Conley v. Birch

• Decision Date: 06 August 2015
• Docket Number: No. 14–3173.,14–3173.
• Citation: 796 F.3d 742
• Parties: Joseph CONLEY, Plaintiff–Appellant, v. Kimberly BIRCH, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

796 F.3d 742

Joseph CONLEY, Plaintiff–Appellant

v.Kimberly BIRCH, Defendant–Appellee.

No. 14–3173.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 2015.

Decided Aug. 6, 2015.

Joseph Conley, Sumner, IL, pro se.

Michael Schwalbert, Greensfelder, Hemker & Gale, St. Louis, MO, for Plaintiff–Appellant.

Timothy Patrick Dugan, Attorney, Sandberg Phoenix & Von Gontard P.C., St. Louis, MO, for Defendant–Appellee.

Before FLAUM, KANNE, and SYKES, Circuit Judges.

Opinion

FLAUM, Circuit Judge.

Joseph Conley appeals a district court's grant of summary judgment to prison physician Dr. Kimberly Birch on Conley's claim that Dr. Birch displayed deliberate indifference to his serious medical needs by declining to promptly order an x-ray of his injured hand. On December 24, 2009, Conley's hand was examined by a prison nurse, who described Conley's symptoms to Dr. Birch over the phone. Those symptoms included throbbing pain, severe swelling, discoloration, and loss of function throughout the entire hand; the nurse concluded in his treatment notes that Conley suffered from a “possible/probable fracture.” Dr. Birch ordered a regimen of ibuprofen

and ice but did not order an x-ray until almost five days later. The x-ray revealed that Conley's hand was indeed fractured, and years later, he continues to suffer from chronic pain and limited mobility. Based on the information in the record, and drawing all inferences in the light most favorable to Conley, we conclude that a reasonable jury might find that Dr. Birch strongly suspected that Conley's hand had been fractured, yet refused to take reasonable measures to evaluate or treat his injury. We therefore reverse the district court's grant of summary judgment in favor of Dr. Birch and remand the case for trial.

I. Background

On December 22, 2009, Joseph Conley, then an inmate at the Vienna Correctional Center, was involved in a physical altercation with a fellow inmate, who swung a combination lock at Conley's head. Conley blocked the hit with his right palm but on impact, he “heard a pop” and felt excruciating pain in his hand. Over the course of the next two days, Conley's hand swelled and his range of motion became severely limited. Conley made repeated requests for medical attention, which were largely ignored by various Vienna employees, but which are not relevant to this appeal.¹

On the evening of December 24, Conley showed his injured hand to yet another Vienna employee, Lieutenant Brian Felton. By this point, Conley's hand had “swollen up like a boxing glove real big.” Felton escorted Conley to the health care unit. There, Conley was examined by nurse Tracy Potts. During the examination, Potts filled out two medical forms, an “Offender Injury Report” and an “Offender Outpatient Progress Note.” In the “Objective Findings” section of the Injury Report, Potts observed: “right hand swollen, discolored, all fingers and thumb involved with palm bruising also. Mild pain.” In the “Evaluation of Injury” section, Potts wrote “possible/probable fracture.” On the Progress Note, Potts recorded additional observations: he indicated that Conley suffered from “throbbing” and “severe pain or swelling, discoloration, [and] limited motion.” He specified that Conley was experiencing “limited movement of all four fingers and thumb,” and that Conley's pain was a “2–3” on a 1–10 scale. Finally, Potts circled the word “Fracture,” but placed a question mark next to that diagnosis.

Potts's notes do not indicate any gross deformity or signs of a vascular or neurological deficit.

After examining Conley, Potts placed a call to defendant Kimberly Birch, the sole physician assigned to the Vienna facility, who was at her home celebrating the Christmas holiday. Neither Potts nor Dr. Birch has any independent recollection of the contents of this phone call, and Conley did not overhear the conversation. The parties agree, however, that it was standard protocol for Potts to share his full assessment with Dr. Birch during a telephone referral. After speaking with Dr. Birch, Potts gave Conley an ice pack and ibuprofen. According to Conley, Potts explained that “there was nothing he could do [for Conley] because of the holidays,” and that “all he could do” was recommend ice and ibuprofen

. (Potts had independent authority to provide patients with painkillers and ice but only Dr. Birch had the authority to order x-rays, which she could do over the phone.) Dr. Birch did not report to work on Christmas Day and, although she does not recall, she concedes that she may not have returned to work until December 29, 2009. She examined Conley in person the morning of December 29—some four-and-a-half days after Potts's initial evaluation of Conley's injury—and upon examination, ordered an x-ray.

Conley does not challenge any of Dr. Birch's subsequent actions or omissions, but a brief recital of successive events is informative nonetheless. X-rays for Vienna inmates are performed offsite at the Shawnee Correctional Center and are provided by Wexford Health Sources, Inc. Inmates in need of x-rays are transported to Shawnee by van, typically twice per week, although Wexford has conceded that the availability of x-ray technicians may have been limited over the holidays. Conley's x-ray was scheduled for January 6, 2010. However, it appears that on the morning of January 6, he signed a refusal of treatment form in which he specifically declined the scheduled x-ray. Conley claims that Nurse Jeffery Brown presented the form to him without explanation and that Conley signed the form without reading it. When Dr. Birch saw Conley later that same morning, Conley was confused as to why he had not received his x-ray. He was informed that he had signed a refusal form and that the van transporting inmates to Shawnee had already left. Dr. Birch then re-ordered the x-ray and refilled Conley's pain medication. Conley did not see Dr. Birch again. He was transferred to Big Muddy Correctional Center on January 13, 2010 and eventual x-rays confirmed that his hand was broken. Conley suffered permanent damage from the injury: he continues to experience chronic pain and frequent swelling, and further suffers from a weakened grip and permanent extension lag (the inability to fully straighten his finger).

On January 7, 2011, Conley brought suit under 42 U.S.C. § 1983, alleging that various defendants violated his Eighth Amendment rights by demonstrating deliberate indifference to his serious medical needs in the days following his injury. Defendants included Dr. Birch, Wexford, and Illinois Department of Corrections employees Brown, Daymon, Stanford, Fauless, Penny George, Michael Randle, and John Cox. The district court dismissed Conley's claims against Randle and Cox, and all remaining defendants moved for summary judgment. The court entered summary judgment in favor of Brown, George, and Wexford, and denied summary judgment with respect to Daymon, Stanford, and Fauless.

With regard to his claim against Dr. Birch, Conley argued that, based on her conversation with Potts on the evening of December 24, 2009, Dr. Birch strongly suspected that Conley's hand was fractured. And, in declining to either seek prompt confirmation of Conley's condition (by ordering an x-ray) or provide precautionary treatment (immobilization with a splint), she displayed deliberate indifference to his medical needs. Conley deposed Dr. Birch, who opined that, if a hand is described as discolored with all fingers swollen, that injury may be a mere contusion rather than a fracture. She further explained that it was her custom to defer to the professional judgment of the reporting nurse in determining whether an x-ray was necessary. Finally, Dr. Birch acknowledged that, in the case of a broken hand, callus formation (the process by which the bone starts to fuse and repair itself) begins “very quickly”—that is, within a matter of days. Conley's medical expert, Dr. Bruce Schlafly, was also deposed. He explained that, given a “diagnosis from the nurse of possible or probable fracture of the hand,” “the appropriate treatment then would have been to apply a splint and order X-rays.” He also stated that “it would have been reasonable to obtain the X-rays of the right hand within three to five days” of Conley's December 24 examination.²

After reviewing the record, the district court determined in a one-paragraph analysis that no reasonable jury could conclude that Dr. Birch had acted with deliberate indifference. The court concluded that while providing only ice and ibuprofen to Conley on December 24 was “a conservative course of treatment,” it was nonetheless appropriate for someone “complaining of pain and swelling.” Conley v. Birch, No. 11–cv–13, 2013 WL 6229960, at *8 (S.D.Ill. Dec. 2, 2013). While the district court admitted that the situation was “certainly unfortunate,” it determined that, because Conley's symptoms could just as easily have indicated a contusion, his fracture “was not so obvious to Birch ... that the failure to immediately [order an x-ray] rises to the level of deliberate indifference.”Id. Conley appeals.³

II. Discussion

We review the district court's grant of summary judgment to Dr. Birch de novo. Johnson v. Koppers, Inc., 726 F.3d 910, 914 (7th Cir.2013). In doing so, we must examine the record in the light most favorable to Conley as the nonmoving party, resolving all evidentiary conflicts and drawing all reasonable inferences in his favor. Id. Summary judgment is appropriate only if Dr. Birch has demonstrated that “there is no genuine dispute as to any material fact” and that she “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

A prison official may be found in violation of an inmate's Eighth Amendment right to be free from cruel and unusual punishment if she acts (or fails to act) with “deliberate indifference to [his] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Supreme Court has...