Gail Stockton v. Milwaukee County, Wisconsin ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1116
GAIL STOCKTON, individually and as Special Administrator of
the ESTATE OF MICHAEL MADDEN, deceased,
Plaintiff-Appellant,
v.
MILWAUKEE COUNTY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 18-cv-758 — Lynn Adelman, Judge.
____________________
ARGUED MAY 31, 2022 — DECIDED AUGUST 9, 2022
____________________
Before SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.
ST. EVE, Circuit Judge. When Michael Madden arrived at
the Milwaukee County Jail on an outstanding probation vio-
lation, he suffered from various ailments, including a history
of intravenous drug abuse and a congenital heart defect. Over
the course of a month, Madden developed infective endocar-
ditis, a serious and occasionally fatal heart infection. Alt-
hough medical staff treated Madden repeatedly for numerous
2 No. 22-1116
complaints during this period, none diagnosed the infective
endocarditis. By the end of the month, Madden was dead.
Gail Stockton, the special administrator of Madden’s estate,
filed suit asserting deliberate indifference, use of excessive
force, Monell liability, and state law claims against the state
actors involved with Madden’s care. The district court dis-
missed all of Stockton’s claims at summary judgment. We af-
firm in part and reverse and remand in part.
I. Background
A. Consent Decree and Monitoring
On March 7, 2001, Milwaukee County entered into a con-
sent decree (the “Consent Decree”) regarding conditions in
the Milwaukee County Jail (“MCJ”). Among the conditions
subject to the Consent Decree are the health services provided
at the MCJ, including medical staffing levels and processing
of inmate requests for medical attention, known as sick call
slips. Dr. Ronald Shansky, a correctional healthcare expert,
has monitored the MCJ’s compliance with the Consent Decree
and generated biannual reports since 2001.
Milwaukee County contracted with Armor Correctional
Health Service, Inc. (“Armor”) to provide healthcare services
to MCJ inmates. The Shansky reports indicate Armor consist-
ently struggled to meet medical staffing level expectations
and process sick call slips in a timely manner. David Clarke,
the Milwaukee County Sheriff during the relevant period,
oversaw the MCJ and tasked Richard Schmidt, an Inspector
with the Milwaukee County Sheriff’s Office, with the respon-
sibility of overseeing Armor. Nancy Evans, the Jail Com-
mander, was responsible for the day-to-day operations in the
MCJ.
No. 22-1116 3
B. Madden’s Confinement
Michael Madden was booked into the MCJ on a warrant
for an outstanding probation violation on September 29, 2016.
During intake, Madden disclosed both a history of intrave-
nous drug use and a congenital heart defect. These character-
istics placed him at risk of developing infective endocarditis,
a serious and potentially lethal heart infection. Infective en-
docarditis typically presents with a new heart murmur, short-
ness of breath, and elevated temperature. Due to Madden’s
drug use on the day of his arrest, the MCJ placed him on her-
oin withdrawal protocol for six days.
On October 5, 2016, Mercy Mahaga, a nurse practitioner
employed by Armor, evaluated Madden in response to a sick
call. Madden reported taking unprescribed benzodiazepine
while in the MCJ and a history of heroin use. Madden’s blood
pressure was 101/60, his heartrate was elevated at 101 beats
per minute (“BPM”), and his respiration was 18 breaths per
minute (“bPM”). Mahaga noted Madden’s lungs sounded
normal and he appeared alert and oriented. Mahaga deter-
mined Madden was likely suffering “benzo withdrawal” and
instructed him to stop using drugs and to drink more fluids.
Madden requested an emergency medical evaluation on
October 11, 2016, for “heart issues” and “trouble breathing.”
Madden reported he was “not drinking virtually any water,”
experienced “dizziness when standing,” and informed the
nurse evaluating him of his congenital heart defect. Madden’s
blood pressure was 108/53, his heartrate was 106 BPM, his res-
piration was 18 bPM, and his temperature was 97.9°F. Mad-
den was transferred to the MCJ clinic and placed on intrave-
nous fluids, after which he reported feeling “much better.”
4 No. 22-1116
Madden sought emergency medical attention once again
on October 13, 2016, because his “heart hurt[].” CaryAnne
Adriano, a registered nursing supervisor employed by Ar-
mor, evaluated Madden. Madden reported suffering diarrhea
due to benzodiazepine and heroin withdrawal, that he was
not drinking water, and a history of gastroesophageal reflux
disease (“GERD”). GERD may cause chest pain, even severe
chest pain. During this evaluation, Madden’s blood pressure
was 114/62, his heartrate was elevated at 112 BPM, his respir-
atory rate was 20 bPM, his temperature was slightly elevated
at 100.3°F, his heart rhythm was normal, and he displayed no
other signs of distress. Adriano instructed Madden to take
Tums and Kaolin-Pectin and to increase his fluid intake. She
also scheduled him for a follow-up assessment the next day.
Adriano testified she was not concerned Madden might be
suffering a heart condition because his symptoms were con-
sistent with suffering narcotics withdrawal and failure to eat
and drink appropriately.
Mahaga performed Madden’s follow-up the next day.
During this appointment, Madden complained of watery di-
arrhea, inability to sleep, and dissatisfaction with the jail diet.
Mahaga reviewed Adriano’s notes from the previous day.
Mahaga did not understand the “cp” notation as shorthand
for “chest pain,” did not take steps to determine what “cp”
meant, and did not know Madden previously complained of
chest pain. Madden appeared alert, oriented, and not in dis-
tress during the follow-up. Madden’s blood pressure was
98/62, his heartrate was an elevated 108 BPM, his temperature
was 97.1°F, and his respiratory rate was 17 bPM. Madden
weighed 142 pounds on October 14, 2016, constituting a
seven-pound loss since his intake on September 29, 2016. Ma-
haga also noticed a low-grade heart murmur she did not hear
No. 22-1116 5
on October 5, 2016. The murmur was faint enough Mahaga
did not consider it an emergency. Mahaga knew murmurs
could be caused by infections or by insufficient fluid intake
and that Madden had a congenital heart defect, was an intra-
venous drug user, exhibited persistently elevated heartrates,
had a low-grade fever the previous day, and had not been
drinking sufficient fluids for a sustained period of time. Ma-
haga also knew intravenous drug users were at a heightened
risk of infections and that infections could prove lethal. At the
time, she understood the symptoms of infective endocarditis
and that diagnosing infective endocarditis required blood
testing and an electrocardiogram. Ultimately, Mahaga deter-
mined Madden suffered “diarrhea” and instructed him to
drink more fluids.
On October 25, 2016, a sick call slip was entered for Mad-
den in which he reported:
I have severe allergies and have been experi-
ences [sic] bad symptoms. I’ve had prescrip-
tions, but are too old. Would it be possible to get
an antihistamine or some medication to allevi-
ate symptoms. Thank you.
Madden’s sick call slip was assigned the highest priority level
and scheduled for a follow-up on October 26, 2016. Madden
was not seen by medical staff on October 26, 2016, however.
Stockton’s expert, nurse Lori Roscoe, attributed this failure to
MCJ’s inadequate medical staffing levels.
At approximately 1:00 a.m. on October 28, 2016, Adriano,
nurse Bonnie Litrenta, correctional officer Tinita Holmes, cor-
rectional officer Brian Piasecki, and correctional lieutenant
Jeffrey Andrykowski responded to a medical emergency in
6 No. 22-1116
Madden’s cell. Madden was hyperventilating, complained of
chest pain, exhibited difficulty breathing, and was having
trouble standing and walking. Adriano and Litrenta heard
Madden say he had a heart condition. Piasecki grabbed Mad-
den by the shirt, pushed him into a chair, and yelled at him to
“sit the fuck up.” While in the chair, Madden vomited an or-
ange substance. Adriano and Litrenta instructed Andrykow-
ski to bring Madden to the medical clinic for additional treat-
ment. The nurses did not give the correctional staff specific
instructions for Madden’s care during transport.
The correctional staff called for a wheelchair and at-
tempted to move Madden closer to the cell exit while awaiting
its arrival. Madden could not walk and fell to the ground, at
which point Piasecki swore at him to get up, lifted him, and
pulled him towards the cell exit. Piasecki propped Madden
against the wall, but Madden slipped and hit his head. Pias-
ecki repositioned Madden so he was braced on Piasecki’s legs.
Litrenta testified Piasecki then deliberately moved his legs so
Madden fell and hit his head on the floor.
At this point, Adriano, Holmes, and Litrenta left the cell
and returned to the MCJ clinic. The parties dispute whether
the nurses left of their own volition or whether Andrykowski
ordered them to leave. Once the wheelchair arrived, the cor-
rectional officers put Madden in the wheelchair and trans-
ported him to the MCJ clinic on an elevator. Video footage of
the elevator trip, lasting approximately 40 seconds, shows
Madden fully unconscious and limp but does not reveal
whether Madden had a pulse or was breathing. MCJ policy
dictates that if a correctional officer comes across someone
who seems unresponsive, he is to tap and shout at the indi-
vidual. If the individual does not react, correctional officers
No. 22-1116 7
should then check for signs of life such as breathing, a pulse,
or chest movement. If there are no signs of life, the correc-
tional officer should initiate CPR and radio for medical assis-
tance. Piasecki and Andrykowski did not conduct the “tap
and shout” procedure on Madden in the elevator but testified
they believed he was breathing. While in the elevator, Pias-
ecki used a flashlight to check Madden’s pupils. None of the
correctional staff checked Madden’s pulse or performed CPR
in the elevator.
By Adriano and Litrenta’s estimation, Madden arrived at
the MCJ clinic between two and five minutes after they left
his cell. Adriano noticed Madden was not breathing shortly
after he arrived at the MCJ clinic and instructed correctional
staff to place him on a table and administer CPR. Madden was
declared dead shortly thereafter from what the medical exam-
iner concluded to be infective endocarditis. The parties agree
the latest possible date on which medical intervention could
have prevented Madden’s death from infective endocarditis
was October 27, 2016. Stockton has not offered any evidence
that Madden’s death could have been prevented after the
medical emergency began on October 28, 2016.
C. Procedural History
Stockton, as special administrator of Madden’s estate,
filed suit naming Milwaukee County, Clarke, Schmidt, Pias-
ecki, Armor, Mahaga, Evans, Andrykowski, and Adriano as
defendants (collectively, “Appellees”). 1 Stockton asserts sev-
eral causes of action under 42 U.S.C. § 1983: deliberate
1 Litrenta, initially a named defendant, was dismissed pursuant to a set-
tlement agreement on November 2, 2020, and is no longer party to this
suit.
8 No. 22-1116
indifference in violation of the Eighth and Fourteenth
Amendments against Milwaukee County, Clarke, Schmidt,
Evans, and Armor (Count I), Mahaga and Adriano (Count II),
and Andrykowski (Count IV); and excessive force in violation
of the Eighth and Fourteenth Amendments against Piasecki
(Count III). 2
The district court granted Appellees’ subsequent motion
for summary judgment on all causes of action. Stockton’s de-
liberate indifference claim against Mahaga failed because
there was no evidence Mahaga subjectively concluded Mad-
den was at risk of infective endocarditis. The deliberate indif-
ference claims against Adriano and Andrykowski failed be-
cause the parties agree the last opportunity for medical inter-
vention was October 27, 2016, predating the actions of Adri-
ano and Andrykowski to which Stockton objects. Although
the district court acknowledged Stockton identified “a num-
ber of customs or practices which may have contributed to the
failure to diagnose Madden’s infective endocarditis,” it none-
theless held Milwaukee County and Armor were not subject
to Monell liability because Stockton failed to “identify an un-
derlying constitutional violation.” None of the deliberate in-
difference claims survived a summary judgment challenge,
and the district court concluded it was “entirely speculative”
that, had medical personnel responded to Madden’s October
25, 2016, sick call slip, they would have diagnosed him with
infective endocarditis. The absence of an underlying constitu-
tional violation likewise doomed Stockton’s supervisory lia-
bility claims against Clarke, Schmidt, and Evans. As to Stock-
ton’s excessive force claim against Piasecki, the district court
2 Stockton also raised three causes of action for violations of Wisconsin
state law (Counts V–VII), but these are not pertinent to the present appeal.
No. 22-1116 9
held Stockton presented sufficient evidence for a reasonable
jury to find excessive force, but that Piasecki was shielded by
qualified immunity. Finally, as none of Stockton’s federal
claims survived summary judgment, the district court de-
clined to exercise supplemental jurisdiction over the remain-
ing state-law claims.
Stockton timely appealed the district court’s summary
judgment ruling.
II. Discussion
Stockton challenges virtually all aspects of the district
court’s summary judgment ruling on appeal. First, Stockton
claims she provided sufficient evidence to create triable issues
of fact as to whether Mahaga, Adriano, and Andrykowski
were deliberately indifferent. Second, Stockton argues a jury
could reasonably conclude from this record that Milwaukee
County and Armor are subject to Monell liability and that
Clarke, Schmidt, and Evans are subject to supervisory liabil-
ity. Third, Stockton maintains Piasecki is not entitled to qual-
ified immunity for his use of excessive force against Madden.
We review a district court’s summary judgment ruling de
novo, giving the non-moving party the benefit of conflicting
evidence and reasonable inferences. Reid Hosp. & Health Care
Servs., Inc. v. Conifer Revenue Cycle Sols., 8 F.4th 642, 647 (7th
Cir. 2021). Summary judgment is appropriate where “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Parties genuinely dispute a material fact where “the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Johnson v. Dominguez, 5 F.4th 818, 824 (7th
Cir. 2021) (internal quotations omitted); see also Anderson v.
10 No. 22-1116
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party who fails
to produce evidence sufficient to establish an element essen-
tial to that party’s case on which they bear the burden of proof
cannot survive a summary judgment challenge. Zander v. Or-
lich, 907 F.3d 956, 959 (7th Cir. 2018) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).
A. Deliberate Indifference
The Eighth Amendment proscribes “deliberate indiffer-
ence to serious medical needs of prisoners” amounting to “the
unnecessary and wanton infliction of pain.” Estelle v. Gamble,
429 U.S. 97, 104 (1976) (cleaned up); see also Dean v. Wexford
Health Sources, Inc., 18 F.4th 214, 241 (7th Cir. 2021). In order
to maintain a deliberate indifference claim, Stockton must
point to evidence that (1) Madden suffered an objectively se-
rious medical condition; (2) the defendant in question knew
of the condition and was deliberately indifferent to treating
Madden; and (3) this deliberate indifference injured Mad-
den. 3 Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010); see also
3 Until oral argument, both parties apparently presumed the Eighth
Amendment provided the proper standard for evaluating Stockton’s de-
liberate indifference claim. We are not so certain. In Miranda v. County of
Lake, we held the standard for pretrial detainees challenging their medical
care under the Fourteenth Amendment is lower than that for post-convic-
tion prisoners proceeding under the Eighth Amendment. 900 F.3d 335,
350–54 (7th Cir. 2018); see also Kingsley v. Hendrickson, 576 U.S. 389, 396–97
(2015) (holding that pretrial detainees bringing claims under the Four-
teenth Amendment need only show that the defendant’s conduct was ob-
jectively unreasonable); Williams v. Ortiz, 937 F.3d 936, 942–43 (7th Cir.
2019). It is not entirely clear whether Madden—incarcerated at the MCJ on
an unadjudicated probation violation—fits within the Eighth Amendment
or the Fourteenth Amendment framework. We need not resolve this issue,
however, as Stockton failed to advocate for Fourteenth Amendment treat-
ment, thereby waiving the question. See United States v. Mezzanatto, 513
No. 22-1116 11
Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 458 (7th
Cir. 2020). Appellees do not dispute that infective endocardi-
tis constitutes an objectively serious medical condition. The
parties disagree whether the record contains adequate evi-
dence to satisfy the second and third elements of deliberate
indifference.
To establish a given defendant’s knowledge, Stockton
must demonstrate each defendant subjectively knew of Mad-
den’s risk of infective endocarditis and nonetheless disre-
garded that risk. Gayton, 593 F.3d at 620. The defendant “must
both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. (cleaned up); see also Zaya
v. Sood, 836 F.3d 800, 804 (7th Cir. 2016); Petties v. Carter, 836
F.3d 722, 728 (7th Cir. 2016). Whether a given defendant sub-
jectively knew of such a risk is a question of fact which may
be demonstrated by “inference from circumstantial evi-
dence,” including “from the very fact that the risk was obvi-
ous.” Zaya, 836 F.3d at 805 (internal quotations omitted).
Deliberate indifference occupies a space slightly below in-
tent and poses a “high hurdle and an exacting standard” re-
quiring “something approaching a total unconcern for the
prisoner’s welfare in the face of serious risks.” Donald, 982
F.3d at 458 (cleaned up). Negligence, or even objective reck-
lessness, is insufficient to satisfy deliberate indifference. Pet-
ties, 836 F.3d at 728. Whether a defendant was deliberately
U.S. 196, 201 (1995) (reiterating constitutional rights are waivable); United
States v. Morgan, 929 F.3d 411, 424 (7th Cir. 2019). For purposes of this ap-
peal, we assume without concluding the Eighth Amendment applies.
12 No. 22-1116
indifferent to a known risk of harm is also a question of fact.
Gayton, 593 F.3d at 620.
Finally, the causal link between a defendant’s deliberate
indifference and a plaintiff’s injury is typically a question re-
served for the jury. Id. at 624. Where a plaintiff offers sufficient
evidence from which a reasonable jury could infer delayed
treatment harmed an inmate, summary judgment on the issue
of causation is rarely appropriate. Id. at 624–25. Summary
judgment on causation is nonetheless warranted where “a
plaintiff can proffer no evidence that a delay in medical treat-
ment exacerbated an injury.” Id. at 624.
1. Nurse Mahaga
According to Stockton, Mahaga’s failure to diagnose Mad-
den with infective endocarditis on October 14, 2016, consti-
tuted deliberate indifference. It is certainly true that, on Octo-
ber 14, 2016, Mahaga knew information about Madden from
which she might have inferred he was at risk of infective en-
docarditis. Mahaga knew Madden was an intravenous drug
user going through withdrawal; had a congenital heart defect;
exhibited a persistently elevated heartrate; presented a new,
low-grade heart murmur; lost seven pounds in the span of
two weeks; and suffered a fever the day before. Mahaga was
also familiar with the symptoms of, and risk factors associated
with, infective endocarditis. There is no record evidence,
however, that Mahaga in fact concluded Madden was at seri-
ous risk of infective endocarditis, as is required to find delib-
erate indifference. See Zaya, 836 F.3d at 804. Indeed, according
to her notes, Mahaga assessed Madden suffered diarrhea re-
lated to his withdrawal and instructed him to increase his
fluid intake.
No. 22-1116 13
Nor was Mahaga’s conclusion unreasonable given the cir-
cumstances. The fundamental hurdle Stockton fails to sur-
mount is that Madden apparently suffered an array of ail-
ments in addition to infective endocarditis, each of which
plausibly accounted for his symptoms. Mahaga knew Mad-
den was suffering opioid withdrawal, was not drinking ade-
quate fluids, suffered persistent diarrhea, and was not eating
properly. It is undisputed that dehydration may cause ele-
vated heartrate as well as a heart murmur. Madden’s failure
to eat and drink properly during his time at the MCJ could
also explain his seven-pound weight loss during this period.
Moreover, even if Mahaga knew Madden complained of chest
pain during his October 13, 2016, exam with Adriano, Mahaga
knew Madden suffered GERD, which can also cause severe
chest pain. Evidence that a defendant’s course of treatment
was consistent with other ailments may prove fatal to a delib-
erate indifference claim. See Donald, 982 F.3d at 459–60.
Presented with these facts, we cannot conclude Mahaga’s
failure to rule out infective endocarditis amounted to “such a
substantial departure from accepted professional judgment,
practice, or standards” as to allow a reasonable jury to find
deliberate indifference. Gayton, 593 F.3d at 623 (internal quo-
tations omitted). Unless “no minimally competent profes-
sional” would have treated Madden as Mahaga did, her med-
ical decisions are entitled to deference. Roe v. Elyea, 631 F.3d
843, 857 (7th Cir. 2011). Mistakes in medical judgment, even
negligence, are insufficient to support deliberate indifference.
Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th
Cir. 2016). Although Mahaga might have gone to greater
lengths to conclusively rule out infective endocarditis (such
as requesting diagnostic blood work and an electrocardio-
gram), her “decision to forego diagnostic tests is ‘a classic
14 No. 22-1116
example of a matter for medical judgment’” entitled to defer-
ence. Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014) (quoting
Estelle, 429 U.S. at 107). Evidence from Stockton’s expert and
Mahaga’s supervisor that, to meet the standard of care, a
nurse in Mahaga’s position would be expected to incorporate
infective endocarditis as a differential diagnosis under the cir-
cumstances is similarly unavailing. All the available evidence
indicates Mahaga honestly believed in the diagnosis she ren-
dered. Zaya, 836 F.3d at 805 (citing the presence of such evi-
dence as a basis to deny summary judgment). “[E]vidence
that some medical professionals would have chosen a different
course of treatment is insufficient to make out a constitutional
claim.” Petties, 836 F.3d at 729 (emphasis in original).
Although Mahaga apparently misdiagnosed Madden,
there is no evidence she “acted with the requisite culpable
state of mind,” Gayton, 593 F.3d at 620 (internal quotations
omitted), to meet deliberate indifference’s “high hurdle and
exacting standard,” Donald, 982 F.3d at 458 (cleaned up). The
district court properly awarded summary judgment in Ma-
haga’s favor.
2. Nurse Adriano and Lieutenant Andrykowski
Stockton’s deliberate indifference claims against Adriano
and Andrykowski turn entirely upon the defendants’ actions
on October 28, 2016. Specifically, Stockton points to Adriano’s
decision to leave Madden’s cell before he was transported to
the MCJ clinic and Andrykowski’s failure to render CPR in
the elevator as constituting deliberate indifference. Both par-
ties agree the last possible opportunity for medical interven-
tion to save Madden’s life passed on October 27, 2016, so there
is no evidence either Adriano’s or Andrykowski’s actions in
the early hours of October 28, 2016, contributed to Madden’s
No. 22-1116 15
death. Nor does the record contain any evidence Adriano or
Andrykowski caused Madden additional pain or suffering.
This is one of those “rare instance[s]” in which summary
judgment based on causation is appropriate. Gayton, 593 F.3d
at 624.
3. Monell Liability
Under Monell v. Department of Social Services, local govern-
ments—and private corporations acting under color of state
law—are liable for constitutional torts arising from their pol-
icies or customs. 436 U.S. 658, 690 (1978); see also Shields v. Ill.
Dep’t of Corr., 746 F.3d 782, 789–96 (7th Cir. 2014). Monell lia-
bility is rare and difficult to establish. Taylor v. Hughes, 26
F.4th 419, 435 (7th Cir. 2022). Municipalities, however, are not
vicariously liable for the constitutional torts of their employ-
ees or agents. Monell, 436 U.S. at 691–94. Instead, a municipal-
ity is liable under § 1983 only “for its own violations of the
federal Constitution and laws.” First Midwest Bank ex rel.
LaPorta v. City of Chi., 988 F.3d 978, 986 (7th Cir. 2021); see also
Monell, 436 U.S. at 694.
For Monell liability to attach, Stockton must first trace the
deprivation of a federal right to some municipal action. Dean,
18 F.4th at 235; LaPorta, 988 F.3d at 986. Municipal action giv-
ing rise to § 1983 liability may take the form of: (1) an express
policy, (2) a widespread practice or custom, or (3) action by
one with final policymaking authority. Dean, 18 F.4th at 235;
Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir.
2010). Second, Stockton must show the municipal action
amounts to deliberate indifference, a high hurdle to clear.
Dean, 18 F.4th at 235; Thomas, 604 F.3d at 303. Third and fi-
nally, Stockton must provide evidence that the municipal ac-
tion was the “moving force” behind Madden’s constitutional
16 No. 22-1116
injury, a “rigorous” causation standard demanding a “direct
causal link between the challenged municipal action and the
violation of [Madden’s] constitutional rights.” Dean, 18 F.4th
at 235 (internal quotations omitted); see also Daniel v. Cook
Cnty., 833 F.3d 728, 736 (7th Cir. 2016). Stockton fails to pre-
sent evidence creating a triable issue of fact as to either delib-
erate indifference or moving force causation.
Stockton posits Armor and Milwaukee County’s failure to
maintain adequate medical staffing levels and process sick
call slips amounted to a widespread practice that caused MCJ
medical providers to neglect to respond to Madden’s October
25, 2016 sick call slip, thus depriving him of constitutionally
adequate medical care. To establish deliberate indifference to
the purportedly unconstitutional effects of a widespread
practice, Stockton must point to other inmates injured by that
practice. See Ruiz-Cortez v. City of Chi., 931 F.3d 592, 599 (7th
Cir. 2019); Chatham v. Davis, 839 F.3d 679, 685 (7th Cir. 2016)
(“Monell claims based on allegations of an unconstitutional
municipal practice or custom … normally require evidence
that the identified practice or custom caused multiple inju-
ries.”); Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005). Ab-
sent multiple injuries, Stockton cannot supply adequate evi-
dence from which a jury could reasonably find Armor and
Milwaukee County would “‘conclude that the plainly obvi-
ous consequences’” of the practice “would result in the dep-
rivation of a federally protected right,” as is required to estab-
lish deliberate indifference. Gable v. City of Chi., 296 F.3d 531,
537 (7th Cir. 2002) (quoting Bd. of Cnty. Comm’rs v. Brown, 520
U.S. 397, 411 (1997)).
Stockton does not point to evidence that other inmates
were similarly harmed and leans, instead, upon Madden’s
No. 22-1116 17
single, isolated experience. Here, Stockton relies almost exclu-
sively upon the Shansky reports. The parties dispute the pro-
priety of relying upon these reports. Although the district
court did not rule upon their admissibility, we have repeat-
edly held such reports are inadmissible hearsay and thus their
contents cannot be offered for the truth of the matter asserted.
Fed. R. Evid. 801, 802; see Dean, 18 F.4th at 232; Wilson v. Wex-
ford Health Sources, Inc., 932 F.3d 513, 522 (7th Cir. 2019); Dan-
iel, 833 F.3d at 743. Consequently, we cannot look to the Shan-
sky reports as evidence for the truth of what happened to
other inmates. Moreover, even were the Shansky reports fully
admissible for the truth of the matter asserted (a finding we
do not make here), they still do not adequately support a
claim for Monell liability. True, the Shansky reports portray
the MCJ as persistently struggling to maintain adequate med-
ical staffing levels and appropriately respond to inmate sick
call slips. Yet the Shansky reports do not connect this pur-
ported municipal practice to any inmate injury.
The Shansky reports document three deaths between May
2016 and November 2016. Although Shansky notes inade-
quate medical staffing levels during this period, he does not
attribute any of these deaths, or any serious medical injury, to
problems with medical staffing or sick call slip processing.
Shansky opined an inmate’s April 24, 2016, death from dehy-
dration was due to an initial screening error by the intake
nurse and inadequate officer staffing and oversight—notably,
not inadequate medical staffing—at the MCJ. When a preg-
nant inmate’s child died shortly after birth the morning of
July 14, 2016, Shansky opined “given the shortage of officers
it is not clear how thorough the monitoring was.” While Shan-
sky mentions officer staffing levels (again, not medical staff-
ing levels), he does not go so far as to attribute the injury to
18 No. 22-1116
inadequate monitoring or inadequate medical staffing. In-
stead, Shansky suggests the MCJ erred in transferring the
pregnant inmate among units without providing for proper
coordination. Finally, Shansky attributes the August 28, 2016,
death of an inmate with a history of drug use to a policy fail-
ure and recommended all inmates, regardless of any recent
admission to the MCJ, receive a new assessment upon intake.
Again, Shasky does not connect this inmate’s injury to medi-
cal staffing levels or to sick call processing.
Nor has Stockton identified evidence that medical staffing
levels or sick call slip processing caused Madden to receive
constitutionally inadequate medical care. Consequently,
Stockton’s claim for Monell liability fails to establish moving
force causation. See Daniel, 833 F.3d at 736. A sick call slip was
entered on Madden’s behalf on October 25, 2016, in which
Madden complained of “bad symptoms” from “severe aller-
gies” and requested new antihistamines. The MCJ designated
the sick call slip high priority and scheduled Madden for a
follow up on October 26, 2016. MCJ medical staff did not fol-
low up with or see Madden, however, until his death in the
early hours of October 28, 2016. Stockton points to some evi-
dence inadequate medical staffing at the MCJ may have
caused this lapse. But Stockton does not present evidence that
Madden would have been diagnosed with infective endocar-
ditis or received lifesaving treatment had MCJ medical staff
seen him between October 26, 2016, and October 28, 2016,
based upon his complaint about his allergies. The testimony
of Stockton’s expert that “[i]t is [ ] probable that … signs of
[infective endocarditis] would have been present and led to
further medical evaluation and treatment with ultimate ad-
mission to the hospital” during this period is entirely specu-
lative and does not create a genuine issue of fact. The sole
No. 22-1116 19
evidence of Madden’s symptoms at the time is the sick call
slip itself. We are not convinced a jury could reasonably con-
clude a timely response by MCJ medical staff to Madden’s al-
lergy complaint would have led to the correct diagnosis or
treatment for infective endocarditis.
In sum, Stockton failed to offer evidence sufficient to es-
tablish either deliberate indifference or moving force causa-
tion. Stockton’s evidence linking Madden’s unfortunate death
to a municipal practice or custom is tenuous and highly spec-
ulative. Additionally, there is no evidence other MCJ inmates
were constitutionally harmed by inadequate medical staffing
or sick call slip processing. The district court properly dis-
missed Stockton’s claim for Monell liability against Armor and
Milwaukee County.
4. Supervisory Liability
Stockton attempts to hold Clarke, Schmidt, and Evans lia-
ble as supervisors for their role in allowing Armor and Mil-
waukee County to maintain an unconstitutional widespread
custom or practice in the MCJ. In order for supervisory liabil-
ity to attach under § 1983, Stockton must offer evidence of,
among other things, a constitutional deprivation. Williams v.
Shah, 927 F.3d 476, 482 (7th Cir. 2019). As discussed thor-
oughly above in Section II.A.3, Stockton failed to produce ev-
idence of a widespread custom or practice resulting in a dep-
rivation of Madden’s constitutional rights.
Moreover, supervisory liability cannot attach under § 1983
absent a showing the officer is personally responsible for a
deprivation of a constitutional right. Id. To maintain an action
for supervisory liability against Clarke, Schmidt, or Evans,
Stockton cannot rely on a theory of respondeat superior but,
20 No. 22-1116
instead, must present evidence that the defendants violated
the Constitution through their own conduct. Perez v. Fenoglio,
792 F.3d 768, 781 (7th Cir. 2015). Stockton must demonstrate
Madden’s injury occurred at Clarke, Schmidt, and Evans’s di-
rection or with their knowledge and consent and that the de-
fendants acted “either knowingly or with deliberate, reckless
indifference.” Backes v. Vill. of Peoria Heights, Ill., 662 F.3d 866,
870 (7th Cir. 2011) (internal quotations omitted); see also Wil-
liams, 927 F.3d at 482. On this record, no reasonable jury could
conclude Clarke, Schmidt, or Evans were personally involved
either in Madden’s care or facilitated, approved, or turned a
blind eye to medical staffing levels or sick call slip processing
at the MCJ. The district court properly awarded summary
judgment in Clarke, Schmidt, and Evans’s favor.
B. Use of Excessive Force
The Eighth Amendment prohibits “the ‘unnecessary and
wanton infliction of pain’ on prisoners.” Outlaw v. Newkirk,
259 F.3d 833, 837 (7th Cir. 2001) (quoting Hudson v. McMillian,
503 U.S. 1, 5 (1992)). For excessive force claims, we examine
“whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause
harm.” Hudson, 503 U.S. at 7. To evaluate this question, we
weigh several factors, such as “the need for the application of
the force, the amount of force applied, the threat an officer
reasonably perceived, the effort made to temper the severity
of the force used, and the extent of the injury that force caused
to an inmate.” Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004).
A de minimus application of force is insufficient to support an
Eighth Amendment excessive force claim; instead, the force
must be “repugnant to the conscience of mankind.” Hudson,
503 U.S. at 10 (quoting Whitley v. Albers, 475 U.S. 312, 327
No. 22-1116 21
(1986)). Additionally, to survive summary judgment, Stock-
ton must present evidence supporting “a reliable inference of
wantonness in the infliction of pain.” Whitley, 475 U.S. at 322.
Relevant to the present appeal, the district court held
Stockton submitted sufficient evidence from which a reason-
able jury could conclude Piasecki used excessive force in vio-
lation of the Eighth Amendment when he purposefully
moved his legs and allowed Madden to fall and hit his head
on the floor. We agree. Piasecki knew Madden was incapable
of supporting himself. Madden had already fallen twice be-
fore Piasecki braced him against his legs: once when attempt-
ing to walk to the entrance of the cell and again when he was
propped against the cell wall. Piasecki even yelled at Madden
to “sit the fuck up” when Madden was slumped in a chair.
Litrenta and Adriano both testified they believed Piasecki
moved his legs deliberately. Litrenta further believed Piasecki
did so intending Madden to fall, a position she reiterated mul-
tiple times during her deposition. A jury could reasonably
conclude Piasecki purposely allowed Madden to fall and hit
his head. Nor is Piasecki’s use of force under these particular
circumstances—offering and then removing support from a
uniquely vulnerable inmate—de minimus. Although Piasecki
did not strike or hit Madden, viewing the evidence in the light
most favorable to Stockton, there is an issue of fact as to
whether this use of force is “repugnant to the conscience of
mankind.” Hudson, 503 U.S. at 10 (quoting Whitley, 475 U.S. at
327). Moreover, Adriano and Litrenta both heard a loud thud
when Madden hit his head “very hard” on the floor. Finally,
Piasecki swore and shouted at Madden throughout the dura-
tion of the encounter. A jury could reasonably conclude Pias-
ecki maliciously allowed Madden to fall, intending to cause
him harm.
22 No. 22-1116
We part ways with the district court as to whether Piasecki
is entitled to qualified immunity. Qualified immunity shields
state actors from liability where their conduct “does not vio-
late clearly established statutory or constitutional rights of
which a reasonable person would have known.” Reed v.
Palmer, 906 F.3d 540, 546 (7th Cir. 2018) (internal quotations
omitted); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009).
The doctrine consists of two related inquiries, which courts
may address in either order. We ask whether Piasecki “vio-
lated a statutory or constitutional right.” Reed, 906 F.3d at 546
(internal quotations omitted). As discussed above, a reasona-
ble jury could conclude Piasecki—by deliberately causing
Madden to fall and hit his head—violated Madden’s Eighth
Amendment right to be free of excessive force. We also exam-
ine whether the violated right was “clearly established” at the
time the challenged conduct occurred. Id. A right is clearly es-
tablished where it is “sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012)
(cleaned up). Here, we look to the “specific context of the
case,” not to “broad general proposition[s].” Saucier v. Katz,
533 U.S. 194, 201 (2001), receded from on other grounds by Pear-
son, 555 U.S. 223. Stockton bears the burden of defeating Pias-
ecki’s claim to qualified immunity. Taylor v. City of Milford, 10
F.4th 800, 806 (7th Cir. 2021).
Stockton may demonstrate a right is “clearly established”
in three ways. First, by identifying a “closely analogous case
finding the alleged violation unlawful.” Reed, 906 F.3d at 547
(internal quotations omitted). Second, by identifying in the
relevant caselaw “such a clear trend … that we can say with
fair assurance that the recognition of the right by a controlling
precedent was merely a question of time.” Id. (internal
No. 22-1116 23
quotations omitted). These first two avenues are not at issue
here. Stockton does not identify, and we cannot find, a closely
analogous case or such a clear trend. Stockton relies instead
upon the third option, reserved for “rare cases,” arguing Pi-
asecki’s conduct was “so egregious and unreasonable that no
reasonable official could have thought he was acting law-
fully.” Id. (cleaned up); see also Hope v. Pelzer, 536 U.S. 730, 741
(2002) (“[O]fficials can still be on notice that their conduct vi-
olates established law even in novel factual circumstances.”).
This is one of those rare cases. Piasecki encountered Mad-
den in clear and debilitating medical distress. Madden was
hyperventilating, experiencing difficulty breathing, and com-
plained of severe chest pain. He could not walk, stand, or sup-
port himself; was crawling on the floor of his cell dry heaving;
could not move about his cell without being physically
dragged by the officers; and vomited an orange substance.
Madden proved unable to sit in a chair or remain upright
when propped against a wall. Piasecki witnessed Madden fall
several times, at least once striking his head on the wall of his
cell. Piasecki volunteered to act as Madden’s physical sup-
port, bracing the man on his legs. Then, two witnesses
watched Piasecki “purposefully [take] a step backward” and,
according to Litrenta, “allow[] Madden to fall back and smack
the back of his head on the cement” floor “very hard.” View-
ing the evidence in the light most favorable to Stockton, Pias-
ecki deliberately caused Madden to fall and hit his head. It
strains credulity to imagine Piasecki, or any reasonable officer
in his position confronted with these particular circum-
stances, could possibly think he acted lawfully by intention-
ally causing Madden to hit his head. A reasonable jury could
find Piasecki was on notice his conduct amounted to a “gra-
tuitous infliction of wanton and unnecessary pain” prohibited
24 No. 22-1116
by the Eighth Amendment. Hope, 536 U.S. at 738 (internal quo-
tations omitted); see also Taylor v. Riojas, 141 S. Ct. 52, 53–54
(2020) (per curiam). The district court erred in awarding Pias-
ecki summary judgment based on qualified immunity. 4
III. Conclusion
For the foregoing reasons, the judgment of the district
court is AFFIRMED as to Counts I, II, and IV. The judgment
of the district court is REVERSED and REMANDED as to
Count III.
4 After dismissing Stockton’s federal claims, the district court declined to
exercise supplemental jurisdiction over Stockton’s state law claims. As we
reinstate Stockton’s use of excessive force claim under § 1983, the district
court should revisit the question of supplemental jurisdiction on remand.
See Brunson v. Murray, 843 F.3d 698, 715 (7th Cir. 2016).