Orlowski v. Milwaukee Cnty.

• Decision Date: 18 September 2017
• Docket Number: No. 16-2166.,16-2166.
• Citation: 872 F.3d 417
• Parties: Gary ORLOWSKI, et al., Plaintiffs-Appellants, v. MILWAUKEE COUNTY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

872 F.3d 417

Gary ORLOWSKI, et al., Plaintiffs-Appellants,

v.MILWAUKEE COUNTY, et al., Defendants-Appellees.

No. 16-2166.

United States Court of Appeals, Seventh Circuit.

Argued November 7, 2016

Decided September 18, 2017

Jonathan Safran, Attorney, SAMSTER, KONKEL & SAFRAN, S.C., Milwaukee, WI, for Plaintiffs-Appellants.

Andrew A. Jones, Charles H. Bohl, Attorneys, HUSCH BLACKWELL LLP, Milwaukee, WI, for Defendants-Appellees.

Before Easterbrook and Williams, Circuit Judges and Feinerman, District Court Judge.^*

Williams, Circuit Judge.

Alexander Orlowski died of a methadone overdose

while in custody at the Milwaukee County House of Correction. Before his death, correctional officer Irby Alexander observed Orlowski sleeping and was concerned that he was having a difficult time breathing. Alexander tried to wake Orlowski up, but was unable to do so, so he called to inform his supervisor, Sergeant Anthony Manns, about the situation. They decided not to call for medical attention. Three hours later, Orlowski was dead.

Orlowski's estate (the "Estate") and his father, Gary Orlowski ("Gary"), filed this lawsuit pursuant to 42 U.S.C. § 1983 claiming that Alexander and Manns violated Orlowski and Gary's constitutional rights. The district court rejected all claims and granted summary judgment in favor of Alexander and Manns, and determined that evidence was insufficient to sustain the Estate's Eighth Amendment claim. The court also concluded that there was no evidence Alexander or Manns intended to deprive Gary of his relationship with his son, so his Fourteenth Amendment substantive due process claim failed. This appeal followed.

We affirm in part and reverse in part. The record demonstrates that there is a material dispute of fact as to whether Alexander and Manns were deliberately indifferent to Orlowski's severe medical condition. It is up to the jury to determine the credibility of witnesses and weigh the evidence, and there is sufficient evidence to go to trial here. So we reverse the district court's judgment on the Estate's Eighth Amendment claim. However, we agree with the district court that the law of this circuit forecloses Gary Orlowski's Fourteenth Amendment substantive due process claim. Because there is no evidence that Alexander or Manns intentionally interfered in Gary's familial relationship with his adult son, summary judgment was appropriate.

I. BACKGROUND

A. Factual History

Taking the facts and evidence in the light most favorable to the non-moving party, the following occurred on November 22, 2007.

Twenty-year-old Orlowski was an inmate at the Milwaukee House of Correction ("HOC") where he resided in the Zebra-2 dorm. Just past midnight, he was asleep in his bunk when dorm supervisor Irby Alexander began his shift. Alexander had no prior experience with Orlowski, and had not observed Orlowski sleeping (or awake) before. At approximately 12:28 a.m., as was his routine duty for the night, Alexander conducted a security check of the dorm, and did not notice anything unusual. He conducted another security check at 1:36 a.m., and again saw nothing unusual. Another HOC official, Sergeant Anthony Manns, also toured the dorm around the same time, and did not note anything unusual.

At approximately 3:45 a.m., Alexander received a call from the HOC kitchen to request workers for the morning's breakfast, so he began awakening inmates for kitchen duty. Orlowski was one of the kitchen workers, but when Alexander got to Orlowski's bunk, he was troubled by what he saw. Orlowski was breathing abnormally, making noises from hard and loud to very soft, and "at times his body would make sudden moves and he would again start breathing loudly." Larry Green, another inmate residing in a nearby bunk, tried to wake Orlowski up, but Orlowski would not wake up. Green, who was a chef for HOC's breakfast, was concerned because Orlowski had always gotten up for work in the kitchen, so he told Alexander that something was wrong with Orlowski. Because Green persisted in voicing his concern for Orlowski, Alexander (or another HOC official) disciplined him by putting him in the "hole."

Alexander was concerned. He thought that Orlowski might have a sleep disorder such as sleep apnea

because of his "intermittent-type breathing" and because he stopped breathing at times. Alexander tried to wake him by shaking his bunk and calling his name. How forcefully Alexander was trying to wake Orlowski is unclear, but Orlowski responded, at most, with changed breathing patterns and slight movement. Despite Alexander's efforts to wake him up, Orlowski remained unconscious and unresponsive. Alexander left him in his troubled state. However, when he returned to his desk, Alexander noted in the Zebra-2 dorm logbook:

Z2 Orlowski #719775403 appears to [have] a severe sleeping disorder. Inmate appears not to be breathing at times. Inmate makes a lot of noise while trying to breath [sic] and[/]or when he is breathing. Inmate appears to have a lot of difficulties sleeping.

Alexander then called his supervisor, Sergeant Manns. Alexander told him everything written in the log book, including Orlowski's trouble breathing. However, Manns denies that Alexander told him this information, asserting that if Alexander had told him Orlowski appeared to have a severe sleeping disorder and was not breathing, he would have called for a medical emergency. But, either way, no medical emergency was called. Instead, Mann told Alexander that if Orlowski woke up for breakfast or later in the morning, they would talk to him.

At 4:05 a.m., Alexander announced that it was breakfast time in Zebra-2, and at 4:20 a.m., the inmates went to breakfast. Orlowski, who had missed his kitchen duty, did not wake up for the scheduled breakfast and remained in bed.

At 4:35 a.m., HOC Corrections Manager, Virginia Ertman, toured the Zebra-2 dorm, and read Alexander's log book entry regarding Orlowski's condition. Alexander took her to Orlowksi's bunk and they observed him in the same state. Alexander told Ertman that he had told Manns about the issue, and that Manns would speak with Orlowski after breakfast.

Time passed and nothing was done. Alexander observed Orlowski at 4:55 a.m. and again at 5:48 a.m. in the same state. At approximately 6:10 a.m., the inmates returned from breakfast and Alexander heard someone shouting "man down, man down!" near Orlowski's bunk. Alexander went to investigate, and saw Orlowski, who looked dead. Alexander then called a medical emergency, and the medical unit came and attempted CPR and defibrillation

, but it was too late. Orlowski was pronounced dead at 6:54 a.m. The cause of his death was a methadone overdose, caused by pills Orlowski had purchased from another inmate. According to medical experts, Orlowski would have survived and made a full recovery if he had received medical care between 3:45 and 5:48 a.m.

B. Procedural History

On November 21, 2013, Alex Orlowski's estate (the "Estate") and his father, Gary (collectively the "Plaintiffs"), brought this civil suit against Milwaukee County, Irby Alexander, Anthony Manns, Ronald Malone, and Wisconsin County Mutual Insurance Corporation. Before the summary judgment motion was filed, the Plaintiffs dropped their claims against Malone and the Wisconsin County Mutual Insurance Company, and two of their Monell claims against Milwaukee County.

At summary judgment, the district court granted judgment in favor of the remaining defendants (Manns, Alexander, and Milwaukee County) on all of the Plaintiffs' remaining claims. This appeal followed, and Plaintiffs challenge the district court's decision on two claims: (1) the Estate's Eighth Amendment claim that Alexander and Manns were deliberately indifferent to Orlowski's serious medical condition; and (2) Gary's Fourteenth Amendment substantive due process claim that Alexander and Manns interfered with his familial relationship with his son. The Estate did not appeal its Monell claims against Milwaukee County. The Plaintiffs further requested remand of their indemnification claim against Milwaukee County for claims surviving summary judgment pursuant to Wis. Stat. § 895.46.

II. ANALYSIS

We review the district court's grant of summary judgment de novo , reviewing the evidence in the light most favorable to the non-moving parties, here the Plaintiffs. McDonald v. Hardy , 821 F.3d 882, 885 (7th Cir. 2016). Summary judgment is only appropriate where, "construing the record in the light most favorable to the party opposing summary judgment, no jury could reasonably find in favor of that party." Id. at 888 (citing Bagwe v. Sedgwick Claims Mgmt. Servs., Inc. , 811 F.3d 866, 879 (7th Cir. 2016) ).

A. Defendants Not Entitled to Qualified Immunity

The first question we must address is whether Alexander and Manns ("Defendants") are entitled to qualified immunity. Qualified immunity protects public officials, like Alexander and Manns, from suit where their challenged actions were reasonable mistakes made while performing their jobs. Findlay v. Lendermon , 722 F.3d 895, 899 (7th Cir. 2013). However, a public official's immunity is not absolute, and no immunity exists where: (1) his or her conduct violates a plaintiff's constitutional or statutory right; and (2) the right was clearly established at the time of the violation such that a "reasonable official would understand what he is doing violates that right." Id. (quoting Denius v. Dunlap , 209 F.3d 944, 950 (7th Cir. 2000) ) (internal quotation marks and additional citation omitted). For a right to be clearly established there does not have to be a prior case that is indistinguishable from the current case; instead, what is required is that the officials were on notice that their conduct was a constitutional or statutory violation. See Miller v. Jones , 444 F.3d 929, 934 (7th Cir. 2006). We consider Defendants' assertion of qualified immunity de novo , and draw all factual inferences in favor of Plaintiffs. Findlay , 722 F.3d at 899.

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