Withers v. Wexford Health Sources, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3012
D ORCUS W ITHERS,
Plaintiff-Appellant,
v.
W EXFORD H EALTH S OURCES, INC., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:09-cv-1035-HAB-JAG—Harold A. Baker, Judge.
S UBMITTED F EBRUARY 14, 2013—D ECIDED F EBRUARY 27, 2013
Before P OSNER, W OOD , and T INDER, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, an inmate of the
Danville Correctional Center, an Illinois prison, brought
this suit under 42 U.S.C. § 1983 against a variety of
health professionals employed by or under contract to
the prison. The suit charges deliberate indifference to the
plaintiff’s medical needs, in violation of the cruel and
unusual punishments clause of the Eighth Amendment,
made applicable to state action by interpretation of the
2 No. 10-3012
due process clause of the Fourteenth Amendment. (In a
suit under section 1983 the contractor’s employees are
deemed agents of the state. Minix v. Canarecci, 597 F.3d
824, 832 (7th Cir. 2010).) The district judge granted sum-
mary judgment in favor of the defendants.
The plaintiff suffers from scoliosis, which is lateral
curvature of the spine; on an x-ray the spine appears from
the front or back to be S- or C-shaped rather than I-shaped.
Depending on the degree of curvature, scoliosis can be
a mild condition, as in the plaintiff’s case, or severe and
seriously deforming, as famously in the case of King
Richard III of England, as we have learned from the
recent exhumation of his skeleton. John F. Burns,
“Skeleton in British Parking Lot Hailed as Richard III,”
N.Y. Times, Feb. 5, 2013, p. A4.
The defendants refused the plaintiff’s repeated—inces-
sant, really—requests for a lower bunk rather than the
upper bunk to which he had been assigned and also
for a medical mattress, a back brace, and orthopedic
shoes. The evidence is overwhelming that he had no
medical need for any of these things (with the possible
exception, as we’re about to see, of a lower bunk); that
his condition was not serious enough to warrant them;
that he is a malingerer. He did have frequent flare-ups of
back pain, however; and although the precise causal
relation between scoliosis and back pain is unclear,
back pain has been found to be considerably more
common among person with scoliosis, see Manuel Rigo,
“Differential Diagnosis of Back Pain in Adult Scoliosis
(Non Operated Patients),” 5 Scoliosis O44 (Supp. 1, 2010);
No. 10-3012 3
Hans-Rudolf Weiss et al., “Physical Exercises in the
Treatment of Idiopathic Scoliosis at Risk of Brace Treat-
ment,” 1 Scoliosis 6 (2006); N.E. Goldberg et al., “The Ste-
Justine Adolescent Idiopathic Scoliosis Cohort Study.
Part III: Back pain,” 19 Spine 1573 (1994)—depending
however on what type of scoliosis the person has, see,
e.g., Per Trobisch, Olaf Suess & Frank Schwab, “Idiopathic
Scoliosis,” 107 Deutsches Ärzteblatt International 875
(2010); and we don’t know what type the plaintiff has.
But he received appropriate treatment for back pain
with painkilling drugs such as Ibuprofen. (The fact that
he was prescribed such drugs is evidence that he really
did have back pain.)
There is, however, one troubling feature of the case. It
involves an encounter that the plaintiff had with a regis-
tered nurse named Debra Miller, one of the defendants.
The plaintiff alleges that one night, because of back pain
that he was experiencing, he asked her to let him stay
overnight in the prison’s Health Care Unit. He says
that she refused and wheeled him back to his cell in a
wheelchair; that he told her he wouldn’t be able to climb
into his bunk (the upper one) and she replied “when
you get tired you’ll figure it out,” and left him; that
because of his back pain he fell trying to climb into the
upper bunk—there was no ladder—and as a result
was injured. If this narrative is true, it is evidence of
deliberate indifference to an imminent danger of injury
to a prisoner and gives him a valid claim to relief under
section 1983. Murphy v. Walker, 51 F.3d 714, 719 (7th Cir.
1995) (per curiam); United States v. Gonzales, 436 F.3d 560,
4 No. 10-3012
574 (5th Cir. 2006); cf. Walker v. Benjamin, 293 F.3d 1030,
1040 (7th Cir. 2002).
The evidence may be false, though we note that,
judging from recent cases, absence of ladders is a com-
mon feature of prison bunk beds. See Robinett v. Correc-
tional Training Facility, No. C 09-3845 SI, 2010 WL 2867696,
at *2 (N.D. Cal. July 20, 2010); Brown v. Anderson, No. 6:09-
2632-JFA-WMC, 2010 WL 199692, at *2 (D.S.C. Jan. 13,
2010); Jones v. Louisiana Dept. of Public Safety & Correc-
tions, No. 08-cv-1507, 2009 WL 1310940, at *2 (W.D. La.
May 11, 2009); Connolly v. County of Suffolk, 533 F. Supp. 2d
236, 241 (D. Mass. 2008). The plaintiff stated in his dep-
osition that none of the bunk beds in his prison has a
ladder, and the defendants have not contested the state-
ment. We attach a photograph that we discovered of
the ladderless bunk beds in a California prison. One
can see how a prisoner with back trouble might hurt him-
self trying to climb into the upper bunk.
No. 10-3012 5
Even if all the plaintiff’s allegations are true, however,
they don’t make a conclusive case of deliberate indiffer-
ence. The nurse may, in light of the plaintiff’s record
of malingering, have believed that he would have no
difficulty climbing to the upper bunk, or at least that he
would not fall and hurt himself. She may have believed
that he was just trying to lie his way into a more com-
fortable bed in the Health Care Unit. See Ramos v.
Patnaude, 640 F.3d 485, 490 (1st Cir. 2011); Weaver v.
Shadoan, 340 F.3d 398, 412 (6th Cir. 2003). But as yet his
version of the incident stands unrebutted. The district
judge did not discuss it, although he may have been
alluding to a garbled version of it when he said that
the plaintiff had alleged that Nurse Miller “knew [the
plaintiff] was unable to get into a high bunk, but would
6 No. 10-3012
not approve his request for a low bunk. The plaintiff
says he eventually fell out of his bunk and injured him-
self. The plaintiff has presented no evidence to sup-
port his claims beyond his unsupported accusations.”
Unsupported accusations when sworn to are evidence.
The nurse knew that the plaintiff had scoliosis and
intermittent back pain and may also have known that a
deformity of the spine can make it difficult, whether
because of scoliosis-related back pain or some other
consequence of that condition, for a sufferer from
scoliosis to climb to an upper bunk safely without using
a ladder. We are mindful that there is “another way
people get up to the top bunk (especially teenag-
ers)”—“by stepping onto the bottom bunk, and then
either climbing or jumping up to the top bunk.”
WikiHow—To Do Anything, “How to Get Up to the Top
Bunk of a Bunk Bed,” www.wikihow.com/Get-Up-to-the-
Top-Bunk-of-a-Bunk-Bed (visited Feb. 17, 2013). But “you
need to have fairly good upper-body strength for this
though.” Id. It may not have been a feasible alternative
to a ladder for this plaintiff, given his condition.
The statement of the nurse that the plaintiff
quotes—“when you get tired you’ll figure it out”—doesn’t
appear in his deposition, although the other allegations
that we summarized do. Part of the quoted state-
ment—the clause “when you get tired”—appears no-
where in the record. The rest of the clause, how-
ever—“you’ll figure it out”—appears in two prison griev-
ances, signed and filed by the plaintiff filed, that are in
the record. Although they were not signed under penalty
No. 10-3012 7
of perjury, the plaintiff submitted with them a declara-
tion that he did sign under penalty of perjury; and the
declaration states that “the foregoing documents are
known to me and are accurate to the best of my knowl-
edge and belief.”
Thus there appears to be a genuine issue of material
fact concerning deliberate indifference by the nurse. If
the issue can’t be resolved in further pretrial proceedings,
the plaintiff will be entitled to a trial—though on that
issue alone, concerning that defendant alone; in all
other respects the grant of summary judgment in favor
of the defendants is unassailable.
The judgment is therefore affirmed in part and reversed
in part, and the case is remanded for further pro-
ceedings consistent with this opinion.
A FFIRMED IN P ART, R EVERSED IN P ART,
AND R EMANDED .
2-27-13