Octavius Jordan v. Milwaukee County House of Corr

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 21, 2017*
Decided February 27, 2017
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-1820
OCTAVIUS JORDAN, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 14-cv-987-PP
MILWAUKEE COUNTY, et al., Pamela Pepper,
Defendants-Appellees. Judge.
ORDER
Octavius Jordan, a Wisconsin prisoner, appeals the grant of summary judgment
against him in this suit under 42 U.S.C. § 1983 asserting that prison staff were
deliberately indifferent to the freezing temperature in his unit and to his asthma and
chronic back pain. The district court concluded that Jordan had not produced evidence
from which a jury reasonably could find that any of the defendants were deliberately
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 16-1820 Page 2
indifferent. Because we conclude that Jordan created a genuine issue of fact as to
whether some of the defendants were deliberately indifferent to the conditions of his
unit, we vacate the judgment in part and remand for further proceedings.
The facts surrounding Jordan’s condition-of-confinement claim are disputed, but
we construe them in Jordan’s favor, as he is the non-movant. See Tradesman Int’l, Inc. v.
Black, 724 F.3d 1004, 1009 (7th Cir. 2013). Jordan attests in a declaration that while
incarcerated in the Milwaukee House of Correction in late 2013 his unit was “freezing
cold to the point where you could see ice forming on the windows and you could see
your breath.” To try to keep warm, Jordan wrapped himself in a blanket from his bed,
though he was not allowed to use the blanket in the common area. Jordan says that he
filed grievances complaining about the cold, which exacerbated his asthma and caused
him to catch a cold and then the flu. Jordan also submitted affidavits from three other
prisoners who attested that the prison was extremely cold and that they had
complained of the cold to prison officials. Two of those prisoners testified that the
prison had been frigid during the previous winter, before Jordan’s incarceration.
Disputing this, the defendants submitted evidence that Jordan’s unit was not
cold. Rebecca Goss, a correctional officer who worked in Jordan’s unit on at least one of
the days that winter, attested that the unit was a reasonable temperature and explained
that blankets could not be worn in the common area for safety reasons. The prison’s
heating and cooling mechanic (who is not a defendant) attested that, while there is no
temperature data recorded for Jordan’s unit during the time in question, data from
other parts of the prison during that time show reasonable temperatures and, he
continued, the prison’s heating system would not allow the extreme cold Jordan alleges
in his unit.
The facts surrounding Jordan’s medical claims are undisputed. Jordan did not
receive an inhaler for the first five weeks of his incarceration. Based on information
obtained during his intake, when Jordan described his asthma condition and medical
staff tested his air flow, Jordan was “placed on asthma protocol” according to the policy
of Armor Correctional Health Services, Inc. (the agency that Wisconsin has contracted
to provide healthcare at the prison). The next day Jordan told Floyd Elftman, a nurse
practitioner, that he had previously used an albuterol inhaler but had no current
prescription for one; at the time his pulse oxygen ratio was normal, and Elftman did not
prescribe an inhaler. A few weeks later, Jordan fell ill with a cold and then the flu, and
medical staff evaluated him numerous times. Jordan told Elftman that he’d had an
asthma attack, but Elftman told him that inhalers cost more than breathing treatments,
No. 16-1820 Page 3
and if he had another attack he was to notify medical services and he would be given an
immediate breathing treatment. Jordan had three respiratory calls in seven days and
then was referred to a physician. That physician finally prescribed the inhaler.
During the same five-week period, Jordan also was not given the specific pain
medication—gabapentin—that, he said, had been prescribed by his primary-care doctor
for his chronic back pain and arthritis. Jordan told Elftman at intake of this prescription,
but Elftman prescribed naproxen instead, telling Jordan that gabapentin was not
approved by the FDA. A few days later Elftman supplemented the naproxen with a
prescription for carbamezapinet (an anticonvulsant sometimes used to treat nerve pain),
but discontinued it after Jordan reported it to be ineffective. After Jordan experienced
the respiratory episodes, he saw the physician, who also treated his pain and prescribed
gabapentin.
Jordan then brought this deliberate-indifference suit. He named as defendants
the Milwaukee House of Correction, Armor Correctional Health Service, Goss, Elftman,
a doctor, a nurse, the prison superintendent, and two assistant superintendents. Jordan
asserted that all of the defendants were deliberately indifferent in failing to keep his
unit at a reasonable temperature and in refusing him an inhaler and gabapentin.
The district court granted summary judgment in favor of all of the defendants.
On the conditions-of-confinement claim, the court ruled that Jordan’s declaration, and
that of three other prisoners who attested that the prison was sometimes extremely
cold, had created a genuine issue of fact regarding the coldness of the temperature in
his unit. But, the court continued, Jordan lacked evidence that any of the defendants
except Goss knew of the allegedly freezing temperature. And Goss, the court
concluded, did not show deliberate indifference to the cold because she allowed Jordan
to use his blanket in his cell. On the medical claims, the court ruled that Jordan failed to
point to any evidence that anyone except Elftman was personally responsible for the
decision to deny him an inhaler and gabapentin. And in any event, Jordan did not
submit evidence that that course of treatment substantially departed from accepted
professional standards. Finally, noting that the Milwaukee House of Correction is not a
suable entity and that Jordan should have named the county instead, the district court
determined that neither the county nor Armor could be held liable because Jordan
lacked evidence that either had a custom or policy of refusing certain medical
treatments or of failing to maintain reasonable temperatures.
No. 16-1820 Page 4
On appeal Jordan argues that his declaration and those of the other three inmates
are sufficient for a jury reasonably to find that the defendants knew about the freezing
temperature in his unit but did nothing to adequately address the problem. We agree,
but only as to Goss, the three prison administrators (Hafemann, Hernandez, and
McKenzie), and the county.
As the district court correctly recognized, extreme cold may violate the Eighth
and Fourteenth Amendments. See Haywood v. Hathaway, 842 F.3d 1026, 1030 (7th Cir.
2016); Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997); Walker v. Schult, 717 F.3d 119,
126 (2d Cir. 2013). Like the district court, we conclude that Jordan and his fellow
prisoners’ attestations of freezing temperatures during winters in the prison are enough
to create a genuine dispute about the temperature of Jordan’s unit.
We part company with the district court on the element of deliberate
indifference. A jury reasonably may believe that Goss, who worked in the unit, and the
superintendent and assistant superintendents who oversaw the prison, had to have
been aware of such extreme temperatures in Jordan’s unit, especially given the
attestations that Jordan and other inmates submitted numerous grievances about the
cold. See Gray v. Hardy, 826 F.3d 1000, 1008 (7th Cir. 2016) (evidence that administrator
“must have known” about risk of harm posed by conditions of confinement is sufficient
for jury to find deliberate indifference); Haywood, 842 F.3d at 1030–31 (evidence that
warden knew of extreme cold sufficient for jury to find deliberate indifference). And if
the unit was as cold as Jordan represents, a jury may well believe that doing nothing
other than allowing Jordan to use his blanket in his cell was “so plainly inappropriate [a
response] as to permit the inference that the defendants intentionally or recklessly
disregarded his needs.” Haywood, 842 F.3d at 1031 (quoting Hayes v. Snyder, 546 F.3d
516, 524 (7th Cir. 2008)) (reversing grant of summary judgment when prisoner attested
to frigid conditions and guards failed to provide other means of warmth); see also
Dixon, 114 F.3d at 643 (reversing grant of summary judgment when prisoner in freezing
cell had only standard issue blanket and clothes).
Moreover, Jordan’s evidence that the prison was extremely cold for two
consecutive winters despite frequent inmate grievances about the situation is enough
for a jury reasonably to infer that the failure to provide adequate heat was not just
inadvertence but “a conscious decision not to take action” on the county’s part, so as to
hold it liable for a custom of failing to provide adequate heat. Glisson v. Ind. Dep’t of
Corr., No. 15-1419, 2017 WL 680350, at *7 (7th Cir. Feb. 21, 2017); Monell v. New York City
Dep’t of Soc. Servs., 436 U.S. 658 (1978) (evidence of custom suffices to hold
No. 16-1820 Page 5
governmental entity liable for constitutional torts). We note that as the district court
correctly determined, the Milwaukee House of Correction “is not a legal entity
separable from the county government which it serves and is therefore not subject to
suit” under § 1983, see Whiting v. Marathon Cnty. Sheriff’s Dep’t., 382 F.3d 700, 704
(7th Cir. 2004), and so we substitute the county as defendant, see Ball v. City of
Indianapolis, 760 F.3d 636, 643 (7th Cir. 2014).
Finally, these defendants are not, as they argue, entitled to qualified immunity
on this claim. It has long been settled that failing to provide adequate warmth to
inmates violates their constitutional rights. See Dixon, 114 F.3d at 642.
But that is as far as we can go for Jordan. Jordan has provided no evidence that
any of the medical defendants knew of the freezing temperatures, and § 1983 requires
personal responsibility. See Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir.
2012); Knight v. Wiseman, 590 F.3d 458, 462–63 (7th Cir. 2009).
As for his medical claims, Jordan’s arguments on appeal are unpersuasive.
Jordan contends, for instance, that by refusing to prescribe an inhaler and gabapentin,
Elftman impermissibly persisted in a course of treatment known to be ineffective and
based his treatment decision on cost. But Jordan must do more than show that he was
not given the very best of treatment; he must show that Elftman’s course of treatment
was “such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible did not base the decision on
such a judgment.” Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (quoting Cole v.
Fromm, 94 F.3d 254, 261–62 (7th Cir. 1996)). Jordan pointed to no evidence from which a
jury reasonably could conclude that Elftman’s course of treatment was not based on
accepted medical judgment. Although both the inhaler and gabapentin were
subsequently prescribed by a doctor who saw him, “evidence 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; Holloway v. Del. Cnty. Sheriff, 700 F.3d
1063, 1074 (7th Cir. 2012). And the cost of care can be a permissible factor in choosing
between acceptable treatments. Petties, 836 F.3d at 730.
Given that a jury could not find that Elftman acted with deliberate indifference in
treating Jordan’s medical needs, neither Armor nor the county can face any liability for
that treatment. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Pyles v. Fahim,
771 F.3d 403, 412 (7th Cir. 2014). Likewise, the administrative defendants could not have
faced liability independently of Elftman because these defendants had deferred to his
No. 16-1820 Page 6
exercise of medical judgment. See King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012);
Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010); Greeno v. Daley, 414 F.3d 645, 655–57
(7th Cir. 2005). Finally, the undisputed evidence shows that neither the doctor nor the
nurse that Jordan sued ever examined Jordan, reviewed Elftman’s work, or made any
decisions about his care. Without evidence of their personal responsibility, they cannot
be held liable. Matthews, 675 F.3d at 708; Knight, 590 F.3d at 462–63.
Jordan also challenges the district court’s refusal to recruit counsel, maintaining
that the court did not adequately consider a mental health condition that he says
impairs his ability to focus. But the district court correctly considered whether Jordan
was competent to litigate his particular case, see Romanelli v. Suliene, 615 F.3d 847, 854
(7th Cir. 2010); Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc), and reasonably
concluded that he was, given the straightforward nature of his claim and able filings
that reflected his ability to carry out discovery and prosecute his claim.
Accordingly, we VACATE the judgment and REMAND to the district court for
further proceedings on the claims against Goss, Hafemann, Hernandez, McKenzie, and
the county, related to the alleged cold. The judgment in favor of the remaining
defendants related to the medical claims is AFFIRMED.