Cleveland-Perdue v. Brutsche

Citation881 F.2d 427
Decision Date04 August 1989
Docket NumberCLEVELAND-PERDU,S,No. 88-2513,88-2513
PartiesLindauccessor Representative and Administratrix of the Estate of Joseph Jones, Jr. (a/k/a Roscoe Simmons), Plaintiff-Appellee, v. Robert L. BRUTSCHE, M.D., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

G. Flint Taylor, Chicago, Ill., Michael A. Bergin, Locke, Reynolds, Boyd & Weisell, Indianapolis, Ind., Michael E. Deutsch, Chicago, Ill., Gerald H. McGlone, Brad Bough, McGlone & Bough, Terre Haute, Ind., Jessie A. Cook, Trueblood, Harmon, Carter & Cook, Terre Haute, Ind., for plaintiff-appellee.

Ronald E. Elberger, Bose, McKinney & Evans, Indianapolis, Ind., for defendants-appellants.

Before CUMMINGS, CUDAHY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This difficult case, which involves the issue of a federal prison official's immunity from a suit alleging deliberate indifference to a prisoner's medical needs, comes before us for the third time. See Green v. Carlson, 581 F.2d 669 (7th Cir.1978), aff'd Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); Green v. Carlson, 826 F.2d 647 (7th Cir.1987). Defendant Robert Brutsche appeals from a district court order denying his motion for summary judgment on the ground of qualified immunity. For the reasons discussed below, we affirm.

I.

The facts giving rise to this litigation are adequately set forth in our previous decisions and will be repeated here only as necessary to elucidate the issue presented by this case. On the morning of January 6, 1975, William Lowe, an inmate at the federal penitentiary at Terre Haute, Indiana died in the prison's hospital. 1 Shortly before his death, Lowe, on the recommendation of the hospital's sole full-time physician, 2 Dr. Silverman, had ingested the drug Demeral. At the time he prescribed the drug, Dr. Silverman was at home and despite the protests of the physician's assistant at the scene, adamantly refused to come to the prison hospital. In addition, Silverman rejected the suggestion that Lowe be transferred to an area hospital.

The death of William Lowe prompted an investigation by defendant Robert Brutsche, the medical director of the federal prison system. 3 During the course of his investigation, Brutsche visited the Terre Haute Prison where he interviewed several prison officials about alleged problems in the administration of medical services. Based on these interviews and his own observations, Brutsche recommended that Silverman 4 be relieved of his duties and that the record-keeping procedures at the hospital be improved. Silverman ultimately resigned as the hospital's physician leaving a vacancy that was not filled for the next several months. Brutsche, however did not check whether his proposed changes were implemented.

Between January 6, 1975, the date of Lowe's death, and August, 1975, two more inmates died at the prison's hospital. The first prisoner, Frederick McCain, was admitted to the hospital on April 9, 1975 after complaining of breathing problems. McCain, who suffered from chronic bronchitis, was given drugs normally prescribed for his condition and initially appeared to respond favorably. The next morning, however, McCain was dead. Brutsche investigated the circumstances surrounding McCain's death and concluded that adequate medical care had been provided.

On June 6, 1975, inmate Robert Graham reported to the hospital complaining of fatigue, loss of appetite, nausea and malaise. Graham was examined by a physician's assistant who prescribed treatment and sent Graham back to his cell. Three days later, however, Graham, was removed to the Indiana University Medical Center in Indianapolis where he soon passed away. Brutsche also investigated Graham's death and concluded that adequate medical care had been provided.

In August, 1975, Dr. Robert DeGracias assumed the duties of full-time physician at the Terre Haute Prison. On August 14, 1975 inmate Joseph Jones was admitted to the prison hospital after a severe asthma attack. Dr. DeGracias prescribed the drug Thorazine over the phone but refused to come to the hospital to examine Jones personally. At approximately 11:00 p.m., Jones went into respiratory arrest. When DeGracias was informed of this fact he ordered Jones sent to a local hospital. Jones, however, died shortly after he was admitted to the hospital.

Jones' death prompted another investigation by Brutsche. As a result of this investigation, Brutsche made a series of recommendations to the warden. These recommendations included keeping full in-patient records on anyone admitted to the prison hospital, utilizing outside facilities, encouraging better communications among the staff, and implementing a policy concerning the availability of physicians during off-duty hours.

Shortly after Jones' death, his mother filed a Bivens suit against Brutsche, DeGracias, and Norman Carlson, the director of the Bureau of Prisons, claiming that her son's death was caused by the defendants' deliberate indifference to Jones' medical needs. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The district court dismissed the complaint on the ground that the federal claim could not survive Jones' death but this court reversed. Green v. Carlson, 581 F.2d 669 (7th Cir.1978). The Supreme Court affirmed our decision holding that a federal common law of survivorship existed for Bivens suits. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

On remand, the defendants moved for summary judgment on the ground of qualified immunity. The district court denied this motion and the defendants took an interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). In Green v. Carlson, 826 F.2d 647 (7th Cir.1987), we vacated the district court's decision and remanded with directions for the district court to evaluate the entire record in determining the qualified immunity issue. Id. at 650. On remand, the district court held that Carlson, as a "supervisor of supervisors," was entitled to qualified immunity but that Brutsche and DeGracias were not. With regard to Brutsche, the district court held that there were several disputed issues that precluded the entry of summary judgment in his favor including: (1) whether the physician's assistants were adequately trained; (2) whether DeGracias had received any instruction about transporting seriously ill prisoners to area hospitals; (3) whether Brutsche had conducted a thorough investigation after the first death at the prison hospital; (4) whether the fact that the record-keeping recommendations were not implemented prior to Jones' death reflected on Brutsche's liability and (5) whether Brutsche should have implemented a policy concerning the need for physicians to come to the hospital to examine prisoners facing life-threatening conditions in the wake of Lowe's death. Brutsche now appeals the district court's denial of his qualified immunity motion for the second time. DeGracias has not taken an interlocutory appeal.

II.

The doctrine of qualified immunity protects government officials performing discretionary functions from liability for civil damages. Klein v. Ryan, 847 F.2d 368, 371 (7th Cir.1988). The doctrine itself is not contained in any statute. See Malley v. Briggs, 475 U.S. 335, 339, 106 S.Ct. 1092, 1095, 89 L.Ed.2d 271 (1985). Rather, qualified immunity is a judicially created doctrine that stems from the conclusion that few individuals will enter public service if this service entails the risk of personal liability for one's decisions.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court, overruling previous law, held that a purely objective inquiry should be used in determining whether a public official is entitled to qualified immunity. Under the Harlow standard, qualified immunity should be granted when the official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 818, 102 S.Ct. at 2738. The objective standard is designed to protect the public interest in deterrence of and compensation for an official's unlawful conduct while safeguarding the official's ability to make difficult decisions with independence and without fear of consequences. Id. at 819, 102 S.Ct. at 2738. Unfortunately, the Harlow Court failed to elaborate on the meaning of the term "clearly established right" choosing to have the lower courts develop the definition on a case-by-case basis. Id. at 818 n. 32, 102 S.Ct. at 2738 n. 32.

In Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1986), the Supreme Court attempted to provide direction in determining when a right has been clearly established. In Anderson, the Court, concerned that the artful pleader could convert the rule of qualified immunity into a rule of virtually unqualified liability by alleging violation of extremely abstract rights, emphasized that the right allegedly violated must have been clearly established in a particularized sense. Id. at 639-40, 107 S.Ct. at 3038-39. Thus, while the very action in question need not have previously been held unlawful, the contours of the right must have been established so that the unlawfulness of the defendant's conduct would have been apparent in light of existing law. Id. The purpose of this requirement is to ensure that a reasonable official would or should have been aware of the rights he or she may be violating. Id.

In the present case, the plaintiff alleged that Brutsche's failure to remedy systemic problems at Terre Haute's medical facility constituted deliberate indifference to the medical needs of inmates. In Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), the Supreme Court explicitly recognized that deliberate indifference to a prisoner's medical needs constitutes cruel and...

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