Rowe v. Gibson

• Decision Date: 19 August 2015
• Docket Number: No. 14–3316.,14–3316.
• Citation: 798 F.3d 622
• Parties: Jeffrey Allen ROWE, Plaintiff–Appellant, v. Monica GIBSON, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

798 F.3d 622

Jeffrey Allen ROWE, Plaintiff–Appellant

v.Monica GIBSON, et al., Defendants–Appellees.

No. 14–3316.

United States Court of Appeals, Seventh Circuit.

Submitted May 26, 2015.

Decided Aug. 19, 2015.

Jeffrey A. Rowe, Carlisle, IN, pro se.

Aaron T. Craft, Attorney, Office of the Attorney General, Jeb A. Crandall, Rachel A. East, Attorney, Bleeke Dillon Crandall, PC, Indianapolis, IN, for Defendant–Appellee.

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

Opinion

POSNER, Circuit Judge.

An Indiana prison inmate named Jeffrey Rowe, the plaintiff in this suit under 42 U.S.C. § 1983, charges administrators and prison staff (actually employees of Corizon, Inc., which provides medical services to the inmates at Pendleton Correctional Facility, Rowe's prison) with deliberate indifference to a serious medical need—that is, with knowing of a serious risk to inmate health or safety but responding ineffectually (as by departing substantially from accepted professional judgment) or not at all. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ; Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir.2008). Such conduct was held in Farmer to violate the cruel and unusual punishments clause of the Eighth Amendment, deemed applicable to state action by interpretation of the due process clause of the Fourteenth Amendment. Rowe charges gratuitous infliction of physical pain and potentially very serious medical harm—cogent examples of cruel and unusual punishment. He has a subsidiary claim of having been retaliated against for filing this lawsuit, a claim we discuss briefly toward the end of our opinion. The district judge granted summary judgment in favor of the defendants on both claims, dismissing Rowe's suit and precipitating this appeal.

In 2009, already an inmate at Pendleton, Rowe was diagnosed with reflux esophagitis

, also known as gastroesophageal reflux disease (GERD). See National Institutes of Health, “Gastroesophageal reflux disease,” www.nlm. nih.gov/medlineplus/ency/article/000265.htm (visited August 17, 2015, as were the other websites cited in this opinion). The Mayo Clinic explains that “a valve-like structure called the lower esophageal sphincter usually keeps the acidic contents of the stomach out of the esophagus. If this valve opens when it shouldn't or doesn't close properly, the contents of the stomach may back up into the esophagus (gastroesophageal reflux ).... [GERD] is a condition in which this backflow of acid is a frequent or ongoing problem. A complication of GERD is chronic inflammation and tissue damage in the esophagus.” Mayo Clinic, “Diseases and Conditions, Esophagitis: Reflux Esophagitis,” www. mayoclinic.org/diseases-conditions/esophagitis /basics/causes/con–20034313. As we explained in a recent case in which, as in this case, a prison inmate complained of failure to treat his GERD (and we reversed the grant of summary judgment in favor of the prison staff), “GERD can ... produce persistent, agonizing pain and discomfort. It can also produce ‘serious complications. Esophagitis can occur as a result of too much stomach acid in the esophagus. Esophagitis may cause esophageal bleeding or ulcers. In addition, a narrowing or stricture of the esophagus may occur from chronic scarring. Some people develop a condition known as Barrett's esophagus. This condition can increase the risk of esophageal cancer.’WebMD, Heartburn/GERD Health Center, “What Are the Complications of Long–Term GERD?” www.webmd.com/heartburn-gerd/guide/reflux-disease-gerd1?page=4.” Miller v. Campanella, 794 F.3d 878, 880, 2015 WL 4523799, at *2 (7th Cir. July 27, 2015). Rowe complains of pain based on neglect of his need for symptomatic relief; continued neglect will endanger him more profoundly.

The prison physician who diagnosed Rowe with GERD told him to take a 150–milligram Zantac

pill twice a day. Zantac inhibits the production of stomach acid and is commonly used to treat esophagitis (as we'll abbreviate the name of Rowe's disease). Although technically “Zantac ” is merely the trade name for ranitidine manufactured by GlaxoSmithKline (in prescription strengths) and Boehringer Ingelheim (in over-the-counter strengths), it is often used as a synonym for ranitidine, see Wikipedia, “Ranitidine,” http://en.wikipedia.org/wiki/Ranitidine, because Glaxo was the first, and remains the best-known, manufacturer. “Zantac ” is the only word for the drug that appears in the briefs, and so we too will call the drug that Rowe received “Zantac.”

After the diagnosis Rowe was given Zantac

pills and was permitted to keep them in his cell and take them when he felt the need to. This regimen continued for more than a year. But in January 2011 his pills were confiscated and he was told that he would be allowed to take a Zantac pill only when a prison nurse gave it to him, and that would be at 9:30 a.m. and then at 9:30 p.m. He complained that he needed to take Zantac with his meals, which were, oddly enough, scheduled by the prison for 4 a.m. and 4 p.m. (why these times, we are not told). The prison had decided that inmates such as Rowe who take psychiatric medications should not be allowed to keep any pills in their cells—yet the head of health care at the prison told Rowe that he could keep in his cell (and thus take whenever he wanted) any Zantac pills that he bought at the prison commissary—which, however, as we're about to see, he couldn't afford. No reason has been articulated for forbidding him to keep Zantac given him by prison staff while permitting him to keep Zantac that he bought at the commissary and take it whenever he needs to in order to prevent or alleviate pain. There is no suggestion that Zantac is a narcotic or otherwise consumed for nonmedical as well as medical reasons.

The defendants question Rowe's inability to pay for the pills. They point out that in one 13–month period he spent approximately $60 at the commissary. But the prison commissary charges $3.28 for just four 75–mg Zantac

pills (and recall that Rowe was to take two 150–mg pills daily), meaning that he would have to pay almost $1300 for a 13–month supply. And he was forbidden to buy more than eight days' worth of Zantac a month from the commissary, which was only about a quarter of the amount that he needed.

To continue the narrative of what seems a senseless series of decisions by the prison's medical staff, as well as heartless given what the staff knew about the disease and Rowe's continuous claims of severe pain: at the beginning of July 2011, a month after he filed suit, he ceased receiving Zantac

because his “prescription” (that is, his authorization to receive over-the-counter Zantac free of charge on a continuing basis) had lapsed. He made a series of requests for the drug beginning on July 3, but the nurse defendants denied all of them because he had no prescription. When he complained he was told by the administrative director of the medical staff: “Your chronic care condition does not warrant the continued use of Zantac. The continual use of over-the-counter medications can create further health problems in many instances. You will have to purchase this off of commissary if you wish to continue taking it.” Notice the contradiction (illustrating the run around to which Rowe was continually subjected) in denying Rowe free Zantac

because it could create “further health problems” but permitting him to buy and use it at will, though he couldn't afford to buy it. Nor is there any suggestion that Zantac is one of the over-the-counter medications that can create health problems if taken daily for a protracted period of time. And finally, if over-the-counter medicines are to be barred, why wasn't Rowe given a prescription for 300–mg Zantac pills; these are not only prescription rather than over-the-counter drugs but one such pill a day may be sufficient to control one's GERD, compared to two or more when an over-the-counter strength Zantac is prescribed.

On July 13, 2011, in response to Rowe's continued requests for a renewed prescription for Zantac

, a physician who works at the prison (though employed by Corizon) named William H. Wolfe, whose professional specialty is preventive medicine, about which see American College of Preventive Medicine: Physicians Dedicated to Prevention, www.acpm.org/, rather than gastroenterology, see healthgrades, “Dr. William H. Wolfe, MD.,” www. healthgrades.com/physician/dr–william–wolfe–2fgkl/background–check, and who is a frequent defendant in prisoner civil rights suits, reviewed Rowe's medical records and opined that his condition didn't require Zantac at all—this despite the fact that Rowe had been continuously prescribed Zantac for almost two years and that Wolfe himself had been the prescribing doctor for a quarter of that period. But though initially refusing to provide a new prescription for Zantac, Wolfe later relented and on August 2 prescribed it though he later stated in an affidavit that he had done so as a “courtesy” to Rowe and not out of medical necessity. (Prescribing drugs for prison inmates as a “courtesy” seems very odd; it is not explained.) The upshot was that Rowe had no access to Zantac for more than a month (between July 1 and August 3)—a significant deprivation. Even after Zantac was restored to him, he continued to be allowed to take it only at 9:30 a.m. and 9:30 p.m., both times being many hours distant from his meals.

In another affidavit Wolfe stated that “it does not matter what time of day Mr. Rowe receives his Zantac

prescription. Each Zantac pill is fully effective for twelve hour increments. Zantac does not have to be taken before or with a meal to be effective.” However, according to Boehringer Ingelheim, the manufacturer of over-the-counter Zantac, while Zantac can be taken at any time “to relieve symptoms,” in order “to prevent symptoms” it should be taken “30 to 60 minutes before eating food or drinking beverages that cause heartburn.” Zantac, “Maximum Strength...