Burton v. Downey
| Decision Date | 08 October 2015 |
| Docket Number | No. 14–3591.,14–3591. |
| Citation | 805 F.3d 776 |
| Parties | Derek J. BURTON, Plaintiff–Appellee, v. Michael DOWNEY, et al., Defendants–Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Alison M. Harrington, Attorney, Best, Vanderlaan & Harrington, Naperville, IL, for Plaintiff–Appellee.
Michael D. Bersani, Attorney, Hervas, Condon & Bersani, Itasca, IL, for Defendant–Appellant.
Before FLAUM, MANION, and SYKES, Circuit Judges.
Plaintiff-appellee Derek J. Burton filed a civil rights action under 42 U.S.C. § 1983, alleging that members of the staff at the Jerome Combs Detention Center (“JCDC”) violated his constitutional rights while he was detained for eighteen months awaiting trial. The district court denied defendants' motion for summary judgment, ruling that a reasonable jury could conclude that defendants were deliberately indifferent to Burton's serious medical needs—the standard to prove a constitutional violation under the Due Process Clause of the Fourteenth Amendment. Because it found that triable issues of fact existed as to whether defendants' conduct violated Burton's constitutional rights, the district court also rejected defendants' defense of qualified immunity. Defendants appeal, and for the reasons that follow, we reverse the district court's decision denying summary judgment.
Burton was detained at the JCDC from September 23, 2009 to March 17, 2011, while he awaited trial and sentencing for charges of home repair fraud, false impersonation of a firefighter, and driving on a revoked license. Before his detention, Burton had been treated by Dr. Zumwalt, a primary care physician, for numerous health issues, including chronic back pain, chronic anxiety, acid reflux
, herpes simplex, hyperlipidemia, and depression. In addition to other medications, Dr. Zumwalt intermittently prescribed Norco, an opioid pain medication similar to Vicodin, to help Burton manage pain associated with these conditions.
In 2008, Dr. Zumwalt diagnosed Burton with avascular necrosis
, which is a loss of blood circulation that causes bone death, in Burton's hip. He prescribed Norco for the pain and recommended that Burton speak to Dr. Verghese, an orthopedic surgeon, for treatment options.
One week before Burton's detention, Dr. Verghese performed a core decompression surgery
to treat Burton's avascular necrosis and prescribed Ultram, a synthetic opiate also known as Tramadol, as a pain reliever. In his deposition, Dr. Verghese explained that he did not like to prescribe narcotic pain medication such as Norco and preferred Ultram for pain relief because it has less addictive potential. At that time, Dr. Verghese did not know that Burton was also taking Norco.
On the day of Burton's surgery, Dr. Zumwalt refilled Burton's Norco
prescription without consulting Dr. Verghese. Dr. Zumwalt stated in his deposition that he did not intend for Burton to be taking Norco for long, and that the prescription should have run out on September 29, 2009. Although Dr. Zumwalt conceded that Norco is addictive, he testified that the dose prescribed to Burton would not be addictive if taken over several weeks, and that it could have been stopped or interrupted without causing serious withdrawal symptoms or health issues.
On September 23, 2009, Burton was arrested and booked into the JCDC. Burton had taken a Vicodin
pill about an hour before his arrest. At the time of his detention, all of Burton's prescribed medications, including Lexapro for depression, Xanax for anxiety, Zantac for acid reflux, two types of prescription cream for herpes simplex, and Norco, were confiscated pursuant to JCDC policies and procedures.
Approximately thirty-five hours later, Physician's Assistant Timothy Menard examined Burton. Burton claims that during his examination, he informed Menard that he was experiencing severe pain as well as withdrawal symptoms because he had been taking Norco
for the past year, and requested that Menard contact Dr. Zumwalt. Menard contacted Dr. Verghese about Burton's surgery and health issues, but did not call Dr. Zumwalt or prescribe Norco. Menard instead prescribed Ultram, Xanax, Zantac, and cholesterol-lowering medication. Burton was allowed to take the Zantac and cholesterol medicine back to his cell to self-dispense, but the Ultram and Xanax were dispensed by the JCDC staff.
The parties dispute how quickly Burton received Ultram
after this examination. Burton contends that he did not receive pain medication until October 1, nine days after he was detained. He did not raise this argument in his complaint—it first appears in his response to defendants' motion for summary judgment, which was filed on November 13, 2013. The only evidence to support his claim is a document from Riverview Pharmacy showing that an Ultram
prescription was filled on October 1.
Burton's deposition taken in January 2012 tells a different story. In that deposition, Burton made several statements indicating that he began taking Ultram
on September 25, meaning that he was only deprived of pain relief for approximately thirty-five to forty-eight hours from the start of his detention. Specifically, Burton acknowledged that Nurse Heather Gill ordered his prescription for Ultram on September 25 and that he received Ultram after Menard's September 25 examination. Burton also admitted that when he met with Dr. Verghese on September 29, less than a week after his detention, he told Dr. Verghese that he was taking Ultram. Burton's statements are consistent with JCDC medical records that show that Ultram was dispensed on September 25.
On September 29, 2009, less than a week after he was detained, Burton saw Dr. Verghese for a follow-up appointment and complained that he was experiencing severe post-surgical pain. After conducting a physical examination and reviewing his X-rays, Dr. Verghese refilled Burton's prescription for Ultram
for seven to ten days and instructed that he use Tylenol after his Ultram prescription ran out. As before, Dr. Verghese did not prescribe Norco.
Dr. Verghese saw Burton again on October 27, 2009. Dr. Verghese stated in his deposition that at this time, Burton appeared to be recovering well. Dr. Verghese once again refused to prescribe narcotics, despite Burton's continued requests. He instead advised that Burton continue to take Tylenol
for pain relief and begin weaning off of his crutches.
On November 17, 2009, in a hearing for Burton's pending criminal case, Burton explained to Illinois Circuit Judge Clark Erickson that he was not receiving the medications that he had been prescribed before he was detained and that he was experiencing severe pain from sleeping on a thin mattress. The government made no objection to Burton's oral motion and no evidence or testimony was taken. At the end of the hearing, Judge Erickson ordered that the sheriff provide Burton with an extra mattress and furnish him with all medicines that were prescribed for him. But the JCDC did not provide Burton with an extra mattress, nor did it supply Burton with any prescriptions written by Dr. Zumwalt before Burton's detention, including Norco
.
Burton saw Dr. Verghese again on November 24, 2009. At this time, Burton complained that he continued to suffer from severe hip pain and that he was developing pain in his elbow from the crutches. Dr. Verghese diagnosed Burton with tennis elbow
and recommended physical therapy to help his recovery progress more quickly. Dr. Verghese stated in his deposition that he taught Burton some simple stretching exercises, but Burton contends that he was unable to understand the instructions.
Sometime after Burton's November 24 appointment, Nurse Gill called Dr. Verghese to inquire about his recommendation of physical therapy. Dr. Verghese informed her that Burton could do physical therapy exercises in his cell. Nurse Gill then gave Burton written instructions on how to complete physical therapy exercises with a towel and also provided a towel. The jail did not provide Burton with outside physical therapy. Burton continued to use crutches for the remainder of his detention.
Dr. Verghese saw Burton for the last time on February 25, 2010. Burton again complained about elbow and hip pain and admitted he had not been doing the stretches that Dr. Verghese and Nurse Gill had suggested. Dr. Verghese concluded that Burton should stretch his muscles surrounding his hip and elbow and recommended physical therapy, on the condition that Burton could convince the court that he should receive it.
During each appointment, Dr. Verghese examined Burton and determined that his avascular necrosis
was improving. In fact, Dr. Verghese stated in his deposition that as of November 24, 2009, he found no evidence of any avascular necrosis at all. But Burton continued to complain about severe pain and to request narcotic pain medication, which Dr. Verghese refused to prescribe. Dr. Verghese also refused to prescribe or recommend a thicker mattress despite Burton's requests because he did not believe that a second or different mattress would affect Burton's underlying medical condition.
For these reasons, at a later hearing in Burton's criminal case, Illinois Circuit Judge Kathy Bradshaw denied Burton's request that the court order the sheriff and the jail to provide him with narcotic medication, a second mattress, and a different orthopedist. Judge Bradshaw determined that Burton had no current prescriptions for the medication he was requesting and was being seen by a competent orthopedist, Dr. Verghese, who had not recommended an additional mattress or prescribed Norco
.
A few months after Burton's February 25 appointment with Dr. Verghese, the JCDC offered to make Burton a follow-up appointment, but Burton refused to go. In his deposition, Burton explained that he did not think Dr. Verghese was helping him get better, and that Dr. Verghese was writing prescriptions for physical therapy that the jail was not going to fill, so he...
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