Kinslow, Jimmy v. Pullara, Frank ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2956
JIMMY KINSLOW,
Plaintiff-Appellant,
v.
FRANK PULLARA, ERMA SEDILLO, and
SHANNON MCREYNOLDS,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 4023—Suzanne B. Conlon, Judge.
____________
ARGUED FEBRUARY 27, 2008—DECIDED AUGUST 14, 2008
____________
Before EASTERBROOK, Chief Judge, and POSNER and
WOOD, Circuit Judges.
WOOD, Circuit Judge. Jimmy Kinslow, a state inmate,
brought suit under 42 U.S.C. § 1983, alleging that
certain prison officials violated his constitutional right to
adequate medical treatment while he was being trans-
ferred from one institution to another. He sued employees
of the Illinois Department of Corrections (“IDOC”),
employees of the New Mexico Department of Corrections
(“NMDOC”), and TransCor America, LLC, the private
company hired to transport him between facilities, along
2 No. 07-2956
with some of TransCor’s employees. The district court
dismissed Kinslow’s claims against the New Mexico
officials for lack of personal jurisdiction. The remaining
parties reached a settlement with Kinslow, and the
court dismissed those claims on June 21, 2007, subject to
reinstatement within 30 days. Nothing happened by
July 21, 2007, and on August 17, Kinslow filed his notice
of appeal from the dismissal of the New Mexico defen-
dants.
I
The key facts of this case are not in dispute, though, to
the extent that there are different versions, we present
them in the light most favorable to Kinslow. For much of
his life, Kinslow has been behind bars. He was first incar-
cerated in 1978 in New Mexico. In 1995 he was transferred
to Illinois under the terms of the Interstate Corrections
Compact. In June of 2000, while at Stateville Correctional
Center in Joliet, Illinois, Kinslow was diagnosed with
advanced liver disease caused by hepatitis C. IDOC’s
medical director prescribed a 12-month chemotherapy
regimen for Kinslow. His treatment began in May 2004,
but halfway through it, Dr. Frank Pullara, medical di-
rector of NMDOC, decided that it would be more eco-
nomical to treat Kinslow in New Mexico. Pullara con-
tacted NMDOC’s general manager, Shannon McRey-
nolds, to arrange for the transfer.
Prison officials in New Mexico and Illinois worked
together to arrange Kinslow’s transfer back to New
Mexico. McReynolds initiated the move by telephoning
the IDOC officials twice to set up and confirm the plans.
He also selected and arranged for TransCor to transport
No. 07-2956 3
Kinslow, via bus, from Illinois to New Mexico. The third
New Mexico defendant, Erma Sedillo, was NMDOC’s
director of operations. Beyond being McReynolds’s super-
visor, Sedillo was not involved in the logistics of the
transfer.
The transfer took place in October 2004. Though
Kinslow’s bus trip to New Mexico could have been com-
pleted in less than 24 hours, the route that TransCor
chose lasted six days. Moreover, while the Illinois and
New Mexico prison officials were all well aware of
Kinslow’s prescribed treatment and of how strictly it had
to be followed, they failed to establish procedures that
would ensure proper medical care for Kinslow during
the trip.
Kinslow was being treated with PEG-Intron (delivered
by injection) and Rebetol pills. The PEG-Intron is a liq-
uid/powder mixture that must be precisely measured
and mixed and then immediately administered. Kinslow
was to receive an injection once a week, on the same day
and at the same time each week. Because of the precision
required for measuring, mixing, and administering this
treatment, it was handled by medical staff. In addition,
Kinslow took a Rebetol pill once daily with food. Both
the PEG-Intron ingredients and the Rebetol pills had to be
be kept refrigerated at all times, and, if not taken exactly
as prescribed, the treatments could lose effectiveness,
fail completely, or cause severe side effects. Kinslow
also was to be kept on a proper diet and well-hydrated at
all times.
During his transfer, everything that could go wrong
with Kinslow’s treatment, did. No medical personnel
were on the TransCor bus; his medications were not
refrigerated (they were put on ice before the bus left
4 No. 07-2956
Illinois, but TransCor employees soon dumped the ice
because the container was leaking); a TransCor em-
ployee spilled Kinslow’s Rebetol all over the bus’s floor;
and TransCor employees told Kinslow that he had to
measure, mix, and inject himself with the PEG-Intron
because none of them knew how to do it. Kinslow,
who had no medical background, was ill-equipped to
handle the injection and, sure enough, experienced a
severe reaction almost immediately after self-admin-
istering the treatment. He had pain and cramps, began to
sweat, felt nauseous, and finally vomited. Afterwards,
he could barely walk and his abdomen swelled.
The reaction occurred on the evening of October 18,
2004, roughly 27 hours after the trip began. As we noted
already, the trip dragged on for six days. Despite Kinslow’s
persistent requests for medical attention, the TransCor
employees responded that they did not have time to find
him a physician, and that only TransCor’s (nonmedical)
employees could provide him with care. When the bus
stopped for overnight stays at local jails, Kinslow re-
peated his requests for medical attention, but again to no
avail. In the end, he endured four days of a severe medica-
tion reaction with no medical assistance. TransCor em-
ployees also refused to give him Clonazepam, a drug
that he often took with his treatments because it reduced
the anxiety and insomnia that the powerful medications
caused. Kinslow believes that his negative reaction re-
sulted from spoiled medication (because of the inadequate
refrigeration), an improperly-mixed dose, or perhaps both.
As a direct result of the lack of medical care that Kinslow
received during the transfer, his chemotherapy treat-
ments failed. Based on that failure, the NMDOC denied
Kinslow additional treatments at the New Mexico facility;
No. 07-2956 5
NMDOC believed that even if Kinslow were to receive
more treatment, it would be unlikely to succeed because
of the interruption of the earlier round. (This may or may
not be a well-founded view; whether they were correct is
not relevant to the outcome of this appeal.) Kinslow’s
liver continues to deteriorate, and given that his condi-
tion now is untreated, he likely will die. (As of the date
of oral argument in this case, Kinslow was alive and in
New Mexico, pursuing a separate lawsuit that he filed
there before initiating this one. That suit focuses on the
post-transfer denial of medical care. We are unaware of
the current status of either Kinslow or his other lawsuit.)
Kinslow initiated this action, pro se, on December 19,
2005, alleging that the defendants are liable under 42
U.S.C. § 1983 for violations of his Eighth and Fourteenth
Amendment rights. On December 1, 2006, the district
court dismissed Kinslow’s claims against the New Mexico
defendants—Dr. Pullara, McReynolds, and Sedillo—for
lack of personal jurisdiction. In the same order, the
court denied the Rule 12(b)(6) motions to dismiss that
were filed by the other defendants, but as we have noted,
those parts of the case were later dismissed after a set-
tlement.
II
We review a district court’s determination of personal
jurisdiction de novo. Hyatt Int’l Corp. v. Coco, 302 F.3d 707,
712 (7th Cir. 2002). The plaintiff bears the burden of
proving that the jurisdictional requirements are met, but
if no facts are in dispute, as is the case here, then the
party asserting jurisdiction need only establish a prima
facie case of personal jurisdiction to satisfy that burden. Id.
at 713; RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276
6 No. 07-2956
(7th Cir. 1997). Kinslow must show that the New
Mexico defendants are amenable to process under an
appropriate statute, and that it is consistent with due
process to require them to submit to litigation in an Illi-
nois court. See Omni Capital Int’l v. Rudolph Wolff & Co.,
Ltd., 484 U.S. 97, 104 (1987).
The crux of the parties’ dispute lies with the first of
these inquiries: whether the New Mexico defendants are
amenable to service of process in Illinois. As the district
court properly observed, this inquiry is governed by FED.
R. CIV. P. 4(k), which provides, in pertinent part, that
service is effective to establish personal jurisdiction over
a defendant “who is subject to the jurisdiction of a court
of general jurisdiction in the state where the district court
is located,” or “when authorized by a federal statute.” FED.
R. CIV. P. 4(k)(1)(A), (C). (We cite to the re-styled version
of the rules that took effect on December 1, 2007. See
Marseilles Hydro Power, LLC v. Marseilles Land & Water
Co., 518 F.3d 459, 461 n.2 (7th Cir. 2008).) Though some
federal statutes expressly provide rules for service of
process (such as the Employee Retirement Income
Security Act, 29 U.S.C. § 1132(e)(2), the Racketeer Influ-
enced and Corrupt Organizations Act, 18 U.S.C. § 1965(a),
and the Securities Exchange Act of 1934, 15 U.S.C. § 78aa),
§ 1983 is not one of them. When a statute is silent, personal
jurisdiction issues are resolved under the laws of the
state where the forum is located. See Omni, 484 U.S. at 108.
Accordingly, the question before us is whether Illinois
would permit a court to bring the defendants before it. See
FED. R. CIV. P. 4(k).
We turn then to the Illinois long-arm statute, 735 ILCS
5/2-209. As we have noted before, it contains a “catch-all”
provision that “permits its courts to exercise jurisdiction
No. 07-2956 7
on any basis permitted by the Illinois and United States
Constitutions.” Hyatt Int’l Corp., 302 F.3d at 714 (citing 735
ILCS 5/2-209(c)). We have yet to find any “operative
difference between the limits imposed by the Illinois
Constitution and the federal limitations on personal
jurisdiction.” Id. at 715 (citing RAR, 107 F.3d at 1276).
Seeing none here, we once again may collapse the personal
jurisdiction analysis under Illinois law into the constitu-
tional inquiry. Id. at 715-16. That is the familiar one intro-
duced more than 50 years ago in International Shoe Co. v.
Washington, 326 U.S. 310 (1945), and then elaborated in
later cases. As we described the current state of the con-
stitutional dimension of personal jurisdiction in Hyatt,
it requires that
the defendant must have minimum contacts with the
forum state such that the maintenance of the suit does
not offend traditional notions of fair play and sub-
stantial justice. Those contacts may not be fortuitous.
Instead, the defendant must have purposefully estab-
lished minimum contacts within the forum State before
personal jurisdiction will be found to be reasonable
and fair. Crucial to the minimum contacts analysis is
a showing that the defendant should reasonably
anticipate being haled into court in the forum State,
because the defendant has purposefully availed itself
of the privilege of conducting activities there.
302 F.3d at 716 (alterations, citations, and internal quotation
marks omitted); see also Burger King Corp. v. Rudzewicz, 471
U.S. 462, 475-78 (1985); Int’l Shoe, 326 U.S. at 316-19.
There is no suggestion here that the New Mexico defen-
dants have such extensive contacts with Illinois that it
would be permissible to exercise jurisdiction over them
8 No. 07-2956
without regard to their activities related to Illinois. See
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414-15 (1984). Instead, we are in the more common situa-
tion where we must assess whether it is “fundamentally
fair to require the defendant to submit to the jurisdiction
of the court with respect to this litigation.” Purdue Research
Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 780 (7th
Cir. 2003) (emphasis in original) (citing World-Wide Volks-
wagen Corp. v. Woodson, 444 U.S. 286, 292 (1980); Int’l Shoe,
326 U.S. at 316-17). The crucial question is foresee-
ability—that is, whether the defendants could have antici-
pated being haled into court in Illinois. To determine
whether that is the case, courts look to whether the defen-
dants have “purposefully availed” themselves of the
privileges of conducting activities in the forum state,
and whether they have deliberately engaged in sig-
nificant activities or created continuing obligations there.
Id. at 780-81.
Applying that test to the New Mexico defendants, the
district court concluded that their contacts with Illinois
were too “scant” to authorize personal jurisdiction in the
Northern District of Illinois. It found that “no specific
contacts [were] alleged, only that defendants arranged
and planned Kinslow’s transfer.” The court characterized
the New Mexico defendants’ contacts with Illinois as
limited to a mere “handful of phone calls.” Moreover, as
it saw the case, these defendants had such a minimal role
in Kinslow’s transfer that they “could not have foreseen
being haled into an Illinois court. Their Illinois-related
activities were simply not significant and created no
continuing obligations with respect to this litigation.”
Kinslow has argued before this court that there were
indeed the kind of “continuing obligations” that would
No. 07-2956 9
justify personal jurisdiction. They arose, in his view,
from the New Mexico defendants’ contract with the
Illinois defendants under the Interstate Corrections Com-
pact. Both New Mexico and Illinois have ratified the
Compact and enacted it by statute, see 730 ILCS 5/3-4-4;
N.M. STAT. § 31-5-17, and it governed Kinslow’s transfer
from New Mexico to Illinois in 1995 and from Illinois to
New Mexico in 2004. Kinslow devoted the bulk of his
opening brief to this argument, the essence of which is
that the Compact created a direct, substantial contact
between New Mexico and Illinois, as well as an indirect
contact by way of a long-standing agency relationship
between the New Mexico and Illinois prison officials.
This argument runs into several serious problems. The
first is that Kinslow never presented it to the district
court, and so it is forfeited. Omega Healthcare Investors, Inc.
v. Res-Care, Inc., 475 F.3d 853, 858-59 (7th Cir. 2007).
Kinslow’s reply brief argues that he did present his
Compact-based argument to the district court, but we have
reviewed his response to the New Mexico defendants’
motion to dismiss for lack of personal jurisdiction, and
we did not find even a passing reference to the Compact or
to his agency theory. Just as the defense of personal
jurisdiction can be waived if not timely asserted, so too
can a basis for personal jurisdiction be waived for the
same reason.
Though we could choose to review this forfeited claim
under the demanding plain-error standard, that would
do Kinslow no good. His theory under the Compact relies
on agency principles of respondeat superior and vicarious
liability, but neither one applies to claims based on § 1983.
See Monell v. N.Y. City Dep’t Soc. Servs., 436 U.S. 658, 691
(1978) (no respondeat superior liability); Hosty v. Carter, 412
10 No. 07-2956
F.3d 731, 733 (7th Cir. 2005) (“[Section] 1983 does not
create vicarious liability[.]”). Thus, in addition to being
forfeited, the argument fails on its merits. We add that a
case based on agency is dubious here in any event, not
only because Kinslow has already settled with the IDOC,
but also because the only principal-agent relationship the
Compact creates is between Illinois and New Mexico,
neither of which is before the court and neither of
which may be sued under § 1983.
Kinslow also argues that “the New Mexico defendants
deliberately engaged in sufficient activities in the forum
state to reasonabl[y] anticipate being haled to court there.”
The New Mexico defendants argue, and the district court
agreed, that their contacts were trivial, limited to “two or
three phone calls to their Illinois Department of Correc-
tions counterparts.” This is not enough, they urge, to
establish jurisdiction.
We are not so sure. There are cases holding that “one
business transaction related to the cause of action is
clearly a sufficient basis for jurisdiction.” Heritage House
Rests., Inc. v. Cont’l Funding Group, Inc., 906 F.2d 276, 281
(7th Cir. 1990) (collecting cases). In the end, however,
none of this matters. The problem that sinks Kinslow’s
case is not the degree of contact that these three New
Mexico officials may have had with Illinois. Instead, it is
his failure throughout this litigation to look at each sepa-
rate person’s contacts with Illinois and his assumption
that the defendants could instead be treated as a group
under the umbrella of the NMDOC. Though his response
to the motion to dismiss in the district court and the factual
summary in his opening brief on appeal both contain a
brief explanation of each defendant’s role in the transfer,
nowhere do we find information that focuses on each
defendant’s contacts with Illinois for purposes of personal
No. 07-2956 11
jurisdiction. His failure to develop these arguments is
fatal to his claim. United States v. Useni, 516 F.3d 634, 658
(7th Cir. 2008); 330 W. Hubbard Rest. Corp. v. United States,
203 F.3d 990, 997 (7th Cir. 2000).
This is not just a technical quibble on our part. For
example, our own examination of the record has turned
up no basis for an Illinois court to exercise personal
jurisdiction over Sedillo. And when Dr. Pullara decided
that Kinslow should be moved from Illinois to New
Mexico, it was a fellow New Mexican official whom he
contacted, McReynolds. The record is very thin about any
actions Pullara personally took that had a direct con-
nection with Illinois. Finally, absent a developed argu-
ment from Kinslow, we are not willing to assume that
McReynolds’s contacts were adequate either. Kinslow
forfeited his chance to show sufficient personal contacts
for each defendant as an individual.
III
Our conclusion should not be taken as any kind of
endorsement of the level of medical treatment Kinslow
received during his transfer. But that is not the question
before us. We must decide only whether a federal court
in Illinois is entitled to adjudicate whatever claims
Kinslow may have against the three officials from New
Mexico that he has named as defendants. We conclude,
on this record, that Kinslow has not met his burden of
showing that personal jurisdiction was proper for any
of the defendants. We therefore AFFIRM the judgment of
the district court.
8-14-08