Dustin James v. Deborah Hale ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1857
DUSTIN JAMES,
Plaintiff-Appellant,
v.
DEBORAH HALE,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:15-cv-01335-JPG-MAB — J. Phil Gilbert, Judge.
____________________
ARGUED FEBRUARY 14, 2020 — DECIDED MAY 14, 2020
____________________
Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.
SYKES, Circuit Judge. It is axiomatic that the first step in
the summary-judgment process is to ask whether the evi-
dentiary record establishes a genuine issue of material fact
for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). To decide this question, the judge may disregard an
affidavit that attempts to create a sham issue of fact. The
“sham affidavit rule” exists in every circuit. This case illus-
trates the wisdom of the rule.
2 No. 19-1857
Dustin James, a former pretrial detainee at the St. Clair
County Jail in Belleville, Illinois, filed a pro se civil-rights
lawsuit against Deborah Hale, the administrator of the jail
infirmary, accusing her of inadequately treating his medical
needs. 1 He later acquired counsel, and significant discovery
followed, including the production of jail infirmary and
outside medical records that contradicted allegations in his
complaint.
Through counsel James obtained leave from a magistrate
judge to file an amended complaint, but the factual section
simply repeated the allegations in the original pro se ver-
sion. In a subsequent deposition, James contradicted those
factual assertions. When Hale moved for summary judg-
ment, James responded by swearing out an affidavit incor-
porating by reference the allegations in the amended
complaint.
The magistrate judge disregarded the affidavit, as well as
an affidavit submitted by James’s mother, and recommend-
ed that the district court grant the motion. The district judge
excluded the affidavits under the sham-affidavit rule and
entered summary judgment for Hale.
We affirm. Not only is James’s affidavit a sham, it was an
improper attempt to convert the allegations in the complaint
into sworn testimony to avert summary judgment. The
exclusion of his mother’s affidavit was a mistake, but the
error was harmless because she added nothing of substance.
1 Hale’s first name is spelled “Debra” in the district court’s docket and
final order but is in fact spelled “Deborah” according to the disclosure
statement and her deposition.
No. 19-1857 3
The constitutional claim lacks factual support, so summary
judgment in Hale’s favor was proper.
I. Background
On the evening of January 11, 2015, Dustin James, a pre-
trial detainee in the St. Clair County Jail, was assaulted by
another inmate and sustained severe facial injuries. At
11:15 p.m. he was taken to the jail infirmary. His civil-rights
suit centers on the response by Deborah Hale, the jail’s
Health Services Administrator. We ask the reader’s patience
as we provide the details and dates; their importance will
become clear later.
James’s injuries were serious enough to send him to the
hospital. Just before midnight he arrived in the emergency
room at St. Elizabeth’s Hospital where he received a CT scan
and was diagnosed with a left zygomatic arch fracture and
facial laceration. He received two morphine injections for
pain and the laceration was sutured. The ER doctor’s dis-
charge instructions required removal of the stitches in five
days and recommended a follow-up visit with an otolaryn-
gologist (known colloquially as an “ENT” specialist). The
doctor also referred James to Dr. Paul Szewczyk, an oph-
thalmologist, for follow-up care. James arrived back in the
jail infirmary at 3 a.m. on January 12.
Nursing staff cared for James until he was seen on
January 13 by a jail physician, who prescribed Motrin for ten
days, referred James to an ophthalmologist and an ENT, and
kept him in the jail infirmary. Three days later James was
transported to Quantum Vision Centers where Dr. Szewczyk
examined him and determined that “[n]o treatment [was]
4 No. 19-1857
currently required.” The doctor recommended a follow-up
visit in one week.
Back at the jail, Nurse Jennifer Sabaleski removed the su-
tures in James’s eyebrow on January 19. She also noted his
complaint of facial numbness. On January 24 she document-
ed James’s request for an extension of his pain medication.
The next morning she examined him; he voiced no com-
plaints of pain. James later complained of recurring facial
pain to a different nurse, and a jail physician prescribed ten
more days of Motrin.
In accordance with the discharge instructions, James was
examined by an ENT at Archview Medical Specialists on
January 26. The doctor recommended a referral to a plastic
surgeon for a possible reduction of the left orbital rim. Two
days later at a follow-up appointment at Quantum Vision,
Dr. Szewczyk noted that James’s vision, alignment, eye
movements, retina, and optic nerve were all doing well. He
also recommended a referral to a plastic surgeon for a
complaint of cheek numbness.
On February 19 James asked to see Hale, complaining of
facial pain. He requested more pain medication, but Hale
told him that there was no current order for ibuprofen and
he would need to see a doctor to obtain a new prescription.
She noted facial swelling and planned to refer him to a
doctor, but the on-site physician wasn’t at the jail that day.
James had an appointment scheduled with an off-site spe-
cialist the next day, so Hale did not submit a physician
referral.
The following morning—Friday, February 20—James
was transported to a clinic connected with St. Louis Univer-
No. 19-1857 5
sity Hospital where Dr. Bruce Kraemer, a plastic surgeon,
examined him. James denied having any visual disturbances
or eating difficulties. The exam revealed an elevated temper-
ature, facial swelling, and pain; however, Dr. Kraemer noted
no overt evidence of infection other than the facial swelling.
He ordered another CT scan because he apparently did not
have access to the earlier one, so James was taken to radiolo-
gy for that test. James was supposed to see Dr. Kraemer after
the scan was completed, but he never returned to the clinic.
After reviewing the results of the CT scan later that day,
Dr. Kramer made the following observations in a 6:42 p.m.
addendum to his examination notes:
Given the paucity of radiographic findings[,]
his swelling[, and] his temperature[,] I called
the jail where he is residing[.] I left a message
with the medical Department that I would rec-
ommend putting him on Cipro 500 mg twice
daily[,] and I gave them my cell number to call
me over the weekend if they have questions
and we will try to reach them again Monday
morning.
The addendum also reflects a recommendation for a follow-
up visit in two weeks.
As promised, on Monday morning, February 23, some-
one from Dr. Kraemer’s office called the jail infirmary and
recommended that James be given Cipro, an antibiotic. He
received the first dose that evening during the next sched-
uled medication pass. He was released from custody the
next day.
6 No. 19-1857
In December 2015 James filed a pro se civil-rights com-
plaint against Hale seeking damages under 42 U.S.C. § 1983
for denial of medical care in the jail. 2 He claimed that on or
about January 20, he reported to Hale that his eye was nearly
swollen shut, his face was numb, and he was hardly able to
open his mouth on one side. He alleged that she gave him a
“sick call form” with instructions to fill it out, and he did so
repeatedly between January 20 and 28 but “was never seen
by any medical staff.” He alleged that his mother, Patricia
Powell, called the jail the following week and spoke to Hale,
but he “still received no medical attention to the problems at
hand or was even seen by medical staff.” He further alleged
that he woke up on February 20 with pain and facial swell-
ing and requested to see Hale, but when she saw him, she
“stated to him he was fine.” He alleged more generally that
between January 20 and February 28 he suffered from vision
loss, pain, facial swelling, and an inability to eat due to
Hale’s “medical neglect.” The complaint sought $100,000 in
compensatory damages and $5,000 in punitive damages. The
case was referred to a magistrate judge in January 2016.
James acquired counsel in January 2017, and counsel ob-
tained James’s jail infirmary and outside medical records
through discovery. The records contradicted or clarified the
allegations in the complaint in numerous respects. A sample:
x In his complaint James alleged that on or about
February 20, he woke up with pain and facial swelling
2 James also sued St. Clair County Jail Captain Thomas Trice alleging
that he punished him with segregation time in retaliation for seeking
medical care. The claim later settled and was dismissed with prejudice.
No. 19-1857 7
and requested to see Hale. The jail infirmary records clar-
ified that these events took place on February 19.
x The complaint alleged that James repeatedly com-
plained of facial pain and swelling between January 20
and February 28 and received no medical attention. The
jail infirmary records show that members of the nursing
staff conducted daily rounds during this time period and
dispensed ibuprofen to him three times a day between
January 13 and 23, when his initial ten-day prescription
expired; he was examined by Nurse Sabaleski on
January 24 and 25, and a jail physician thereafter extend-
ed his ibuprofen prescription for ten more days; he was
examined on January 26 and 28 by an outside ENT and
ophthalmologist, respectively, and by Dr. Kraemer (the
plastic surgeon) on February 20.
x In his complaint James alleged that from January 20 to
February 28 he suffered from vision loss and was unable
to eat. The medical records show that he denied suffering
from either of these problems at his February 20 ap-
pointment with Dr. Kraemer.
x The complaint alleged that the January 12 CT scan re-
vealed a possible concussion. The medical records reflect
no concussion.
Notwithstanding these contradictions and clarifications,
in July 2017 James—through his counsel—obtained leave to
file an amended complaint in which he simply repeated the
factual allegations from his original complaint. In his
February 2018 deposition, James directly contradicted many
of the allegations in the amended complaint.
8 No. 19-1857
Hale eventually moved for summary judgment. In re-
sponse James attached his deposition testimony,
Dr. Kraemer’s deposition testimony, a copy of the amended
complaint, and an expert report by Dr. Michael Angarone,
D.O. James later moved for leave to supplement his response
with two affidavits—one from himself and one from his
mother, Patricia Powell. The magistrate judge granted the
motion. Both affidavits simply incorporated by reference
factual allegations from the amended complaint, directly
contradicting James’s deposition testimony and the infirma-
ry and outside medical records.
The case was then transferred to a different magistrate
judge who disregarded the affidavits, pointing out that they
merely cross-referenced allegations in the amended com-
plaint and reasoning that it was not his job to construct
James’s argument from the record. Based on the remaining
evidence, the magistrate judge found no factual support for
James’s claim and recommended that the district court grant
the summary-judgment motion.
The district judge disagreed with some of the magistrate
judge’s reasoning but ultimately adopted his recommenda-
tion. Relying on our decision in Ford v. Wilson, 90 F.3d 245,
247 (7th Cir. 1996), the judge determined that the affidavits
were not impermissible merely because they simply swore
to the truth of allegations in the amended complaint. The
judge instead excluded the affidavits under the sham-
affidavit rule. Examining the remainder of the evidence, the
judge held that no reasonable jury could find that Hale’s
actions were objectively unreasonable in violation of James’s
right to due process. The judge accordingly entered sum-
mary judgment in Hale’s favor.
No. 19-1857 9
II. Discussion
James challenges the exclusion of the two affidavits and
the judge’s decision on the merits. We review evidentiary
rulings for an abuse of discretion. United States v. Trudeau,
812 F.3d 578, 590 (7th Cir. 2016). We review the judge’s
summary-judgment order de novo, construing the record in
the light most favorable to James and drawing all reasonable
inferences in his favor. Estate of Simpson v. Gorbett, 863 F.3d
740, 745 (7th Cir. 2017).
A. Ford v. Wilson
Before turning to the sham-affidavit rule, we pause to
address the district court’s application of our decision in
Ford v. Wilson. The judge assumed that Ford generally au-
thorizes a plaintiff to convert allegations in a complaint into
an affidavit that is capable of defeating summary judgment.
In other words, if James’s affidavit hadn’t turned out to be a
sham, the district judge would not have adopted the magis-
trate judge’s recommendation to disregard it. Still, the judge
disapproved of James’s use of this “conversion” technique,
particularly since he was represented by counsel. He sug-
gested that the tactic “makes a mockery of how summary
judgment is supposed to work.”
The judge’s point is well-taken, so we take this oppor-
tunity to clarify Ford’s scope. Roy Ford filed a verified pro se
civil-rights complaint against a police officer who arrested
him after a traffic stop. The officer moved for summary
judgment, and the judge granted the motion because Ford
had not submitted an affidavit or other evidence in opposi-
tion. Ford, 90 F.3d at 246–47. Although we ultimately af-
firmed the judgment, we reasoned that because Ford had
10 No. 19-1857
verified his complaint, some of its contents “were affidavit
material.” Id. at 247.
We began our analysis with the general principle that a
plaintiff may not rely on mere allegations or denials in his
complaint when opposing a properly supported motion for
summary judgment. Id. at 246–47. We explained, however,
that a verified complaint—signed, sworn, and submitted
under penalty of perjury—can be considered “affidavit
material” provided the factual allegations otherwise satisfy
the affidavit criteria specified in Rule 56 of the Federal Rules
of Civil Procedure and the declarant complies with 28 U.S.C.
§ 1746, which sets forth the requirements for verification
under penalty of perjury. Id. at 247.
We took pains, however, to sound a cautionary note. Be-
cause this tactic undermines the function of Rule 56, we
pointedly said that “[w]e do not mean to commend the
practice.” Id. We explained that Rule 56 requires “the sub-
mission of evidentiary material in response to a motion for
summary judgment as a means of sharpening the issues, so
that the judge can determine just what if anything must be
tried.” Id. Merely pointing to assertions in a verified com-
plaint “is bound to make the identification of genuine issues
of material fact difficult, complicating the work of the
judge.” Id. Still, we did not think that this “departure from
proper practice” was “so egregious or such a burden on the
court as to warrant the fell sanction of dismissal” in Ford’s
case, especially since he was litigating pro se and had not
been warned against this approach.
Importantly, every out-of-circuit case we relied on for
support in Ford dealt with a litigant who was not represent-
ed by counsel when he verified his complaint. See Colon v.
No. 19-1857 11
Coughlin, 58 F.3d 865, 868 (2d Cir. 1995); Schroeder v.
McDonald, 55 F.3d 454, 456 (9th Cir. 1995); King v. Dogan,
31 F.3d 344, 345 (5th Cir. 1994). Not once in the 24 years since
Ford was decided have we allowed a represented party to
resist summary judgment by submitting an affidavit swear-
ing to the allegations in the complaint after significant
discovery. We see no reason to make this case the first. Ford
struck a delicate balance between issue clarification and
equity. James asks us to upset this balance, insisting that we
accept an affidavit that reaches back past extensive discovery
conducted with the assistance of counsel to repeat assertions
in a pro se complaint. That approach obscures rather than
clarifies the determination of material factual issues. In
addition, the equities are quite different when a party is
represented by counsel.
In sum, Ford should not be understood as a general au-
thorization for a represented plaintiff to defeat summary
judgment after extensive discovery by the simple expedient
of swearing in an affidavit that the allegations in the com-
plaint are true. There is no authority in this circuit for such
“reach back” complaint verification.
B. Sham-Affidavit Rule
The principal function of summary judgment is to pre-
vent unnecessary trials by screening out factually unsup-
ported claims. Albiero v. City of Kankakee, 246 F.3d 927, 932
(7th Cir. 2001). Rule 56(c)(4) serves this screening function by
permitting a party to use an affidavit or declaration to
support or oppose a motion for summary judgment only if
the affidavit (1) attests to facts of which the affiant has
“personal knowledge”; (2) “set[s] out facts that would be
admissible in evidence”; and (3) “show[s] that the affiant or
12 No. 19-1857
declarant is competent to testify on the matters stated.”
Similarly, Rule 56(h) permits a judge to sanction a party who
presents an affidavit “in bad faith or solely for delay.” FED.
R. CIV. P. 56(h). Rule 56 thus requires a judge to scrutinize
the substance of an affidavit offered in response to a
summary-judgment motion to determine whether a reason-
able jury could rely on the factual statements it contains.
Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 252 (3d Cir.
2007).
In furtherance of this screening function and in support
of a judge’s duty at the summary-judgment stage, every
federal court of appeals permits a judge to disregard a
“sham” affidavit—typically an affidavit that contradicts
prior deposition testimony. See Babrocky v. Jewel Food Co.,
773 F.2d 857, 861 (7th Cir. 1985); Colantuoni v. Alfred Calcagni
& Sons, Inc., 44 F.3d 1, 4–5 (1st Cir. 1994); Sinskey v. Pharmacia
Ophthalmics, Inc., 982 F.2d 494, 498 (Fed. Cir. 1992); Martin v.
Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988);
Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986); Reid v.
Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986); Albert-
son v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984);
Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656,
657–59 (11th Cir. 1984); Barwick v. Celotex Corp., 736 F.2d 946,
960 (4th Cir. 1984); Camfield Tires, Inc. v. Michelin Tire Corp.,
719 F.2d 1361, 1364–65 (8th Cir. 1983); Radobenko v. Automated
Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975); Perma Research
& Dev. Co. v. Singer Co., 410 F.2d 572, 577–78 (2d Cir. 1969).
In this circuit the sham-affidavit rule prohibits a party
from submitting an affidavit that contradicts the party’s
prior deposition or other sworn testimony. Dunn v. Menard,
Inc., 880 F.3d 899, 910 (7th Cir. 2018). We also disregard an
No. 19-1857 13
affidavit that contradicts a statement made under penalty of
perjury, even if the statement was not made in the course of
litigation. See United States v. Funds in the Amount of
$30,670.00, 403 F.3d 448, 466 (7th Cir. 2005) (applying the
sham-affidavit rule to statements in an affidavit that contra-
dicted representations in the affiant’s bankruptcy filing and
tax returns). The organizing principle of our sham-affidavit
practice is simply stated: a genuine issue of material fact
cannot be conjured out of nothing. We adopted the sham-
affidavit rule “to weed out unfounded claims, specious
denials, and sham defenses.” Babrocky, 773 F.2d at 861.
By incorporating by reference the assertions from his
amended complaint, James’s affidavit contradicted his
deposition testimony in numerous respects. A few of the
contradictions include:
x Paragraph 17 of the amended complaint alleges that
James was “never seen by any medical staff” “for a
week” spanning from approximately January 20 to 28,
and paragraph 22 alleges that he thereafter “received
no medical attention to the problems at hand or was
even seen by medical staff.” In his deposition James
acknowledged that he saw nurses in the jail infirmary
“daily”; he “had the opportunity” to speak to them;
and he was “seen by an outside physician, whether it
be at the ER or by a specialist, a total of five times be-
tween January 11th and February 24th.”
x Paragraphs 32 to 34 of the amended complaint de-
scribe an interaction between Hale and James “on or
around the date of February 20” in which he com-
plained of facial pain and swelling. According to
James’s deposition testimony and the medical rec-
14 No. 19-1857
ords, this event actually took place on February 19.
This is a crucial interaction, and by the time of the
summary-judgment motion, James and his attorney
knew the actual date. There is no basis to accept an af-
fidavit swearing to an important transactional date
that James and his attorney knew was wrong.
x Paragraphs 51 to 56 describe a series of events span-
ning from February 25 to March 1 that, according to
James’s testimony, could not have happened on the
specified dates. The amended complaint asserts that
James contacted his criminal attorney from jail on
February 25 asking for his help in getting released so
he could seek medical attention. The amended com-
plaint also asserts that James visited with his attorney
from the jail via videoconference on February 27 and
was released from custody on March 1. None of this is
true: James was released from custody on
February 24, as he acknowledged in his deposition.
These contradictions do not concern minor details. The
gravamen of James’s constitutional claim is that Hale’s
response to his medical needs was objectively unreasonable.
The claim entails a context-sensitive, fact-bound inquiry into
the intentionality of the defendant’s conduct and the totality
of the circumstances. See McCann v. Ogle County, 909 F.3d
881, 886 (7th Cir. 2018). The contradictory dates matter
because the timing of the events is central to James’s conten-
tion that Hale failed to adequately address his medical
needs. When James requested to see Hale and whether he was
seen by medical professionals over a particular period
between his injury in late January through his release from
No. 19-1857 15
the jail in late February 2015 are factual issues that would be
focal points in any subsequent trial.
James responds that the judge relied on contradictions
between his reach-back affidavit and the contents of records
from the infirmary and outside medical providers. He insists
that this cannot establish any contradiction between sworn
statements made by him. He also notes that we have in
several cases said that the sham-affidavit rule is narrow and
should be applied with caution. See Castro v. DeVry Univ.,
Inc., 786 F.3d 559, 571 (7th Cir. 2015) (cautioning that the
sham-affidavit rule “must be applied with great care …
because summary judgment is not a tool for deciding ques-
tions of credibility”).
It’s true that the sham-affidavit rule applies to contradic-
tions between an assertion in a party’s summary-judgment
affidavit and the party’s prior sworn testimony. But this
does not help James’s position. The contradictions between
James’s reach-back affidavit and his deposition testimony
fall squarely within the core of the sham-affidavit rule.
For the sake of completeness, it’s worth noting that we
have recognized three exceptions to the sham-affidavit rule.
An affidavit that contradicts prior testimony but contains
newly discovered evidence is allowed. Adelman-Tremblay v.
Jewel Cos., Inc., 859 F.2d 517, 520 (7th Cir. 1988). And because
a deponent may be confused by a question and his memory
may fail, a judge may also consider an affidavit that contra-
dicts a statement in a deposition if the statement is demon-
strably mistaken. Russell v. Acme-Evans Co., 51 F.3d 64, 68
(7th Cir. 1995). We also allow the submission of a supple-
mental affidavit that clarifies ambiguous or confusing
16 No. 19-1857
deposition testimony. Bank of Ill. v. Allied Signal Safety
Restraint Sys., 75 F.3d 1162, 1171–72 (7th Cir. 1996).
None of these exceptions applies here. James’s reach-
back affidavit did not clarify ambiguous or confusing depo-
sition testimony, see Buckner, 75 F.3d at 292, and he hasn’t
demonstrated that the relevant deposition statements were
mistaken, see Russell, 51 F.3d at 67–68. His affidavit contains
no newly discovered evidence—to the contrary, it fails to
acknowledge the known, newly discovered evidence. See
Adelman-Tremblay, 859 F.2d at 520. James’s affidavit was
properly excluded as a sham.
The affidavit from his mother is another matter. Patricia
Powell did not testify in deposition or make any other sworn
statements about these events before swearing out her
affidavit incorporating the complaint’s allegations about her
phone call to Hale. But any error in excluding her affidavit
was harmless. The factual assertions that Powell incorpo-
rated by cross-reference add nothing of importance to
James’s case. The amended complaint alleges only that she
contacted Hale in January 2015 regarding James’s medical
care and that Hale “assured [her] the situation would be
taken care of.”
The lack of detail here vitiates any evidentiary value. If
the call had taken place, say, on January 29 after James had
been seen by nursing staff and by specialists, and if Powell
had told Hale that James’s condition had considerably
worsened, and if Hale had then declined to act, that might
give Powell’s conversation with Hale some substance. But as
it stands the assertion does not support a reasonable infer-
ence that Hale’s conduct was objectively unreasonable.
No. 19-1857 17
Although Powell’s affidavit should not have been excluded,
it does not change anything.
C. Merits
A § 1983 claim that a state pretrial detainee has received
inadequate medical care is predicated on the rights secured
by the Fourteenth Amendment’s Due Process Clause.
Miranda v. County of Lake, 900 F.3d 335, 346–47 (7th Cir.
2018). Claims of inadequate medical care while in pretrial
detention are subject to an objective-reasonableness stand-
ard. Id. at 352. Hale was employed by a private company
that contracted with St. Clair County to provide medical
care, so she was a state actor amenable to suit under § 1983.
Id. at 346–47.
The plaintiff bears the burden to demonstrate objective
unreasonableness, and he must make a twofold showing.
First, he must show that the defendant acted purposefully,
knowingly, or recklessly when considering the consequences
of his response to the medical condition at issue in the case.
McCann, 909 F.3d at 886. Second, the plaintiff must show
that the challenged conduct was objectively unreasonable in
light of the totality of the relevant facts and circumstances.
Id. James has not presented sufficient evidence for a reason-
able jury to find in his favor on either element of the claim.
To the extent that James contends that Hale’s actions
were objectively unreasonable because she did not provide
additional pain medication, our decision in McCann is
instructive. There we held that a nurse who administered
medicine in accordance with a doctor’s prescription but
failed to take the detainee’s vital signs did not act purpose-
fully, knowingly, or recklessly. Id. So too here: doctors
18 No. 19-1857
prescribed medication on three occasions during the rele-
vant time period. Overnight on January 11–12 James re-
ceived morphine for pain in the emergency room and a ten-
day prescription for Motrin when he returned to the jail
infirmary. On January 25 the Motrin prescription was ex-
tended for another ten days. And on the morning of
February 23, Dr. Kraemer’s office called the jail infirmary
and recommended Cipro. In each case James received the
prescribed medication without significant incident.
Dr. Angarone, James’s expert, offered his opinion that
James “developed an abscess on the left side of his face at
the site of his left zygomatic fracture due to negligence by the
[d]efendant by not obtaining [a] timely evaluation for the
[p]laintiff by a physician and [not] dealing the administra-
tion of antibacterials prescribed by Dr. Kraemer on
Feb[ruary] 20, 2015.” (Emphasis added.) But more than
negligence or even gross negligence is required for a viable
§ 1983 claim for inadequate medical care. Id. at 887.
James argues that it was objectively unreasonable for
Hale not to send him to the emergency room on February 19.
However, James saw Dr. Kraemer the very next day, and the
doctor did not find his condition severe enough to require an
emergency-room trip. Dr. Kraemer ordered a CT scan and
recommended that James be given Cipro and return for a
follow-up visit in two weeks. James contends that Hale
unreasonably delayed his receipt of the antibiotic, but the
record shows otherwise. No evidence suggests that Hale was
aware of Dr. Kraemer’s recommendation before the morning
of February 23. And she immediately contacted a doctor to
fill the prescription. James received his first Cipro dose that
evening during the next scheduled medication pass.
No. 19-1857 19
* * *
Because a reasonable jury could not find for James on his
constitutional claim against Hale, summary judgment in her
favor was appropriate.
AFFIRMED