John Lipsey v. United States ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-1063
JOHN LIPSEY, Individually and as fa-
ther and next friend of J.L., a disabled
minor,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:12-cv-02100-JES-EIL — James E. Shadid, Chief Judge.
ARGUED SEPTEMBER 19, 2017 — DECIDED JANUARY 4, 2018
Before WOOD, Chief Judge, and EASTERBROOK and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. In this appeal, John Lipsey seeks
relief on behalf of his minor daughter J.L., for tragic injuries
suffered by J.L. at birth. The district court granted summary
2 No. 17-1063
judgment to the defendants, and Lipsey appeals that determi-
nation.
The facts underlying the grant of summary judgment are
set forth in detail in the district court opinion, and in relevant
part are as follows. On June 8, 2009, a criminal complaint was
filed against Wenona White in federal court alleging charges of
federal bank fraud. At the time, White was pregnant with her
tenth child. White was scheduled to self-surrender on July 6,
2009, but she failed to appear and was not located and taken
into custody until September 10, 2009. On September 11, the
district court judge in Hammond, Indiana ordered her re-
manded to the custody of the United States Marshals Service.
Because White was 35 weeks pregnant by the time she was
apprehended, the Marshals Service faced the challenge of
finding a detention facility that was able to meet her late-
pregnancy healthcare needs. The Marshals Service arranged for
her to be housed at the Jerome Combs Detention Center
(“JCDC”), a Kankakee County facility which has an intergov-
ernmental agreement with the Marshals Service. The JCDC had
a full-time medical staff, and a relationship with an obstetrics
practice to handle the obstetric needs of its population.
When White arrived at the JCDC on September 11, the
JCDC intake officer obtained information from her and
completed an intake form with her. That form indicated that
her due date was October 18, her last medical exam was in
August, and that she took prenatal vitamins. The intake officer
also took her blood pressure, which was high at 161/86. No
medical history was taken. White does not recall whether she
told that intake officer of any problems with her ninth preg-
No. 17-1063 3
nancy, but she acknowledges that she did not inform the intake
officer that with her ninth pregnancy, she had placenta previa.
That ninth pregnancy had resulted in an emergency cesarean
section at 34 weeks, but there is no evidence that such informa-
tion was ever communicated to any of the defendants. White
signed a HIPAA release authorizing the release of her hospital
records from Provident Hospital, where she received her
prenatal care earlier in her pregnancy. Ivette Charee Sangster,
a nurse at the JCDC, testified that she sought such records and
was told by the hospital that they had no records of White as
a patient there, but other evidence indicated that when the
same request was made by a doctor from St. Mary’s Hospital
after J.L.’s birth, the records were promptly sent.
Over the next 10 days, White had a number of contacts with
the JCDC medical staff. A nurse saw White in her housing unit
on September 12 and White reported that she was not having
any problems with her pregnancy. On September 16, another
JCDC nurse, Heather Gill, met with White in the JCDC clinic.
According to Gill’s notes, White reported that it was her tenth
pregnancy and that she had regular checkups with an obstetri-
cian in Indiana, and she denied having any problems with the
pregnancy. Nonetheless, a logbook entry stated that White
reported labor pains on September 16. Gill ordered prenatal
vitamins for White and indicated that she would try to
schedule an appointment with the obstetrician. White admits
that she told a female nurse that she was not having any
problems with her pregnancy.
That appointment with the obstetrician proved problem-
atic, however. The obstetrician who routinely provided care to
JCDC patients refused to take White as a patient that late in her
4 No. 17-1063
pregnancy. According to JCDC Chief of Corrections Michael
Downey’s report at a September 17 medical staff meeting, he
contacted the Marshals Service to ask that White be transferred
to a different facility where obstetrical care might prove more
accessible, and was informed that it would be impossible to
move White at that time. The Marshals Service employees
deny having received that request, but we assume the facts in
Lipsey’s favor on summary judgment. In any event, Downey
resolved to continue to seek a transfer, and in addition ordered
an emergency delivery kit and close monitoring of White by
the health care staff.
The next day, September 18, JCDC physician assistant
Timothy Menard attempted to have White come to the health
care unit. A log note written by Menard indicates that White
refused to be seen and that she signed a refusal form indicating
that she was informed of the risks to her health and the health
of her pregnancy. She was informed that without weekly
gynecological exams there was no way to determine cervical
dilation or position of the fetus. White admits that she signed
a refusal form.
On September 21, Gill wrote a log note indicating that an
obstetrician at Westwood OB had called back and agreed to see
White “next Tuesday.” Before that could happen, however, on
September 22, White awoke with abdominal and back pain and
called for assistance at 5:10 a.m. The fire department received
a dispatch at 5:13 a.m., the ambulance crew arrived at 5:22
a.m., and White arrived at St. Mary’s Hospital in Kankakee at
5:52 a.m. The hospital staff took her medical history at that
time and she denied having any complications during her
pregnancy or any chronic medical problems. At 6:07 a.m., the
No. 17-1063 5
nurse was unable to find any fetal heart tones, and a bedside
ultrasound a minute later revealed a very slow fetal heart rate.
At 6:13 a.m., the doctor decided to perform an emergency
cesarean section and J.L. was delivered at 6:33 a.m. During that
cesarean section, it was discovered that White had suffered a
complete abruption of the placenta which stopped the flow of
oxygen to J.L. Although J.L. was not breathing when she was
delivered, the doctors were able to resuscitate her and trans-
ported her to the neonatal intensive care unit at the University
of Chicago Hospitals. Tragically, as a result of the oxygen
deprivation, J.L. has severe, permanent physical and mental
disabilities. The abruption that resulted in the oxygen depriva-
tion likely occurred either in the ambulance or at the hospital,
because J.L. would not have survived if it had occurred earlier
than that.
Lipsey filed suit on behalf of his minor child, J.L., against
the United States pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2671 et seq., and against the “Kankakee
Defendants”—consisting of: Kankakee County; Timothy
Bukowski, Sheriff of Kankakee County; Michael Downey,
Chief of Corrections; Heather Gill, R.N.; Timothy Menard,
P.A.; Dr. Clyde Dayhoff, JCDC’s medical co-director; and
Ivette Charee Sangster, L.P.N.—alleging medical malpractice
and pendent claims under the Family Expense Act and for
willful and wanton conduct. Judge Baker granted the motion
for summary judgment of the defendant United States, and a
subsequent district court judge, Judge Shadid, granted sum-
mary judgment on behalf of the Kankakee Defendants on the
remaining claims. Lipsey now appeals both decisions.
6 No. 17-1063
We turn first to the claims against the United States. The
United States as sovereign is immune from suit unless it has
consented to be sued. The FTCA provides a limited waiver of
immunity and provides for a cause of action for tort claims
“caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment … .” 28 U.S.C. § 1346(b)(1); United
States v. Orleans, 425 U.S. 807, 813 (1976). It defines government
employees under the Act as including officers and employees
of any federal agency but excludes “any contractor with the
United States.” Id. at 813–14; 28 U.S.C. § 2671. In applying that
independent contractor exception to the waiver of immunity,
“[a] critical element in distinguishing an agency from a
contractor is the power of the Federal Government ‘to control
the detailed physical performance of the contractor.’” Orleans,
425 U.S. at 814, quoting Logue v. United States, 412 U.S. 521, 528
(1973).
The Supreme Court in Logue addressed a situation factually
analogous to the present one. In Logue, the Court held that the
employees of a county jail which contracted with the Federal
Bureau of Prisons to house federal prisoners were not federal
employees, and therefore the United States could not be liable
for their torts. Logue, 412 U.S. at 532; Orleans, 425 U.S. at 814–15.
Even though the county jail was required by the terms of the
contract to comply with Bureau of Prisons rules and regula-
tions prescribing standards of treatment and to allow inspec-
tions to ensure compliance, the United States was not autho-
rized to physically supervise the jail employees or control the
day-to-day operations, and therefore the county jail was an
No. 17-1063 7
independent contractor for purposes of the FTCA. Logue, 412
U.S. at 531–32.
That reasoning applies equally here. The Marshals Service
maintained an intergovernmental agreement with the JCDC
which required the JCDC to provide appropriate medical care,
and the Marshals Service conducted inspections to ensure
compliance but was removed from the day-to-day operations
of the facility. In fact, the Marshals Service had conducted an
inspection of the JCDC two weeks before White was placed
there, and the JCDC was found fully compliant with the
federal health standards mandated by that agreement. Lipsey
has failed to argue that the contract in this case is distinguish-
able from Logue or that the JCDC should not be considered an
independent contractor under the same reasoning. Accord-
ingly, the United States cannot be held liable under the FTCA
for the actions of the Kankakee Defendants, and liability must
be premised solely on the actions of the federal employees.
The only actions that fall within that category are the
decision by Jeffrey Goble, a supervisory deputy marshal, as to
where to place White initially, and the subsequent refusal to
transfer White from that facility at the request of Downey. As
to those placement and transfer decisions, liability under the
FTCA is impacted by the discretionary function exception,
which shields the government from liability for “an act or
omission of an employee of the Government, exercising due
care, in the execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the exercise
or performance or the failure to exercise or perform a discre-
tionary function or duty on the part of a federal agency or an
8 No. 17-1063
employee of the Government, whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a).
The discretionary function exception is an affirmative
defense to liability, and two requirements must be met under
that exception. Keller v. United States, 771 F.3d 1021, 1023 (7th
Cir. 2014). First, the act at issue must be discretionary rather
than mandatory, in that it involves an element of judgment or
choice. Id. Accordingly, if the act at issue “deviates from a
course of action prescribed by federal statute, regulation or
policy,” the employee’s acts are not discretionary and therefore
are not immune from suit. Id.; United States v. Gaubert, 499 U.S.
315, 322 (1991). Second, in order to fall within the discretionary
function exception, the government actions and decisions must
be based on considerations of public policy. Keller, 771 F.3d at
1023.
The Marshals Service has a statutory duty to “provide for
the safe-keeping of any person arrested … pending commit-
ment to an institution,” and it is authorized to fulfill that duty
by placing prisoners in federal institutions or by contracting
with state and local governments to house those prisoners. 18
U.S.C. §§ 4086, 4002. Those contracts with local facilities, called
Intergovernmental Agreements (IGAs), ensure that minimum
standards of confinement and services are provided, including
requiring that detainees receive medically necessary health
care services whether within the institution itself or at a remote
location such as at a hospital. The JCDC, for instance, had a
larger medical staff on site, and offered more extensive medical
services, than other available facilities according to Goble. And
it is undisputed that the JCDC officials had the authority to
No. 17-1063 9
send any inmate to the emergency room without approval
from the Marshals Service.
The Marshals Service monitors compliance with those
conditions through inspections that occur at least once a year.
In choosing where to place a detainee, therefore, the Marshals
Service chooses among federal institutions or those state or
local facilities with which it has an IGA. But no provision,
statutory or otherwise, mandates the specific facility in which
to place an individual prisoner. The determination as to where
to house a federal prisoner is precisely the sort of discretionary
act that falls within the discretionary function exception.
Although Lipsey points to the requirement to provide ade-
quate medical care to inmates, that obligation is met in the IGA
which imposes that obligation on the facilities and which is
monitored through inspection. The decision at issue here is not
the choice as to whether to provide medical care; it is the
determination as to which—among the qualified facilities—is
most appropriate for a particular inmate. That is quintessen-
tially a discretionary decision. See Bailor v. Salvation Army, 51
F.3d 678, 685 (7th Cir. 1995) (decision to transfer an inmate to
a halfway house falls within discretionary function exception
because the decision is a discretionary one and involved
considerations of public policy)
Moreover, the second prong of the discretionary function
exception is met as well. Inherent in such placement and
transfer decisions are considerations of public policy such as
concerns with security, cost, overcrowding, medical care, and
the suitability of each facility to meet the needs of the prisoner.
See Bailor, 51 F.3d at 685 (decision to transfer inmates to
halfway house involves policy considerations such as social
10 No. 17-1063
considerations of integrating prisoners into society and the
costs of incarceration); see also Meachum v. Fano, 427 U.S. 215,
225 (1976) (in a different context, noting that the transfer of a
prisoner is the type of discretionary action made for varied
reasons and involving considerations of what would best serve
institutional security or the safety and welfare of the inmate).
In fact, Goble based the placement decision on one of those
concerns, the availability of medical care for White’s preg-
nancy. He chose the JCDC because, among the jails with which
the Marshals Service had an IGA, he believed that it had the
best medical facilities. The evidence of record indicates that his
belief was not unfounded. The JCDC had a larger on-site
medical staff including two doctors, a physician assistant, a
registered nurse, a licensed practical nurse, and two on-call
nurses. None of the available IGA facilities had an on-site
obstetrician, but the JCDC had an ongoing relationship with
off-site obstetricians to provide such services to its inmates.
The record is clear that the placement decision rests on
considerations of public policy such as the provision of
adequate medical care. The same policy considerations inhere
in any decision as to whether to transfer a prisoner. Accord-
ingly, the district court properly determined that the actions in
deciding to place White at JCDC and in retaining her there
rather than transferring her at that late stage in her pregnancy
fell within the discretionary function exception to the waiver
of sovereign immunity in the FTCA. As to those actions the
United States retains sovereign immunity, and the district
court properly granted summary judgment to the United States
on that ground.
No. 17-1063 11
We turn then to the district court’s grant of summary
judgment to the Kankakee Defendants, some of whom pro-
vided medical care (“the medical defendants”) and some of
whom did not (“the non-medical defendants”). Lipsey argued
that all of the Kankakee defendants were negligent in the
management, monitoring, care and treatment of White’s
pregnancy. The district court based its decision on § 4-105 of
the Tort Immunity Act, which provides that “[n]either a local
public entity nor a public employee is liable for injury proxi-
mately caused by the failure of the employee to furnish or
obtain medical care for a prisoner in his custody; but this
Section shall not apply where the employee, acting within the
scope of his employment, knows from his observation of
conditions that the prisoner is in need of immediate medical
care and, through willful and wanton conduct, fails to take
reasonable action to summon medical care.” 745 ILCS 10/4-105.
As the district court held, that provision establishes that as to
injuries that resulted from the failure to furnish or obtain
medical care for a prisoner in custody, a public employee is
liable only if two criteria are met: first, that she knew based on
her observation that immediate medical care was needed, and
second, that the failure to take reasonable action to provide
that medical care was willful and wanton. The district court
determined that neither step was met here.
We look first at the medical defendants. The court held that
there was no evidence that any of the medical providers at
JCDC were aware from personal observation that White or her
pregnancy were in danger or required immediate medical care
prior to the morning of September 22, 2009. According to the
court, “[t]he evidence … shows, at best, that Defendants were
12 No. 17-1063
aware that White was in her last trimester of pregnancy, had
blood pressure of 161/86 on admission, repeatedly denied
experiencing any problems or complications with her preg-
nancy, and made no request for medical attention until the
morning of September 29, 2009.”
At worst, up until that time the medical defendants may
have been negligent in overlooking the significance of White’s
elevated blood pressure when she arrived at JCDC and her
September 16 labor pains. But mere negligence is not enough.
The district court held that Lipsey failed to establish that the
medical defendants’ failure to provide the necessary medical
care was willful and wanton. At the first instance in which the
need for immediate care was apparent, the morning of Septem-
ber 22, 2009, the medical providers immediately summoned
such medical care, calling for paramedics within three minutes
of being notified that White was in pain, with the result that
the ambulance arrived at the JCDC only twelve minutes after
they were first alerted to her condition. Accordingly, the court
held that there was no evidence that the medical defendants
willfully and wantonly failed to summon immediate care when
needed.
After two pages of analysis applying § 4-105 of the Tort
Immunity Act, the district court determined that the Kankakee
Defendants were entitled to immunity under that provision. In
one ensuing sentence, the court considered §§ 6-105 and 6-106
of the Tort Immunity Act, concluding that, “[g]iven this record,
the Court also finds that they would be entitled to immunity
under §§ 6-105 and 6-106, as there is no evidence establishing
that they should have made a different diagnosis before White
began having problems on September 22, 2009, or failed to
No. 17-1063 13
administer prescribed treatment.” The court then held that the
Kankakee Defendants were therefore entitled to summary
judgment.
Although the district court based its decision of immunity
on § 4-105 of the Tort Immunity Act, with only a passing nod
to immunity under §§ 6-105 and 6-106 as well, the plaintiff
failed to assert any argument concerning § 4-105. That statu-
tory provision is not cited in the appellant’s opening brief, nor
is the willful and wanton standard discussed or applied. By
failing to attack the basis of the district court’s grant of sum-
mary judgment, the plaintiff has waived such argument on
appeal. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 571 (7th
Cir. 2012). But we note that as stated above, even if we were to
consider that standard, the district court properly held that
there is no genuine issue of fact as the evidence at best showed
mere negligence not willful and wanton conduct as required to
avoid immunity under § 4-105.
The district court also properly granted summary judgment
as to the non-medical defendants, as to whom a negligence
standard applies. The plaintiff argues that the non-medical
defendants were negligent in failing to confirm the availability
of necessary care before accepting the transfer, but the record
does not support such a determination. At the time White was
accepted into the JCDC, the non-medical defendants knew that
that the JCDC had housed pregnant inmates in the past and
had provided medical care to those inmates. They had no
reason to believe they would be unable to provide that same
care for White as well. To the extent that they had any personal
involvement after that point, they were entitled to rely on the
judgment of their medical staff thereafter and nothing indicates
14 No. 17-1063
that they failed to do so. Therefore, the district court properly
granted summary judgment to the non-medical defendants as
well.
In a case such as this one, with tragic injuries to a newborn,
the weight of the situation is ever-present in our minds. But we
are entrusted here to determine only whether the district court
properly applied the law to the defendants who are before us
in this case. We hold that the district court properly granted
summary judgment.
Accordingly, the decision of the district court is
AFFIRMED.