746 F.3d 782 (7th Cir. 2014), 12-2746, Shields v. Illinois Dep't of Corr.

Docket Nº:12-2746, 13-1143
Citation:746 F.3d 782
Opinion Judge:Hamilton, Circuit Judge.
Party Name:EARNEST SHIELDS, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees
Attorney:ERNEST D. SHIELDS, Plaintiff - Appellant (12-2746), Pro se, Joliet, IL. For ILLINOIS DEPARTMENT OF CORRECTIONS, GERARDO ACEVEDO, individually and as agent of Illinois Department of Corrections (12-2746, 13-1143), Defendants - Appellees: Linda Boachie-Ansah, Attorney, OFFICE OF THE ATTORNEY GENERA...
Judge Panel:Before POSNER, TINDER, and HAMILTON, Circuit Judges. TINDER, Circuit Judge, concurring. Tinder, Circuit Judge, concurring.
Case Date:March 12, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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746 F.3d 782 (7th Cir. 2014)

EARNEST SHIELDS, Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees

Nos. 12-2746, 13-1143

United States Court of Appeals, Seventh Circuit

March 12, 2014

Submitted September 24, 2013.

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10-cv-3746 -- Ronald A. Guzman, Judge.

ERNEST D. SHIELDS, Plaintiff - Appellant (12-2746), Pro se, Joliet, IL.

For ILLINOIS DEPARTMENT OF CORRECTIONS, GERARDO ACEVEDO, individually and as agent of Illinois Department of Corrections (12-2746, 13-1143), Defendants - Appellees: Linda Boachie-Ansah, Attorney, OFFICE OF THE ATTORNEY GENERAL, Civil Appeals Division, Chicago, IL.

For WEXFORD HEALTH SOURCES, INCORPORATED (12-2746, 13-1143), Defendant - Appellee: Michael John Charysh, Attorney, Richard A. Tjepkema, Attorney, CHARYSH & SCHROEDER, LTD., Chicago, IL.

For SOUTHERN ILLINOIS UNIVERSITY SCHOOL OF MEDICINE (12-2746, 13-1143), Defendant - Appellee: Peter W. Brandt, Attorney, Kirk A. Holman, Attorney, LIVINGSTON BARGER BRANDT & SCHROEDER, Bloomington, IL.

For JOHN FROELICH, Doctor, individually and as agent of Southern Illinois School of Medicine, Defendant - Appellee (12-2746, 13-1143): Paul R. Bown, Attorney, BROWN, HAY & STEPHENS, Springfield, IL.

ERNEST D. SHIELDS, Plaintiff - Appellant (13-1143), Pro se, Joliet, IL.

Before POSNER, TINDER, and HAMILTON, Circuit Judges. TINDER, Circuit Judge, concurring.

OPINION

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Hamilton, Circuit Judge.

Earnest Shields was an Illinois prisoner in 2008 when he was lifting weights and ruptured the pectoralis tendon in his left shoulder. Although he received some medical attention for the injury, he did not receive the prompt surgery needed for effective treatment. Instead, through a series of oversights and delays by various people responsible for his medical care, too much time passed for surgery to do any good. Shields now suffers from a serious and permanent impairment that could have been avoided. So we must assume, in any event, as we review the grant of summary judgment against Shields on his claims arising from the official response to his injury.

After his release from prison, Shields filed suit against numerous defendants under 42 U.S.C. § 1983. He alleges that all defendants were deliberately indifferent to his serious medical needs and thus violated his rights under the Eighth Amendment to the Constitution. On appeal, Shields is pursuing claims against two groups of defendants.

The first group consists of Wexford Health Sources, Inc., a private company that provides medical care to Illinois prisoners under contract with the Illinois Department of Corrections, and four doctors who worked for Wexford and were directly involved in treating or failing to treat Shields. The second group consists of two doctors employed by the Southern Illinois University School of Medicine who examined Shields and recommended physical therapy rather than surgery. Shields contends these SIU defendants violated the Eighth Amendment and committed medical malpractice under state law.

The district court granted summary judgment for defendants on all of Shields' constitutional claims and then declined to exercise supplemental jurisdiction over the medical malpractice claims against the SIU doctors. After judgment was entered, Shields filed a motion for relief under Federal Rule of Civil Procedure 60 asking to amend his complaint to include state-law medical malpractice claims against Wexford and the doctors it employed. The district court denied the motion. Shields appeals both the grant of summary judgment on his constitutional claims and the denial of his postjudgment motion to amend.1

This case illustrates the often arbitrary gaps in the legal remedies under § 1983 for violations of federal constitutional rights. Viewing the evidence through the lens of summary judgment, we can and must assume that Shields is the victim of serious institutional neglect of, and perhaps deliberate indifference to, his serious medical needs. The problem he faces is that the remedial system that has been built upon § 1983 by case law focuses primarily on individual responsibility. Under controlling law, as a practical matter, Shields must come forward with evidence that one or more specific human beings acted with deliberate indifference toward his medical needs.

Shields has not been able to do so. The Illinois Department of Corrections and its

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medical services contractor, Wexford, diffused responsibility for Shields' medical care so widely that Shields has been unable to identify a particular person who was responsible for seeing that he was treated in a timely and appropriate way. Several of the individual defendants employed by Wexford were aware of portions of Shields' course of treatment, but no one person was responsible for ensuring that Shields received the medical attention he needed. No one doctor knew enough that a jury could find that he both appreciated and consciously disregarded Shields' need for prompt surgery.

The problem Shields faces also raises a serious question about how we should evaluate the responsibility of a private corporation like Wexford for violations of constitutional rights. The question is whether a private corporation should be able to take advantage of the holding of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which requires a plaintiff suing a local government under § 1983 to show that the violation of his constitutional rights was caused by a government policy, practice, or custom. Our prior cases hold, but without persuasive explanations, that the Monell standard extends from local governments to private corporations. As we explain below, however, that conclusion is not self-evident. We may need to reconsider it if and when we are asked to do so. As state and local governments expand the privatization of government functions, the importance of the question is growing.

Given the state of the controlling law, though, we must ultimately affirm the summary judgment for all defendants on the constitutional claims. Shields is also barred from appealing the denial of his post-judgment motion to amend his complaint because his appeal from that denial was untimely.

I. Facts for Purposes of Summary Judgment

We review de novo the grant of summary judgment, construing all facts in the light most favorable to the non-moving party. Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005). Summary judgment is appropriate when there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Id. Because we are reviewing a grant of summary judgment, we must give Shields as the non-moving party the benefit of conflicts in the evidence and any reasonable inferences from the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Williams v. City of Chicago, 733 F.3d 749, 755 (7th Cir. 2013). Our account of the facts therefore is not necessarily accurate in an objective sense but reflects the evidence through the lens of summary judgment.

In 2008, plaintiff Earnest Shields was a prisoner at Hill Correctional Center in Galesburg, Illinois. He was transferred to the Stateville Correctional Center in Romeoville, Illinois, in January 2009. Inmates at both Hill and Stateville receive their medical care from Wexford, a company that contracted with the Illinois Department of Corrections to provide medical care to inmates. Defendants Arthur Funk, Robert Migliorino, Richard Shute, and Ronald Schaefer are all physicians who were employed by Wexford and had some involvement in treating Shields. Dr. Funk was the regional medical director in charge of overseeing medical care at Hill. Dr. Migliorino was the medical director for Hill until October 7, 2008. After Dr. Migliorino left Hill, the medical director position rotated among several doctors, including Dr. Schaefer. Dr. Shute was employed

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by Wexford as a traveling physician serving several prisons.

Southern Illinois University School of Medicine (" SIU" ) is part of a state university with main campuses in Carbondale and Springfield. SIU employed defendant Dr. David Olysav. Dr. John Froelich also worked at SIU as a resident.

On June 16, 2008, Shields injured his shoulder while lifting weights at Hill. Dr. Migliorino examined Shields that same day, diagnosed a possible dislocated shoulder, and had him sent to a hospital emergency room where an MRI was taken. The MRI seemed to show a partial tear of the supraspinatus tendon in Shields' left shoulder. Dr. Migliorino recommended that Shields be seen by an orthopaedic surgeon. As required by Wexford procedure, Dr. Migliorino conducted a " collegial review" with Dr. Funk to obtain approval for his recommendation. Collegial reviews frequently took place over the telephone, and Dr. Funk did not review patients' charts as part of the collegial review.

Dr. Funk approved Dr. Migliorino's referral recommendation, and Shields was seen by Dr. Schierer, an orthopaedic surgeon who is not a defendant. Dr. Schierer diagnosed a different problem, a ruptured left pectoralis tendon. He recommended that Shields see a shoulder specialist for surgery. Dr. Migliorino then secured Dr. Funk's approval through collegial review to have Shields see Dr. Clark, a shoulder specialist who is also not a defendant. Dr. Clark confirmed Dr. Schierer's diagnosis but said he did not feel comfortable performing the surgery himself. Dr. Clark recommended that Shields see Dr. Gibbons, another shoulder specialist who is not a defendant, for the surgery. Dr. Migliorino seconded Dr. Clark's recommendation and obtained Dr. Funk's approval via collegial review. Shields was scheduled to visit Dr. Gibbons, but...

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