Randy Swisher v. Porter County Sheriff's Depar ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 5, 2019 *
Decided March 5, 2019
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 18-1885
RANDY M. SWISHER, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:10-cv-337
PORTER COUNTY SHERIFF’S
DEPARTMENT, et al., Michael G. Gotsch, Sr.,
Defendants-Appellees. Magistrate Judge.
ORDER
Randy Swisher, a former pretrial detainee in Indiana, appeals the entry of
summary judgment on his Fourteenth Amendment claim that the jail and its staff
provided him unacceptable medical care for a hernia and other ailments. Because
Swisher does not point to evidence in the record supporting a conclusion that any
defendants acted unreasonably, we affirm.
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-1885 Page 2
During the approximately ten months he spent at the Porter County Jail, Swisher
sought medical attention for several ailments that eventually led to this civil-rights
lawsuit. Swisher’s most prominent medical complaints concerned an abdominal frontal
hernia. Dr. Nadir Al-Shami—Swisher’s physician and an employee of Advanced
Correctional Healthcare, Inc., a contractor that provides medical care for inmates—
determined that the hernia was reducible (meaning that it could easily be pushed back
through the abdominal wall) and thus not at risk for strangulation or incarceration
(which would require further treatment, such as surgical repair). Swisher wanted
surgical care for the hernia, but Dr. Al-Shami opted for a conservative course of
treatment. He prescribed an elastic bandage for Swisher to wrap around his stomach as
well as Tylenol for pain. When the bandage would not stay in place, Dr. Al-Shami
prescribed a hernia belt. He denied Swisher’s request for a second opinion.
Swisher also lodged several complaints about back pain, beginning with a
request to see a chiropractor. The jail’s warden told Swisher that the jail did not have a
chiropractor on staff, but he would talk to “medical” about the complaint. Swisher
stated in a deposition that he later spoke about his back pain with Dr. Al-Shami, who
refused to send him to an outside specialist and did not provide any further care.
Swisher has also identified other ailments that received less attention from prison
staff. First, he complained about foot pain to both the warden and Dr. Al-Shami. The
doctor, however, noticed that Swisher did not have any trouble walking on his feet and
did not prescribe anything. Dr. Al-Shami also treated Swisher for sinus headaches by
prescribing over-the-counter medications. Lastly, Swisher alleged that Dr. Al-Shami
and the other defendants ignored his post-traumatic stress disorder, which, he says,
stemmed from surgical treatment he underwent for skin cancer. But no evidence
suggests that Swisher developed post-traumatic stress disorder or that any defendant
was aware of it.
Swisher sued the Porter County Sheriff’s Department, the sheriff, and jail
personnel for various constitutional violations. All parties consented to the jurisdiction
of a magistrate judge, who then dismissed Swisher’s suit for not exhausting his
administrative remedies. We vacated that ruling, however, concluding that the jail
induced his noncompliance by failing to give him a copy of the grievance procedure.
Swisher v. Porter Cty. Sheriff's Dep't, 769 F.3d 553, 555 (7th Cir. 2014).
On remand, Swisher amended his complaint to pursue claims against Dr.
Al-Shami, the warden, and the sheriff in their individual capacities for acting with
No. 18-1885 Page 3
deliberate indifference towards his hernia, back pain, foot pain, sinus headaches, and
post-traumatic stress disorder. He also advanced claims against the Sheriff’s
Department and Advanced Correctional Healthcare for adopting policies that caused
him to be denied adequate care. See Monell v. Dep't of Soc. Servs. of New York, 436 U.S.
658, 694 (1978); Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (extending
Monell to private corporations); but see Shields v. Ill. Dep't of Corr., 746 F.3d 782, 790–95
(7th Cir. 2014) (questioning “whether corporations should be insulated from respondeat
superior liability under § 1983”). Swisher added as defendants two unnamed insurers,
which the magistrate judge dismissed at screening. 28 U.S.C. § 1915A. After Swisher
amended his complaint, the magistrate judge did not seek renewed consent, but all
parties—new and old—began participating in the proceedings.
The case then was reassigned to Magistrate Judge Gotsch, who, recognizing that
the parties had consented to another magistrate judge, invited the parties to object to his
jurisdiction if any wished to do so. None objected.
More than a year later, the magistrate judge entered summary judgment for the
defendants. First, the judge determined that Indiana’s two-year statute of limitations
barred Swisher’s claims against the sheriff (Swisher presented no evidence that the
sheriff ever knew of any of his medical complaints) and some of his claims against the
warden (Swisher presented no evidence that the warden knew of his post-traumatic
stress disorder or sinus headaches). Next, the court determined that Swisher’s claims
against Dr. Al-Shami failed because he did not produce evidence from which a
reasonable factfinder could find that the doctor acted with deliberate indifference to any
of his maladies. As for Swisher’s remaining claims against the warden (i.e., concerning
the warden’s deliberate indifference toward this hernia, back pain, and foot pain), the
magistrate judge determined that there were no facts reflecting that the warden ignored
him or acted unreasonably in deferring to Dr. Al-Shami’s judgment as a medical
professional. Finally, the court concluded that Swisher could not hold Porter County
Jail or Advanced Correctional Healthcare liable without an underlying constitutional
violation by an employee of either.
Swisher appeals but, before proceeding to the merits, we address two
jurisdictional concerns. First, after reassignment of this case to Magistrate Judge Gotsch,
none of the parties expressly consented to his jurisdiction. See 28 U.S.C. § 636(c). The
named parties here, however, all consented implicitly to the magistrate judge’s
jurisdiction through “concrete actions—such as appearing and participating in a case
after being told about the consequences.” Coleman v. Labor & Indus. Review Comm'n,
No. 18-1885 Page 4
860 F.3d 461, 470 (7th Cir. 2017) (citing Roell v. Withrow, 538 U.S. 580, 589–91 (2003)), cert.
denied, 138 S. Ct. 739 (2018).
The second, more difficult question is whether the magistrate judge acted within
his authority at screening by dismissing the unnamed insurers, who, by definition, had
not been served and had no occasion to consent. In Coleman, we determined that a
magistrate judge’s jurisdiction was unsound because he disposed of the entire case at
the screening stage without securing the consent of an unserved defendant. 860 F.3d at
475. But later, in DaSilva v. Rymarkiewicz, we upheld a magistrate judge’s dismissal of
some nonconsenting parties at screening because all parties had given their consent by
the time he entered a final judgment. 888 F.3d 321, 322–23 (7th Cir. 2018). Similarly,
here, by the time the magistrate judge entered summary judgment, all of the parties—
other than the unnamed, unserved, and dismissed insurers—had consented to the
magistrate judge’s jurisdiction. As for the dismissed insurers, that they were unnamed
and unknown indicates that they were not “parties” whose consent § 636(c) requires.
See Williams v. King, 875 F.3d 500, 502–04 (9th Cir. 2017) (citing Coleman, 860 F.3d at 470–
73, and holding that “parties” under § 636(c) means named parties, whether served or
unserved); see also Coleman, 860 F.3d at 474 (recognizing that unnamed class members
are not parties to a class-action case and thus a magistrate judge may rule without their
consent).
Had the magistrate judge not properly obtained the parties’ consent, we would
not have appellate jurisdiction over his judgment, but because the judge did have the
requisite consent, our jurisdiction is secure and we proceed to assess Swisher’s
arguments on appeal. He primarily argues that summary judgment was improper
because the magistrate judge impermissibly decided factual disputes against him. He
asserts, for example, that a reasonable factfinder could credit his assertions that
Dr. Al-Shami refused to provide him with any treatment whatsoever. He also argues
that the judge disregarded undisputed evidence that the warden and sheriff were aware
of his medical complaints but did nothing about them.
Since the district court’s decision, we decided Miranda v. Cty. of Lake, 900 F.3d
335, 352 (7th Cir. 2018), in which we held that a standard of objective reasonableness,
and not deliberate indifference, governs claims brought by pretrial detainees for
inadequate medical care under the Fourteenth Amendment. “This standard requires
courts to focus on the totality of facts and circumstances faced by the individual alleged
to have provided inadequate medical care and to gauge objectively—without regard to
No. 18-1885 Page 5
any subjective belief held by the individual—whether the response was reasonable.”
McCann v. Ogle Cty., 909 F.3d 881, 886 (7th Cir. 2018).
A reasonable factfinder could not conclude that Dr. Al-Shami refused to treat
Swisher. The record shows that Dr. Al-Shami responded to two of Swisher’s complaints
with medical intervention—treating his hernia with both a bandage wrap and a hernia
belt and addressing his sinus headaches with over-the-counter medications. Regarding
those ailments, no jury could find that Dr. Al-Shami purposefully, knowingly, or
recklessly administered treatment. Although Dr. Al-Shami did not refer Swisher to
specialists for his foot and back pain, there is no evidence that these decisions were
objectively unreasonable. The record reflects that the doctor noticed that Swisher had
no difficulty walking on his feet, and Swisher does not challenge the district court’s
conclusion that “wait-and-see” was a reasonable approach to his back pain, at least for a
time. See Pyles v. Fahim, 771 F.3d 403, 412 (7th Cir. 2014) (characterizing back pain as “a
common ailment”). Notably, Swisher does not suggest that Dr. Al-Shami’s treatment
decisions resulted in any undue consequences to his health. Lastly, no evidence
suggests that that Swisher suffered from post-traumatic stress disorder while at the jail.
Nor does the evidence support a conclusion that the response of the warden and
sheriff was objectively unreasonable. Neither was responsible for providing medical
care to Swisher. Whether or not they were aware of Swisher’s various medical issues,
they permissibly relied on the medical judgment of Dr. Al-Shami in responding to
them. Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010).
We have considered Swisher’s remaining arguments and none has merit.
AFFIRMED