Michael Thomas v. Aline Martija ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1767
MICHAEL THOMAS,
Plaintiff-Appellant,
v.
ALINE MARTIJA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 7187 — Rebecca R. Pallmeyer, Chief Judge.
____________________
ARGUED OCTOBER 28, 2020 — DECIDED MARCH 16, 2021
____________________
Before RIPPLE, WOOD, and BRENNAN, Circuit Judges.
WOOD, Circuit Judge. In 1976, the Supreme Court
recognized that the government has an “obligation to provide
medical care for those whom it is punishing by incarceration.”
Estelle v. Gamble, 429 U.S. 97, 103 (1976). And the state may not
punish someone by withholding necessary care. As this court
has recognized, the Eighth Amendment “safeguards the
prisoner against a lack of medical care that ‘may result in pain
2 No. 19-1767
and suffering which no one suggests would serve any
penological purpose.’” Petties v. Carter, 836 F.3d 722, 727 (7th
Cir. 2016) (en banc) (quoting Gamble, 429 U.S. at 103). The
question in this case is whether Michael Thomas, who has
been incarcerated in Illinois for over a decade, suffered from
deliberately indifferent medical care in violation of his Eighth
Amendment rights with respect to the care his prison
furnished (or failed to furnish) for his broken hand and his
enlarged prostate.
In this suit, which Thomas brought under 42 U.S.C. § 1983,
he seeks recovery from three sources: Dr. Saleh Obaisi; Dr.
Aline Martija; and the company that Illinois uses to provide
prison health care, Wexford Health Sources. The district court
granted summary judgment to all defendants on all claims.
We agree with the dispositions in favor of Dr. Martija and
Wexford. We conclude, however, that triable issues of fact
remain with respect to Dr. Obaisi (who appears here through
his Estate, since he died several years ago). We thus reverse
and remand that part of the judgment.
I
Thomas broke his hand in the midst of a fight at the Hill
Correctional Center on March 23, 2011. He sought and
received medical care from the Hill staff, who put a cast on
his hand and prescribed a low-bunk permit to avoid
subjecting him to severe pain and potential further injury
from the need to use his broken hand to reach the upper bunk.
X-rays from May 9, 2011, showed that Thomas’s hand had
begun to heal but was still fractured.
On May 11, 2011, Thomas was transferred to Illinois’s
Stateville Correctional Center, where he remains today.
No. 19-1767 3
Before he left Hill, the prison officials there told him that his
cast needed to be removed for the transfer, but that he would
receive a new cast upon his arrival at Stateville. Thomas
agreed to have the cast taken off. Upon his arrival at Stateville,
however, no one recasted him. A Stateville doctor reviewed
Thomas’s May 9, 2011, x-ray (taken at Hill) on June 19, 2011,
and concluded that the fracture remained “unresolved.” That
observation went unnoted. A physician’s assistant looked at
the same x-ray on June 30, 2011, and determined that Thomas
required no further treatment. Yet a doctor’s note from
August 2011 described the injured hand as “still healing,” and
apparently things were still unresolved as of December 2011,
when a doctor referred Thomas to physical therapy for his
hand. Thomas received that therapy ten months later, from
October to December of 2012.
Our story picks up a year later, when in November 2013
Dr. Obaisi became the medical director at Stateville; Dr.
Martija joined its staff in July 2014. Thomas began seeing both
Dr. Obaisi and Dr. Martija when he sought treatment and
accommodations for lingering complications from his hand
injury. Up until August 2014, he had kept his low-bunk
permit, but it expired at that time. Asserting that he was still
unable to navigate the top bunk, in October 2014 Thomas met
with Stateville medical staff and asked them to renew the low-
bunk permit. He also submitted formal requests through the
prison’s grievance system for a referral to an orthopedic
specialist for lingering complications from the same hand
injury. Thomas met with Dr. Obaisi on January 15, 2015, at
which time he repeated his requests for the low-bunk permit
and for additional treatment for his hand (even though the
appointment was for his prostate condition). Thomas
submitted a grievance reiterating those requests the same day.
4 No. 19-1767
Five months later, on June 25, 2015, Dr. Obaisi responded. He
renewed Thomas’s low-bunk permit in the course of another
visit related to Thomas’s enlarged prostate, and he agreed to
refer Thomas to an orthopedic specialist. That appointment
was scheduled for four months later, on October 29, 2015.
After the orthopedists at the University of Illinois at
Chicago (UIC) delayed Thomas’s appointment for an
additional month, Thomas finally was seen there. The UIC
specialist reported on November 12, 2015, that Thomas had
suffered some nerve damage in his hand, with consequent
diminished sensation. The specialist told Thomas that he
would not have suffered such significant complications if his
hand had been properly treated.
As we indicated, Thomas also suffers from an enlarged
prostate—a condition he has had since at least 1996. The
record shows that from 2011 to 2016 he received regular
treatment from medical staff in the prison system for his
prostate. He has received the drug Flomax for this condition
for many years, although Thomas does not believe that the
Flomax has helped much. Thomas also saw Dr. Obaisi on
January 15, 2015, for a residual urine test (a procedure that
reveals blockage from an enlarged prostate), but he declined
the opportunity to undergo the same procedure a week later.
II
The account of the facts we have just provided presents
them in the light most favorable to Thomas, the party
opposing summary judgment. The only question before us is
whether these facts require judgment for the defendants, even
when viewed in that favorable light, or if there is some work
for the trier of fact to perform. Weighing evidence is for the
No. 19-1767 5
factfinder, not the court. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); Kodish v. Oakbrook Terrace Fire Protection
Dist., 604 F.3d 490, 505 (7th Cir. 2010). On the other hand, if
there are no genuine disputes of fact and the record shows
that the movant is entitled to judgment as a matter of law, no
trial is needed. Thomas challenges the district court’s grant of
summary judgment in favor of all three defendants. We first
consider the individual defendants, and then turn to
Wexford.
A. Individual Defendants
A prison official—including someone in the position of the
doctors here—violates the Eighth Amendment “only when
two requirements are met. First, the deprivation alleged must
be, objectively, sufficiently serious,” and second, “[the] prison
official must have a sufficiently culpable state of mind.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation
marks omitted). Farmer defined that state of mind as
“deliberate indifference,” which exists when “the official
knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. at 837.
In Davis v. Kayira, we elaborated on this standard, as it applies
to an Eighth-Amendment claim based on inadequate medical
care:
[A] plaintiff might point to a number of things,
including the obviousness of the risk, the defendant’s
persistence in a course of treatment known to be
ineffective, or proof that the defendant’s treatment
decision departed so radically from accepted
professional judgment, practice, or standards that a
6 No. 19-1767
jury may reasonably infer that the decision was not
based on professional judgment.
938 F.3d 910, 915 (7th Cir. 2019) (cleaned up). In addition,
“inexplicable delay in treatment which serves no penological
interest” can support a finding of deliberate indifference in
this context. Petties v. Carter, 836 F.3d at 730; Grievson v.
Anderson, 538 F.3d 763, 779 (7th Cir. 2008).
The district court accepted for purposes of the defendants’
summary-judgment motion that Thomas’s two medical
conditions were objectively serious, but it concluded that
Thomas had failed to present any evidence that would permit
the trier of fact to conclude that either doctor acted with
deliberate indifference. We too confine our attention to the
latter issue.
1. Dr. Obaisi
Before reaching Thomas’s substantive claims against Dr.
Obaisi, we must clear away a procedural obstacle: what effect,
if any, does the fact that Thomas is now proceeding only
against Dr. Obaisi’s Estate have on this case? Thomas argues
that the Estate has waived any substantive defenses to his
section 1983 claim on appeal because in the trial court the
Estate raised only the Illinois dead man’s statute in defense.
That statute, Thomas contends, creates a state-law defense
that applies in federal court only to matters for which state
law provides the rule of decision. See Fed. R. Evid. 601;
Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1005 (7th Cir.
1989). Since federal law provides the rule of decision in a case
under section 1983, federal law governs privilege here.
Thomas is overstating the matter a bit: the Supreme Court
has instructed that state law provides the federal rule of
No. 19-1767 7
decision in cases under section 1983 for some issues that the
statute does not address, including survivorship. See 42
U.S.C. § 1988; Robertson v. Wegmann, 436 U.S. 584 (1978). The
parties did not mention this wrinkle, but this case is not
affected by it. Thomas thoroughly briefed his substantive
claims against Dr. Obaisi before both the district court and
this court, and the Estate has had ample opportunity to
respond. We are therefore free to proceed to the merits.
a. Hand Injury
Thomas focuses on Dr. Obaisi’s long, and in Thomas’s
view needless, delay both in renewing his low-bunk permit
and in referring him to a specialist in response to his constant
complaints of pain. It is not enough, however, simply to point
to a delay, which may or may not reflect deliberate
indifference. Instead, we ask how serious the condition in
question was, how easy it would have been to treat it, and
whether it exacerbated an injury or unnecessarily prolonged
pain. Petties, 836 F.3d at 730–31. Delay need not be extreme;
failing to provide a very easy treatment or accommodation
can suffice, if unnecessary suffering resulted. See Gil v. Reed,
381 F.3d 649, 662 (7th Cir. 2004).
Failure to grant a low-bunk permit can support a finding
of deliberate indifference. See, e.g., Palmer v. Franz, 928 F.3d
560 (7th Cir. 2019); Withers v. Wexford Health Sources, Inc., 710
F.3d 688 (7th Cir. 2013). Similarly, a physician’s delay, even if
brief, in referring an inmate to a specialist in the face of a
known need for specialist treatment may also reflect
deliberate indifference. See Goodloe v. Sood, 947 F.3d 1026 (7th
Cir. 2020); Petties, 836 F.3d at 726. Even a delay of less than a
week may be the result of deliberate indifference. See Conley
8 No. 19-1767
v. Birch, 796 F.3d 742, 749 (7th Cir. 2015) (five days attributable
to defendant).
As our earlier account of the facts shows, Dr. Obaisi did
not respond for six and ten months to Thomas’s requests for
the renewal of his low-bunk permit and a referral to an
orthopedic specialist. This timing would allow a factfinder to
conclude that Dr. Obaisi was aware of Thomas’s continuing
pain from the hand and consciously and needlessly delayed
both measures. Thomas filed a grievance in October 2014 after
meeting with prison medical professionals; that grievance
covered his request for the renewal of the low-bunk permit,
which had expired in August 2014, as well as his petition to
see a specialist. Nothing came of it. Thomas then had an
appointment with Dr. Obaisi on January 15, 2015, during
which Thomas informed the doctor that he still needed a new
low-bunk permit. Thomas codified this request in a formal
grievance filed the same day. Dr. Obaisi finally began
processing this request five months later, on June 25, 2015,
after an appointment for Thomas’s prostate problems,
without any explanation for his earlier inaction.
Dr. Obaisi now offers several responses, but none in our
view suffices to support summary judgment in his favor.
First, he suggests that the evidence does not actually support
a finding of when he knew about the permit request because
his own notes from the January 2015 appointment do not
mention it. But Thomas’s first-hand account of that
conversation is competent evidence, even if one alternatively
could infer from the lack of mention in the note that the issue
was not raised. A jury reasonably could conclude that Dr.
Obaisi simply did not record this detail. Indeed, failing to note
a request is consistent with deliberate indifference toward
No. 19-1767 9
that concern. Thomas’s concurrent grievance immediately
after the appointment also supports a finding that he did, in
fact, mention his request. Again, the fact that a jury might
instead conclude that Dr. Obaisi learned about the request
only on June 25, 2015, during the prostate exam, just shows
that there is a dispute of fact that must be resolved. Dr.
Obaisi’s notes from the June appointment indicate only “pain
r[ight] hand post metacarpal fracture,” with no mention of a
request for a permit. Yet in June Dr. Obaisi did take action on
Thomas’s persistent request for a renewal of the low-bunk
permit. A jury reasonably could conclude that Dr. Obaisi had
known about the permit request for some time and, for no
reason that appears in the record, simply delayed acting on it.
Dr. Obaisi also contends that Thomas failed to present
concrete evidence that would permit a finding that he was
forced to use an upper bunk during the period of delay. We
do not read the record this way. After Thomas’s low-bunk
permit expired in August 2014, he made a request for its
renewal in October. Thomas reiterated his plea in January
2015, both during his appointment with Dr. Obaisi and
through the formal grievance channels. A jury could
reasonably conclude either that Thomas had to use an upper
bunk between August 2014 and January 2015, and that this is
what prompted his repeated requests for the accommodation,
or at a minimum that he feared an imminent loss of his now-
unprotected low-bunk privilege. Or the jury might see
Thomas’s behavior as bad-faith pestering; we have no way of
knowing without a trial. It is enough for present purposes to
say that a reasonable jury could conclude that Thomas would
not have persisted in his request unless he actually needed the
accommodation.
10 No. 19-1767
But, Dr. Obaisi suggests, perhaps Thomas did not actually
need the permit after January 2015, when the doctor may have
first known about Thomas’s request, because Thomas did not
renew his request before June. That is just one possible
inference from the five-month hiatus; another is that Thomas
was discouraged or that he was trying to advance his request
in other ways. A reasonable jury could conclude that a person
who already had asked twice for a renewed permit and had
submitted grievances formalizing that request still needed the
permit. It could also find, on this record, that the delay would
expose him to pain by forcing him to use his poorly healed
broken hand to climb to an upper bunk.
b. Specialist Referral
The evidence would also permit a jury to conclude that Dr.
Obaisi acted with deliberate indifference by unnecessarily
delaying referring Thomas to an orthopedic specialist. Recall
that Thomas asked for this referral in October 2014 and
January 2015 when he saw Dr. Obaisi, and that he
documented those requests through the formal grievance
process. Dr. Obaisi finally began the referral process on June
25, 2015. A jury could conclude that Dr. Obaisi learned about
this request as early as the January appointment or through
Thomas’s grievance filed immediately after that appointment,
yet inexplicably failed to act for many months.
Dr. Obaisi contends that he was not responsible for the
delay; instead, he says, it was the fault of the UIC orthopedist.
He suggests that the orthopedist may not have had an
opening before October 2015, and that it was UIC, not himself,
that rescheduled the appointment for November. All this is to
say that there are facts that need to be resolved. It is enough
for now that there is evidence supporting two possibilities:
No. 19-1767 11
either that Dr. Obaisi was deliberately indifferent to Thomas’s
needs and caused this delay, or that administrative issues
beyond his control were to blame. Moreover, one cannot
blame the orthopedists for delays before June 2015, when Dr.
Obaisi initiated the referral process.
Although Farmer requires only a showing of a substantial
risk of harm to an inmate, it is still necessary to link that harm
or the risk thereof to the defendant. Thomas has done so in
two ways. First, he relies on the rule that a cognizable injury
exists where an inmate presents “independent evidence that
the delay exacerbated the injury or unnecessarily prolonged
pain.” Petties, 836 F.3d at 730–31 (citing Williams v. Liefer, 491
F.3d 710, 716 (7th Cir. 2007)) (emphasis added). Dr. Obaisi’s
delay, he contends, unnecessarily prolonged his pain while he
was waiting for the orthopedist’s treatment plan, which
ultimately included splinting his hand and pursuing physical
therapy. Second, Thomas points to medical reports from his
visit with the orthopedist. Those reports indicate that Thomas
suffered from diminished sensation in his fingers and healing
abnormalities, and they note that Thomas’s fracture had “not
completely healed.” A jury could conclude that the delay in
adequately treating Thomas’s hand injury led to nerve
damage and improper healing. Failure to provide necessary
relief and delaying access to a qualified specialist can lead to
prolongation of pain. See Goodloe, 947 F.3d at 1032; Petties, 836
F.3d at 731–32; Conley, 796 F.3d at 749.
Dr. Obaisi pushes back against the proposition that the
injuries the orthopedist documented are fairly traceable to
anything he did or failed to do. When asked whether the
damage “was due to the original breaking or due to the
recovery after that,” the orthopedist told Thomas that his
12 No. 19-1767
nerve damage resulted from “the original breaking.” But a
jury reasonably could conclude that this meant only that the
recovery process did not cause additional damage. That
possibility is consistent with the theory that the original break
caused the nerve damage because it was ignored for too long.
Thomas’s case is also not undermined by the fact that he
did not complain about his hand for two years and then again
noted significant pain in October 2014 and January 2015. A
jury could conclude that he suffered a setback caused by
imperfect healing and that Dr. Obaisi’s failure to act with any
sense of urgency exacerbated the injury.
Taking another tack, Dr. Obaisi suggests that Thomas was
responsible for his problems in 2015 because he got into a
fight in March of that year and punched another inmate.
Thomas may have used his formerly broken hand and caused
all the damage the orthopedist documented in November
2015. But Thomas complained of significant pain in his hand
in October 2014, well before the new fight, and he formally
asked to be seen by a specialist then and again in January
2015. No fight two months after the later date could have
affected that course of events. It is also worth noting that
nothing in the record reveals which hand Thomas used
during the March 2015 incident.
Dr. Obaisi calls our attention to a potential typographical
error in the medical report from the orthopedist and asks us
to draw an inference favorable to him from that supposed
glitch. On November 12, 2015, the orthopedist indicated that
the fracture “has now completely healed.” But notes from
Thomas’s next appointment with the same doctor on
September 1, 2016, indicate that new x-rays showed that the
fractures in his hand “[were] not completely healed, but are
No. 19-1767 13
shortened.” The defendants want us to read the “not” in the
second note as a typo and to instead insert “now,” which
would be consistent with the earlier note. (One could also
change the first note’s “now” to a “not,” for that matter.) But
we must take all inferences in the light most favorable to
Thomas, and from that perspective, the later note just
indicates that the new x-rays furnished additional
information about his condition. Support for the latter view
also comes from a radiology report from a September 1, 2016,
appointment; that record indicates that the x-rays from
November 12, 2015, and September 1, 2016, revealed
“redemonstrations” of the bone injury. With this before it, a
jury could conclude that the hand had never fully healed (and
so was susceptible to repeated re-injury), and thus that Dr.
Obaisi’s delay referring Thomas to a specialist unnecessarily
prolonged his pain.
Dr. Obaisi argues finally that he cannot be held
responsible for any additional suffering because the
orthopedist’s treatment plan mirrored the one the prisons
initially followed in 2011 and 2012—that is, the use of a splint
and occupational therapy. But if anything, a reasonable jury
could conclude that a person who broke his hand in 2011
would not normally need to be splinted in 2015 or to receive
additional physical therapy in 2016. From this, a jury might
conclude that Dr. Obaisi acted with deliberate indifference by
delaying his referral of Thomas to someone qualified to
address the new pain in 2014 and 2015 from this old injury.
c. Prostate
Thomas’s last complaint against Dr. Obaisi concerns the
doctor’s response to his enlarged prostate. He had been
getting Flomax from various doctors since as early as January
14 No. 19-1767
2012. Dr. Obaisi, and later Dr. Martija, continued that
prescription, but Thomas complained that it was ineffective
and that the doctors knew this. He supports his allegation of
knowledge with several medical records. First, a Wexford
medical professional’s ultrasound referral for his prostate on
January 5, 2012, indicated that Thomas “failed initial
medication trials with … Flomax.” This note suggests,
according to Thomas, that doctors in the Wexford system had
known since at least January 2012 that Flomax was ineffective
for him. Second, Dr. Obaisi noted during an appointment on
June 25, 2015, that Thomas “ha[d] been off Flomax which
reduced nocturia.” Nocturia is a condition that causes the
person to wake up frequently during the night to urinate; it is
associated with an enlarged prostate (among other things).
Thomas contends that a reasonable jury could find that Dr.
Obaisi concluded that Thomas would suffer less from
nocturia if he was taken off Flomax. Nonetheless, Dr. Obaisi
(and later, Dr. Martija) continued to prescribe Flomax rather
than explore alternative treatment plans.
Persisting in treatment known to be ineffective can
constitute deliberate medical indifference, provided that the
doctor was subjectively aware that the treatment plan was
ineffective. Petties, 836 F.3d at 729–30; Goodloe, 947 F.3d at
1031. It is not enough that the plaintiff simply believes the
treatment was ineffective or disagrees with the doctor’s
chosen course of treatment. Johnson v. Doughty, 433 F.3d 1001,
1013 (7th Cir. 2006); Estelle v. Gamble, 429 U.S. 97, 107 (1976).
The challenged plan must deviate so substantially from
accepted professional judgment that no reasonable physician
would reach the same judgment. Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011).
No. 19-1767 15
For this part of the case, we agree with the district court
that no jury could conclude that Dr. Obaisi acted with
deliberate indifference when he chose to continue the Flomax
prescription. Dr. Obaisi was not alone in his judgment that
this was the proper drug. Dr. Martija came to the same
conclusion, as did Thomas’s earlier doctors. The one note to
which Thomas points is not enough to create a jury issue.
Even if Thomas’s nocturia was temporarily reduced while he
was not taking Flomax, trade-offs are common in medicine,
and the evidence in this record indicates that Flomax is a
widely accepted treatment for an enlarged prostate. Indeed,
Thomas asked for additional Flomax prescriptions when his
prescription ran out in May and June of 2015.
2. Dr. Martija
We can be briefer with Thomas’s claims against Dr.
Martija, because she was not as involved in his treatment. We
begin, as before, with the hand injury and the associated
complaints about the low-bunk permit and the specialist
referral. The extension of the low-bunk permit that Dr. Obaisi
granted expired on December 26, 2015. Shortly thereafter,
Thomas asked Dr. Martija to renew it. Dr. Martija’s notes from
Thomas’s appointment with her on January 22, 2016, reveal
that she renewed the permit. Nothing in the record would
permit a finding that Dr. Martija learned of Thomas’s renewal
request any earlier than January 22, 2016, and so no jury could
conclude that she acted with deliberate indifference during
the one-month period between the expiration of the permit
and her renewal. Similarly, by November 2015 Thomas had
seen the UIC orthopedist; Dr. Martija had nothing to do with
any delays in that process.
16 No. 19-1767
Finally, with respect to the enlarged prostate, all that Dr.
Martija did was to continue the prescriptions of Flomax.
Thomas alleges that she ignored the presence of records
dating as far back as 1996 reporting that he suffered from an
enlarged prostate. Those records show that he had benign
prostatic hyperplasia (BPH) (i.e. an enlarged prostate), and a
January 2012 ultrasound confirmed this diagnosis. Dr. Martija
seems to have had some reservations about this assessment,
because she wrote after Thomas’s appointment in May 2015
that she saw “no basis for BPH.” But she did not act on that
skepticism. Instead, she prescribed Flomax and offered to
conduct standard tests to determine the seriousness of his
condition. She also reviewed Thomas’s medical records and
determined that nothing required more aggressive action. She
ordered a follow-up residual urine test in June 2015 with Dr.
Obaisi. Neither doctor thought that the results of this test
required a change in Thomas’s treatment.
This course of events, even construed favorably to
Thomas, does not reflect deliberate indifference. The district
court thus correctly granted summary judgment in favor of
Dr. Martija.
B. Wexford
We turn finally to Thomas’s claims against Wexford. The
critical question for finding a corporation liable under Monell
v. Dep’t of Social Servs., 436 U.S. 658 (1978), “is whether a
municipal (or corporate) policy or custom gave rise to the
harm (that is, caused it), or if instead the harm resulted from
the acts of the entity’s agents.” Glisson v. Indiana Dep’t of Corr.,
849 F.3d 372, 379 (7th Cir. 2017) (en banc). Monell recognizes
three primary ways in which one might prove that the
corporation or municipality itself inflicted the harm. First, the
No. 19-1767 17
plaintiff may show that the alleged unconstitutional conduct
implements or executes an official policy adopted by the
entity’s officers. Monell, 436 U.S. at 690; see also Glisson, 849
F.3d at 379 (quoting Los Angeles Cnty. v. Humphries, 562 U.S.
29, 35 (2010)). Second, the plaintiff may show that the
unconstitutional action was done pursuant to a custom—even
one that is not formally codified. Monell, 436 U.S. at 690–91.
Finally, the plaintiff may prove that an actor with final
decision-making authority within the entity adopted the
relevant policy or custom. Id. at 694; see also Vodak v. City of
Chicago, 639 F.3d 738, 747 (7th Cir. 2011).
The district court found that Thomas could not satisfy any
of these approaches and thus could not proceed on his claim
against Wexford. It added that Monell liability is unavailing
because, as it saw things, none of the individual defendants
was liable, and municipal liability requires an underlying
constitutional violation. Petty v. City of Chicago, 754 F.3d 416,
424–25 (7th Cir. 2014).
We find no merit in Thomas’s arguments to the contrary.
He contends that the failure of the doctors at Stateville to
provide the treatment of his hand that the Hill staff promised
as a condition for his transfer reveals a custom of deliberate
indifference. We have described that transfer earlier and see
no need to repeat the details. It is enough to say that this single
incident of a lapse in follow-up medical care is not enough to
show either a formal policy on Wexford’s part or an informal
custom.
Thomas also urges that Dr. Obaisi was the final
policymaker for Stateville. He reads our holding in Petties as
confirming that the medical director of a particular facility is
a final decisionmaker for Monell purposes. Petties held that the
18 No. 19-1767
plaintiff had alleged enough to proceed in an individual suit
against Dr. Imhotep Carter, who was then serving as
Stateville’s medical director. But the defendant in Petties was
Dr. Carter, individually; it was not Wexford, his employer.
The fact that Dr. Carter was following (or not) certain
procedures prescribed by Wexford was pertinent to the
deliberate indifference analysis, but it did not sweep Wexford
in as a defendant. There is no evidence supporting the
counter-intuitive idea that Wexford, the corporation, has as
many “final” decisionmakers as it has prisons. Nothing in the
record supports a finding that an institution-level medical
director sat at “the apex of authority” for Wexford’s transfer
policies. See Vodak, 639 F.3d at 748.
Finally, Thomas alleges that Wexford’s failure to establish
a policy designed to coordinate treatment between facilities
when an inmate is transferred constitutes deliberate medical
indifference. It is true, as we held in Glisson, that the decision
not to have a policy can itself be a policy for Monell purposes.
849 F.3d at 379. But here Thomas has not presented any
evidence that would permit a jury to find that Wexford had a
policy not to provide coordinated care. All we know is that in
Thomas’s case, after he arrived at Stateville the transferee
doctors said that they did not know that the transferor
personnel had promised Thomas that he would receive a new
splint. But the Stateville staff did not ignore Thomas; they
performed their own medical assessment and concluded that
he did not need a new splint. That may have been good
medical care, or not, but it does not support a finding that an
overriding policy was driving their decisions.
No. 19-1767 19
III
We REVERSE the district court’s grant of summary
judgment in favor of Dr. Obaisi and REMAND the case against
his Estate for further proceedings consistent with this
opinion. We AFFIRM the district court’s judgment in favor of
Dr. Martija and Wexford Health Sources.