Peter Poole, III v. Debbie Issacs , 703 F.3d 1024 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2903
P ETER P OOLE III,
Plaintiff-Appellant,
v.
D EBBIE ISAACS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-1070-GPM—G. Patrick Murphy, Judge.
S UBMITTED N OVEMBER 29, 2012—D ECIDED D ECEMBER 28, 2012
Before E ASTERBROOK, Chief Judge, and W OOD and
S YKES, Circuit Judges.
W OOD , Circuit Judge. Peter Poole, an Illinois prisoner,
firmly believes that a required $2 co-payment for
dental care furnished at the Big Muddy River Correc-
tional Center violates his rights under the Eighth Amend-
ment to the federal Constitution. After a lengthy period
during which he refused to make the payment, he
finally capitulated and promptly received the necessary
2 No. 11-2903
care. Later, however, he filed this case under 42 U.S.C.
§ 1983 against several prison officials, asserting that
his constitutional rights had been violated. Poole’s com-
plaint frivolously accuses the defendants of “committing
strong arm robbery” against a “captive market of inmates.”
After screening the complaint as required by 28 U.S.C.
§ 1915A, the district court dismissed Poole’s claims
against several defendants with prejudice, but it allowed
the action to proceed against Debbie Isaacs, the health-
care administrator at Big Muddy, because Poole alleged
that he “didn’t have any money” for the co-payment.
That allegation was false, and thus after discovery
the district court granted summary judgment for Isaacs.
Poole appeals.
Most of the material evidence presented with the sum-
mary judgment motions was undisputed. At the time
Poole was incarcerated at Big Muddy, he had serious
dental problems. He had a routine examination with
a dentist on September 17, 2007. Ordinarily he would
have had to wait two years for a new exam, but on July 29,
2008, he was examined by Dr. Malcharek, who is a
dentist employed by Wexford Health Services, a private
company that furnishes healthcare services at the
prison. Dr. Malcharek (who was not named as a defen-
dant) noted from Poole’s dental chart that on an earlier
occasion a colleague had recommended extracting one
tooth and filling two others. Dr. Malcharek offered to
schedule those procedures, but Poole balked when
told that he first had to authorize withdrawal of the
$2 co-payment from his inmate trust account. Poole
complained to healthcare administrator Isaacs about the
No. 11-2903 3
need to pay; Isaacs was responsible for monitoring
Wexford’s compliance with administrative directives
governing medical care. In Poole’s opinion, the July 2008
visit should have been categorized as a follow-up to
the September 2007 appointment; if that were correct,
the 2008 visit would have been exempt from the co-pay-
ment requirement. See 730 ILCS 5/3-6-2(f) (2006). Issacs,
however, agreed with Dr. Malcharek that the 2008 visit
was not a follow-up and that payment was required.
Poole had more than enough money in his trust account
to cover that modest sum, but rather than pay, he
declined treatment and filed a grievance against Isaacs
and the Wexford dentists. By refusing to provide free
dental care, Poole argued, they had caused him to
suffer headaches as well as extreme tooth pain that
made eating difficult. His grievance was denied, and
the decision was upheld through both levels of admin-
istrative appeal.
The grievance process was complete in April 2009,
but after that, Poole restarted the cycle. In July 2009 he
was examined by Dr. Dennis Meyers, who agreed with
Dr. Malcharek that work needed to be done, and also
that it could not proceed without a co-payment. Poole
still had adequate funds in his trust account, but for
several months he continued stubbornly to maintain
that he was exempt from the co-payment. Finally, in
October 2009, he authorized the withdrawal of the $2
and received treatment.
Poole then sued. He named as defendants not only
Isaacs but also Wexford, the warden at Big Muddy, and
4 No. 11-2903
the director of the Department of Corrections. (Poole
also named Dr. Meyers but voluntarily dismissed him.)
The district court recruited counsel to assist Poole in
litigating his claim against Isaacs, but it dismissed the
other defendants because Poole failed to allege their
personal involvement in the alleged denial of care. Later
the district court granted summary judgment to Isaacs,
reasoning that the co-payment plan was not unconstitu-
tional, and even if it was, Isaacs was entitled to quali-
fied immunity because she acted reasonably given the
law at the time.
Under the regulation in force during the relevant
period, the Department of Corrections typically required
a $2 co-payment (now $5) from inmates whose trust-
fund balance was $2 or greater either at the time
medical services were provided or during the preceding
60 days (“or since arrival at the offender’s current
facility, whichever occurred most recently”). See 730 ILCS
5/3-6-2(f) (2006); 730 ILCS 5/3-6-2(f) (2010); I LL. A DMIN.
C ODE, tit. 20, § 415.30(g)(3) (2007). Poole concedes
that he was able to pay that amount. He also seems to
acknowledge that the Eighth Amendment does not
compel prison administrators to provide cost-free
medical services to inmates who are able to contribute
to the cost of their care.
In fact, that proposition is by now well established.
In City of Revere v. Massachusetts General Hospital, 463 U.S.
239 (1983), the Supreme Court looked at one aspect of
the question. The specific issue before the Court was
whether a state entity (there a municipality) could be
No. 11-2903 5
compelled to reimburse the provider of emergency
medical services. The state supreme court held that the
answer was yes; otherwise, it feared, persons in police
custody might be denied necessary services in violation
of the Eighth Amendment. The Supreme Court began
by noting that the relevant constitutional provision for
this situation was the Due Process Clause, not the
Eighth Amendment. Ultimately it held that “as long as
the governmental entity ensures that the medical care
needed is in fact provided, the Constitution does not
dictate how the cost of that care should be allocated as
between the entity and the provider of the care.” 463
U.S. at 245. In a footnote, the Court reserved the
question now before us: “Nothing we say here affects
any right a hospital or governmental entity may have
to recover from a detainee the cost of the medical
services provided to him.” Id. n. 7.
Other courts have taken the next step, however. For
example, in Reynolds v. Wagner, 128 F.3d 166 (3d Cir.
1997), the Third Circuit squarely rejected the argument
that “a program that requires that inmates with
adequate resources pay a small portion of their medical
care” automatically violates the Constitution. Id. at 174;
accord, Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d
410, 418-19 (3d Cir. 2000). See also Shapley v. Nevada Bd. of
State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir. 1985);
Negron v. Gillespie, 111 P.3d 556, 558-59 (Colo. Ct. App.
2005); Mourning v. Correctional Med. Servs., (CMS) of
St. Louis, Mo., 692 A.2d 529, 539 (N.J. App. Div. 1997). In
our view, these cases are well reasoned and consistent
with the general rationale of City of Revere. We thus join
6 No. 11-2903
our fellow courts in holding that the imposition of a
modest fee for medical services, standing alone, does
not violate the Constitution. To the extent that Poole is
arguing for some form of per se unconstitutionality, we
reject his position. And this is not a case in which the
required payment exceeds the inmate’s resources. In
fact, had Poole been truly indigent, he would have
been exempt from the requirement. The Illinois statute
contains a number of exemptions from the co-payment
requirement, including one for people with chronic
illnesses, one for follow-up visits, one for those meeting
the statute’s definition of indigency, and one for juvenile
offenders. 730 ILCS 5/3-6-2(f). We have no occasion
either to comment on these particular exemptions or to
speculate whether others might be needed. It is enough
to say that Poole was not deprived of dental services
for reasons beyond his control.
Poole does, however, urge that he should have been
given the benefit of one of those exemptions: the one for
a follow-up visit ordered by a physician. But that is just
a state-law question that cannot be pursued under
§ 1983. E.g., Allison v. Snyder, 332 F.3d 1076, 1078-79 (7th
Cir. 2003) (citing Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 106 (1984)); McMullen v. Maple Shade Twp.,
643 F.3d 96, 101 (3d Cir. 2011).
Isaacs did not deny dental care for Poole, nor is she
to blame for the delay in treatment. Poole had sufficient
funds in his trust fund account but opted to refuse treat-
ment rather than part with his money. Even though he
was in pain until he received treatment, the delay in
No. 11-2903 7
receiving care was of his own making. For that reason
the district court correctly ruled that Isaacs was entitled
to summary judgment in her favor and that Poole failed
to state a claim against the other defendants.
We have reviewed Poole’s remaining arguments, and
none has merit. Indeed, both the original lawsuit and
this appeal are so lacking in merit that they warrant the
imposition of two strikes under 28 U.S.C. § 1915(g). The
judgment of the district court is A FFIRMED.
12-28-12