Dunigan ex rel. Nyman v. Winnebago County

• Decision Date: 19 January 1999
• Docket Number: No. 97-3232,97-3232
• Citation: 165 F.3d 587
• Parties: Latoyia Y. DUNIGAN, Ladesha R. Dunigan, and Isaiah Vance, by his mother, Cynthia NYMAN, Plaintiffs-Appellants, and Estate of L.T. Vance and Marie Coleman, Appellants, v. WINNEBAGO COUNTY, Robert Kraus, formerly Winnebago County Sheriff, Thomas Makurat, Officer, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 587

165 F.3d 587

Latoyia Y. DUNIGAN, Ladesha R. Dunigan, and Isaiah Vance, by his mother, Cynthia NYMAN, Plaintiffs-Appellants and Estate of L.T. Vance and Marie Coleman, Appellants, v. WINNEBAGO COUNTY, Robert Kraus, formerly Winnebago County Sheriff, Thomas Makurat, Officer, et al Defendants-Appellees.

No. 97-3232.

United States Court of Appeals Seventh Circuit.

Argued Oct. 27, 1998.

Decided Jan. 19, 1999.

John C. Peterson, Mary T. Lokensgard (argued), Robinson, Peterson, Berk & Cross, Appleton, WI, for Plaintiffs-Appellants.

Charles H. Bohl, Kathryn M. West (argued), Elizabeth M. Estes, Whyte Hirschboeck Dudek, S.C., Milwaukee, WI, for Defendants-Appellees.

Before CUMMINGS, CUDAHY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

L.T. Vance died while imprisoned in the Winnebago County Jail (WCJ). His survivors (the plaintiffs) and estate sued various county officials (the defendants) under 42 U.S.C. § 1983 alleging that the officials' failure to administer proper medical care constituted cruel and unusual punishment in violation of the Eighth Amendment. The district court granted the defendants' motion for summary judgment and the plaintiffs appeal that order. The lack of sufficient probative evidence from which a jury could infer deliberate indifference to Vance's serious medical condition determines the outcome. We affirm.

I. Background

On July 6, 1994, the Winnebago County authorities arrested L.T. Vance and locked him up at the WCJ. Vance's medical care, administered by a team of medical personnel, began immediately. During the standard medical screening intake interview, Vance informed a WCJ nurse that his vision was blurry as a result of a car accident several weeks before. The nurse conducted a thorough examination of Vance and took copious notes on his condition. On July 11, Vance renewed his complaints of double vision and headaches. Nurse Gaertner, the full-time WCJ nurse practitioner, referred Vance to Dr. Krieger, the WCJ doctor. ¹ Dr. Krieger examined Vance on July 14 and ordered a CT scan. The CT scan, conducted on July 22, came back normal.

Vance was moved to another jail at the end of July but returned to the WCJ on September 6. Upon his return, Vance complained of headaches, double vision, muscle fatigue and reduced strength in his arms, saying he felt "like things are getting worse." That same day, Nurse Gaertner consulted with Dr. Krieger, who recommended that Vance see a neurologist. On September 9, Dr. Haffar, a neurologist, conducted an initial neurological examination of Vance. He determined that further inquiry was appropriate and himself administered a series of more specialized tests on September 21. The results were all normal.

On October 1, Vance fell and cut his head. Dr. Krieger promptly treated him for the injury. Vance went back to Dr. Haffar on October 6 for a follow-up visit. Dr. Haffar tentatively diagnosed Vance with myasthenia gravis (MG). MG is a disease "marked by abnormal fatigability and weakness of the muscles," especially the ocular muscles, which often results in double vision and droopy eyelids. 6 A TTORNEY'S T EXTBOOK OF M EDICINE §§ 23.140-23.142 (Roscoe N. Gray & Louise J. Gordy, eds., 3rd ed.1998). MG's symptoms are intermittent; a sufferer may experience periods of extreme weakness followed closely by periods of normal strength. The symptomology can be so variable that lay people unfamiliar with MG might conclude that a sufferer was faking illness. See J.E. SCHMIDT, 4 ATTORNEY'S DICTIONARY OF MEDICINE AND WORD FINDER M-302 (1998) (MG "might be mistaken for ... hysteria"). Dr. Haffar believed that Vance had the mildest form of MG--Ocular MG--which would cause Vance's eyelids to droop but would not affect his breathing. He prescribed Mestinon, a drug commonly used to treat MG, and asked to see Vance again in three months. The WCJ medical staff did not know of Dr. Haffar's diagnosis, nor were they familiar with typical symptoms of MG.

For the next five weeks, Vance's condition fluctuated dramatically and frequently between periods of normal strength and periods of severe weakness. He saw Nurse Gaertner frequently during this period, and she in turn consulted with Dr. Krieger, who examined Vance and recommended that he be housed in a receiving cell for observation. One three-day stretch well illustrates Vance's variable condition. On October 24, Vance felt strong enough to request that he be returned to the general population so that he could watch television. Nurse Gaertner noted that he was doing exercises in his cell and did not complain about dizziness. Her log states: "will move back to gen. population [...] if gait is observed as being unsteady will reevaluate again for safety, running log kept in module of activity and videotaped." That same evening, Officer Ron Timm went to transfer Vance to the general population. Vance was unable to carry his personal effects, walked very slowly and eventually collapsed on his way to the general population cell block. Officer Timm, who only heard but did not see the fall, immediately checked Vance for injuries, found nothing wrong and brought Vance back to the receiving cell where he could be easily monitored. Officer Timm arranged for checks on Vance every fifteen minutes. The next day, October 25, Nurse Gaertner called Dr. Haffar about Vance's continued problems with dizziness and unsteadiness, but further noted that Vance was moving from a sitting position to a standing position and removing his uniform without any difficulty. On October 26, Nurse Gaertner spoke with Dr. Haffar about Vance's condition. Dr. Haffar recommended continuing the course of Mestinon medication and close observation. Again, Nurse Gaertner (and everyone else at the WCJ) did not know of Dr. Haffar's diagnosis of Vance's condition or the typical symptoms of MG.

Vance's variable symptomology continued into November. Nurse Gaertner noted in a medical log entry on November 1 that Vance complained about not being able to move from a sitting to a standing position. On November 3 she observed Vance on camera sweeping and mopping his cell. On Tuesday, November 8, Nurse Gaertner asked to see Vance in the nurse's office. When Vance felt unsteady on his feet, Nurse Gaertner went to his cell to examine him. He claimed he did not feel well and exhibited weak hand strength but normal leg strength. The next day, November 9, Officer Thomas Makurat found Vance lying on his cell floor with his head resting on his bunk. Vance claimed that he had fallen and hurt his neck. Officer Makurat called for assistance and Officer Reeves responded. Neither officer could find any injuries, and Vance moved his arms and legs easily. The officers arranged for close observation from the control module. That same day, Nurse Gaertner, suspecting that Vance's condition might be at least in part psychosomatic, consulted with Dr. Krieger about getting Vance an independent psychological examination. The next day, November 10, another nurse followed up to determine when and where Vance could be examined. After consulting with Dr. Krieger about the urgency of the situation, she arranged an appointment for Vance on the following Monday, November 14.

On Friday, November 11, Vance defecated in his uniform. He claimed to be too weak to get to the toilet but was later observed moving about his cell without difficulty. The next day Vance again defecated in his uniform and then collapsed on his way to the showers. Officers Folletz and Scovronski could find no injuries and helped Vance into a chair. Officer Folletz then supervised Vance's seated shower, returned Vance to his cell and brought him cleaning equipment and fresh linens. Officer Folletz checked back on Vance numerous times during his shift. The video camera later recorded Vance getting dressed, exercising on his bed, standing and sitting without difficulty and cleaning his cell area.

On Sunday, November 13, the camera again recorded Vance's normal behavior. He ate breakfast, went to the bathroom and exercised his arms freely. Officer Folletz distributed Vance's medication at 7:30 and 11:30 that morning and reported that Vance said he felt "okay." At 1:45 that afternoon, Officer Folletz observed Vance singing along with his radio; Officer Folletz encouraged Vance to "keep it up." At 4:30 that afternoon, Vance did not take his medication. Later that evening, at about 11:00, Officer Makurat was passing out medications to inmates and noticed that Vance was extremely lethargic. Officer Makurat had to help Vance to sit up on his bunk; he never saw whether Vance took this round of medication.

Sometime between 2:30 and 3:30 on the morning of Monday, November 14, the control module clerk, Sean Eddy, observed Vance sitting on the edge of his bunk swinging his legs back and forth. This was not unusual. Shortly thereafter, Vance's condition took a turn for the worse. At about 4:30, Officer Anthony Mann was on routine security rounds when he noticed that Vance was lying in an odd position on his bunk. When Officer Mann passed by about 45 minutes later, Vance had not moved. Officer Mann entered the cell, found Vance unresponsive and immediately radioed for help. A second guard, Officer Christine Hughes, responded and directed another WCJ employee to call 911. Officers Hughes and Mann administered CPR until paramedics arrived. Vance was taken by ambulance to the Mercy Medical Center in Oshkosh where efforts to resuscitate him proved unsuccessful. He was pronounced dead at about 5:45 a.m. on November 14, 1994.

Vance's survivors brought a claim under 42 U.S.C. § 1983 alleging that the WCJ and its officers had violated Vance's Eighth Amendment rights by depriving him of necessary medical care. Experts hired by both parties agreed that Vance suffered from MG but disagreed on whether this condition significantly contributed to his death. The defendants moved for summary judgment. The district court held that to...