Damon Goodloe v. Kul Sood ( 2020 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 18-1910
    DAMON GOODLOE,
    Plaintiff-Appellant,
    v.
    KUL SOOD, et al.,
    Defendants-Appellees.
    ____________________
    Appeal from the United States District Court for the
    Central District of Illinois.
    No. 4:16-cv-4062 — James E. Shadid, Judge.
    ____________________
    ARGUED OCTOBER 3, 2019 — DECIDED JANUARY 17, 2020
    ____________________
    Before WOOD, Chief Judge, and BARRETT and SCUDDER,
    Circuit Judges.
    SCUDDER, Circuit Judge. Patients are often the best source
    of information about their medical condition. A physician’s
    decision to persist with ineffective treatment and ignore a pa-
    tient’s repeated complaints of unresolved pain and other
    symptoms can give rise to liability—or, at the very least, raise
    enough questions to warrant a jury trial. Damon Goodloe’s
    case is a good example.
    2                                                  No. 18-1910
    An inmate in the care of the Illinois Department of Correc-
    tions, Goodloe invoked 42 U.S.C. § 1983 and alleged that his
    treating physician within the Hill Correctional Center re-
    sponded to his repeated complaints of rectal bleeding and se-
    vere pain with a course of demonstrably ineffective treatment
    and undue delay in sending him to an outside specialist for
    evaluation. The discovery process revealed medical records
    and other documents corroborating many of these allega-
    tions. On the record before us, then, Goodloe has brought
    forth enough evidence to put to a jury his Eighth Amendment
    claim against his treating physician for deliberately indiffer-
    ent medical care. We therefore reverse the district court’s con-
    clusion to the contrary, while otherwise affirming the entry of
    summary judgment in all other regards.
    I
    A
    The summary judgment record supplies the facts—all of
    which we must construe in the light most favorable to Damon
    Goodloe as the plaintiff and non-moving party. See Shields v.
    Ill. Depʹt of Corrections, 
    746 F.3d 782
    , 786 (7th Cir. 2014).
    Goodloe arrived at the Hill Correctional Center in Gales-
    burg, Illinois in July 2013, and immediately complained of
    pain from rectal bleeding. He told a nurse that he believed his
    hemorrhoids had flared up again. Medical staff referred
    Goodloe to Hill’s medical director, Dr. Kul Sood, who pre-
    scribed hemorrhoid medication.
    Goodloe’s pain continued through the summer and fall of
    2013. In appointments with Dr. Sood in September and Octo-
    ber, Goodloe reported acute and recurring pain. Without
    No. 18-1910                                                  3
    performing a rectal exam, Dr. Sood continued Goodloe on the
    hemorrhoid medication.
    In December 2013, and in response to Goodloe’s ongoing
    complaints of severe pain during bowel movements, a nurse
    practitioner performed a rectal exam and observed anal
    condyloma—a condition marked by small warts inside and
    around the outside of the anus. This diagnosis came as no
    surprise to Goodloe, as he had the warts for at least 18 years
    and believed they had nothing to do with the excruciating
    rectal pain he continued to experience. Goodloe conveyed this
    view to Dr. Sood in a January 2014 appointment. Dr. Sood
    responded by adding a topical ointment to treat the warts.
    As Goodloe’s pain persisted, he grew exasperated with
    Dr. Sood’s treatment and believed that the cause of his ongo-
    ing suffering was an internal condition, not hemorrhoids or
    warts. He became convinced he needed to see an outside spe-
    cialist and asked family members to call the Hill facility to
    echo this request. In February 2014, in the first of many writ-
    ten grievances, Goodloe explained that he experienced so
    much pain during bowel movements that he had to lie in bed
    for hours until the pain subsided. He also underscored his be-
    lief that the source of pain was an internal condition not yet
    diagnosed or treated, and, going even further, he requested
    that he be treated by a specialist. In a grievance submitted on
    March 15, 2014, Goodloe accused Dr. Sood of focusing on the
    external anal warts while “deliberately ignoring” repeated
    complaints about internal sources of persistent rectal pain.
    During this same period, Dr. Sood consulted with a col-
    league, Dr. Neil Fisher, who served as Wexford Health Ser-
    vices’ Corporate Director of Utilization Management, about
    Goodloe. (Wexford contracts to provide health care to inmates
    4                                                   No. 18-1910
    in Illinois.) After that consult, Dr. Sood decided to condition
    Goodloe’s seeing an outside specialist on first trying to treat
    the anal warts with topical trichloroacetic acid, commonly
    shorthanded TCAA. The application of the acid treatment
    only added to his pain, leaving his rectum feeling raw and
    burned—so much so that Goodloe, as he put it, “could barely
    wipe after a bowel movement.” At no point throughout the
    spring and early summer of 2014 did Goodloe relent in his
    view that he had an internal condition (having nothing to do
    with his anal warts) that continued to cause miserable pain.
    Indeed, in appointments with Dr. Sood on May 28, June 2, and
    June 9, Goodloe renewed his complaints of untreated pain,
    each time saying he believed its source was internal. And each
    time Dr. Sood responded by staying the course and continu-
    ing with the TCAA applications, though on June 9 he did tell
    Goodloe he intended to confer with a colleague on the ongo-
    ing course of care.
    By June 17, 2014, Dr. Sood recognized that Goodloe re-
    mained in much pain and that treating the anal warts with
    TCAA was not helping. It was that same day that Dr. Sood
    consulted anew with Dr. Fisher and together they decided the
    time had come to refer Goodloe to an outside specialist for a
    colorectal evaluation.
    But no evaluation took place for another three months.
    Precisely why is not clear. It seems Goodloe was referred to
    one specialist, though that referral resulted not in a colorectal
    exam but instead an attempt to schedule surgery to remove
    the anal warts. Upon realizing around July 1 that the first spe-
    cialist sought to perform surgery (rather than provide an eval-
    uation), Dr. Sood and Dr. Fisher spoke again and cancelled
    the referral. They agreed that wart-removal surgery was not
    No. 18-1910                                                  5
    the right next step and decided to give the topical acid treat-
    ment another try—a path they considered to be “conservative
    treatment.” Dr. Sood determined to undertake at least two
    more months of topical acid treatment before reconsidering
    referring Goodloe to a specialist.
    Meanwhile, Goodloe continued to suffer from severe
    bowel pain and rectal bleeding. His frustration boiled over
    during the summer of 2014, and he expressed that exaspera-
    tion by filing new grievances reinforcing his complaints. In
    his July 7 grievance, for example, Goodloe exclaimed, “my
    pain and issues are INTERNAL!!!” and “my situation is get-
    ting worse with each passing day” and “I have to lay down
    for hours after[] [every bowel movement] because of the ex-
    cruciating pains.”
    Approximately one month later, on August 4, in yet an-
    other complaint, Goodloe wrote, “I desperately wish some-
    body would listen to me about my internal pains, and please
    stop ignoring my complaints in my grievances [w]hich have
    been clear and straight to the point.” In that grievance, Good-
    loe reminded Hill’s medical staff that his warts had never
    bothered him in 18 years, whereas “[t]he internal pains …
    have only started within the last year.”
    Between May 28 and July 31, 2014, Goodloe complained
    five times of ongoing, miserable rectal pain that he insisted
    was “internal” and not yet diagnosed or treated. And, all told,
    Goodloe filed four lengthy and detailed grievances on the is-
    sue during his first year at Hill.
    It was not until September 2014 that Dr. Sood again deter-
    mined that Goodloe needed to be evaluated by a colorectal
    specialist. That evaluation occurred on September 22, when
    6                                                  No. 18-1910
    Goodloe saw a colorectal specialist at the Order of St. Francis
    Clinic in Galesburg. The specialist immediately diagnosed an
    anal fissure—a small tear in the anal tissue lining—and ar-
    ranged for prompt treatment. Goodloe underwent surgery on
    October 3 and testified that he experienced instant pain relief.
    The rectal bleeding likewise abated and in time altogether
    stopped.
    B
    In March 2016, Goodloe, proceeding pro se and under
    42 U.S.C. § 1983, filed suit alleging a violation of his Eighth
    Amendment rights by multiple defendants, only two of
    whom are relevant here—Dr. Sood and Dr. Fisher. Goodloe’s
    complaint was as clear and precise as the grievances he sub-
    mitted within the Hill Correctional Center. He alleged that
    Dr. Sood acted with deliberate indifference to complaints of
    repeated and unrelenting rectal pain, including by not only
    persisting with a course of treatment (the TCAA, in particu-
    lar) that was ineffective, but also by delaying evaluation by an
    outside colorectal specialist. Goodloe further alleged that
    Dr. Fisher was deliberately indifferent for many of the same
    reasons. Separately, Goodloe contended that Dr. Sood vio-
    lated his First Amendment rights by retaliating against him
    (by denying and delaying proper medical care) for filing mul-
    tiple grievances within the Hill facility.
    Discovery ensued. The defendants then moved for sum-
    mary judgment. The district court granted the defendants’
    motion on each of Goodloe’s claims, determining that
    Dr. Sood’s care reflected not deliberate indifference but a
    “measured course of treatment” designed to “alleviate the in-
    ternal pain Plaintiff experienced before seeking consultation
    by [an] outside specialist.” On this reasoning, the court saw
    No. 18-1910                                                     7
    no material unresolved question as to whether Dr. Sood de-
    liberately delayed referring Goodloe to the Order of St. Fran-
    cis facility for the colorectal exam. If anything, the court
    added, any delay Goodloe experienced appeared to have
    been the product of an administrative scheduling error, for
    which Dr. Sood shouldered no responsibility.
    The district court likewise found that Goodloe failed to
    uncover any evidence establishing that Dr. Fisher, who only
    consulted with Dr. Sood, deliberately failed to act in the face
    of any known risk of harm. As for the retaliation claim, the
    court saw no evidence suggesting that Dr. Sood, in response
    to Goodloe’s grievances, took any actions to deny or delay the
    provision of medical care.
    This appeal followed, and we appointed counsel to repre-
    sent Goodloe.
    II
    A
    The controlling legal framework is well established. Good-
    loe’s claims of deliberate indifference to his medical needs
    arise under the Eighth Amendment and have both objective
    and subjective components. Farmer v. Brennan, 
    511 U.S. 825
    ,
    834 (1994); see also Williams v. Shah, 
    927 F.3d 476
    , 479 (7th Cir.
    2019). The inmate must show an “objectively serious medical
    condition” that each named defendant responded to with de-
    liberate indifference. Petties v. Carter, 
    836 F.3d 722
    , 728
    (7th Cir. 2016) (en banc). Nobody disputes that Goodloe suf-
    fered from an objectively serious medical condition. His
    claims therefore turn on the subjective component and, more
    specifically, whether he has created a genuine issue of fact as
    8                                                     No. 18-1910
    to whether Dr. Sood and Dr. Fisher responded with deliberate
    indifference to his persistent complaints of severe rectal pain.
    As its name implies, deliberate indifference requires
    “more than negligence and approaches intentional wrongdo-
    ing.” Arnett v. Webster, 
    658 F.3d 742
    , 751 (7th Cir. 2011) (inter-
    nal citation omitted); see also Estelle v. Gamble, 
    429 U.S. 97
    , 106
    (1976) (“Medical malpractice does not become a constitu-
    tional violation merely because the victim is a prisoner.”). Ra-
    ther, the evidence must show that the prison official acted
    with a “sufficiently culpable state of mind,” meaning the offi-
    cial knew or was aware of—but then disregarded—a substan-
    tial risk of harm to an inmate’s health. 
    Farmer, 511 U.S. at 834
    ,
    837; see also Gevas v. McLaughlin, 
    798 F.3d 475
    , 480 (7th Cir.
    2015) (explaining that the official “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 that infer-
    ence”).
    Two lines of cases aptly fit Goodloe’s claim. First, our de-
    cision in Greeno v. Daley confirms that an inmate can establish
    deliberate indifference by showing that medical personnel
    persisted with a course of treatment they knew to be ineffec-
    tive. 
    414 F.3d 645
    , 654–55 (7th Cir. 2005). The medical defend-
    ants in Greeno failed to conduct necessary tests, ignored spe-
    cific treatment requests from the inmate, and persisted in of-
    fering weak medication—all in the face of repeated protests
    that the medication was not working. See 
    id. In reversing
    an
    award of summary judgment for those defendants, we under-
    scored a point that applies with full force here: when a doctor
    is aware of the need to undertake a specific task and fails to
    do so, the case for deliberate indifference is particularly
    strong. See 
    id. at 655.
    Put most bluntly, faced with an inmate
    No. 18-1910                                                    9
    experiencing ongoing suffering from a serious medical condi-
    tion, a prison physician cannot “doggedly persis[t] in a course
    of treatment known to be ineffective” without violating the
    Eighth Amendment. 
    Id. Second, our
    cases likewise establish that “inexplicable de-
    lay” in responding to an inmate’s serious medical condition
    can reflect deliberate indifference. See 
    Petties, 836 F.3d at 731
    .
    That is especially so if that delay exacerbates an inmate’s med-
    ical condition or unnecessarily prolongs suffering. See Wil-
    liams v. Liefer, 
    491 F.3d 710
    , 715–16 (7th Cir. 2007).
    B
    Goodloe came forward with enough evidence to support
    his deliberate indifference claim against Dr. Sood under either
    theory of liability. Based on the summary judgment record, a
    reasonable jury could conclude that Dr. Sood’s persistence in
    the ineffective TCAA treatment, or his delay in getting Good-
    loe to an outside specialist, or both, amounted to deliberate
    indifference. At the very least, Goodloe showed enough of a
    dispute on these questions to put his claim to a jury.
    Recall that Dr. Sood began the TCAA treatment in April
    2014 and continued it throughout the summer and fall. In-
    deed, Dr. Sood maintained that course of treatment even after
    acknowledging, as part of his June 2014 consult with
    Dr. Fisher, that Goodloe had shown “no improvement.” Even
    more, the June 2014 consult ended with Dr. Sood believing
    that the time had come for Goodloe, who continued to expe-
    rience unrelenting rectal pain, to see an outside specialist for
    a colorectal exam. When that did not immediately occur,
    whether because of a scheduling error or otherwise, Dr. Sood
    resorted not to taking a step to be certain Goodloe saw an
    10                                                 No. 18-1910
    outside specialist, but instead continued the TCAA treatment.
    All along Dr. Sood heard complaints from Goodloe that treat-
    ing his anal warts with topical acid was providing no relief for
    the acute rectal pain. These complaints throughout the sum-
    mer of 2014 mirrored the reports of unrelenting pain that
    Goodloe voiced for at least the last six months of 2013.
    The record allows a finding that, at least by June 2014,
    Dr. Sood persisted with the TCAA treatment knowing it was
    not working and that Goodloe continued to suffer from severe
    rectal pain and ongoing bleeding. See 
    Greeno, 414 F.3d at 654
    –
    55 (holding that an inmate had raised a jury issue by showing
    the prison medical staff knew the inmate needed to see an out-
    side specialist yet continued to administer medications they
    knew had proved ineffective).
    Goodloe’s second and related theory of deliberate indiffer-
    ence based on Dr. Sood’s delay in getting him to an outside
    specialist likewise finds adequate support in the record. Go
    back to what happened in June 2014, for it was then that
    Dr. Sood, upon consulting with Dr. Fisher, decided that
    Goodloe needed more help than anyone at the Hill facility
    could offer. The TCAA and hemorrhoid treatment had not
    worked; Goodloe remained in substantial pain, and he
    needed to see a specialist. But that did not occur for another
    three months, until September 22.
    Although the district court determined that the delay in
    Goodloe’s receiving the outside evaluation reflected an ad-
    ministrative error, a jury could see the facts another way. In-
    deed, on appeal Dr. Sood has not defended the delay on the
    basis of any administrative mishap. But there is more. When
    Goodloe first realized that he was not going to see an outside
    specialist but instead would have to undergo new rounds of
    No. 18-1910                                                 11
    TCAA treatment for his anal warts, he complained in no un-
    certain terms, exclaiming in his July 7 grievance that “my pain
    and issues are INTERNAL!!!” and “my situation is getting
    worse with each passing day.” The complaint prompted no
    action, no renewed effort to arrange for the outside consulta-
    tion Dr. Sood had decided two weeks earlier was medically
    necessary. A jury could find that there was no medical justifi-
    cation for the delay. See 
    Petties, 836 F.3d at 730
    –31; see also
    
    Williams, 491 F.3d at 715
    –16.
    In the end, Goodloe has pointed to enough evidence to
    survive summary judgment.
    C
    We turn now to Goodloe’s deliberate indifference claim
    against Dr. Fisher. While Goodloe urges us to view Dr. Fisher
    through the same evidence supporting the claim against
    Dr. Sood, we see important differences.
    On this claim, the district court properly entered summary
    judgment for Dr. Fisher. Foremost, the record shows that
    Dr. Fisher never directly treated Goodloe and instead played
    a much more limited role by consulting on three occasions
    with Dr. Sood about particular care decisions. While the rec-
    ord may support a finding that Dr. Fisher was aware from
    these consults of Goodloe’s unresolved pain, we do not see
    evidence permitting an inference that Dr. Fisher responded
    with deliberate indifference. See 
    Arnett, 658 F.3d at 751
    (ex-
    plaining that deliberate indifference requires “more than neg-
    ligence and approaches intentional wrongdoing”). Nothing
    shows Dr. Fisher’s awareness of the extent of Goodloe’s suf-
    fering or persistent complaints and requests for a new course
    of treatment. See 
    Petties, 836 F.3d at 728
    (“[A] plaintiff must
    12                                                 No. 18-1910
    provide evidence that an official actually knew of and disre-
    garded a substantial risk of harm.”). Nor at a more specific
    level do we see evidence that Dr. Fisher, in not approving
    Goodloe’s undergoing the wart-removal surgery in June 2014,
    did so as part of a deliberate effort to prolong Goodloe’s pain
    or otherwise withhold a known and more appropriate course
    of treatment.
    At bottom, then, we conclude that Dr. Fisher’s role and
    knowledge was too limited to create a jury question.
    III
    We close with a brief word on Goodloe’s First Amendment
    retaliation claim against Dr. Sood. Goodloe primarily rooted
    his claim in the contention that Dr. Sood retaliated against
    him for filing grievances complaining of poor medical care,
    most especially the aggressive and prolonged TCAA treat-
    ment.
    A successful retaliation claim requires proof of (1) pro-
    tected First Amendment activity; (2) a deprivation likely to
    deter future protected speech; and (3) that the protected activ-
    ity was “at least a motivating factor” for the alleged depriva-
    tion. Woodruff v. Mason, 
    542 F.3d 545
    , 551 (7th Cir. 2008).
    The district court was right to conclude that the record
    lacked evidence permitting a finding that Dr. Sood made any
    treatment decision in response to Goodloe’s submission of
    multiple grievances. Stated another way, on our fresh review
    of the record we see no facts allowing a jury to infer that
    Dr. Sood’s course of treating Goodloe reflected any retaliatory
    animus. Nor, contrary to Goodloe’s suggestion, do we see
    anything suspicious about the timing of his submission of any
    grievance in relating to Dr. Sood’s June and July 2014
    No. 18-1910                                                   13
    decisions to continue the TCAA treatment and delay a referral
    to an outside colorectal specialist. See Benson v. Cady, 
    761 F.2d 335
    , 342 (7th Cir. 1985) (observing that a “lengthy period of
    time … greatly weakens any inference” that the action was
    retaliatory); see also Kidwell v. Eisenhauer, 
    679 F.3d 957
    , 966
    (7th Cir. 2012) (determining, albeit in the employment dis-
    crimination context, that the challenged timeline was not sus-
    picious because adverse action did not “follow[] close on the
    heels of protected expression”).
    *   *   *
    To avoid summary judgment on his Eighth Amendment
    claim against Dr. Sood, Goodloe had to demonstrate the ex-
    istence of disputed, material issues of fact to proceed to trial.
    He did so, in no small part because of his own care and dili-
    gence while proceeding pro se in the district court and now in
    our court with the benefit of very able appellate counsel who
    with his law firm’s support has offered his services pro bono.
    We VACATE the district court’s grant of summary judg-
    ment in favor of Dr. Sood on Goodloe’s deliberate indifference
    claim and REMAND for further proceedings. We otherwise
    AFFIRM.