valley Correctional Facility, Richards sought
medical care for both diabetes and ulcerative colitis. Corizon Health was the contracted
healthcare provider for the Indiana Department of Correction until March 2017, when
Wexford of Indiana took over. We recount the facts about the treatment in the light
most favorable to Richards. See Thomas v. Martija, 991 F.3d 763, 767 (7th Cir. 2021).
Dr. Jackie West-Denning began treating Richards for diabetes in December 2017.
Based on his “alarmingly high” blood glucose levels, she ordered insulin injections and
daily blood glucose tests. When she saw him a month later, however, his blood sugar
was still high. Richards was experiencing painful side effects from the insulin injections,
and so he accepted the injections only when his blood sugar was over 150. Dr. West-
Denning explained that the side effects would fade once his body acclimated to the
insulin in four to eight weeks and that he should “deal with it” because he “is a big
boy.” At his next visit, Richards again reported pain from the injections. But based on
his unstable blood glucose levels, Dr. West-Denning increased his dose. Finally, in May
2018, Dr. West-Denning discontinued the insulin shots because of Richards’s non-
compliance, but she continued to counsel Richards on his diabetes, which stabilized.
For his ulcerative colitis, Richards had previously undergone abdominal
surgeries—from which Dr. West-Denning did not have complete records—but he
continued to report symptoms including excessive bowel movements. In February 2018,
Dr. West-Denning discontinued a prescription for gabapentin (an anticonvulsant used
for nerve pain) that a previous provider had issued for his rectal pain. Instead, she
ordered an anti-inflammatory medication (sulfasalazine) and suppositories. When
Richards protested, Dr. West-Denning explained that the Department of Correction had
restricted the drug because of abuse and trafficking. She thought that the new drug
would treat his underlying condition and help with the pain, which she did not believe
was nerve pain. (She also had concerns about giving gabapentin—a drug that she said
was potentially habit-forming—to someone like Richards with a history of self-harm.)
At the same appointment, which took place in Richards’s restricted housing unit,
Dr. West-Denning performed a rectal exam in a cramped room that, Richards says,
lacked privacy and was filthy. According to Richards, correctional officers also were
present in the room for security purposes. And, by Richards’s account, two other
No. 20-2567 Page 3
officers and three inmates, from outside the exam room, were able to see through a
window into the room as Dr. West-Denning performed the rectal exam. The exam table,
Richards adduced, was sticky, and there were bloody cotton balls and bandages on the
floor. Richards protested; he requested privacy and asked the doctor to clean the exam
table. Instead, Dr. West-Denning retorted that Richards “lost his right to privacy and
cleanliness when he came to prison.” She gave him the option to refuse the exam or “get
undress[ed].” He acquiesced but found it “humiliat[ing].” When he told her as much,
Dr. West-Denning “just smiled” and ended the visit.
Richards continued to report rectal pain and frequent bowel movements. He
repeatedly asked for a prescription that would treat what he believed was rectal nerve
pain and reported that the suppositories burned. Dr. West-Denning urged him to wait
eight weeks for the sulfasalazine to take effect and reordered a zinc oxide cream for his
irritated skin. When he again complained of abnormal bowel movements, Dr. West-
Denning ordered steroids, which Richards initially refused to take, and added another
anti-inflammatory drug. In late March, Dr. West-Denning prescribed a different
anticonvulsant (oxcarbazepine) for the nerve pain. At that time, she also ordered
antibiotics, a stool stabilizer, and steroids along with various tests.
In 2018, Richards filed three grievances about allegedly inadequate medical
treatment: In February, he complained that Dr. West-Denning wrongly discontinued his
prescription for nerve pain; in March, he asserted that a healthcare administrator, who
is not a defendant, refused to tell him the side-effects of his steroids; and in June (after
he filed this lawsuit), he faulted Dr. West-Denning for ignoring the pain that his insulin
injections caused. None of the grievances was sustained.
Turning to federal court, Richards sued Dr. West-Denning, two other doctors
(Mary Chavez and Samuel Byrd), Corizon, and Wexford for deliberate indifference to
his serious health needs. As relevant to this appeal, he alleged that Dr. West-Denning
disregarded his pain caused by his ulcerative colitis and insulin injections; that
Dr. Chavez and Dr. Byrd failed to diagnose, treat, or recommend a specialist for his
diabetes and acid reflux; and that Wexford and Corizon had an unconstitutional policy
of providing cheaper medication when more effective medication was available.
B
The district court allowed the claims to proceed, 28 U.S.C. § 1915A, and Richards
also moved for the recruitment of counsel. The court denied his first request because he
had not shown reasonable efforts to obtain counsel independently. In denying the
subsequent motions, the court explained that Richards demonstrated competence to
litigate: The claims involved his personal experience, and his stated difficulties with
No. 20-2567 Page 4
comprehension had not limited his ability to litigate any more than the average
prisoner; he had competently responded to filings and managed the discovery process.
In three groups, the defendants moved for summary judgment, and the district
court granted each motion. First, the court determined that Richards had not exhausted
the prison’s administrative remedies against Dr. Chavez, her employer, Corizon, and
Dr. Byrd (who worked for both Corizon and later Wexford). See 42 U.S.C. § 1997e(a).
None of his grievances was filed while Corizon was the prison’s healthcare provider,
and none mentioned those defendants nor the allegations against them. Second, the
court concluded, as relevant to this appeal, that no reasonable jury could find that
Dr. West-Denning displayed deliberate indifference to Richards’s pain from his
ulcerative colitis or insulin injections. Nor did he support his contention that her
employer, Wexford, had a policy of withholding effective but expensive treatment such
as gabapentin.
Richards appeals.
II
A
Richards first argues that he raised a genuine dispute about whether Dr. West-
Denning performed a rectal exam in a manner designed to humiliate him. To be sure, he
is not challenging Dr. West-Denning’s determination that the rectal exam was medically
necessary. Rather, Richards contends that by gratuitously exposing him to others,
performing the exam in a filthy room, and making demeaning comments, Dr. West-
Denning engaged in demeaning and degrading conduct that violated the Eighth
Amendment.
It is true that Richards’s amended complaint did not contain factual allegations
about the February 2018 rectal exam. But Richards did focus on this event as part of his
opposition to the defendants’ motion for summary judgment, and the defendants
replied on the merits. All of this led to the district court, in turn, addressing the
substance of the allegations on the merits. In these circumstances, we see the merits of
this issue as within the scope of the deliberate indifference claim litigated at summary
judgment. Thus, on this record, the claim is properly on appeal. See, e.g., Torry v.
Northrop Grumman Corp., 399 F.3d 876, 878–79 (7th Cir. 2005) (determining that the
parties litigated the claims at issue on appeal by implied consent in the course of the
proceedings in the district court).
On the merits, we agree with Richards that he raised a genuine issue of a
material fact about whether Dr. West-Denning sought to humiliate him by performing
No. 20-2567 Page 5
the rectal exam after he raised privacy and sanitary concerns. The Eighth Amendment
bars the “calculated harassment unrelated to prison needs.” Hudson v. Palmer, 468 U.S.
517, 530 (1984). Perhaps the best analogy is to strip searches. They are permitted when
justified by penological interest, but must not be executed in a manner that gratuitously
causes humiliation. See Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009) (concluding
that a genuine dispute existed over whether public strip searches held in a cold room
with guards who did not change their gloves and made demeaning comments “were
conducted in a harassing manner intended to humiliate”).
Furthermore, Richards submitted evidence that Dr. West-Denning taunted him
when he asked for privacy and for her to clean the sticky exam table, telling him that he
“lost his right to privacy and cleanliness when he came to prison.” Assuming the
comment was made (as we must, at this stage of the proceedings), it is some evidence of
deliberate indifference to the humiliating conditions. Coupled with the sensitive nature
of the exam, the conduct could rise to the kind of torment and humiliation without a
penological (or medical) purpose that can violate the Eighth Amendment. Mays,
575 F.3d at 649; see Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012) (concluding
that touching “intended to humiliate the victim or gratify the assailant’s sexual desires”
during search created triable claim).
B
Richards also maintains that the district court wrongly entered summary
judgment on his claim that Dr. West-Denning disregarded the pain caused by his
ulcerative colitis and insulin injections. For this claim to survive summary judgment,
Richards needed evidence that Dr. West-Denning knew of, but recklessly disregarded,
an excessive risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Concerning the pain from the insulin injections, Richards offered no evidence
that Dr. West-Denning acted recklessly or worse by continuing to prescribe the shots
despite the negative side effects he reported. First, arguably unprofessional comments
(such as being told to be a “big boy,” here), without more, generally do not violate a
prisoner’s constitutional rights. See Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015).
Neither her statement nor her order to increase the insulin dosage signal a failure to
exercise her medical judgment; she prescribed insulin and adjusted the dose to treat his
“abnormally high” blood sugar and counseled him that the side effects should subside
in a few weeks. Doctors are entitled to deference in their decision-making, and Richards
presented no evidence that Dr. West-Denning’s actions reflected a substantial departure
from accepted professional standards. See Johnson v. Dominguez, 5 F.4th 818, 825 (7th Cir.
2021) (citing cases). In fact, Richards’s diabetes stabilized while under her care.
No. 20-2567 Page 6
C
Richards next argues that by failing to prescribe a medication that specifically
addressed nerve pain for nearly two months, Dr. West-Denning impermissibly
persisted in an ineffective course of treatment. But Richards, again, points to no
evidence from which a reasonable jury could conclude that the doctor failed to use her
professional judgment. Id. First, the undisputed facts show that Dr. West-Denning
believed that she was following the Department of Correction’s policy of reducing
prescriptions for a frequently trafficked drug and that she thought that gabapentin was
a bad idea for Richards specifically. Second, the doctor took action to address Richards’s
pain differently. See Lockett v. Bonson, 937 F.3d 1016, 1025 (7th Cir. 2019). She ordered
medication that she thought would address the underlying condition, ulcerative colitis,
and reduce his pain. At most, the record shows that Dr. West-Denning disagreed with a
previous provider about the best course of treatment. But a reasonable difference of
opinion between medical professionals is not evidence of deliberate indifference.
See id. at 1023. And, although Richards preferred gabapentin, the Constitution entitles
Richards to adequate medical care, not to demand specific medication. See id. at 1024.
D
Turning to the other defendants, we agree with the district court’s conclusion
that Richards did not exhaust his administrative remedies with respect to the claims
against Dr. Byrd, Dr. Chavez, and Corizon. Richards had to follow the Indiana
Department of Correction’s Offender Grievance Process, see Woodford v. Ngo, 548 U.S.
81, 90–91 (2006), which required that he file one grievance per “event or issue” and that
each grievance explain “how the situation or incident affects” him and “suggest
appropriate relief or remedy.” IND. DEP’T CORR., POL’Y & ADMIN. PROCS. No. 00-02-301
§ XI(A)(5), (7), (11). He also had to file a formal written grievance within 20 days of the
complained-of incident. Id. No. 00-02-301 § XI. The three grievances in the record
describe events that occurred almost a year after Dr. Chavez and Corizon stopped
providing medical care at the prison. They do not describe incidents or treatment
decisions involving Corizon, Dr. Chavez, or Dr. Byrd. Therefore, these grievances did
not provide the prison notice of, or the opportunity to correct, any mistake by these
defendants. See Woodford, 548 U.S. at 89.
To the extent that Richards now responds that the administrative process was
not available to him in time to file a timely grievance, or that the prison prevented him
from doing so, he waived those arguments by not raising them in response to the
summary-judgment motions. See Fenster v. Tepfer & Spitz, Ltd., 301 F.3d 851, 859 (7th Cir.
2002).
No. 20-2567 Page 7
E
As for Wexford, the state’s current prison healthcare contractor, Richards
asserted in his complaint, and argued in the district court, that he was injured by an
unconstitutional policy or practice of prioritizing cost-savings over effective treatment,
namely gabapentin. See generally Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). But he
provided no evidence, beyond speculation, that any such policy or practice existed, or
caused him to receive constitutionally deficient medical care for his pain. See Beatty
v. Olin Corp., 693 F.3d 750, 754 (7th Cir. 2012). On appeal, Richards contends that
treatment records were falsified and makes other arguments unrelated to the supposed
prioritization of cost-effectiveness, so he gives us no reason to question the district
court’s ruling.
F
Finally, Richards challenges the denial of his multiple motions for the
recruitment of counsel. But the district court did not abuse its discretion when it denied
these requests. The court followed the parameters of Pruitt v. Mote, first by requiring
Richards to independently seek representation, then by reasonably weighing Richards’s
abilities against the difficulty of the case. 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc).
Further, on appeal, Richards does not point to any prejudice besides difficulty
navigating the discovery process. See id. at 660. And he does not explain how he might
have disputed the evidence of adequate treatment for his medical conditions.
We have considered Richards’s other arguments, and none has merit. Therefore,
we VACATE the judgment as it concerns the way the rectal exam was conducted and
REMAND for further proceedings. We otherwise AFFIRM.