Kelley v. McGinnis, 88-3170

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation899 F.2d 612
Docket NumberNo. 88-3170,88-3170
PartiesSammie KELLEY, Jr., Plaintiff-Appellant, v. Kenneth McGINNIS, Director for the Department of Corrections, * James H. Thieret, Sandra McDonough, Alan L. Frentzel, Michael W. Frazer, Jerry Bradley, Gary D. Slutz, Beverly Clark, Ronald M. Shansky, M.D., Jim Greer, Michael W. Carter, Eric Daly, and L.V. Lipe, Defendants-Appellees.
Decision Date28 November 1989

Sammie Kelley, Jr., pro se.

William D. Frazier, Asst. Atty. Gen., Chicago, Ill., Charles S. Watson, Asst. Atty. Gen., Crim. Appeals Div., Springfield, Ill., for defendants-appellees.

Before WOOD, Jr., CUDAHY, and RIPPLE, Circuit Judges.


Sammie Kelley, Jr., a state prisoner proceeding pro se, appeals from the district court's entry of summary judgment for defendants in his 42 U.S.C. Sec. 1983 action. For the reasons stated below, we reverse and remand.


In his complaint, Kelley alleges that since July 1984 he has suffered from chronic foot problems and that defendants, state prison officials and Menard prison administrators, have refused to provide him with adequate medical treatment. Kelley alleges that defendants have thereby unnecessarily inflicted cruel and unusual punishment on him in violation of the Eighth Amendment. 1 Kelley began writing letters in March 1987 in an attempt to force the prison clinic to respond to his medical needs. This effort was unsuccessful. He also filed two internal grievances, but these were both rejected.

On June 30, 1987, Kelley filed suit in federal district court. The case was referred to Magistrate Gerald Cohn for pre-trial proceedings. Over the next several months various defendants filed motions to dismiss Kelley's complaint under Fed.R.Civ.P. 12(b)(6). Kelley filed opposing memoranda. On February 19, 1988, Magistrate Cohn held a hearing on the defendants' motions. The court continued the matter for thirty days and ordered the defendants to arrange for a medical examination of Kelley's feet. Defendants subsequently had Kelley's feet examined on February 29, 1988, by Dr. Milton Zemlyn, a physician at the Menard clinic; defendants filed the doctor's affidavit and Kelley's medical records with the court on March 8, 1988. 2 Kelley was not sent a copy of Zemlyn's affidavit.

On July 27, 1988, Magistrate Cohn issued his Report and Recommendation. In it, he wrote that since defendants filed "an affidavit and medical records ... with the court on March 8, 1988, these motions [to dismiss] will be construed as motions for summary judgment pursuant to Fed.R.Civ.P. 56." Contrary to the rule we established in Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), notice to this effect was not sent to Kelley. 3

Kelley filed objections to the magistrate's report with the district court. He argued that because he had not been given notice of the court's conversion of the defendants' motions to dismiss into motions for summary judgment, he was prejudiced by not being provided the opportunity to offer "other evidence contradicting the said affidavit of Dr. Milton Zemlyn." Kelley claims in his reply brief to this court that the "other evidence" is based on a medical examination conducted by an outside doctor. He claims that "[t]he record will reflect that plaintiff also was given a complete foot examination by an outside physician, in the state of ... Missouri on two separate occasions while incarcerated at the Menard Correctional Center, after the District Court Order was given which required a foot examination for plaintiff." 4 Kelley alleges that the outside doctor's diagnosis contradicts Zemlyn's affidavit, and Kelley implies that the state did not mention these examinations because they support his claim of deliberate indifference.

On October 20, 1988, Judge William Beatty entered summary judgment for the defendants over Kelley's protests. Because Kelley filed objections, Judge Beatty conducted a de novo review of the magistrate's report pursuant to 28 U.S.C. Sec. 636(b)(1). Despite Kelley's clear objections regarding receiving proper notice and his claim that he could provide contradictory evidence if given the opportunity, the district court failed to address the issue. In its order, the court simply held that under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), Kelley's complaint amounted to nothing more than a disagreement with medical personnel over proper treatment and did not establish deliberate indifference toward his serious medical needs. 5


On appeal, Kelley argues that the magistrate's failure to notify him of the transformation of the defendants' 12(b)(6) motions into motions for summary judgment is ground for reversal. In Lewis v. Faulkner, 689 F.2d 100, 101 (7th Cir.1982), we established that "a district court cannot properly act on a motion for summary judgment without giving the [pro se ] opposing party a reasonable opportunity to submit affidavits that contradict the affidavits submitted in support of the motion and demonstrate that there is a genuine issue of material fact which precludes granting the defendants summary judgment." 6 In Lewis, we remanded the case because the district court failed to give the pro se prisoner either notice of the effect of the defendant's motion for summary judgment or a reasonable opportunity to file counteraffidavits to the defendant's motion. Id. at 102. After Lewis, the "notice rule" was accepted as the law of this circuit. Ross v. Franzen, 777 F.2d 1216, 1219 (7th Cir.1985); see also Quinlan v. Fairman, 663 F.Supp. 24, 25 n. 2 (N.D.Ill.1987) (noting compliance with Lewis ); Burris v. Kirkpatrick, 573 F.Supp. 1084, 1084 n. 1 (N.D.Ind.1983) (same); Guffey v. Trapp, 572 F.Supp. 782, 782-83 (N.D.Ind.1983) (same).

In the case before us, the magistrate failed to give Kelley notice or a reasonable opportunity to file counter-affidavits. Kelley raised an objection to this omission, but the district court did not extend to Kelley an opportunity to file counteraffidavits before entering summary judgment against him. Instead, the district court, relying in part on Dr. Zemlyn's affidavit, adopted the magistrate's recommendation. These actions were contrary to our rule in Lewis.

In Lewis we based our remand to the district court solely on the basis of the district court's procedure in disposing of the case. We did not review the complaint to determine whether plaintiff stated a claim for relief. In Ross v. Franzen, supra, however, we suggested in dicta that we might not remand a case where "it appears 'beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " 777 F.2d at 1219 (quoting Muhammad v. Rowe, 638 F.2d 693, 695-96 (7th Cir.1981)). Given the allegations of Ross's complaint, we could not conclude that there was no set of facts entitling him to relief, and we therefore remanded to the district court because proper notice had not been given.

Kelley's complaint likewise alleges facts sufficient to prevail below under the Eighth Amendment if he can substantiate his claims. 7 In analyzing this question, we apply the recognized pro se standards to Kelley's complaint. 8 To state a claim for relief under the Eighth Amendment, Kelley must show that prison officials were deliberately indifferent to his serious medical needs. Estelle, 429 U.S. at 104, 97 S.Ct. at 291. Deliberate indifference can be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Id. at 104-05, 97 S.Ct. at 291 (citations omitted). Of course, "[t]his ... does not mean ... that every claim by a prisoner that he has not received adequate medical treatment states a claim under the Eighth Amendment." Id. at 105, 97 S.Ct. at 291. Negligence alone, or simple medical malpractice, is insufficient to state a claim for relief. Id. at 106, 97 S.Ct. at 292.

Kelley's complaint covers a variety of factual scenarios that, if proven, could provide Kelley relief. For example, he alleges that the personnel at the clinic intentionally refused to let him see a doctor about his foot problems; he alleges that non-medical personnel at the clinic repeatedly denied him access to a doctor and simply gave him ineffective foot treatments and sent him on his way. After repeated requests to see a doctor, he alleges that a doctor gave him a cursory examination and prescribed the same treatment that failed earlier to work. He claims that this action was intentional and that prison administrators to whom he complained "toyed" with him and intentionally aggravated his medical condition. Dr. Zemlyn's affidavit supports Kelley's assertion that he has suffered from his foot condition for years. 9 Kelley may recover if he can prove that the clinic personnel deliberately gave him a certain kind of treatment knowing that it was ineffective, either as a means of toying with him or as a way of choosing "the 'easier and less efficacious treatment.' " Estelle, 429 U.S. at 104 n. 10, 97 S.Ct. at 291 n. 10 (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir.1974)).

A second potential theory of recovery is that the prison clinic's repeated, long-term negligent treatment of his medical condition, rather than its intentional actions, amounts to deliberate indifference to Kelley's serious medical needs. Kelley argues that we can infer deliberate indifference because he has received three years of ineffective treatment. The defendants argue that this theory can never meet the Estelle standard of deliberate indifference, and that Kelley therefore fails to state a claim for relief. By definition, the defendants contend, "[w]here a prisoner's challenge focuses upon the quality and the source of the medical treatment received ... such a claim ... constitutes at most a State...

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