Alma Glisson v. Correctional Medical Services , 813 F.3d 662 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-1419
ALMA GLISSON, as Personal Represen-
tative of the Estate of NICHOLAS L.
GLISSON,
Plaintiff-Appellant,
v.
INDIANA DEPARTMENT OF CORREC-
TIONS, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cv-01418-SEB-MJD — Sarah Evans Barker, Judge.
ARGUED OCTOBER 26, 2015 — DECIDED FEBRUARY 17, 2016
Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
BAUER, Circuit Judge. Plaintiff-appellant, Alma Glisson
(“Appellant”), sued Correctional Medical Services, Inc., also
known as Corizon, Inc. (“CMS”), its employees Dr. Malaka G.
Hermina (“Dr. Hermina”), Mary Combs, R.N. (“Nurse
Combs”), and the Indiana Department of Corrections (“IDOC”)
(collectively “Appellees”), on behalf of her deceased son,
2 No. 15-1419
Nicholas Glisson (“Glisson”). Glisson died while incarcerated
at Plainfield Correctional Facility (“Plainfield”) in Plainfield,
Indiana. The lawsuit’s federal claims arise under 42 U.S.C.
§ 1983 (“§ 1983”), specifically alleging that Appellees did not
offer Glisson constitutionally adequate medical care, and that
this failure violated his Eighth Amendment rights against cruel
and unusual punishment. The district court granted summary
judgment in favor of Appellees on all federal claims, and
remanded the remaining state law claims. Appellant now only
appeals the grant of summary judgment in favor of CMS,
arguing that CMS’s failure to implement a particular IDOC
Health Care Service Directive (the “Directive”) violated
Glisson’s Eighth Amendment rights. However, because
Appellant has not produced legally sufficient evidence to
demonstrate a genuine issue of material fact on this matter, we
affirm summary judgment for CMS.
I. BACKGROUND
Glisson’s medical history is tragic. Diagnosed with laryn-
geal cancer in 2003, he underwent surgery that removed his
larynx and part of his pharynx. The surgery also removed
portions of Glisson’s mandible and thirteen teeth. The surgery
left him with a permanent stoma, or opening in his throat,
accompanied by a tracheostomy tube. He was later fitted
with a voice prosthesis, and received postoperative radiation
treatment. After the surgery, he suffered from painful swallow-
ing (dysphagia) and neck pain, both resulting from progressive
neck instability. In 2008, doctors inserted a gastrojejunostomy
tube (“G-tube”) through his stomach to help with nutrition. In
March 2010, a cancerous lesion was found on his tongue, but
was successfully excised.
No. 15-1419 3
Exacerbating the effects of Glisson’s cancer and surgery
were ongoing memory issues, hypothyroidism, depression,
smoking, and alcohol abuse. Despite these many health issues,
Glisson lived independently and cared for himself; he even
cared for his grandmother when she was sick and his brother
when he was dying.
On August 31, 2010, Glisson was sentenced to incarceration
for dealing in a controlled substance. He came into the custody
of IDOC on September 3, 2010. IDOC housed him in its
Reception Diagnostic Center from September 3 through
September 17. During this time, CMS medical personnel noted
spikes in Glisson’s blood pressure, an occasional low pulse,
and low oxygen saturation level. He also demonstrated signs
of confusion and anger, and was at one point deemed a suicide
risk. As a result, IDOC placed him in segregation and had him
undergo a psychiatric evaluation.
IDOC transferred him from the Reception Diagnostic
Center to Plainfield on September 17. At Plainfield, Glisson’s
condition further deteriorated. At Plainfield, he came under
the medical care of Dr. Hermina and Nurse Combs. Plainfield
personnel quickly determined that Glisson’s medical issues
were worsening. On September 29, he presented with symp-
toms suggesting acute renal failure. In response, IDOC
personnel transferred him to a local hospital, where he
remained until October 7.
Upon returning to Plainfield, Glisson appeared stable.
However, on the morning of October 10, Nurse Combs
witnessed Glisson exhibiting strange behavior and transferred
him to a medical isolation room. While isolated, Glisson was
restless, moving from one side of the bed to the other. At
8:20 a.m., IDOC staff reported that Glisson was sitting upright
4 No. 15-1419
in his bed, unresponsive. Emergency personnel arrived at
8:30 a.m., and pronounced Glisson dead at 8:35 a.m. The
coroner concluded that Glisson died of natural causes, result-
ing from complications of laryngeal cancer with contributory
renal failure. A pathologist agreed with these findings, and
added that Glisson’s various medical issues—diminished
mental state, oxygen deficiency, and acute renal failure—were
directly attributable to his throat cancer and laryngectomy.
After Glisson’s death, Appellant sued Appellees in Indiana
state court. She alleged that Dr. Hermina and Nurse Combs
were deliberately indifferent to Glisson’s medical needs. She
also alleged, under Monell v. Department of Social Services of City
of New York, 436 U.S. 658 (1978), and its progeny, that CMS’s
failure to implement the Directive led to this deliberate
indifference. The Directive reads:
Each facility must develop a site[-]specific directive
that guides the management of the chronic disease
management and clinics. Each site must have easily
available a compilation of instructions for proper
management [of] chronic diseases in the chronic
disease clinic setting.
Related IDOC guidelines further note that the Directive is
necessary because “[o]ffenders with serious chronic health
conditions need to receive planned care in a continuous
fashion” and that care provided to such inmates “should be
organized and planned and should be consistent across [IDOC]
facility lines.”
CMS has argued throughout the litigation that it is not
obligated to implement IDOC directives. It also admitted that
it did not implement the Directive, stating instead that
Glisson’s care was “based on standards of medical and nursing
No. 15-1419 5
care.” CMS acknowledged that while IDOC “implement[s]
Health Care Service Directives … generally none of those
directives were relied on in rendering medical care and
treatment to Mr. Glisson.”
Appellant claims that because CMS did not adopt the
Directive and did not create a centralized treatment plan for
Glisson, his care was fractured and disorganized. She argues
that CMS’s lack of a policy of centralized care for inmates like
Glisson led to the deliberate indifference of Dr. Hermina,
Nurse Combs, and other CMS personnel. She specifically
argues that CMS’s failure to adopt any policy mandating
coordinated care “prevent[ed] [CMS] medical personnel from
communicating properly and ensuring appropriate continuity
of care for inmates with serious medical problems,” such as
Glisson.
After Appellant filed the suit in Indiana court, Appellees
removed the case to federal court, and then moved for sum-
mary judgment on the federal law claims. The district court
granted summary judgment for Appellees, and remanded the
remaining state law claims. In granting summary judgment,
the district court found that Dr. Hermina’s and Nurse Combs’s
actions did not constitute deliberate indifference, and that as a
result Glisson did not suffer any constitutional injury. Having
determined that Glisson suffered no constitutional injury, the
district court then held that Appellant could not prove a Monell
claim against CMS as a matter of law.
Appellant appealed the district court’s order.
II. DISCUSSION
Appellant only appeals the dismissal of her Monell claim
against CMS. But this claim fails for want of necessary evi-
dence. Specifically, Appellant has not presented evidence that
6 No. 15-1419
CMS’s failure to implement the Directive led to a widespread
practice of deliberate indifference against not only Glisson, but
other inmates as well.
We review the grant of summary judgment de novo,
construing the facts in the light most favorable to the non-
moving party—here, Appellant. Rahn v. Bd. of Trustees of N. Ill.
Univ., 803 F.3d 285, 287 (7th Cir. 2015) (citation omitted).
Summary judgment is appropriate when there is no dispute of
material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a); Lalowski v. City of Des
Plaines, 789 F.3d 784, 787 (7th Cir. 2015). That is, at this stage,
Appellant must have produced evidence that indicates a
genuine issue of material fact. See Armato v. Grounds, 766 F.3d
713, 719 (7th Cir. 2014) (quotations and citations omitted). See
also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting
Fed. R. Civ. P. 56(e) in holding that non-moving party must
“designate ‘specific facts showing that there is a genuine issue
for trial’”).
Here, Appellant must produce evidence that CMS’s failure
to adopt the Directive led to deliberately indifferent medical
care by CMS personnel. Government entities1 “have an
affirmative duty to provide medical care to their inmates.”
Duckworth v. Ahmad, 532 F.3d 675, 678–79 (7th Cir. 2008) (citing
Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Deliberate indiffer-
ence to a prisoner’s “serious medical needs … constitutes the
‘unnecessary and wanton infliction of pain’ and violates the
Eighth Amendment’s prohibition against cruel and unusual
1
Though a private corporation, CMS concedes that because it performs a
government function—providing medical care to state prisoners—it may
be liable as a government entity under § 1983. E.g., Iskander v. Vill. of Forest
Park, 690 F.2d 126, 128 (7th Cir. 1982).
No. 15-1419 7
punishments.” Duckworth, 532 F.3d at 679 (quoting Estelle, 429
U.S. at 104 (internal quotation and citation omitted)).
Here, Appellant has not produced the necessary evidence
for a Monell claim against CMS. Private corporations like CMS
cannot be liable in a § 1983 suit under respondeat superior.2 E.g.,
Iskander, 690 F.2d at 128; Gayton v. McCoy, 593 F.3d 610, 622 (7th
Cir. 2010); Maniscalco v. Simon, 712 F.3d 1139, 1145 (7th Cir.
2013). Thus, even if Dr. Hermina and Nurse Combs were
deliberately indifferent to Glisson’s medical needs, a court
cannot impute this liability to their employer, CMS. Rather, to
survive summary judgment, Appellant must produce evidence
of “the existence of an ‘official policy’ or other governmental
custom that not only causes but is the ‘moving force’ behind
the deprivation of constitutional rights.” Teesdale v. City of Chi.,
690 F.3d 829, 833–34 (7th Cir. 2012) (quoting City of Canton,
Ohio v. Harris, 489 U.S. 378, 388–89 (1989)). See also Monell, 436
U.S. at 694.
Further, where a plaintiff alleges that a lack of a policy
caused a constitutional violation, she must produce “more
evidence than a single incident to establish liability.” Calhoun
v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (citing City of Okla.
City v. Tuttle, 471 U.S. 808, 822–23 (1985)). She must produce
2
Additionally, though CMS did not argue waiver on appeal, Appellant
has nevertheless waived her right to recovery on a theory of respondeat
superior. In the district court, she stated in her response to Defendants’
Motion for Summary Judgment, “Plaintiff does not seek to impose liability
on CMS under § 1983 based on respondeat superior.” Yet Appellant now asks
this Court to apply respondeat superior to private corporations like CMS.
This is a new argument on appeal, and is thus waived. See Brown v.
Automotive Components Holdings, LLC, 622 F.3d 685, 691 (7th Cir. 2010)
(“[a]rguments not raised in the district court are considered waived on
appeal”).
8 No. 15-1419
evidence of a “series of incidents” (Hahn v. Walsh, 762 F.3d 617,
638 (7th Cir. 2013), cert. denied, 135 S. Ct. 1419 (2015)), or a
“widespread practice constituting custom and usage.” Phelan
v. Cook Cnty., 463 F.3d 773, 789 (7th Cir. 2008) (a “widespread
practice” argument “would focus on the application of the
policy to many different individuals”). Evidence of a series of
incidents permits the inference that “there is a true municipal
policy at issue,” and allows the factfinder “to understand what
the omission means.” Calhoun, 408 F.3d at 380. By presenting
a series of incidents where “the same problem has arisen many
times and the [government entity] has acquiesced in the
outcome,” a plaintiff has produced sufficient evidence that the
lack of policy is in fact a de facto policy choice, not a discrete
omission. Id. However, “[w]ithout evidence that a series of
incidents brought the risk at issue to the attention of the
policymaker, we cannot infer that the lack of a policy is the
result of deliberate indifference.” Hahn, 762 F.3d at 637–38
(citing Calhoun, 408 F.3d at 380).
Such is the case here. Appellant alleges that CMS failed to
implement the Directive mandating a centralized care plan for
inmates such as Glisson. Appellant therefore argues that
CMS’s lack of a policy was the “moving force” behind any
deliberate indifference to Glisson’s medical needs. Thus, to
show that CMS’s failure to implement the Directive amounted
to a de facto policy, Appellant must have produced evidence
that CMS staff had been deliberately indifferent to other
inmates, and that a widespread practice of deliberate indiffer-
ence flowed from the failure to implement the Directive. But
Appellant has not done so. Instead, she has only produced
evidence of alleged deliberate indifference towards Glisson,
No. 15-1419 9
and admitted as much at oral argument.3 This evidence alone
is insufficient to maintain a Monell claim against CMS. Absent
evidence of a series of incidents or a widespread practice
against other inmates, we cannot infer that CMS’s failure to
implement the Directive was the result of deliberate indiffer-
ence. See Hahn, 762 F.3d at 637. Therefore, Appellant’s claim
fails as a matter of law, and summary judgment for CMS was
appropriate.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
3
Appellant waived use of evidence of other incidents because she did not
present such evidence before the district court. Her “Separate Appendix”
includes a 2013 Miami Herald news article discussing various lawsuits
brought by Florida prisoners against CMS (as Corizon), a 2012 expert report
relating to a lawsuit against Corizon brought in federal court in Idaho, and
a 2015 settlement order related to a lawsuit against Corizon in the Northern
District of California. She argues in her appellate brief that this is evidence
of a “pattern of constitutionally inadequate care.” But she presented none
of these three documents as evidence before the district court. Of course,
she could not have presented the 2015 settlement order to the district court
in this case, because the district court in this case ruled on summary
judgment on June 4, 2014. However, the district court presiding over the
Northern District of California settlement had denied summary judgment
to Corizon on April 14, 2014, before the district court in this case ruled. See
M.H. v. Cnty. of Alameda, 62 F. Supp. 3d 1049, 1087–88 (N.D. Cal. 2014).
Thus, Appellant could have offered the denial of summary judgment in
M.H. as supplemental authority for her argument before the district court.
But she failed to do so, and has thus waived any argument relating to these
three documents. See Brown, 622 F.3d at 691.
10 No. 15-1419
WOOD, Chief Judge, dissenting. Most cases in which a
prisoner raises a claim about constitutionally inadequate
medical care in the prison are brought against the doctor or
other professional who actually delivered the services. In
those cases, as Estelle v. Gamble, 429 U.S. 97 (1976), and
Farmer v. Brennan, 511 U.S. 825 (1994), illustrate, the prisoner
may prevail only if the providers exhibited deliberate indif-
ference to a substantial risk of serious harm. The Eighth
Amendment, after all, is about unconstitutional punishment,
not about medical competence. But there is another theory
that has been cognizable under 42 U.S.C. § 1983 ever since
the Supreme Court decided Monell v. Dep’t of Social Servs.,
436 U.S. 658 (1978). Overruling Monroe v. Pape, 365 U.S. 167
(1961), insofar as that case held that municipalities are im-
mune from suit under section 1983, Monell drew a line be-
tween respondeat superior liability and direct liability for the
municipal organization’s own policies. It rejected the former,
but it held that the latter was actionable. That latter theory is
the one under which plaintiff Alma Glisson, acting as the
personal representative of her deceased son, Nicholas L.
Glisson, is seeking to recover damages against Correctional
Medical Services, Inc. (Corizon), the company that was re-
sponsible for the deplorable medical care Glisson received in
Indiana’s Plainfield Correctional Facility. (Unless the context
requires otherwise, my references to “Glisson” mean Nicho-
las, not Alma.)
In Minix v. Canarecci, 597 F.3d 824, 835 (7th Cir. 2010), this
circuit confirmed that private corporations that contract with
jails or prisons to provide medical services are treated the
same as municipalities for purposes of liability under section
1983. That rule applies to defendant Corizon. Alma Glisson
asserts that Corizon maintained a policy that led directly to
No. 15-1419 11
her son’s death. My colleagues have concluded that she can-
not prevail—indeed, that the paper record is so one-sided
that it was proper for the district court to grant summary
judgment in Corizon’s favor. That conclusion can stand only
if they have correctly depicted what it takes to prove that
Corizon’s policies violated the Eighth Amendment. They
characterize this case as a complaint about the lack of a poli-
cy, and they assert that the plaintiff must therefore show a
series of incidents or a widespread practice. Alma Glisson
did not submit such evidence (at least not in a timely fash-
ion), and so, they conclude, she fails. This syllogism assumes
that policies are always affirmatively stated and that a deci-
sion not to regulate cannot also be a policy. Nothing in Mo-
nell or later cases, however, so holds. The relevant questions
in all instances are (a) what is the policy at issue, and (b)
whether that policy reflects deliberate indifference to a seri-
ous medical need. Taking the facts in the light most favora-
ble to the plaintiff, a rational jury could find that Corizon de-
liberately structured the delivery of medical care in a way
that lacked critical oversight. That policy in Glisson’s case
predictably had fatal results. I would reverse and send this
case to trial.
I
Before turning to the legal analysis, it is helpful to review
the facts in some detail. Although Glisson had suffered from
bad health for many years, he was able to function on his
own until he was taken into custody by the Indiana Depart-
ment of Corrections (INDOC) on September 3, 2010 (follow-
ing his conviction for giving one prescription painkiller pill
to a friend).
12 No. 15-1419
Indeed, he not only lived independently, but he also provid-
ed care to his grandmother and his dying brother. After 41
days in custody, 37 of which were in INDOC’s care, prison
staff found him dead in his cell. The coroner concluded that
Glisson died of “complications of laryngeal cancer.” But that
was not all he said. He also noted Glisson’s “malnutrition,”
“extreme emaciation and cachexia [wasting away of tissue].”
Consultant Dr. Stephen Radentz, a forensic pathologist,
agreed with those conclusions, and added that Glisson suf-
fered from acute renal failure with hyperkalemia (i.e. too
much potassium in the blood), dehydration and volume de-
pletion, acute respiratory insufficiency or pneumonia, and
altered mental status. Finally, for purposes of this litigation,
Glisson’s estate retained Diane Sommer, M.D., who prepared
a report finding “[w]ithin a high degree of medical certainty
… that the health care [Glisson] received through out [sic]
his brief incarceration lead [sic] to his early death.”
No one disputes that Glisson’s health was poor before he
went to prison. He had been diagnosed with laryngeal can-
cer in 2003. In October of that year, he had radical surgery in
which his larynx and part of his pharynx were removed,
along with portions of his mandible (jawbone) and several
teeth. He was left with a permanent stoma (that is, an open-
ing in his throat), into which a tracheostomy tube was nor-
mally inserted. He needed a voice prosthesis to speak. Over
the years, Glisson had additional treatments. Importantly for
our case, the 2003 surgery and follow-up radiation left his
neck too weak to support his head; this in turn made his
head slump forward in a way that impeded his breathing.
Because physical therapy and medication for this condition
were ineffective, he wore a neck brace. He also developed
cervical spine damage.
No. 15-1419 13
In 2008 doctors placed a gastrojejunostomy tube in his upper
abdomen for supplemental feeding. Finally, there was some
evidence of cognitive decline.
Despite all this, Glisson was able to care for himself in the
home. He learned to clean and suction his stoma inde-
pendently. With occasional help from his mother, he was
able to use his feeding tube when necessary. He was still able
to swallow well enough to take his food and other supple-
ments by mouth most of the time. His hygiene was fine, and
he helped with household chores such as mowing the lawn,
cleaning, cooking, and caring for his brother.
The events leading up to Glisson’s death began when a
friend, acting as a confidential informant for the police, con-
vinced Glisson to give the friend a prescription painkiller.
Glisson was charged and convicted for this infraction, and
on August 31, 2010, he was sentenced to a period of incar-
ceration and transferred to the Wayne County Jail. Before
sentencing, Dr. Borrowdale, one of his physicians, wrote a
letter to the court expressing serious concern about Glisson’s
ability to manage in a prison setting. Dr. Borrowdale noted
Glisson’s severe disabilities from cancer and from alcohol
dependence, his difficulty speaking because of the laryngec-
tomy, his trouble swallowing, his severe curvature of the
spine (kyphosis), and his problems walking. The conclusion
of the letter was prophetic: “This patient is severely disabled,
and I do not feel that he would survive if he was incarcer-
ated.” Dr. Fisher, another of Glisson’s physicians, also
warned that Glisson “would not do well if incarcerated.”
Glisson’s family brought his essential supplies to the
Wayne County Jail, including his neck brace and the suction
machine, mirror, and light that he used for his tracheostomy.
14 No. 15-1419
When he was transferred on September 3 to INDOC’s Recep-
tion Diagnostic Center, the Jail sent along his mirror, light,
and neck brace, but it is unclear what happened to these
items. Glisson never received the neck brace while he was at
Plainfield, nor was he given a replacement.
At the Diagnostic Center, Nurse Tim Sanford assessed
Glisson’s condition, accurately as far as one can tell. Sanford
recorded Glisson’s account of his medication regimen, and
noted that Glisson appeared to be alert and able to com-
municate. Sanford noted that Glisson had a tracheostomy
that had to be suctioned six times a day, and that Glisson
had a feeding tube but that he took food through it only
when he had difficulty swallowing. After that evaluation,
Glisson was placed in the general population.
From this point on, Glisson’s care began to resemble the
blind men’s description of the elephant. Different people
took steps that were never coordinated or supervised by a
single responsible medical provider. No provider furnished
a comprehensive investigation of his medical condition. On
September 5, staff reported that Glisson was angry and
throwing candy out of his cell. (Glisson disputes this, and so
this fact cannot be taken as established for summary judg-
ment purposes.) Nurse Rachel Johnson tried to take his
blood pressure, but could not. She recorded a pulse of 60
and an oxygen saturation level of 84%, which was low. (The
record includes evidence indicating that normal oxygen sat-
uration ranges between 95 and 100%; saturation below 90%
is a sign of respiratory distress.) Some staff thought that
Glisson seemed confused, but Johnson found him to be alert
and oriented. The staff told her that Glisson had consumed
only milk in the past two days and that he was not cooperat-
No. 15-1419 15
ing with their efforts to handcuff him for a clinic visit. They
tested his oxygen saturation again and found it to be fluctu-
ating between 84% and 94%. At that point, they took him to
the clinic and allowed him to use his suction machine. Also,
for reasons that are largely unclear, they identified him as a
suicide risk and transferred him to segregation.
Glisson’s care over the next couple of weeks was disjoint-
ed: no provider developed a medical treatment plan, and
thus no one was able to check Glisson’s progress against any
such plan. In fact, for his first 24 days in INDOC custody, no
Corizon provider even reviewed his medical history. Dr. Gal-
lien requested his medical history on September 10. But
there is no evidence that anyone responded to his request,
and no one followed up on that request until September 27,
when Dr. Malaka G. Hermina asked for the records and re-
ceived them within several hours. Except for one instance on
September 10, no Corizon provider ever tried to contact
Glisson’s mother or any other relative for information. Dur-
ing this time, Glisson’s oxygen saturation rate bounced up
and down, occasionally reaching troubling lows: On Sep-
tember 5 it fluctuated between 84% and 94%; it rose to 96%
when he was allowed to use his suction machine; it sank
back to 86% on September 6 before suctioning restored it to
94%; it was back down at 84% on September 8, and so on.
Glisson’s weight, never high, was also deteriorating. On Sep-
tember 9 a psychiatrist, Dr. Conant, recorded that he had lost
weight; later that day a nurse practitioner ordered that Glis-
son be given the nutritional supplement Ensure. No one kept
any daily account of how much—if any—Ensure Glisson
consumed.
16 No. 15-1419
When Glisson was transferred from the holding facility
to Plainfield on September 17, 2010, he weighed 119 pounds.
There is no record of anyone’s monitoring his weight, alt-
hough on September 27 Dr. Hermina noted that Glisson ap-
peared cachectic, which means undernourished to the point
that the person has physical wasting and loss of weight and
muscle mass. See MedicineNet.com, Definition of Cachectic,
http://www.medicinenet.com/script/main/art.asp?articlekey=
40464. Dr. Hermina ordered a second nutritional supple-
ment, Jevity, but he did not make any recording of Glisson’s
weight. As noted above, the coroner also noted Glisson’s
emaciation.
During this time, Glisson’s mental status was also deteri-
orating. Dr. Sommer’s report charts that process and notes at
various points how the deterioration could have been halted
if a qualified medical professional had been evaluating the
full picture. Such an evaluation would have shown, Dr.
Sommer said, a clear correlation between Glisson’s underly-
ing medical problems and his mental state. Her report com-
ments on the drugs Glisson was taking. He was switched
from Effexor to Prozac without any evaluation; worse, he
was not monitored or weaned off Effexor while the Prozac
was started. The two drugs work quite differently, the report
notes, and it concludes that “[t]his abrupt change in medica-
tion contributed to [Glisson’s] decline in function.”
While Glisson was in custody, he had numerous episodes
of altered mental status. Despite this fact, Dr. Gallien (again
operating on the basis of incomplete information) noted on
September 10 that Glisson had “no real mental health is-
sues.” Yet at roughly the same time, Health Services Admin-
istrator Kelly Kurtz called Glisson’s mother to ask whether
No. 15-1419 17
he had any abnormal behavioral issues, such as spitting on
the floor. Alma Glisson said no. There is no record that Kurtz
told anyone about this, or that any Corizon provider could
or did take this information into account in structuring Glis-
son’s treatment.
Dr. Conant did conduct a mental health evaluation on
Glisson on September 23. His findings were worrying, but
no one connected them with any of the physical data on file,
such as Glisson’s tendency to have inadequate oxygen profu-
sion and his cachexia. Dr. Conant found that Glisson was
restless, paranoid, delusional, hallucinating, and insomniac.
He placed Glisson under close observation and settled on a
diagnosis of unspecified psychosis; he saw no need for med-
ication. Had he looked, he would have seen that Glisson had
no history of psychosis, and he might have considered (as
the post-mortem experts did) the possibility that lack of ox-
ygen and food was affecting Glisson’s mental performance.
Dr. Conant noted that he thought that Glisson’s hallucina-
tions were caused by morphine. This observation, too, was
reached in an information vacuum. In fact, Glisson had been
on narcotic medication for some time prior to his incarcera-
tion. Had Dr. Conant known of Glisson’s medical history, he
would have known that morphine was an unlikely cause
and he would have looked further.
The Corizon providers never took any steps to integrate
the growing body of evidence of Glisson’s malnutrition with
his overall mental and physical health. On September 4,
Glisson’s urinalysis results showed the presence of ketones
and leukocytes. Dr. Sommer’s report notes, without contra-
diction in the record, that “[k]etones suggest the presence of
other medical conditions such as anorexia, starvation, acute
18 No. 15-1419
or severe illness and hyperthyroidism to name a few.” “Leu-
kocytes,” it said, “are a sign of possible infection.” The medi-
cal staff did nothing to address either potential problem,
even though a second urine sample taken on September 5
showed an increase in ketones and leukocytes. There is no
evidence in the record that a physician reviewed either of
those lab results. That is so even though the record includes
a note saying that on September 5 Glisson “had not been eat-
ing and seemed confused.” Rather than probing the signs of
infection and dehydration further, the staff opted to put
Glisson in the psychiatric unit under suicide watch.
The blood work continued to raise red flags. On Septem-
ber 9, it came back with signs of abnormal renal function.
Although Glisson met with Dr. Gallien the next day, no one
looked at the bloodwork until September 27. At that point,
Dr. Hermina ordered fasting labs for September 28. When
the results were returned on September 29, they showed
acute renal failure─information that prompted Dr. Hermina
to send Glisson immediately to Wishard Hospital. A jury
could easily conclude that Glisson was already slipping into
renal distress as early as September 4 or 9, but that the unco-
ordinated care Corizon furnished allowed his condition to
become acute. Recall that Dr. Radentz listed acute renal fail-
ure as a cause of his death.
Last, anyone with a good overall knowledge of Glisson’s
health problems would have realized that he was at high risk
for aspiration pneumonia because he had undergone major
surgery that had disrupted his swallowing mechanism, he
had a stoma and feeding tube, and he had a cervical-spine
problem that caused laxity in his neck. Whether or not his
neck brace was transferred from the jail to the prison is be-
No. 15-1419 19
side the point: the record shows that he never received it,
and it was not replaced. The only care he received for his
neck and throat was suctioning, and then only after he was
already hypoxic. Someone lost his voice prosthesis too. It
was not replaced, despite the fact that there is evidence in
the record to support a finding that its absence greatly in-
creased the potential of aspiration and pneumonia, and that
those were listed as contributing causes of death.
II
It was not Alma Glisson’s burden ultimately to convince
the district court that Corizon’s policy violates the Constitu-
tion; she needed only to show that there are genuine issues
of material fact and that a rational jury could so conclude. In
my view, the more complete account of the facts provided
above leaves room for no other outcome. Two questions are
critical: first, whether Corizon is automatically entitled to
judgment if its staff committed no constitutional violation;
and if the answer is no, then second, whether a jury could
find that Corizon’s failure to formulate protocols to guide
care for chronically ill inmates violates the Eighth Amend-
ment.
A
There are two points on which I agree with my col-
leagues in the majority. We all accept that under the law as it
presently exists, there is no respondeat superior liability in a
case under section 1983 even for a private corporation such
as Corizon. This court noted in Shields v. Illinois Dep’t of Cor-
rections, 746 F.3d 782, 789−96 (7th Cir. 2014), that there may
be some question about that proposition, but we went no
further, and so for now the applicability of Monell’s rule to
20 No. 15-1419
private entities such as Corizon remains established. In addi-
tion, we all understand that Glisson did not need to prove
that the individual providers’ care was deliberately indiffer-
ent in order to prevail. We squarely held in Thomas v. Cook
Cnty. Sheriff’s Dep’t, 604 F.3d 293 (7th Cir. 2010), that “we find
unpersuasive the County’s argument that it cannot be held
liable under Monell because none of its employees were
found to have violated [plaintiff’s] constitutional rights.” Id.
at 304. Sometimes the nature of the constitutional violation,
the theory of municipal liability, and the defenses will cause
a Monell claim to fail because of the lack of any underlying
violation, but sometimes it will not. Our case falls in the lat-
ter category. Individual medical providers may act within
constitutional boundaries, both objectively and subjectively,
but if there is an unconstitutional policy at the corporate lev-
el, the corporation must answer for it.
B
This takes me to the essence of my disagreement with the
majority. My colleagues read Glisson’s complaint as alleging
only that it was Corizon’s failure to implement INDOC’s
Health Care Service Directive that violated the Eighth
Amendment, rather than as presenting a broader argument
attacking Corizon’s decision not to require centralized moni-
toring of inmates with complex medical conditions. Certain-
ly if Corizon had implemented the state’s Directive, quoted
ante at 5, no policy would have stood in the way of adequate
care for prisoners (such as Glisson) with chronic diseases.
INDOC guidelines recognize the need for “planned care in a
continuous fashion,” and it is obvious that Glisson received
nothing of the kind. My colleagues see this as a complaint
about the lack of a policy, ante at 9, and they then conclude
No. 15-1419 21
that in this situation a plaintiff must present evidence of a
series of incidents or a widespread practice constituting cus-
tom and usage. That is not Glisson’s claim. Even if it were, I
see no support for the final step of the majority’s line of rea-
soning.
The Supreme Court’s decision in Los Angeles Cnty. v.
Humphries, 562 U.S. 29 (2010), unanimously reaffirms that
the key holding of Monell is that a municipal policy or cus-
tom must be at stake, no matter what type of relief is sought.
562 U.S. at 31. Monell’s requirement of a policy or custom is
meant to ensure that a municipality is held liable only in sit-
uations where its “deliberate conduct” is the “moving force”
causing the injury—that is, the deprivation results “from the
decisions of … those officials whose acts may fairly be said
to be those of the municipality.” Board of County Commission-
ers of Bryan County v. Brown, 520 U.S. 397, 403–04 (1997) (em-
phasis in original).
The Court has enumerated several ways to demonstrate
that the municipality’s own conduct is at stake, not that of its
employees or agents. First, it has held that “[l]ocal governing
bodies ... can be sued directly under § 1983 ... where ... the
action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or deci-
sion officially adopted and promulgated by that body’s of-
ficers.” Humphries, 562 U.S. at 36 (quoting Monell, 436 U.S. at
690-91). A municipality can also be sued for “deprivations
visited pursuant to governmental ‘custom’ even though such
a custom has not received formal approval through the body’s
official decisionmaking channels.” Id. (emphasis added).
In other words, either the content of an official policy, a
decision by an official decisionmaker, or evidence of custom
22 No. 15-1419
will suffice. It is true that a plaintiff must show multiple in-
cidents to prove a custom or practice that has not been “offi-
cially adopted and promulgated.” Id. But if she seeks to es-
tablish municipal liability by either of the other two meth-
ods—proving that the unconstitutional action resulted from
a policy or a decision by the entity’s “authorized deci-
sionmakers”—she need not show multiple incidents. Pem-
baur v. City of Cincinnati, 475 U.S. 469, 481 (1986). In such cas-
es, “the municipality is equally responsible whether that ac-
tion is to be taken only once or to be taken repeatedly.” Id.
The choice the majority has framed—written policy ver-
sus lack of written policy—is therefore a false one. The ma-
jority assumes that because Glisson attacks Corizon’s failure
to enact certain protocols, he is alleging the absence of a pol-
icy. Not at all. Glisson alleges that Corizon had a deliberate
policy that eschewed coordinated care: in essence, a policy
not to have a policy and instead to rely on each provider’s
isolated decisions. And even if Glisson were alleging only the
absence of a written policy, it does not follow that he must
prove a custom. Glisson’s allegations—and his evidence—fit
comfortably within the “authorized decisionmaker” route,
which does not require proof of multiple incidents. Id. No-
where does Glisson allege that Corizon has an informal cus-
tom of not creating a protocol for centralized treatment
plans. He alleges instead that it made an affirmative, official
decision not to do so. Policymakers make decisions to act and
not to act; there is no reason why an official decision not to
act should be any less culpable—or any less official—under
section 1983 than one to act. Corizon was well aware of the
INDOC Directive. After seven years, it is reasonable to infer
that Corizon’s decision not to enact the required protocols
was deliberate and was made by persons within Corizon
No. 15-1419 23
with decisionmaking authority. (Indeed, it is hard to infer
anything else.)
Even if Glisson’s claim fits awkwardly into the methods
mentioned in Monell, that is not a problem unless one reads
Monell as providing an exhaustive, not an illustrative, list.
But nothing in Monell or later cases supports such a mecha-
nistic approach. Monell’s methods of proof are not ends; they
are means. They suggest three paths to the same place: proof
that “the municipal action was taken with the requisite de-
gree of culpability.” Brown, 520 U.S. at 404. Monell was about
the conditions necessary to attribute conduct to the munici-
pal “person” under section 1983: that is, whether the action
in question can properly be considered the municipality’s
“deliberate conduct.” Id. The harm itself—or the number of
harms—is irrelevant for this purpose. Where there is strong
evidence of official culpability—as there is in this case—a
court need not worry about which path the plaintiff takes to
proving that the municipality is culpable. What matters is
that the proof point to the municipality’s own act.
The essential prerequisite to deliberateness—and thereby
culpability—is knowledge of the risk at issue. In policy-
omission cases, it is the plaintiff’s burden is to present “evi-
dence that there is a true municipal policy at issue, not a
random event.” Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir.
2005). Such evidence is “necessary to understand what the
omission means:" it could reflect nothing more than the mu-
nicipality’s ignorance of the problem’s existence or gravity
or its preference for another permissible course. Id. (“No
government has, or could have, policies about virtually eve-
rything that might happen.”). To be attributed to the munic-
ipality as a “policy,” a course of action must be “consciously
24 No. 15-1419
chosen from among various alternatives;” therefore, evi-
dence must “be adduced which proves that the inadequacies
resulted from conscious choice—that is, proof that the poli-
cymakers deliberately chose a ... program which would
prove inadequate.” Id. (quoting City of Oklahoma City v. Tut-
tle, 471 U.S. 808, 823 (1985)). When they lack evidence from
which a conscious choice can be inferred, plaintiffs may
prove that the municipality had a custom or practice of deal-
ing with incidents in a certain way; in other words, they may
use circumstantial evidence to show an unspoken policy.
Common sense says that one incident cannot constitute a
custom. But where a plaintiff does present evidence from
which the municipality’s knowledge and choice can be in-
ferred, there is no reason why proving multiple incidents
should be necessary.
That is why we have stated that, where a municipal enti-
ty has “actual or constructive knowledge that its agents will
probably violate constitutional rights, it may not adopt a
policy of inaction.” King v. Kramer, 680 F.3d 1013, 1021 (7th
Cir. 2012) (alteration omitted) (quoting Warren v. District of
Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004)). It is why we have
noted that a policymaker may be directly liable where he has
actual knowledge of a risk but nonetheless ignores it. See
Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998) (“If the
warden were aware of ‘a systematic lapse in enforcement’ of
a policy critical to ensuring inmate safety, his ‘failure to en-
force the policy’ could violate the Eighth Amendment.”)
(quoting Goka v. Bobbitt, 862 F.2d 646, 652 (7th Cir. 1988)). It
is why we have held that where a situation calls for proce-
dures, rules or regulations, the “failure to make a policy is
also actionable.” Thomas, 604 F.3d at 303 (citing Sims v. Mul-
cahy, 902 F.2d 524, 543 (7th Cir. 1990)).
No. 15-1419 25
For the same reason, the Supreme Court has noted that
even where there is no evidence of actual notice, deliberate-
ness may be inferred where a risk is sufficiently obvious. For
example, in its failure-to-train cases, the Court has said that
where, “in light of the duties assigned to specific ... employ-
ees the need for more or different training is so obvious, and
the inadequacy so likely to result in the violation of constitu-
tional rights, … the policymakers of the city can reasonably
be said to have been deliberately indifferent to the need.”
City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989).
Here, Glisson has presented evidence that supports a
reasonable inference that Corizon made “a deliberate choice
to follow a course of action … from among various alterna-
tives,” and therefore may be held liable as a municipality
under section 1983. Harris, 489 U.S. at 389 (quoting Pembaur,
475 U.S. at 483–84 (plurality opinion)). The Indiana Depart-
ment of Corrections saw fit to promulgate Health Care Ser-
vices Directive 2.06 on “Chronic Disease Intervention Guide-
lines.” The Guidelines say that “[e]ach facility must establish
a site specific directive that guides the management of
chronic disease management and clinics.” They instruct that
this directive should ensure that “[c]are provided to [in-
mates with chronic illnesses] should be organized and
planned and should be consistent across facility lines.” They
add other essential criteria for the care of the chronically ill,
including the need for an individualized treatment plan that
includes objectives for care and is kept current.
This Directive squelches any possible argument Corizon
might have about a lack of awareness of the risk of not hav-
ing protocols for the care of inmates with chronic illnesses.
Timing is not on Corizon’s side either. Seven years after the
26 No. 15-1419
Directive appeared, Corizon had yet to make any policy
change with regard to the comprehensive treatment of
chronically ill inmates. In its responses to Glisson’s interrog-
atories, Corizon admitted that it was aware of the Directive’s
existence and that it had done nothing to comply with its
dictates. The most plausible inference—if not the only one—
is that Corizon consciously chose, without medical justifica-
tion, simply not to enact protocols for managing the care of
these vulnerable inmates.
One does not need to be an expert to know that complex,
chronic illness requires comprehensive and coordinated
care. In Harris, the Court recognized that because it is a
“moral certainty” that police officers “will be required to ar-
rest fleeing felons,” “the need to train officers in the constitu-
tional limitations on the use of deadly force … can be said to
be ‘so obvious,’ that failure to do so could properly be char-
acterized as ‘deliberate indifference’ to constitutional rights.”
489 U.S. at 390 n.10. It was just as certain that Corizon pro-
viders would be confronted with patients with chronic ill-
nesses. The need to establish protocols for the coordinated
care of chronic illnesses is obvious, just as is the recklessness
exhibited by failing to do so. On the record here, a jury could
reasonably find that Corizon’s “policymakers were deliber-
ately indifferent to the need” for such protocols, and that the
absence of protocols caused Glisson’s death. Id. at 390.
Indeed, it is not necessary to rely on the obviousness of
these risks, because the Directive provided all the infor-
mation Corizon needed. Through it, Corizon was “aware of
‘a systematic lapse in enforcement” of the directive, a policy
critical to ensuring inmate safety.’” Steidl, 151 F.3d at 741.
No. 15-1419 27
It had actual knowledge that, without protocols for coordi-
nated, comprehensive treatment, the constitutional rights of
chronically ill inmates would sometimes be violated, and
nonetheless it “adopt[ed] a policy of inaction.” Kramer, 680
F.3d at 1021. A jury could conclude that Corizon, indifferent
to the serious risk such a course posed to chronically ill in-
mates, made “a deliberate choice to follow a course of action
... from among various alternatives” to do nothing. Harris,
489 U.S. at 389. Monell requires no more.
In closing, it is important to stress that I am not arguing
that the Constitution or any other source of federal law re-
quired Corizon to adopt the Directive or any other particular
document. But the Constitution does require it to ensure that
a well-recognized risk for a defined class of prisoners be
competently addressed and not deliberately left to happen-
stance. Corizon had notice of the problems posed by a total
lack of coordination. Yet despite that knowledge, it did noth-
ing for more than seven years to address that risk. There is
no magic number of injuries that must occur before its fail-
ure to act can be considered deliberately indifferent. See
Woodward v. Correctional Medical Services, 368 F.3d 917, 929
(7th Cir. 2004) (“CMS does not get a ‘one free suicide’
pass.”).
Nicholas Glisson may not have been destined to live a
long life, but he was managing his difficult medical situation
successfully until he fell into the hands of the Indiana prison
system and its medical-care provider, Corizon. Forty-one
days after he entered custody, he was dead. On this record, a
jury could find that Corizon’s obdurate failure to enact cen-
tralized treatment protocols for chronically ill inmates led
28 No. 15-1419
directly to his death. I would reverse the judgment below
and remand for a trial.