Ricardo Glover v. Kevin A. Carr

In the
United States Court of Appeals
For the Seventh Circuit
No. 18‐3028
RICARDO GLOVER,
Plaintiff‐Appellant,
v.
KEVIN CARR, Secretary of the
Wisconsin Department of Corrections,
in his official capacity, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16‐cv‐01048‐LA — Lynn Adelman, Judge.
ARGUED NOVEMBER 5, 2019 — DECIDED FEBRUARY 6, 2020
Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Ricardo Glover, a Wisconsin inmate,
sued prison medical staff and Wisconsin Department of
Corrections officials for deliberate indifference and for violat‐
ing his right to equal protection after they denied him medicine
2 No. 18‐3028
prescribed for post‐surgical erectile dysfunction. See 42 U.S.C.
§ 1983; Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291
(1976) (deliberate indifference to a prisoner’s serious medical
needs constitutes unnecessary and wanton infliction of pain
proscribed by Eighth Amendment). Glover alleges that
treatment of his erectile dysfunction was both necessary for
penile rehabilitation and time sensitive in the sense that he was
at risk of suffering permanent loss of erectile function if his
condition was left untreated for too long following surgery.
The defendants argued at summary judgment that the Depart‐
ment’s then‐current medical director was wholly responsible
for the challenged decision, but Glover had sued only the
former director and other uninvolved parties. Glover moved
to substitute the new director as a defendant, but the court
(twice) denied the motion. It entered summary judgment for
the defendants on Glover’s claim for damages and then
deemed his claim for injunctive relief voluntarily withdrawn,
in order to finalize the decision for appeal.
Glover appealed the judgment pro se. Following our review
of the initial briefing, we appointed counsel to represent
Glover, ordered re‐briefing, and set the case for argument. We
now conclude that the district court abused its discretion by
not allowing Glover to amend his complaint. We vacate the
judgment and remand the case in order to allow Glover to
proceed against the appropriate medical director in his
individual capacity. We affirm the remainder of the judgment.
I.
In December 2015, while he was incarcerated with the
Wisconsin Department of Corrections (“WDOC”), Glover was
No. 18‐3028 3
diagnosed with an aggressive form of prostate cancer, and he
elected to have surgery to remove his prostate the following
month; since that time he has suffered from erectile dysfunc‐
tion. After the surgery, Glover’s off‐site urologist recom‐
mended that Glover medically rehabilitate his penile function
by taking Cialis (tadalafil). To be clear, the purpose of this
recommendation was to preserve Glover’s long‐term erectile
function, as opposed to facilitating any sexual activity while
Glover remained incarcerated.1 As noted, Glover alleges that
he was at risk of losing his erectile function permanently if he
did not receive timely treatment.
Because Cialis was not on the WDOC’s formulary of
approved medications, Glover’s prison physician instead
prescribed Tolterodine, which addresses not erectile dysfunc‐
1
By way of background, we note that tadalafil is one of several phospho‐
diasterase type 5 (or PDE5) inhibitors which promote and prolong erections
by increasing the flow of blood to the penis upon sexual stimulation. “PDE5
inhibitors are considered by most investigators and clinicians as the first‐
line treatment for [erectile dysfunction] after [radical prostatectomy], and
remain the common element in most rehabilitation programs.” Ateş
Kadio™lu, et al., Tadalafil therapy for erectile dysfunction following prostatectomy,
7(3) THERAPEUTIC ADVANCES IN UROLOGY 146, 150 (June 2015). PDE5
inhibitors like tadalafil are thought, but not known, to aid in penile
rehabilitation by facilitating the delivery of oxygenated blood to the penile
tissues, which in turn may help to preserve penile structures, length, and
smooth muscle. Id. at 147–49. “There is little consensus on the optimal
management [of post‐surgical erectile dysfunction]; however, it is agreed
that treatment must be prompt to prevent fibrosis and increase oxygenation
of penile tissue.” Alan Saleh, et al., Management of erectile dysfunction post‐
radical prostatectomy, 7 RESEARCH AND REPORTS IN UROLOGY 19, 19 (Feb.
2015); see also id. at 20.
4 No. 18‐3028
tion but urinary incontinence, another common side effect of
prostate removal—and one which Glover initially experienced.
But after Glover suffered from back pain while taking Toltero‐
dine, his prison physician wrote him a prescription for Cialis
and completed a form requesting approval for the prescription
notwithstanding its absence from the WDOC formulary.2
Dr. Ryan Holzmacher, the medical director of the WDOC’s
Bureau of Health Services at all relevant times, co‐chaired the
committee that decides which medications to list on the
formulary, and he was responsible for reviewing requests for
non‐formulary medication on a case‐by‐case basis. Glover’s
request for Cialis was passed on to Dr. Holzmacher, who
denied it. After a follow‐up examination, Glover’s urologist
again recommended that Glover be prescribed Cialis for
rehabilitation and preservation of his erectile function,3 and the
prison physician followed suit. But Glover was never given the
prescribed medication.
After exhausting his administrative remedies, Glover sued
prison medical staff and WDOC officials in their personal and
official capacities, including Dr. Holzmacher’s predecessor,
who personally played no role in these events. Glover alleged
that they were deliberately indifferent to his erectile dysfunc‐
tion in violation of the Eighth Amendment. He also alleged
that they violated his right to equal protection by treating him
2
Although the district court assumed that Cialis would be prescribed
solely for erectile dysfunction, R.120 at 2 n. 1, there is nothing in the record
indicating that Cialis was not part of a plan to treat all of Glover’s symp‐
toms, including urinary incontinence and erectile dysfunction.
3
By this time, Glover’s urinary continence had substantially improved.
No. 18‐3028 5
worse than transgender inmates who received transition‐
related hormonal treatment. Glover sought damages and a
preliminary and permanent injunction requiring the Depart‐
ment to provide him Cialis. The district court denied Glover’s
motion for an emergency preliminary injunction without a
hearing because, it determined, Glover was unlikely to
establish that erectile dysfunction was a serious medical
condition, as required to succeed on his deliberate indifference
claim. R. 106 at 3.
During discovery, Glover authorized the defendants to
access his medical records. He later revoked that authorization,
however, because he was convinced that they submitted to the
court inauthentic, incomplete, and improperly redacted
versions.
The defendants moved for summary judgment. Regarding
Glover’s deliberate indifference claim, they argued that
Dr. Holzmacher, whom Glover did not sue, was responsible
for denying the Cialis. They also asserted that erectile dysfunc‐
tion is not a serious medical need. Glover’s equal protection
claim, they continued, failed because inmates with erectile
dysfunction are not comparable to transgender inmates, so he
had not shown that he was treated differently from similarly
situated inmates.
Glover then moved the district court to substitute
Dr. Holzmacher for the former medical director as a defendant.
Glover explained that the defendants had not informed him
until summary judgment that Dr. Holzmacher was the medical
director who denied his request. The district court denied his
motion, explaining that “defendants have a right to defend
6 No. 18‐3028
themselves,” and “[Dr.] Holzmacher will be unable to defend
himself” because Glover had revoked access to his records.
R. 106 at 5.
The court then entered partial summary judgment for the
defendants. It agreed with the defendants that Glover had not
shown that any of them was personally involved in depriving
him of Cialis. R. 120 at 3. It also agreed with their argument
that erectile dysfunction treatment was not comparable to
hormone therapy, so Glover had not shown a violation of
equal protection. R. 120 at 8–9. The court, however, concluded
that there was a material factual dispute about whether
Glover’s erectile dysfunction presented a serious medical need,
R. 120 at 5–6, and it allowed Glover to continue pursuing
injunctive relief from two defendants in their official capacities,
R. 120 at 3–4, 7–8. It recruited counsel to help Glover prepare
for trial, but counsel soon moved to withdraw.
The district court held a status hearing during which it
made two pertinent rulings. (The telephonic hearing was
neither recorded nor transcribed, so we recite the events as the
district court described them in an order.) First, the court
denied Glover’s renewed request to seek damages from
Dr. Holzmacher, instead of the former director, in his personal
capacity. This time, it reasoned that substitution would be
futile because Dr. Holzmacher merely enforced the Depart‐
ment’s policy against providing erectile dysfunction medica‐
tion to inmates, and thus Glover could not recover damages.
R. 129 at 3.
Second, because Glover wanted to appeal the decision on
his claim for damages, the court allowed Glover to voluntarily
No. 18‐3028 7
dismiss the pending official‐capacity claim for injunctive relief.
R. 129 at 3–4. The court inferred that Glover was willing to
forgo permanent injunctive relief because he said that he was
“mostly healed now.” R. 129 at 3. (According to Glover, he
expressed that he already had healed “incorrectly,” such that
“it may be impossible for him to achieve an erection” and
injunctive relief “could not help him now.” R. 131‐1 at 16.) The
district court then finalized its summary judgment decision
and dismissed the case with prejudice. R. 129 at 4; R. 130.
II.
The issues posed in this appeal are narrow. We are in‐
formed that Glover is no longer in custody, and consequently
he has no basis on which to seek injunctive relief against any
of the defendants. His sole interest is in bringing Dr.
Holzmacher into the case in his individual capacity so that he
may sue the doctor for damages for denying his request for a
non‐formulary drug. His appeal is therefore limited to the
contention that the district court erroneously denied him leave
to amend his complaint to name Dr. Holzmacher. The district
court should freely give leave to amend a complaint “when
justice so requires,” FED. R. CIV. P. 15(a)(2), but it may deny
leave to amend a complaint if the amendment would be futile,
see Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010). We
review a district court’s decision to deny a motion to amend
the complaint for an abuse of discretion. See Dubicz v. Common‐
wealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004).
Before we turn to the district court’s rationale for denying
Glover’s requests to amend his complaint, we must address the
defendants’ threshold argument that any such amendment
8 No. 18‐3028
would be pointless, as Dr. Holzmacher would surely be
entitled to qualified immunity. In order for Dr. Holzmacher to
be held personally liable, existing precedent must have made
it clear to a reasonable level of specificity that Glover’s condi‐
tion amounted to a serious medical need requiring treatment.
See Campbell v. Kallas, 936 F.3d 536, 545–47 (7th Cir. 2019); Estate
of Clark v. Walker, 865 F.3d 544, 552–53 (7th Cir. 2017). The
defendants reason that in the absence of precedent specifically
recognizing that erectile dysfunction amounts to a serious
medical need, it would not have been clear to Dr. Holzmacher
that the prison was obligated to heed the advice of Glover’s
off‐site urologist and prison physician and approve the
prescription for Cialis. Cf. Michtavi v. Scism, 808 F.3d 203,
206–07 (3d Cir. 2015) (prison officials entitled to qualified
immunity for failure to treat condition which might lead to
impotence and infertility).
As Dr. Holzmacher is not presently a party to the litigation,
we decline to resolve the matter of qualified immunity.
Qualified immunity is a personal defense, Walker v. Snyder,
213 F.3d 344, 346 (7th Cir. 2000), overruled on other grounds by
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374
n.9, 121 S. Ct. 955, 968 n.9 (2001), and because it is
Dr. Holzmacher who potentially faces individual liability on
Glover’s claim, the defense is one for him to assert. As defense
counsel conceded at oral argument, the defendants—and,
presumably, Dr. Holzmacher himself—certainly would not
want us to resolve the immunity question adversely to
Dr. Holzmacher in his absence. For its part, the district court
did not rely on qualified immunity as a reason not to allow
Glover to bring Dr. Holzmacher into the case.
No. 18‐3028 9
At this juncture, it is enough for us to say that the answer
to the question is not so obvious that permitting Glover to hale
Dr. Holzmacher into the case would necessarily constitute a
futile act. Two different physicians, one of them a specialist
and one the WDOC’s own in‐house physician, deemed a Cialis
prescription necessary to address a known side effect of a
radical prostatectomy. See Gutierrez v. Peters, 111 F.3d 1364,
1373 (7th Cir. 1997) (serious medical need is, inter alia, one that
has been diagnosed by a physician as requiring treatment or
one which could result in further significant injury if left
untreated); Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011)
(refusing to provide prescribed medication or heed specialist’s
advice can violate Eighth Amendment); Estate of Clark, 865 F.3d
at 553 (for qualified immunity purposes, duty to treat prison‐
ers’ serious medical needs “need not be litigated and then
established disease by disease or injury by injury”).4 Moreover,
as Judge Adelman pointed out, a factfinder could infer from
the present record that Dr. Holzmacher’s refusal to approve
the prescription was based not on the exercise of individual‐
ized medical judgment but rather rote enforcement of a WDOC
policy that “categorically precludes treatment for [erectile
dysfunction],” on the premise that prisoners have no right to
engage in sexual activity so long as they remain incarcerated.
4
Cf. Lyons v. Brandly, 430 F. App’x 377, 381 (6th Cir. 2011) (non‐preceden‐
tial decision) (prisoner’s erectile dysfunction could not be said to be serious
medical condition where, inter alia, no physician indicated that its
treatment was required); Neal v. Suliene, 2008 WL 4167930, at *3 (W.D. Wis.
April 22, 2008) (prisoner’s erectile dysfunction could not be considered to
be serious medical condition where there was nothing to suggest, inter alia,
that if diagnosed by physician it would mandate treatment).
10 No. 18‐3028
R. 120 at 7 (citing Holzmacher Affidavit, R. 86 ¶ 8); compare
Campbell, 936 F.3d at 545–49 (granting qualified immunity to
prison officials who recognized prisoner’s need for treatment
but opted for one form of treatment over another), with Roe v.
Elyea, 631 F.3d 843, 859–60, 863 (7th Cir. 2011) (sustaining
district court’s denial of qualified immunity to prison physi‐
cian who denied treatment altogether based on prison medical
protocol categorically foreclosing antiviral treatment for
prisoners with fewer than 18 months remaining on their prison
terms). We hasten to add that nothing we have just said in that
regard should be read as pre‐judging the merits of any
invocation of qualified immunity. Our analysis, as we have
indicated, goes no farther than to conclude the answer to
whether Dr. Holzmacher would be entitled to qualified
immunity is not so obvious as to render the proposed amend‐
ment of Glover’s complaint futile. We otherwise leave the
matter of qualified immunity to the district court in the first
instance, without prejudice to any argument that Dr.
Holzmacher may wish to make in that regard, and we proceed
to consider whether the reasons the district court articulated
for rejecting Glover’s requests to bring Dr. Holzmacher into the
case in his personal capacity constitute an appropriate exercise
of the court’s discretion.
We agree with Glover that the court abused its discretion in
barring his efforts to name Dr. Holzmacher as an additional
defendant.5 The district court gave two reasons why the
5
Glover’s motion was styled not as a Rule 15 motion to amend but
rather as one to substitute parties pursuant to Federal Rule of Civil
(continued...)
No. 18‐3028 11
proposed amendment of the complaint was futile, but both rely
on faulty assumptions. It first determined that Dr. Holzmacher
would not be able to defend himself because Glover would not
let the other defendants access his medical records. The court
certainly had reason to be concerned on this point. But Glover
disallowed the other defendants, not Dr. Holzmacher, from
viewing his records after he suspected them of misusing the
documents. Indeed, the court never instructed Glover that he
would need to authorize Dr. Holzmacher to access the records
in order to sue him, and rather than giving Glover the opportu‐
nity to do so, the court assumed that he would refuse. The
parties agree that under 45 C.F.R. § 164.512(e), the court has the
authority to order the production of Glover’s medical records
to Dr. Holzmacher. Of course, if Glover withholds or interferes
with the production of any relevant records, the court has the
authority to present him with a choice: cooperate in the
production of his records or suffer an appropriate sanction, up
to and including the dismissal of his complaint. See Fed. R. Civ.
P. 37(b)(2)(A)(v); Collins v. Illinois, 554 F.3d 693, 696–97 (7th Cir.
2009) (per curiam).
(...continued)
Procedure 25(d). The latter rule was inapplicable here, as Glover was not
seeking to replace a public officer named in his official capacity who
ceased to hold office while the case was pending. Rule 25(d); see Hafer v.
Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991). But a pro se litigant’s
mistaken choice of rule should not be deemed fatal when the aim of his
request was clear. See Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir.
1998). The defendants concede (Appellee’s Br. 15 n.3) that Glover’s
request was properly construed as one to amend the complaint pursuant
to Rule 15(a)(2), and indeed, it appears that the district court understood
it as such.
12 No. 18‐3028
Second, the district court concluded that Glover could not
win damages because Dr. Holzmacher was merely enforcing
a policy against providing erectile dysfunction medications.
The record shows, however, that Dr. Holzmacher co‐chaired
the committee that creates the formulary and that he had the
authority to approve off‐formulary medicine. Indeed, the
defendants argued at summary judgment that only
Dr. Holzmacher was personally responsible for denying
Glover’s request for Cialis.
The defendants respond that Glover’s request to amend his
complaint was untimely, but the district court did not “base[]
its decision” on the motion’s timeliness, Watkins v. Trans Union,
LLC, 869 F.3d 514, 518 (7th Cir. 2017), so that point is irrelevant
to whether the court abused its discretion. In any case, the
argument is weak. Although Dr. Holzmacher’s name had
surfaced in discovery, it was not clear to Glover until summary
judgment that it was Dr. Holzmacher who was responsible for
denying him Cialis. Moreover, the existing defendants in their
individual capacities have no interest in any suit that Glover
may bring against Dr. Holzmacher. They can suffer no possible
prejudice from the amendment. And neither they nor the
district court offered any reason to believe that Glover was
dilatory or strategic in leaving Dr. Holzmacher out of the
lawsuit, rather than simply ignorant of his role. See Bausch, 630
F.3d at 562. Leave to amend a complaint should be granted
liberally. See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230
(1962). It is difficult to see why, under these circumstances, it
would not be in the interest of justice for Glover to be able to
sue the person that all agree is responsible for denying him
No. 18‐3028 13
access to Cialis. The court should have granted him leave to
amend his complaint.
With that point resolved, we need proceed no further.
Glover does not contest the district court’s decision to enter
summary judgment in favor of the originally‐named defen‐
dants for want of evidence that any of them were responsible
for denying him Cialis. Nor, at this point, does he challenge the
district court’s decisions to deny him a preliminary injunction
or to enter summary judgment in favor of the defendants on
his class‐of‐one equal protection claim.
Glover’s briefs do make the case that he has a valid Eighth
Amendment claim based on the prison’s refusal to fill his
prescription for Cialis in order to preserve his long‐term sexual
function. But we agree with the defendants that because it was
Dr. Holzmacher, rather than any defendant presently before
this court, who was responsible for the decision not to fill that
prescription, and because we have concluded Glover should be
permitted to amend his complaint in order to name
Dr. Holzmacher, the merits of Glover’s Eighth Amendment
claim should await the initiation of proceedings against
Dr. Holzmacher.
III.
We REVERSE the denial of leave to amend the complaint
and REMAND the case with instructions to allow Glover to
add Dr. Holzmacher as a defendant in his individual capacity.
The judgment is otherwise AFFIRMED. We thank Glover’s
appointed counsel for his vigorous advocacy on Glover’s
behalf.