Darryl Turner v. Reena Paul ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2225
DARRYL TURNER,
Plaintiff-Appellant,
v.
REENA D. PAUL, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 2434 — Matthew F. Kennelly, Judge.
____________________
ARGUED FEBRUARY 19, 2020 — DECIDED MARCH 26, 2020
____________________
Before WOOD, Chief Judge, and FLAUM and RIPPLE, Circuit
Judges.
WOOD, Chief Judge. Darryl Turner suffered a broken nose
during an altercation with another inmate while in pre-trial
detention at the Cook County Jail. The injury left him with
pain and shortness of breath. A doctor determined that he
needed surgery to treat his problems, but to Turner’s great
2 No. 19-2225
frustration, the surgery was repeatedly rescheduled and post-
poned. Over a year after the initial injury, he finally received
the surgery following his release from custody.
Claiming that his treatment was unconstitutionally defi-
cient under the Eighth and Fourteenth Amendments to the
U.S. Constitution, Turner sued a number of administrators
and medical professionals at the Cook County Health and
Hospitals System and at Cermak Health Services, a county-
operated clinic located in the jail. He also sued Cook County
itself. The district court granted summary judgment with re-
spect to all defendants, and Turner appealed. We affirm the
district court’s grant of summary judgment.
I
A
In October 2015, while Turner was in pre-trial detention,
another inmate punched him in the face and broke his nose
during a fight. A few days later, he saw an ear, nose and throat
(ENT) specialist at Cermak’s urgent care clinic. The doctor
recommended that Turner follow up with the plastic surgery
clinic at Stroger Hospital for a nasal fracture evaluation. On
November 10, Dr. Stefan Szczerba (an assistant clinical pro-
fessor of surgery at Stroger) determined that Turner needed a
septorhinoplasty and turbinate reduction to treat the nose,
but he noted that the surgery should wait for six to twelve
months, until after Turner’s bone injury had healed and the
swelling in his nose had subsided. Szczerba scheduled Turner
for pre-operation clearance on November 19.
On November 19, Dr. Reena Paul saw Turner at Cermak.
She noted that he had missed his pre-operation appointment,
and so she contacted the scheduling department to make sure
No. 19-2225 3
he got another appointment. This effort was successful.
Turner’s pre-operation clearance was rescheduled and he was
seen for that purpose the next day. Soon after, Turner had an
appointment with Dr. Stamatia Richardson, who scheduled
him for another appointment on January 12, 2016.
As these events transpired, Turner appeared in state court
twice, first on November 9 and second on December 14. On
each of these occasions, Turner complained that his nose was
broken and that he had not been treated. On both occasions,
the judge issued orders requiring that a doctor see Turner. At
the December 14 hearing, Turner misleadingly claimed that
his surgery had been scheduled for November 9 or 10 and that
it had been cancelled. The judge ordered that Turner “should
be seen by an ENT as soon as possible and that any surgery
that is needed be performed as soon as possible.” The Depart-
ment of Corrections forwarded these orders to Dr. Connie
Mennella, chair of correctional health at Cermak, and to San-
dra Navarro, deputy director of risk management at the Cook
County Health and Hospitals system.
On December 22, Turner’s attorney sent a letter to Nneka
Jones Tapia, the executive director of the Cook County De-
partment of Corrections, demanding that Turner receive sur-
gery. Jones Tapia forwarded the letter to Elizabeth Feldman,
division chair for clinic operations at Cermak, and to Navarro.
Navarro and Feldman followed up on the letter with admin-
istrators at Stroger Hospital and ascertained that Turner had
another appointment scheduled for January 12.
Turner saw Dr. Szczerba again at his January 12 appoint-
ment. Szczerba recommended that Turner return in one to
two weeks to evaluate the timing of his surgery. The doctor
4 No. 19-2225
also wrote in his notes “unclear why so delayed in schedul-
ing.” At a deposition, Szczerba testified that this referred to
Turner; that is, Turner was unclear why it was taking so long
for him to get the surgery. Dr. Paul saw Turner the next day
and noted that his appointment with plastic surgery would
take place the following week.
On January 19, Michael Gart, a medical resident, saw
Turner and scheduled him for surgery on January 21. How-
ever, Gart cancelled the operation after consulting with
Szczerba, who believed that it should wait on account of
Turner’s continuing complaints of nasal pain. Turner was re-
scheduled for a follow-up appointment on February 9. On
February 2, Turner’s attorney lodged another complaint with
Cook County’s administrators. Navarro followed up on the
complaint and learned of the February 9 appointment.
At the February 9 appointment, the clinic scheduled
Turner’s surgery for February 25. This surgery was cancelled,
but the record does not reveal why. Deposition testimony in-
dicates, however, that when a surgery does not take place it is
usually because the surgeon rescheduled or because another
patient had a more urgent case. A medical resident resched-
uled Turner’s operation for March 31. On March 22, Gina
Chung, a physician’s assistant, saw Turner. Chung observed
in her notes that Turner’s nasal fracture was not acute and that
he was breathing normally.
Turner’s March 31 surgery was also cancelled, for reasons
unknown. On April 25, Turner had a follow-up appointment
where the physician noted that his surgery had been can-
celled. In June, Turner was moved from pre-trial detention to
imprisonment at the Stateville Correctional Center. In August,
No. 19-2225 5
he was released from prison and in November, he received
his septorhinoplasty and turbinate reduction at Cermak.
B
After he finally managed to have his surgery, Turner sued
nine administrators and medical professionals who had
worked on his case over the preceding year. As the case de-
veloped, Turner and the defendants stipulated to the dismis-
sal of three of the defendants, leaving Feldman, Mennella, Na-
varro, Paul, Richardson, and Chung in the case. Turner also
sued Cook County under a Monell theory of liability.
After discovery, the district court granted summary judg-
ment in favor of the defendants. It found that Turner had not
introduced enough evidence to permit a reasonable jury to
conclude that any of the individual defendants acted objec-
tively unreasonably in Turner’s case. Because none of the in-
dividual defendants had the authority to schedule surgeries,
the court reasoned, Turner could not prove that any of them
engaged in objectively unreasonable conduct that caused his
surgery to be delayed. The court also granted summary judg-
ment to Cook County, on the ground that there was no evi-
dence that the County’s practices or policies caused his injury.
II
A
At all times relevant to this lawsuit, Turner was a pre-trial
detainee. His section 1983 claim against Cook County’s doc-
tors and administrators is thus analyzed under the Fourteenth
Amendment, rather than under the Eighth Amendment
standard applied to prisoners. See Miranda v. Cnty. of Lake, 900
F.3d 335, 352 (7th Cir. 2018). For a pre-trial detainee to prevail
6 No. 19-2225
on a claim of deficient medical treatment, he must demon-
strate two things. First, he must show that the defendants
acted “purposefully, knowingly, or … recklessly.” Id. at 353.
A showing of only “negligence or even gross negligence will
not suffice” to meet this standard. McCann v. Ogle Cnty., Illi-
nois, 909 F.3d 881, 886 (7th Cir. 2018). Second, he must proffer
evidence showing that the course of treatment he received
was “objectively unreasonable.” Id. at 886 (“This standard re-
quires courts to focus on the totality of facts and circum-
stances faced by the individual alleged to have provided med-
ical care and to gauge objectively - without regard to any sub-
jective belief held by the individual - whether the response
was reasonable.”).
Turner has not met these burdens. His basic theory of lia-
bility against all six defendants is that they failed to ensure
that he received his surgery in a timely manner. But Turner
presented no evidence that would allow the trier of fact to
conclude that the allegedly unreasonable conduct of any of
the named defendants caused his surgery to be delayed. The
unrebutted evidence showed that none of the defendants had
the authority to schedule or to perform the relevant surgery.
Additionally, the evidence shows that each time any of the
individual defendants encountered Turner, his surgery or an-
other appointment was on the plastic surgery schedule. As a
result, a reasonable jury could not conclude that the defend-
ants’ conduct was objectively unreasonable.
Taking a closer look, we see that Turner proceeds against
two categories of individual defendants. First, he sues Paul,
Richardson, and Chung, each of whom served as his primary
care physician at some point. Each of the medical defendants
No. 19-2225 7
was a primary care provider who could refer him to the plas-
tic surgery clinic for additional treatment, but none was au-
thorized to perform nasal surgeries. Second, he sues Men-
nella, Feldman, and Navarro, administrators who worked on
his case. It is undisputed that none of these defendants was
employed at Stroger Hospital and none had the direct author-
ity to schedule operations at the plastic surgery clinic.
Turner claims nonetheless that the medical defendants
failed to meet the standard of care by failing to follow up with
the plastic surgery clinic to make sure that he had received his
surgery. This argument fails. The medical defendants con-
tacted the plastic surgery clinic for scheduling each time they
saw Turner. According to the unrebutted evidence, none of
these defendants had the independent authority to schedule
surgeries at the plastic surgery clinic. That duty fell instead on
the medical residents at the clinic, who made their decisions
in consultation with the doctors at the hospital. Because the
medical defendants had no control over the scheduling of the
appointments, Turner cannot claim that their failure to sched-
ule him for surgery, or their failure to nag the residents, con-
stituted objectively unreasonable conduct. See Walker v. Ben-
jamin, 293 F.3d 1030, 1038 (7th Cir. 2002) (holding that sum-
mary judgment in favor of a defendant doctor was warranted
where the plaintiff “presented no evidence that … delays
were even within [the doctor’s] control”). We are aware of no
rule of law that would impose a duty on the medical defend-
ants to continue calling the clinic, after they had properly con-
tacted the proper schedulers.
As for the defendant administrators, Feldman, Mennella,
and Navarro, Turner has likewise failed to show that their
8 No. 19-2225
conduct was objectively unreasonable. Like the medical de-
fendants, the administrative defendants had no authority to
schedule surgeries themselves. In each instance where they
were contacted about Turner’s case, they followed up with the
clinic and saw that he had another appointment scheduled,
either to see a doctor or to have the surgery performed. Turner
charges that the administrative defendants had an additional
duty to follow up on his appointments at the hospital to en-
sure that he actually received his surgery. Once again, we are
aware of nothing that places the bar of “objectively reasona-
ble” behavior that high. The administrators’ responsibility
was satisfied by their follow-ups with the clinic.
Because Turner has not presented evidence sufficient for a
reasonable juror to conclude that any of the individual de-
fendants’ actions were objectively unreasonable, we affirm
the district court’s grant of summary judgment in their favor.
B
We now turn to Turner’s claim against Cook County. In
order to prevail on a claim against a municipality under sec-
tion 1983, a plaintiff must show that “an official policy, wide-
spread custom, or action by an official with policy-making au-
thority was the moving force behind a constitutional injury.”
McCann, 909 F.3d at 888 (cleaned up). The central question
under Monell is “always whether an official policy, however
expressed[,] … caused the constitutional deprivation.” Glisson
v. Ind. Dep’t of Corr., 849 F.3d 372, 378 (7th Cir. 2017).
Turner offers three theories of Monell liability against Cook
County. First, he argues that the County had a widespread
practice of failing to follow through on scheduling. Second,
he argues that the County failed to have adequate procedures
No. 19-2225 9
in place for responding to court orders and grievance re-
quests. Finally, he argues that Drs. Mennella and Feldman
were final policymakers and that their actions caused his con-
stitutional deprivation.
Turner’s argument that the County’s alleged policy of fail-
ing to follow up delayed his treatment fails on its face. Be-
cause there was no evidence that the physicians at Cermak
had any part in scheduling surgery, the evidence does not
support a finding that the County is liable for the delay.
Turner points to a report prepared by a court-appointed mon-
itor that found that Cermak failed to enter orders received
from off-site clinics in a consistent manner. He cannot base his
theory of liability on this “policy,” however, because the re-
port covered only orders that Cermak received from the spe-
cialty clinics, rather than orders from Cermak to the clinics.
The report provides no evidence that Cermak was deficient in
requesting appointments for its patients at the specialty clin-
ics. The evidence thus does not support a finding that the
County’s policies caused Turner’s deprivations.
Turner cannot rely upon gaps in the County’s policies for
similar reasons. Turner complains that the County failed to
act upon his repeated grievances and the court orders filed
late in 2015 and attributes this failure to inadequate policies
for following up on such requests and orders. It is true that
“in situations that call for procedures, rules or regulations, the
failure to make policy itself may be actionable.” Glisson, 849
F.3d at 381. However, Turner’s arguments are again unavail-
ing, because he cannot show that a different policy would
have led to faster treatment. Nor does he show how the delay
in his own treatment was an obvious consequence of the
County’s actions. As discussed above, all the evidence shows
10 No. 19-2225
that the County’s administrators were diligent in contacting
the clinic to ensure that Turner had appointments with the
clinic’s doctors. They were responsive to his grievances and
to the court’s orders. That record precludes any finding of an
actionable gap in the County’s policies.
Finally, Turner cannot claim liability against Cook County
on the ground that Mennella and Feldman were final policy-
makers whose actions led to a constitutional deprivation. A
county can be liable under the final policymaker theory only
if we are dealing with a real policymaker and that policy-
maker acted “with deliberate indifference as to [the] known –
or obvious consequences” of her conduct. Board of Cnty.
Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 407 (1997)
(quotation marks omitted); see also Doe v. Vigo Cnty., Ind., 905
F.3d 1038, 1045 (7th Cir. 2018). It is not at all clear that either
Mennella or Feldman meets the criteria for a final policy-
maker. See, e.g., Milestone v. City of Monroe, Wis., 665 F.3d 774,
780–81 (7th Cir. 2011). But, like the district court, we do not
need to resolve that issue here. Turner has pointed to no evi-
dence showing that Mennella and Feldman were deliberately
indifferent to his medical needs. Turner has not even pro-
vided enough evidence to conclude that they acted unreason-
ably. Thus, Turner’s argument based on the final policymaker
theory also fails.
Because all of Turner’s arguments to the contrary are una-
vailing, the district court properly granted summary judg-
ment in the County’s favor on Turner’s Monell claim.
III
We AFFIRM the judgment of the district court.