Arnett v. Webster

• Decision Date: 12 September 2011
• Docket Number: No. 09–3280.,09–3280.
• Parties: Kevin B. ARNETT, Plaintiff–Appellant,v.Thomas A. WEBSTER, M.D., et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

658 F.3d 742

Kevin B. ARNETT, Plaintiff–Appellant,

v.Thomas A. WEBSTER, M.D., et al., Defendants–Appellees.

No. 09–3280.

United States Court of Appeals, Seventh Circuit.

Argued March 30, 2011.Decided Sept. 12, 2011.

Robert D. Shearer, Jr. (argued), Attorney, Chicago, IL, for Plaintiff–Appellant.William L. McCoskey (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Defendant–Appellee.Before FLAUM, WOOD, and TINDER, Circuit Judges.TINDER, Circuit Judge.

Kevin Arnett, a former prisoner at the Bureau of Prisons Federal Correctional Complex in Terre Haute, Indiana, brought this Bivens action, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for cruel and unusual punishment under the Eighth Amendment against a number of prison officials for violations he alleged occurred during his ten month stay there. When Arnett arrived at the Terre Haute facility in November 2006, he was seen by Thomas Webster, M.D., prison clinical director. Arnett informed Dr. Webster that he had rheumatoid arthritis (RA), a severe and debilitating form of arthritis which is progressive and causes painful inflammation of the joints and surrounding tissues, and asked for Enbrel (etanercept), a medication Arnett had been taking before arriving at the prison that had been successful in controlling his condition.

Because Enbrel wasn't on the prison's approved formulary, prison medical personnel had to seek prior approval to prescribe the medication by submitting a non-formulary drug authorization request to the Central Office of the Bureau of Prisons in Washington, D.C. (BOP) Dr. Webster submitted a request for Arnett to receive Gabapentin, used to treat nerve pain, but not Enbrel, and also submitted approval for a consultation with an outside rheumatologist. W. Eric Wilson, M.D., staff physician at Terre Haute, became Arnett's primary care physician on December 28, 2006. An outside rheumatologist examined Arnett in February 2007, and it can be inferred that he directed Dr. Wilson to place Arnett back on Enbrel. Despite the rheumatologist's instruction and Arnett's repeated pleas for the medication and complaints of continued pain and swelling, he didn't receive Enbrel until October 5, 2007, eleven days before he was transferred from the facility to a halfway house. Arnett was told by the defendants during the more than ten months he waited for the drug that the non-formulary request had been submitted, they were waiting for a response from the BOP, and were otherwise “working on it.” In the meantime, Arnett was prescribed pain medicine, but nothing to treat the inflammation and deterioration of his joints.

Because Arnett sought leave to proceed in forma pauperis, the district court screened his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and in so doing, dismissed all the defendants, except Dr. Webster, on the basis that Arnett failed to state a claim upon which relief could be granted. (Shortly after screening, Arnett's case was transferred from Judge Richard L. Young to Judge William T. Lawrence.) Dr. Webster then filed a summary judgment motion and the district court granted that motion. The district court entered judgment, directing that plaintiff take nothing by his complaint. Arnett appeals both rulings and we affirm in part and reverse in part. We affirm dismissal of the non-medical defendants on the pleadings, but find that Arnett properly stated a claim against the medical defendants. We, however, affirm the district court's grant of summary judgment in favor of Dr. Webster because Arnett failed to meet his burden to submit evidence upon which a reasonable jury could find that Dr. Webster acted with deliberate indifference.

I. Facts

Arnett brought this suit against the following Terre Haute prison employees for violation of his Eighth Amendment rights: Warden Richard Veach, Health Services Administrator Julia Beighley, Case Manager David Parker, Staff Physician W. Eric Wilson, M.D., Physician's Assistant Yves A. Paul–Blanc, and Clinical Director Thomas A. Webster, M.D. (Arnett also sued the Federal Bureau of Prisons, but recognizing that dismissal of the BOP was proper, he has not appealed that ruling.) Because we are reviewing a dismissal at both the pleading and summary judgment stage, we begin by setting forth the allegations and facts in Arnett's complaint and documents attached thereto. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 764 (7th Cir.2010) (On a motion to dismiss “[w]e consider documents attached to the complaint as part of the complaint itself.”)

In 2001, Arnett was diagnosed with RA by his treating physician, Steven R. Bergquist, M.D. RA involves autoimmune reactions and is a progressive disease that causes pain and inflammation in the joints.¹ After other medications proved unsuccessful in controlling his condition, Dr. Bergquist placed Arnett on the drug Enbrel in January 2004. Enbrel reduces joint swelling, helps prevent damage to the joints,² and was effective in decreasing Arnett's inflammation and accompanying pain. Enbrel is a protein that inhibits inflammation in the body by suppressing a substance produced by the immune system known as tumor necrosis factor (TNF).³ Subsequently, Arnett was convicted of a federal criminal offense and sentenced to imprisonment. He self-surrendered at the Terre Haute prison on November 1, 2006, and when he arrived, he brought his Enbrel medication, but prison officials confiscated it upon arrival.

During the next ten months, Arnett lodged numerous oral and written complaints to the defendants for Enbrel, but to no avail. Dr. Webster examined Arnett twice in November 2006. During both exams, Arnett told Dr. Webster that he needed Enbrel to control his RA and that because he didn't have the medication, his joints were swollen, especially his knees, and he was in intense pain; this resulted in Arnett having to walk with a cane. Dr. Webster agreed that Arnett's joints were swollen. In response to his requests for Enbrel, Dr. Webster said, “We'll work on it.” Dr. Webster attested that he has no recollection of meeting with Arnett or discussing his request for Enbrel. Arnett also informed Warden Veach in December 2006 that his Enbrel had been confiscated by prison employees and that he needed it to control his RA. Veach told Arnett to talk to Health Services Administrator Beighley. Arnett complained to Beighley and she told him to put his request in writing, which he did.

Dr. Wilson became Arnett's primary physician at the prison beginning December 28, 2006; he saw Arnett every other month until his transfer from the facility in October 2007. Each time he met with Dr. Wilson, Arnett informed him he needed Enbrel and without it, he suffered from joint swelling, particularly in his knees. Dr. Wilson examined Arnett's knees and other joints and agreed they were swollen. In response to Arnett's request, Dr. Wilson stated that he had filled out new forms to get Enbrel that had to be sent to the BOP in Washington, D.C.

Arnett's medical file was presented to the prison's utilization review committee on November 16, 2006, for consideration of Dr. Webster's recommendation that Arnett receive a consultation with a rheumatologist for his RA; the committee concurred that review of Arnett's condition by an outside consultant was warranted. Arnett was seen by Dr. Henry Davis, a rheumatologist, on February 7, 2007. Dr. Davis wrote a letter to Dr. Wilson that Arnett attached to his complaint. The letter explained that Arnett's RA had caused him “acute swelling and pain in his hands, wrists, knees, and neck” and that when he started on Enbrel, he did “fairly well,” but has been without it for the last four months. Dr. Davis noted that Arnett had “been taking Percocet and Norco without any benefit.” During his examination, Dr. Davis noted swelling and tenderness in different areas of Arnett's body and gave him an injection of Depo–Medrol (medication used to treat joint pain and swelling that occurs with arthritis) in his right shoulder. He stated to Dr. Wilson, “I would like for [Arnett] to resume Enbrel 15 mg once a week.” (More will be said about Dr. Davis' comment later.) Arnett still did not receive Enbrel, so in April 2007, he again informed Veach that he needed the drug to control his RA. Veach again told Arnett to talk to Beighley. Arnett's medical chart dated April 4 noted that Arnett was having pain in his right knee and that he received “Enbrel injections, but that was stopped when he arrived here.”

Between February and July 2007, Arnett directed two more oral requests to Beighley for Enbrel. Beighley stated that a request for the medication had been submitted, but it had not arrived. On June 28, 2007, Arnett filed a written request with Beighley for Enbrel, and stated that he was in intense pain from his joints swelling (he described his pain, “I'm walking on bone on bone and have a lot of pain in my knee”), had not been provided a substitute for Enbrel, and had not been seen by the orthopedic specialist as promised. He requested that he be seen by either a rheumatologist or an orthopedic specialist so he could get an injection in his knee to relieve the pain. Beighley responded, “You are on the list to be seen by the ortho.” On July 26, Arnett was evaluated by an orthopedic surgeon for complaints of right knee pain related to his RA condition and the surgeon injected Arnett's knee with Depo–Medrol.

Arnett began seeing Physician's Assistant Paul–Blanc on a daily basis beginning in May 2007. Each time he saw Paul–Blanc, Arnett reiterated his plea for Enbrel and stated that because he had not been taking the drug, his joints were swollen and he was in intense pain. Paul–Blanc agreed that Arnett's joints were swollen. In response to Arnett's requests, Paul–Blanc stated that a request for the drug had been made but that he had not yet heard anything from...