James v. Hale, No. 19-1857

• Decision Date: 14 May 2020
• Docket Number: No. 19-1857
• Parties: Dustin JAMES, Plaintiff-Appellant, v. Deborah HALE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

959 F.3d 307

Dustin JAMES, Plaintiff-Appellant,

v.Deborah HALE, Defendant-Appellee.

No. 19-1857

United States Court of Appeals, Seventh Circuit.

Argued February 14, 2020

Decided May 14, 2020

Richard Dvorak, Attorney, Law Offices of Richard Dvorak, Willowbrook, IL, Timothy Charles Sansone, Attorney, Sandberg Phoenix & Von Gontard P.C., St. Louis, MO, for Plaintiff-Appellant

Abbey A. Fritz, Attorney, Sandberg Phoenix & Von Gontard P.C., St. Louis, MO, for Defendant-Appellee

Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.

SYKES, Circuit Judge.

It is axiomatic that the first step in the summary-judgment process is to ask whether the evidentiary record establishes a genuine issue of material fact for trial.

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To decide this question, the judge may disregard an affidavit that attempts to create a sham issue of fact. The "sham affidavit rule" exists in every circuit. This case illustrates the wisdom of the rule.

Dustin James, a former pretrial detainee at the St. Clair County Jail in Belleville, Illinois, filed a pro se civil-rights lawsuit against Deborah Hale, the administrator of the jail infirmary, accusing her of inadequately treating his medical needs.¹ He later acquired counsel, and significant discovery followed, including the production of jail infirmary and outside medical records that contradicted allegations in his complaint.

Through counsel James obtained leave from a magistrate judge to file an amended complaint, but the factual section simply repeated the allegations in the original pro se version. In a subsequent deposition, James contradicted those factual assertions. When Hale moved for summary judgment, James responded by swearing out an affidavit incorporating by reference the allegations in the amended complaint.

The magistrate judge disregarded the affidavit, as well as an affidavit submitted by James’s mother, and recommended that the district court grant the motion. The district judge excluded the affidavits under the sham-affidavit rule and entered summary judgment for Hale.

We affirm. Not only is James’s affidavit a sham, it was an improper attempt to convert the allegations in the complaint into sworn testimony to avert summary judgment. The exclusion of his mother’s affidavit was a mistake, but the error was harmless because she added nothing of substance. The constitutional claim lacks factual support, so summary judgment in Hale’s favor was proper.

I. Background

On the evening of January 11, 2015, Dustin James, a pretrial detainee in the St. Clair County Jail, was assaulted by another inmate and sustained severe facial injuries. At 11:15 p.m. he was taken to the jail infirmary. His civil-rights suit centers on the response by Deborah Hale, the jail’s Health Services Administrator. We ask the reader’s patience as we provide the details and dates; their importance will become clear later.

James’s injuries were serious enough to send him to the hospital. Just before midnight he arrived in the emergency room at St. Elizabeth’s Hospital where he received a CT scan

and was diagnosed with a left zygomatic arch fracture and facial laceration. He received two morphine injections for pain and the laceration was sutured. The ER doctor’s discharge instructions required removal of the stitches in five days and recommended a follow-up visit with an otolaryngologist (known colloquially as an "ENT" specialist). The doctor also referred James to Dr. Paul Szewczyk, an ophthalmologist, for follow-up care. James arrived back in the jail infirmary at 3 a.m. on January 12.

Nursing staff cared for James until he was seen on January 13 by a jail physician, who prescribed Motrin

for ten days, referred James to an ophthalmologist and an ENT, and kept him in the jail infirmary. Three days later James was transported to Quantum Vision Centers where Dr. Szewczyk examined him and determined that "[n]o treatment [was] currently required." The doctor recommended a follow-up visit in one week.

Back at the jail, Nurse Jennifer Sabaleski removed the sutures in James’s eyebrow on January 19. She also noted his complaint of facial numbness. On January 24 she documented James’s request for an extension of his pain medication. The next morning she examined him; he voiced no complaints of pain. James later complained of recurring facial pain to a different nurse, and a jail physician prescribed ten more days of Motrin

.

In accordance with the discharge instructions, James was examined by an ENT at Archview Medical Specialists on January 26. The doctor recommended a referral to a plastic surgeon for a possible reduction of the left orbital rim. Two days later at a follow-up appointment at Quantum Vision, Dr. Szewczyk noted that James’s vision, alignment, eye movements, retina, and optic nerve were all doing well. He also recommended a referral to a plastic surgeon for a complaint of cheek numbness.

On February 19 James asked to see Hale, complaining of facial pain. He requested more pain medication, but Hale told him that there was no current order for ibuprofen

and he would need to see a doctor to obtain a new prescription. She noted facial swelling and planned to refer him to a doctor, but the on-site physician wasn’t at the jail that day. James had an appointment scheduled with an off-site specialist the next day, so Hale did not submit a physician referral.

The following morning—Friday, February 20—James was transported to a clinic connected with St. Louis University Hospital where Dr. Bruce Kraemer, a plastic surgeon, examined him. James denied having any visual disturbances or eating difficulties. The exam revealed an elevated temperature, facial swelling, and pain; however, Dr. Kraemer noted no overt evidence of infection other than the facial swelling. He ordered another CT scan

because he apparently did not have access to the earlier one, so James was taken to radiology for that test. James was supposed to see Dr. Kraemer after the scan was completed, but he never returned to the clinic.

After reviewing the results of the CT scan

later that day, Dr. Kramer made the following observations in a 6:42 p.m. addendum to his examination notes:

Given the paucity of radiographic findings[,] his swelling[, and] his temperature[,] I called the jail where he is residing[.] I left a message with the medical Department that I would recommend putting him on Cipro

500 mg twice daily[,] and I gave them my cell number to call me over the weekend if they have questions and we will try to reach them again Monday morning.

The addendum also reflects a recommendation for a follow-up visit in two weeks.

As promised, on Monday morning, February 23, some-one from Dr. Kraemer’s office called the jail infirmary and recommended that James be given Cipro

, an antibiotic. He received the first dose that evening during the next scheduled medication pass. He was released from custody the next day.

In December 2015 James filed a pro se civil-rights complaint against Hale seeking damages under 42 U.S.C. § 1983 for denial of medical care in the jail.² He claimed that on or about January 20, he reported to Hale that his eye was nearly swollen shut, his face was numb, and he was hardly able to open his mouth on one side. He alleged that she gave him a "sick call form" with instructions to fill it out, and he did so repeatedly between January 20 and 28 but "was never seen by any medical staff." He alleged that his mother, Patricia Powell, called the jail the following week and spoke to Hale, but he "still received no medical attention to the problems at hand or was even seen by medical staff." He further alleged that he woke up on February 20 with pain and facial swelling and requested to see Hale, but when she saw him, she "stated to him he was fine." He alleged more generally that between January 20 and February 28 he suffered from vision loss, pain, facial swelling, and an inability to eat due to Hale’s "medical neglect." The complaint sought $100,000 in compensatory damages and $5,000 in punitive damages. The case was referred to a magistrate judge in January 2016.

James acquired counsel in January 2017, and counsel obtained James’s jail infirmary and outside medical records through discovery. The records contradicted or clarified the allegations in the complaint in numerous respects. A sample:

• In his complaint James alleged that on or about February 20, he woke up with pain and facial swelling and requested to see Hale. The jail infirmary records clarified that these events took place on February 19.

• The complaint alleged that James repeatedly complained of facial pain and swelling between January 20 and February 28 and received no medical attention. The jail infirmary records show that members of the nursing staff conducted daily rounds during this time period and dispensed ibuprofen

to him three times a day between January 13 and 23, when his initial ten-day prescription expired; he was examined by Nurse Sabaleski on January 24 and 25, and a jail physician thereafter extended his ibuprofen prescription for ten more days; he was examined on January 26 and 28 by an outside ENT and ophthalmologist, respectively, and by Dr. Kraemer (the plastic surgeon) on February 20.

• In his complaint James alleged that from January 20 to February 28 he suffered from vision loss and was unable to eat. The medical records show that he denied suffering from either of these problems at his February 20 appointment with Dr. Kraemer.

• The complaint alleged that the January 12 CT scan revealed a possible concussion. The medical records reflect no concussion.

Notwithstanding these contradictions and clarifications, in July 2017 James—through his counsel—obtained leave to file an amended complaint in which he simply repeated the factual allegations from his original complaint. In his February 2018 deposition, James directly contradicted many of the allegations in the amended complaint.

Hale eventually...