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Gaston v. Ghosh

United States Court of Appeals, Seventh Circuit

April 3, 2019

James Gaston, Plaintiff-Appellant,
Parthasarathi Ghosh, et al., Defendants-Appellees.

          Argued March 27, 2019

          Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-cv-6612 - Edmond E. Chang, Judge.

          Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.


         Iskander v. Forest Park, 690 F.2d 126 (7th Cir. 1982), holds that private corporations, when deemed to be state actors in suits under 42 U.S.C. §1983, must be treated the same as municipal corporations. This means that they are not subject to vicarious liability. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009); Monell v. New York City Department of Social Services, 436 U.S. 658, 691-94 (1978). Iqbal, Monell, and other decisions hold that municipalities and public employees may be held liable for their own decisions and policies but are not liable under the doctrine of respondeat superior for the acts, decisions, and policies of other persons, including subordinate public officials. Iskander held that the same approach applies to private corporations and their agents, to the extent that they are treated as state actors for the purpose of §1983. James Gaston asks us to overrule Iskander and hold that in litigation under §1983 a private corporation may be liable vicariously to the same extent as a private corporation in the law of torts.

         That argument has been made before but left unresolved, because the appeals could be decided on other grounds. See, e.g., Collins v. Al-Shami, 851 F.3d 727, 734 (7th Cir. 2017); Glis-son v. Indiana Department of Corrections, 849 F.3d 372, 379 (7th Cir. 2017) (en banc); Shields v. Illinois Department of Corrections, 746 F.3d 782 (7th Cir. 2014). That is equally true today, and for the same reason as in Collins: the employee "is not liable, so-even if the theory of respondeat superior were available-neither is his employer."

         Gaston, a prisoner of Illinois, suffered injuries that led to surgery on both of his knees. (He had other medical problems, but treatment for them is no longer in dispute.) He first complained about pain in his left knee in May 2009. Drugs did not solve the pain, and the knee did not heal on its own. Liping Zhang, a physician employed by Wexford Health Sources, which Illinois uses to provide medical care in the state's prisons, eventually alerted Parthasarathi Ghosh, who referred Gaston to an orthopedic surgeon. Delay in implementing that decision followed; the consultation occurred in September 2010. Dr. Ghosh, the head of medical services at the prison, approved a magnetic resonance imaging (MRI) exam, which the specialist had recommended, but it was not conducted until February 2011. It revealed a lingering injury. In August 2011 Samuel Chmell performed arthroscopic surgery on Gaston's left knee, a step approved by Imhotep Carter, who replaced Dr. Ghosh after his retirement. (Dr. Chmell is an orthopedic surgeon on the staff of the University of Illinois hospital system, which handled all of the specialist work, MRI exams, and surgeries we mention.)

         While Gaston's left knee was healing, a consultative body within Wexford delayed approving an MRI image of his right knee, stating that one knee had to be sound before treatment of the other could proceed. In May 2012 the prison's interim medical director (Dr. Carter having left) referred Gaston for an MRI exam on the right knee. It showed serious problems, and Dr. Chmell recommended another arthroscopic surgery. In August 2012 Saleh Obaisi, the prison's new medical director, approved Dr. Chmell's recommendation, and surgery occurred in October 2012. This did not bring the hoped-for relief, and Dr. Chmell recommended arthroplasty (i.e., knee replacement). That surgery, a much more substantial medical intervention, was delayed while specialists determined whether Gaston's pulmonary and cardiology systems would handle the strain. More delay may have been caused by inattention to the case. The arthroplasty took place in February 2015 and was successful.

         Gaston acknowledges that he has received a great deal of medical care. He does not contend that the diagnosis or the selected interventions can lead to §1983 liability under the approach of Estelle v. Gamble, 429 U.S. 97 (1976); Farmer v. Brennan, 511 U.S. 825 (1994); and Fettles v. Carter, 836 F.3d 722 (7th Cir. 2016) (en banc). Instead he contends that the delays while waiting for surgeries reflect deliberate indifference to his pain, so that the pain became a form of unauthorized punishment in violation of the Eighth Amendment (applied to the states through the Due Process Clause of the Fourteenth Amendment). After the district court dismissed Gaston's complaint, we remanded, holding that a complaint based on unwarranted pain during extended delay in treatment states a claim under the Eighth Amendment. 498 Fed.Appx. 629 (7th Cir. 2012) (nonprecedential disposition).

         Back in the district court Gaston, although represented by counsel, proceeded pretty much as if anyone whose complaint states a legal claim prevails without needing to prove the complaint's allegations. Defendants conducted discovery; Gaston not so much. In particular, Gaston did not try to find out either who was responsible for the delays (the four physicians named as defendants? back-office staff? someone else?) or why those delays occurred (a desire that Gaston's pain continue? indifference to his pain? simple negligence? medical judgment?). For their part, defendants offered some evidence that would tend to support a conclusion that the delays could be chalked up to medical judgment-a preference for conservative treatment before surgery-plus occasional oversight, but never to any desire to injure Gaston or indifference to his pain. Dr. Chmell testified in a deposition that the treatment afforded to Gaston was within the standard of care in the medical profession-in other words, not even negligence, let alone punishment inflicted with the subjective standard required for constitutional liability.

         Gaston contended that Wexford should be held liable even if none of the four physicians is culpable. In making this contention, he assumed that, if Iskander should be overruled, then Wexford and other private corporations would become liable under §1983 for their employees' negligence, no matter what standard applies to the personal liability of those employees.

         The district court granted summary judgment to the four individual defendants, ruling that the record does not show that any of them acted (or delayed acting) with the state of mind required for culpability. 2017 U.S. Dist. LEXIS 195234 (N.D. 111. Nov. 28, 2017). The court recognized that it lacks the authority to depart from Iskander. Wexford could be liable for its own unconstitutional policies, but the court concluded that the policies to which Gaston pointed, such as treating one condition at a time, reflected medical judgment rather than a constitutional problem.

         It is not as if Wexford has a policy of ignoring life-threatening conditions while a prisoner heals from surgery. Nor did Wexford ignore the pain from one knee while Gaston recovered from surgery on the other. He received pain-alleviating drugs. The district court's decision is addressed to a policy providing time between surgeries, a policy that Dr. Chmell testified is medically appropriate. The district judge was confident that, if a prisoner being treated for the flu broke his leg, Wexford would immediately provide the care needed to deal with a broken leg. 2017 U.S. Dist. LEXIS 195234 at *43. (The district court added that Gaston has not established that "treat one condition at a time" is Wexford's policy, as opposed to a medical decision made about his situation, in particular.)

         In this court, Gaston scarcely engages with the district court's reasoning or the consequences of his failure to intro- duce evidence. Instead he asks us to overrule Iskander in the belief that this will eliminate the need to show that any of Wexford's employees violated the Eighth Amendment. That not only contradicts Collins, which Gaston does not mention, but also ...

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