October 26, 2015
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 12 C 2917 -
Elaine E. Bucklo, Judge.
Wood, Chief Judge, Bauer and Sykes, Circuit Judges.
serving a probation-revocation sentence in an Illinois
prison, Calvin Whiting fell ill with what turned out to be a
rare form of non-Hodgkin's lymphoma. A prison doctor
initially diagnosed an infection and prescribed antibiotics
and nonprescription pain relievers. It was not until two
months later that the doctor ordered a biopsy and the cancer
filed this lawsuit under 42 U.S.C. § 1983 against the
prison doctor and the prison's private medical provider
alleging that they were deliberately indifferent to his
serious medical needs during the two months that his cancer
went undiagnosed. The district court granted summary judgment
to both defendants. We affirm.
Whiting violated the terms of his probation on an Illinois
burglary conviction and was sent to the Shawnee Correctional
Center in Vienna, Illinois, in July 2010. Wexford Health
Sources, Inc., provides medical services for inmates in
Illinois prisons. Dr. Alfonso David is the medical director
at Shawnee. On October 15, 2010, Whiting went to the
prison's medical center seeking treatment for pain in his
left jaw, left ear, and groin; he also discovered nodules
developing in these areas. A nurse examined him and thought
he had an ear infection; she gave him amoxicillin (an
antibiotic) and Motrin.
week later Whiting returned to the medical center complaining
that his pain had worsened and the amoxicillin had given him
a rash. He was given Bactrim, a different antibiotic,
instead. Chest and abdominal x-rays also were ordered. Dr.
David is listed as the prescribing physician for these
orders, but it's not entirely clear whether he or the
nurse saw Whiting that day.
the next few days, Whiting told two different nurses that his
pain and the bumps were getting worse. The nurses gave him
Tylenol and scheduled an examination with Dr. David. On
October 26 Whiting was sick enough to be admitted to the
infirmary. Dr. David saw him the next day.
David's observations from the October 27 examination
indicate that Whiting's pain was continuing (and possibly
worsening), his lymph nodes were swollen, and he had
developed a mass in his jaw. Dr. David ordered blood work and
submitted a biopsy request to Wexford's "Collegial
Review Committee." This "committee"-just Dr.
David himself and one other physician-denied the biopsy
request on November 1. The two doctors decided to try two
different antibiotics (doxycycline and Augmentin), one after
the other, and proceed with a biopsy if this course of
treatment did not work. Dr. David implemented this treatment
plan that same day. Whiting continued to receive
nonprescription pain medication.
first few days on the new antibiotic regimen showed promise:
Two nurses reported some improvement in Whiting's
condition. But by November 7 Whiting was reporting new bumps
and increased pain. On November 29 a nurse observed many more
bumps and scheduled another appointment with Dr. David. On
December 2 Dr. David examined Whiting and resubmitted the
biopsy request. It was approved four days later, and the
biopsy was performed on December 21, almost two full months
after Dr. David first submitted the biopsy request to the
"committee." The results revealed that Whiting had
a rare type of non-Hodgkin's lymphoma.
David referred Whiting to an outside oncologist, Dr. Mahnaz
Lary, who diagnosed Stage IV SLK positive anaplastic large
cell lymphoma, a rare and aggressive form of the disease.
Chemotherapy began in early January 2011. In June 2011
Whiting's lymphoma appeared to be in complete remission,
but by August the disease had returned. Whiting began another
round of chemotherapy. In October 2011 he was approved for a
stem-cell transplant at Barnes Jewish Hospital in St. Louis.
A scan in December 2011 showed the lymphoma again in
prison sentence ended in January 2012. After his release he
received additional chemotherapy and a stem-cell transplant
at the University of Chicago Medical Center. A biopsy in June
2012 brought bad news: the lymphoma was back. Since then
Whiting has been receiving palliative chemotherapy and
remains a candidate for another stem-cell transplant.
filed this suit against Dr. David and Wexford alleging that
they were deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment. His claim focuses
on the period from late October 2010, when Dr. David first
examined him, and early January 2011, when chemotherapy
began. Whiting argues that the decision to postpone the
biopsy and continue to treat him for an infection forced him
to endure severe pain during this two-month period.
defendants moved for summary judgment. Dr. David argued that
the evidence was insufficient to support an inference that he
acted with the necessary culpable state of mind. Wexford
argued that Whiting failed to produce evidence showing that
his injury was caused by a policy or custom, a necessary
element for liability under Monell v. Department of
Social Services,436 ...