Judges: Hamilton dissents
Filed: May 19, 2020
Latest Update: May 19, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 18-2660 SCOTT HILDRETH, Plaintiff-Appellant, v. KIM BUTLER, LORI OAKLEY, and WEXFORD HEALTH SOURCES, INC., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Illinois. No. 3:15-cv-00831-NJR-DGW — Nancy J. Rosenstengel, Chief Judge. _ ARGUED SEPTEMBER 19, 2019 — DECIDED MAY 19, 2020 _ Before SYKES, HAMILTON, and BRENNAN, Circuit Judges. BRENNAN, Circuit Judge. Scott Hildreth, an inma
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 18-2660 SCOTT HILDRETH, Plaintiff-Appellant, v. KIM BUTLER, LORI OAKLEY, and WEXFORD HEALTH SOURCES, INC., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Illinois. No. 3:15-cv-00831-NJR-DGW — Nancy J. Rosenstengel, Chief Judge. _ ARGUED SEPTEMBER 19, 2019 — DECIDED MAY 19, 2020 _ Before SYKES, HAMILTON, and BRENNAN, Circuit Judges. BRENNAN, Circuit Judge. Scott Hildreth, an inmat..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2660
SCOTT HILDRETH,
Plaintiff-Appellant,
v.
KIM BUTLER, LORI OAKLEY, and
WEXFORD HEALTH SOURCES, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:15-cv-00831-NJR-DGW — Nancy J. Rosenstengel, Chief Judge.
____________________
ARGUED SEPTEMBER 19, 2019 — DECIDED MAY 19, 2020
____________________
Before SYKES, HAMILTON, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Scott Hildreth, an inmate at an Il-
linois maximum-security prison, suffers from Parkinson’s
disease. He takes a prescription medication distributed by the
prison three times a day to manage his symptoms. On three
occasions Hildreth received his medication refill a few days
late, causing him to experience withdrawal symptoms. His
symptoms also render his handwriting illegible, so Hildreth
2 No. 18-2660
uses a typewriter to draft documents. He requested to keep
that typewriter in his cell, which the prison denied because it
was considered contraband. Instead, the prison provided Hil-
dreth with an assistant to help him draft documents and in-
creased access to the library where he can use a typewriter.
Feeling his treatment was lacking, Hildreth sued Wexford
Health Sources, Inc. and two jail administrators under 42
U.S.C. § 1983 and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101 et seq., alleging they violated his
constitutional and statutory rights. The district court granted
summary judgment to the defendants. Because Hildreth has
not shown medication delays were a widespread practice or
custom at the prison, and he received reasonable accommo-
dations for his Parkinson’s disease, we affirm the district
court’s decision.
I. Background
A. Delays in Hildreth’s Medication
Hildreth’s Parkinson’s disease causes him to lose his bal-
ance, move uncontrollably, and occasionally fall. To alleviate
these symptoms, a prison doctor prescribed Mirapex, which
Hildreth contends made a “day and night” difference. As a
specialty prescription, Mirapex was not kept in stock at the
prison; instead, it was filled by an outside pharmacy. The
prison allows Hildreth to keep a monthly supply of 90
Mirapex pills in his cell.
To refill his prescription, Hildreth must submit a refill
sticker within seven days of the end of the prescription to a
nurse, who takes it to an outside pharmacy. Hildreth usually
receives his refill when he has three to five days of medication
left.
No. 18-2660 3
According to Hildreth, his prescription refill was delayed
“at least three times,” causing him to experience withdrawal
symptoms within a day or two. In each instance, he informed
his gallery officer, who instructed him to tell the nurse. The
nurse often told him to wait and see if the prescription would
arrive on time. When his medication was late, Hildreth would
file a grievance. For two of the three grievances, Hildreth re-
ceived his medication within a few days of his prescription
lapsing. Wexford’s medical director, Dr. Roderick Matticks,
testified the third lapse occurred in part because Hildreth
failed to attend the chronic clinic, where a Wexford physician
evaluates chronically ill inmates to assess their condition and
whether prescriptions should be continued. Dr. Matticks was
aware of these two or three instances in which Hildreth “had
some perceived delays in obtaining refills on his medica-
tions.”
B. Hildreth’s Request for a Typewriter
Hildreth used a typewriter instead of handwriting docu-
ments because his Parkinson’s symptoms rendered them il-
legible. But the prison, a maximum-security facility, banned
the typewriter from his cell as contraband. Hildreth also
claimed the prison discriminated against him based on his
Parkinson’s disease by failing to reasonably accommodate
him for his inability to write legibly.
To accommodate Hildreth’s request to draft documents,
he was placed on the automatic call line to the law library
when he was 90 days away from a court deadline. A counselor
was available to help him draft documents, and he could con-
tact an officer for emergencies. Hildreth also could use a type-
writer whenever he had access to the law library. Kim Butler,
the former assistant warden and ADA coordinator, granted
4 No. 18-2660
Hildreth access to the law library three days per week from
8:00 a.m. to 2:00 p.m. to use the typewriter.
In the summer of 2012, Hildreth filed a grievance request-
ing a permit allowing him to possess the typewriter in his cell.
Over two years later, on October 30, 2014, Hildreth filed a
grievance stating he needed staff assistance to file grievances.
Defendant Lori Oakley, a grievance officer, reviewed the com-
plaint and found it moot because Butler had provided Hil-
dreth with increased law library access and assistance to draft
grievances. Hildreth’s extra library access was later rescinded
after he was provided an ADA attendant to help write griev-
ances and pleadings. According to Hildreth, the ADA at-
tendant did not have a high school degree, could not spell,
and had sloppy handwriting. Hildreth concluded it was “not
even worth it” to use the attendant. The current ADA coordi-
nator, Angela Crain, noted if Hildreth did not want the at-
tendant, “he can simply request extra library time again in
lieu of the attendant and the ADA attendant will then be as-
signed to another inmate.”
Hildreth has not missed any court deadlines due to the
prison’s actions. Still, he testified he can do only a portion of
what he used to, which was to spend at least six hours a day
working on court filings with a typewriter in his cell. While
other inmates can draft handwritten court filings at any time
in their cells, Hildreth is limited to his time with the type-
writer in the library.
C. District Court Proceedings
Hildreth sued under 42 U.S.C. § 1983 alleging Wexford vi-
olated his Eighth Amendment right by intentionally not refill-
ing his Parkinson’s medication on time, and under the ADA
No. 18-2660 5
that defendants Butler and Oakley discriminated against him
by denying him access to a typewriter in his cell. Hildreth
sought damages for past harm as well as prospective injunc-
tive relief. While Hildreth initially sued pro se, the district
court appointed counsel for him. Through that counsel Hil-
dreth filed an amended complaint and engaged in discovery,
including deposing Wexford’s Rule 30(b)(6) designee.1
Wexford moved for summary judgment on Hildreth’s
§ 1983 claim. According to Wexford, Hildreth’s medication
was late only three times over a period of nineteen months,
too infrequent from which to infer a widespread practice or
custom of deliberate indifference. The district court agreed
and found only three documented instances when Hildreth
experienced medication delays over a period of nineteen
months:
On April 8, 2014, Hildreth submitted a grievance
noting he was out of medication. The Warden de-
termined this was an emergency. A doctor saw Hil-
dreth the next day and renewed his medication for
1 Our dissenting colleague in Section I of his opinion sends out a warn-
ing “of obvious implications for discovery in the district courts” in future
cases. That section of the dissent references reports and other materials
which, the dissenting opinion admits, are outside of this case’s record.
Neither the result of this case nor this majority opinion’s reasoning opens
any doors to future similar litigation or expands the discovery in which
parties may engage. The scope of discovery is defined by the claims pur-
sued and the defenses raised. For the plaintiff’s part, he set those parame-
ters with the help of counsel. This majority opinion does not address dis-
covery because it was not an issue in this appeal.
6 No. 18-2660
one year, but Hildreth did not receive his medica-
tion until a later date. The record does not indicate
when he received this prescription.
On October 25, 2014, Hildreth submitted another
grievance stating he was about to run out of his pre-
scription and had a couple days’ worth left. The
warden expedited this as an emergency. The griev-
ance officer then contacted the healthcare unit,
which stated Hildreth received the medication on
October 30, 2014.
On November 16, 2015, Hildreth submitted a griev-
ance stating he had been out of his medication since
November 13. The Warden expedited this griev-
ance. The healthcare unit administrator advised the
grievance officer that Hildreth’s prescription had
expired and the request to continue using Mirapex
was sent to the pharmacy. The grievance officer re-
sponded on November 23, 2015, finding this griev-
ance moot. The record does not indicate when he
received this prescription.
Hildreth did not present evidence that any other inmates
experienced medication delays.2 The district court found that
three delays over the period of a year and a half involving
only Hildreth did not support an inference of a widespread
2 Hildreth’s other grievances did not relate to medication refill delays
or were inadmissible hearsay. For example, Hildreth’s October 30, 2014
grievance complained about the need for assistance in writing grievances,
not about refill delays. And Hildreth’s January 15, 2016 grievance referred
to the return of his November 16, 2015 grievance—again, not about refill
delays.
No. 18-2660 7
practice or custom, so summary judgment was granted to
Wexford.
Defendants Butler and Oakley also moved for summary
judgment on Hildreth’s ADA claim, arguing they reasonably
accommodated his disability. The district court considered
whether Hildreth, given his disability, was able to participate
in the activities in question with or without reasonable accom-
modations. The district court found he was able to use the law
library and access a typewriter three times per week for six
hours a day from August 2013 to July 2015. He also could con-
tact an officer in emergency situations, and a counselor was
available to assist. The increased library access was rescinded
only after Hildreth was assigned a personal ADA attendant.
Nevertheless, Hildreth could have requested extra library
time in lieu of using the attendant. Although Hildreth com-
plained the attendant was inadequate, Hildreth did not miss
any court deadlines.
Considering the prison’s security concerns and the fact
that Hildreth was able to successfully draft documents, the
district court found the prison’s accommodations reasonable
as a matter of law and granted summary judgment to Butler
and Oakley on this claim. Hildreth appealed.
II. Discussion
Summary judgment is proper when the admissible evi-
dence shows no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
See FED. R. CIV. P. 56; Barnes v. City of Centralia, 943 F.3d 826,
830 (7th Cir. 2019). We review de novo the district court’s
8 No. 18-2660
grant of summary judgment and construe all facts and rea-
sonable inferences in Hildreth’s favor. See
Barnes, 943 F.3d at
828.
A. Section 1983 Claim
We start with Hildreth’s Eighth Amendment claim against
Wexford, which he brought under § 1983’s policy-or-custom
framework of Monell v. NYC Soc. Serv., 436 U.S. 658 (1978).3
Deliberate indifference to a prisoner’s serious medical needs
may constitute cruel and unusual punishment under the
Eighth Amendment. Campbell v. Kallas,
936 F.3d 536, 544–45
(7th Cir. 2019) (citing Estelle v. Gamble,
429 U.S. 97, 103 (1976)).
To prevail on such a claim, a plaintiff must show his condition
was objectively, sufficiently serious and that the prison offi-
cials manifested deliberate indifference to his serious medical
needs.
Id. at 545. To be sure, negligence, gross negligence, or
even recklessness as the term is used in tort cases is not
enough—the prison officials’ state of mind must rise to the
level of deliberate indifference. Burton v. Downey,
805 F.3d
776, 785 (7th Cir. 2015) (holding alleged two-day delay
3 In the alternative, Hildreth asks this court to apply a respondeat supe-
rior theory of liability to private corporations, like Wexford. This argument
is new on appeal and thus forfeited. See Hahn v. Walsh, 762 F.3d 617, 639
(7th Cir. 2014) (holding “plaintiffs have waived the issue of [a private com-
pany’s] respondeat superior liability [under § 1983] because they failed to
raise it before the district court”). While courts, including ours, have at
times used the terms waiver and forfeiture interchangeably, this court re-
cently clarified that forfeiture occurs where, as here, a party inadvertently
fails to raise an argument in the district court. United States v. Flores,
929
F.3d 443, 447 (7th Cir. 2019) (“Waiver occurs when a party intentionally
relinquishes a known right and forfeiture arises when a party inadvert-
ently fails to raise an argument in the district court.”).
No. 18-2660 9
providing medication to detainee was not deliberate indiffer-
ence).
Because Wexford is a “private corporation that has con-
tracted to provide essential government services [it] is subject
[under § 1983] to at least the same rules that apply to public
entities.” Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 378–79 (7th
Cir. 2017) (en banc). Hildreth does not point to an official un-
constitutional policy; instead, he claims Wexford has a cus-
tom of delaying prescriptions.4
To support a § 1983 claim on this theory, Hildreth must
show: (1) defendants’ practice in refilling prescriptions vio-
lated his constitutional rights; and (2) that practice was “so
pervasive that acquiescence on the part of policymakers was
apparent and amounted to a policy decision.” Phelan v. Cook
Cty., 463 F.3d 773, 789, 790 (7th Cir. 2006). This requires “more
than a showing of one or two missteps.”
Id. There must be
“systemic and gross deficiencies.”
Id. Even if such deficiencies
exist, Hildreth must show policymakers knew of the deficien-
cies and failed to correct them, manifesting deliberate indif-
ference.
Id.
We put the first requirement to the side because Hildreth
has not provided enough evidence on the second to show a
practice of delaying prescriptions was widespread, which is
4 Our dissenting colleague labels Hildreth’s allegations a “policy”
claim, although the dissent admits Hildreth uses the term “custom” in his
briefing, and Hildreth states “[a] corporate ’custom’ is at issue here.” Ap-
pellant’s Br. at 31.
10 No. 18-2660
the “pivotal requirement” of his § 1983 claim.5 Grieveson v.
Anderson, 538 F.3d 763, 774 (7th Cir. 2008) (holding 4 incidents
over about 11 months involving only plaintiff was insufficient
to show a widespread practice or custom).
Hildreth’s claim fails on two axes: first, his allegations of
delays are insufficiently widespread, as they involve only
him; and second, the alleged delays are insufficiently numer-
ous, as he has substantiated only three.
1. Incidents involving only Hildreth
Hildreth provides evidence of delays in only his personal
prescriptions. While it is not “impossible” for a plaintiff to
demonstrate a widespread practice or custom with evidence
limited to personal experience, “it is necessarily more difficult
… because ‘what is needed is evidence that there is a true mu-
nicipal policy at issue, not a random event.’” Id. (quoting
Calhoun v. Ramsey,
408 F.3d 375, 380 (7th Cir. 2005)); see
Winkler v. Madison Cty.,
893 F.3d 877, 902 (6th Cir. 2018) (af-
firming summary judgment in county’s favor when plaintiff
“discusses only [her son’s] treatment, and therefore cannot es-
tablish that the County had a custom of deliberate indiffer-
ence to the serious healthcare needs of all the inmates”);
Denham v. Corizon Health, Inc., 675 F. App’x 935, 944 (11th Cir.
2017) (holding plaintiff failed to show a custom of providing
inadequate medical care when plaintiff’s claims rest only on
one inmate’s experiences); Payne v. Servier Cty., 681 F. App’x
443, 446–47 (6th Cir. 2017) (holding “five instances of alleged
5Because there was not enough evidence of a custom, we also need
not address whether Wexford acted with deliberate indifference. See
Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008).
No. 18-2660 11
misconduct, over three months, all involving the plaintiff
himself is not enough to prove a custom”); Culbertson v. Lykos,
790 F.3d 608, 629 (5th Cir. 2015) (holding allegations “limited
to the events surrounding the plaintiffs” are insufficient to es-
tablish a widespread practice or custom). This is not a case
where the incidents are so numerous to satisfy the “more dif-
ficult” task of proving a custom with only evidence of per-
sonal experience.
Grieveson, 538 F.3d at 774.
2. Insufficient Number of Delays
Hildreth alleges his prescription lapsed “at least three
times.” And the district court found three grievances for
Hildreth’s lapsed medication on April 8, 2014, October 25,
2014, and November 16, 2015. Other than these three personal
experiences, Hildreth has not provided evidence that any
other inmates experienced prescription delays.
Three instances of prescription delays over nineteen
months involving solely one inmate fail to qualify as a wide-
spread unconstitutional practice so well-settled that it consti-
tutes a custom or usage with the force of law. Although this
court has not adopted any “bright-line rules” defining a wide-
spread practice or custom, we have acknowledged that the
frequency of conduct necessary to impose Monell liability
must be more than three. Thomas v. Cook Cty. Sheriff’s Dep’t,
604 F.3d 293, 303 (7th Cir. 2010) (noting “there is no clear con-
sensus as to how frequently such conduct must occur to
impose Monell liability, ‘except that it must be more than one
instance,’ or even three”) (citations omitted); see also, e.g., Doe
v. Vigo Cty.,
905 F.3d 1038, 1045 (7th Cir. 2018) (holding a
“handful of incidents of misconduct,” including three inci-
dents of sexual contact, two incidents of inappropriate com-
ments, and two allegations of harassment over two decades
12 No. 18-2660
“is not enough to establish a custom or practice”); Estate of
Moreland v. Dieter,
395 F.3d 747, 760 (7th Cir. 2005) (holding
three incidents of improper pepper-spraying over a three-
year period did not amount to a widespread custom); Gable v.
City of Chicago,
296 F.3d 531, 538 (7th Cir. 2002) (holding three
incidents of erroneously denying to vehicle owners that their
vehicles were in the impoundment lot over a four-year period
did not amount to a persistent and widespread practice).
We agree with the district court that this case is compara-
ble to Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008). In
Grieveson, on four occasions over a period of about eleven
months, jail guards gave the plaintiff his entire prescription at
once, exposing him to the risk of theft by other inmates. Those
four instances were insufficient to establish a widespread
practice or
custom. 538 F.3d at 774. As Grieveson explained,
“evidence of four incidents that [plaintiff] alone experienced”
is “simply not enough to foster a genuine issue of material fact
that the practice was widespread.”
Id. at 774–75. Accordingly,
granting summary judgment in Wexford’s favor was proper.
Our dissenting colleague attempts to distinguish
Grieveson. Grieveson complained once, while Hildreth com-
plained three times, and Grieveson did not allege widespread
non-compliance with official policy. But a single complaint of
four incidents over eleven months is not materially different
than three complaints, each of a single incident, over nineteen
months. And like Grieveson, Hildreth did not allege a wide-
spread failure. Hildreth’s allegations concern only himself.
He sued on his own behalf and not for others. Indeed, the
term “widespread” is absent from Hildreth’s amended com-
plaint, which was filed with the assistance of counsel.
No. 18-2660 13
Our reasoning and conclusion here agree with other
circuits that have considered the frequency of instances to es-
tablish a widespread practice or custom. Those cases have
concluded that four or more incidents over varying periods—
sometimes less than nineteen months—are insufficient to
qualify as a widespread practice or custom.6
6 Evidence of four incidents fell “far short” of proving a widespread
practice or custom. See Jones v. Town of E. Haven, 691 F.3d 72, 85 (2d Cir.
2012) (holding four incidents over approximately four years “fell far
short” of showing a custom); Giaccio v. City of New York, 308 F. App’x 470,
472 (2d Cir. 2009) (holding “only four examples” of misconduct fell “far
short” of establishing a widespread practice).
Evidence of five incidents involving only the plaintiff was not enough
to prove a widespread practice or custom, even when those incidents oc-
curred in a short three-month period. See Payne v. Servier Cty., 681 F. App’x
443, 446–47 (6th Cir. 2017) (holding “five instances of alleged misconduct,
over three months, all involving the plaintiff himself is not enough to
prove a custom” and that “plaintiff cannot establish a custom solely by
pointing to the facts of his own case”).
Evidence of more than five incidents was insufficient to prove a wide-
spread practice or custom over a variety of time frames. See, e.g., Ruiz-
Bueno v. Scott, 639 F. App’x 354, 364 (6th Cir. 2016) (holding 10 incidents
in the past 18 years did not demonstrate pattern of constitutional viola-
tions); Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th Cir. 2009) (hold-
ing 27 complaints of excessive force over 3 years were insufficient to
establish a pattern); Pineda v. City of Houston,
291 F.3d 325, 329 (5th Cir.
2002) (holding 11 incidents of warrantless entry did not support an uncon-
stitutional pattern),
124 F. Supp. 2d 1057, 1070 (S.D. Tex. 2000) (illustrating
a four-year period for the incidents of warrantless entry); Mettler v.
Whitledge,
165 F.3d 1197, 1204–05 (8th Cir. 1999) (holding 16 incidents
ranging between August 1982 and January 1994 were insufficient to prove
a custom); Silva v. Worden,
130 F.3d 26, 32 (1st Cir. 1997) (finding insuffi-
cient evidence of a custom when witnesses “could only remember a few
instances over the last twenty years”); Carter v. District of Columbia,
795
F.2d 116, 123 (D.C. Cir. 1986) (holding six prior incidents of alleged
14 No. 18-2660
3. Other Alleged Incidents
Hildreth cites other incidents which he says qualify as part
of a widespread practice or custom. But due to failures of
proof and forfeiture, those incidents cannot be considered.
Hildreth argues the district court erred in excluding evidence
of two more delays in prescription refills discussed in another
inmate’s affidavit. Michael McGowan attested he overheard
conversations between Hildreth and people whom McGowan
believed to be Wexford nurses. The affidavit describes an Oc-
tober 2015 incident, when a nurse refused to accept Hildreth’s
medication refill slip because of Hildreth’s demeanor. The af-
fidavit also describes an undated incident, when a nurse said
she was not going to “check on the status” of Hildreth’s med-
ication and that he needed to wait for it to arrive.
Hildreth submitted McGowan’s affidavit in response to
Wexford’s motion for summary judgment. The district court
excluded the affidavit as inadmissible hearsay. We review a
district court’s evidentiary decision for an abuse of discretion.
See Bordelon v. Bd. of Educ. of the City of Chi., 811 F.3d 984, 991
(7th Cir. 2016). Hildreth argues the district court abused its
discretion by excluding this affidavit because the statements
in McGowan’s affidavits were made by an agent of a party
misconduct over approximately two years did not establish pattern of ex-
cessive force); cf. Bordanaro v. McLeod,
871 F.2d 1151, 1156 (1st Cir. 1989)
(finding a widespread practice or custom when doors were broken down
by officers without a warrant with a sledge hammer provided by the city
and the sergeant was present at “about 20 or 30” or “50, 60” instances over
his 24-year tenure as a police officer).
No. 18-2660 15
opponent under Federal Rule of Evidence 801(d)(2)(D) and
are not hearsay.
We conclude the district court did not abuse its discretion
by not considering the McGowan affidavit because there was
insufficient evidence to establish that Wexford employed the
nurses referenced in the affidavit. Hildreth failed to show that
the nurses who allegedly made these statements were em-
ployed by Wexford, and he failed to confirm that the state-
ments were made within the scope of employment.
Id. at 992.
Even if a Wexford nurse did make these comments, “not eve-
rything that relates to one’s job falls within the scope of one’s
agency or employment.” Williams v. Pharmacia, Inc.,
137 F.3d
944, 950 (7th Cir. 1998). While the “precise reach of Rule
801(d)(2)(D) is sometimes difficult to discern,” the inquiry is
easy where, as here, the affidavit does not establish an em-
ployment relationship and does not establish the statements
were made within the scope of such relationship.
Id.
Even if
the district court had abused its discretion and im-
properly excluded these two other incidents, Hildreth’s claim
still fails because the “practice” of medication delay was not
widespread. Importantly, neither of these incidents describe
a delay in the delivery of Hildreth’s prescription. The first re-
lates to a nurse refusing to accept the medication refill slip due
to Hildreth’s demeanor—not an allegation concerning a med-
ication delay. The second undated incident refers to a nurse
saying she would not “check on the status” of Hildreth’s med-
ication—again, not a medication delay. Without knowing
when the prescription was due to be delivered, a delay cannot
be presumed. So neither of these incidents can support Hil-
dreth’s claim that Wexford has an unconstitutional practice or
custom of delaying prescriptions.
16 No. 18-2660
On appeal, Hildreth employs a kitchen-sink strategy by
arguing there were three more delays (beyond the five dis-
cussed so far) for a total of eight delays that the district court
failed to consider. These three further instances were not ar-
gued in the district court, so we cannot consider them. See,
e.g., Scheidler v. Indiana, 914 F.3d 535, 540, 544 (7th Cir. 2019)
(holding plaintiff forfeited her argument by not developing it
in the district court); Flournoy v. Schomig, 418 F. App’x 528, 531
(7th Cir. 2011) (refusing to consider new evidence of deliber-
ate indifference under § 1983 when plaintiff did not raise the
issue before the district court); see also United States v. Flores,
929 F.3d 443, 447 (7th Cir. 2019) (explaining forfeiture arises
when a party inadvertently fails to raise an argument in the
district court).
Even if we were to review these three additional allega-
tions on appeal, they are vague, they lack sufficient connec-
tion to Wexford, and at least two occurred sporadically sev-
eral years before the other alleged incidents. Specifically, two
incidents are dated November 3, 2009 and January 28, 2011
and were included in the “cumulative counseling summary”
to Hildreth’s summary judgment response on the issue of ex-
haustion of administrative remedies. Hildreth failed to dis-
cuss any of these incidents in his summary judgment
response on the issue of inadequate care, the issue under con-
sideration. The third incident is an undated occurrence when
his medication lapsed because it was not renewed, which was
also not discussed in his summary judgment response on the
issue of inadequate care. The district court did not err in not
considering them, as it is not the court’s job to “scour the rec-
ord in search of evidence to defeat a motion for summary
judgment.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d
1099, 1104 (7th Cir. 2008).
No. 18-2660 17
Even if the hearsay, forfeiture, and relevance rules were
put to the side, and we considered all eight incidents which
occurred over a period of six years, courts have concluded
that more than eight incidents over a shorter time period does
not constitute a “widespread” practice or custom. See, e.g.,
Pittman ex rel Hamilton v. Cty. of Madison, 746 F.3d 766, 780 (7th
Cir. 2014) (holding 36 suicide attempts and 3 suicides in a
5-year period was not enough evidence of a widespread inad-
equate suicide policy); Peterson v. City of Fort Worth,
588 F.3d
838, 851 (5th Cir. 2009) (holding 27 complaints of excessive
force over 3 years were insufficient to establish a pattern);
Pineda v. City of Houston,
291 F.3d 325, 329 (5th Cir. 2002)
(holding 11 incidents of warrantless entry over a 4-year pe-
riod did not support an unconstitutional pattern).
The dissent states we adopt a “bright-line rule” as to the
number of incidents to establish an unconstitutional custom
under Monell.7 But rather than set a number, we have consid-
ered and applied the precedents of this and other courts to
7 The dissent asserts this opinion “is at odds with our approach to
Monell, which focuses broadly on indicia of municipal or corporate re-
sponsibility rather than just the number of incidents.” For this proposition
the dissent cites Dixon v. County of Cook, 819 F.3d 343 (7th Cir. 2016), and
Daniel v. Cook County,
833 F.3d 728 (7th Cir. 2016), but neither case is avail-
ing here. Dixon included an institutional claim—the implementation of a
medical records policy—from which the dissent’s quote
emanates. 819
F.3d at 348–49. In contrast, Hildreth brought an individual claim. And the
claim in Daniel concerned whether Cook County Jail’s scheduling and rec-
ord keeping resulted in medical care falling below constitutional stand-
ards as a matter of official policy, custom, or
practice. 833 F.3d at 734. As
Daniel stated, “[t]o prove an official policy, custom, or practice within the
meaning of Monell, Daniel must show more than the deficiencies specific
to his own experience, of
course.” 833 F.3d at 734. Again, Hildreth’s claim
is limited to his own experience.
18 No. 18-2660
these facts, nothing less and nothing more. Hildreth has not
shown five incidents of prescription refill delay, much less
eight. And under that law three delays over nineteen months
for a single individual does not establish a widespread cus-
tom or practice of delaying medication. So we affirm the dis-
trict court’s grant of summary judgment to Wexford on
Hildreth’s § 1983 claim.
B. ADA Claim
We turn next to Hildreth’s statutory claim under the
ADA.8 Under the Act, “no qualified individual with a disabil-
ity shall, by reason of such disability, be excluded from par-
ticipation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. To es-
tablish a violation, a plaintiff must show “he is a qualified in-
dividual with a disability, that he was denied the benefits of
the services, programs, or activities of a public entity or oth-
erwise subjected to discrimination by such an entity, and that
the denial or discrimination was by reason of his disability.”
Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (internal
quotations omitted). The ADA imposes a duty to provide rea-
sonable accommodations to disabled persons. 42 U.S.C.
§ 12182(b)(2)(A)(ii) (“[D]iscrimination includes … a failure to
8This claim raises a “thorny question of sovereign immunity.” Jaros v.
Ill. Dep’t of Corr., 684 F.3d 667, 671–72 (7th Cir. 2012); see also Morris v.
Kingston, 368 F. App’x 686, 689 (7th Cir. 2010) (observing the Supreme
Court “left open the question whether the ADA could validly abrogate
sovereign immunity for non-constitutional violations”). We need not ad-
dress this question, though, because we conclude the defendants’ accom-
modations were reasonable as a matter of law.
No. 18-2660 19
make reasonable modifications in policies, practices, or pro-
cedures.”); see A.H. by Holzmueller v. Ill. High Sch. Ass’n,
881
F.3d 587, 594 (7th Cir. 2018). To receive compensatory
damages, Hildreth must show deliberate indifference, which
occurs when defendants “knew that harm to a federally pro-
tected right was substantially likely and … failed to act on that
likelihood.” Lacy v. Cook Cty.,
897 F.3d 847, 862 (7th Cir. 2018)
(quoting Liese v. Indian River Cty. Hosp. Dist.,
701 F.3d 334, 344
(7th Cir. 2012)).
The key question here is whether Hildreth, given his disa-
bility, was able to draft his legal documents, with or without
reasonable accommodations from the prison. See Love v.
Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996). As a result
of the Parkinson’s disease and its effect on his handwriting,
Hildreth requested a typewriter in his cell to draft court doc-
uments and correspondence. Because a typewriter is prohib-
ited in a cell, the prison officials instead provided him with an
assistant to help him draft documents. They also increased his
access to the library to eighteen hours per week where he
could use a typewriter. Hildreth’s extra library access was
withdrawn only when he received an assistant. While not the
around-the-clock, easy access Hildreth wants to word pro-
cessing, or the well-trained writer whom he might like, Hil-
dreth successfully drafted legal documents and never missed
a court deadline. Further, he could have asked for more li-
brary time, but the record shows no such request.
The question is not whether other modifications could
have been made, such as those Hildreth seeks, but whether
the accommodations made were reasonable. We conclude
they were. The defendants’ accommodations allowed
Hildreth sufficient time and access to a typewriter to draft and
20 No. 18-2660
file documents while taking into account the prison’s reason-
able security concerns with contraband.
Love, 103 F.3d at 561
(noting the ADA’s “reasonableness requirement must be
judged in light of the overall institutional requirements. Secu-
rity concerns, safety concerns, and administrative exigencies
would all be important considerations to take into account”
(citation omitted)).
Even if Butler and Oakley failed to make these reasonable
accommodations, Hildreth would still not be entitled to dam-
ages because he has not shown deliberate indifference.
Hildreth admits he has been moved to a different area of the
prison where he may now possess a typewriter in his cell. This
renders moot his claim for prospective injunctive relief. See
Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (noting
for a plaintiff to have standing for prospective injunctive
relief, he “must face a ‘real and immediate’ threat of future
injury as opposed to a threat that is merely ‘conjectural or hy-
pothetical’” (quoting City of Los Angeles v. Lyons,
461 U.S. 95,
102 (1983)). So Hildreth can now seek only compensatory
damages, provided he shows deliberate indifference. See
Lacy,
897 F.3d at 862 (7th Cir. 2018) (agreeing with the majority of
circuits that “deliberate indifference [is] the proper standard
for obtaining compensatory damages” under the ADA). But
Hildreth never argued Butler or Oakley were deliberately in-
different and thus cannot recover compensatory damages.
Accordingly, we affirm the summary judgment in defend-
ants’ favor on the ADA claim.
III. Conclusion
The district court concluded correctly that Hildreth did
not show a widespread practice or custom of the defendant
No. 18-2660 21
delaying medication, and that prison officials reasonably ac-
commodated his Parkinson’s disease. So we AFFIRM the dis-
trict court’s grant of summary judgment in defendants’ fa-
vor.9
9 Hildreth moved to supplement the record on appeal with an October
10, 2018 letter from the Illinois Supreme Court, which stated the Illinois
Supreme Court was returning his petition for leave to appeal because it
was “mostly illegible” and requested that Hildreth type or rewrite his pe-
tition. Because this letter was not submitted (or in existence) during the
district court proceedings, it is not permitted under Federal Rule of Ap-
pellate Procedure 10, so we deny this motion.
22 No. 18-2660
HAMILTON, Circuit Judge, dissenting. Plaintiff Hildreth has
offered sufficient evidence that Wexford knew of his serious
health needs—which required reliable, timely refills of his
Parkinson’s medication—and acted unreasonably in response
to those needs. Wexford established prescription refill and re-
newal systems, i.e., policies, that did not include warnings
and back-ups to correct inevitable and serious mistakes.
That’s enough to show deliberate indifference under Farmer
v. Brennan, 511 U.S. 825, 843–44 (1994), and Glisson v. Indiana
Dep’t of Corrections,
849 F.3d 372, 382 (7th Cir. 2017) (en banc).
I respectfully dissent.
I. Discovery in Future Cases
Before explaining where the majority opinion errs, how-
ever, I must highlight the opinion’s obvious implications for
discovery in the district courts. Wexford should be careful
what it asks for. Its lawyers have won this case, but on theo-
ries and arguments that invite—indeed, virtually require—
much broader, more intrusive, and more expensive discovery
in similar cases. Plaintiffs like Hildreth will need to pursue
discovery into the medical care of other prisoners and even
into Wexford’s personnel records. The need for district courts
to recruit counsel in such cases will be even more compelling.
Consider the grounds for Wexford’s victory. The first is
the simplest. Important evidence is deemed inadmissible
hearsay because plaintiff does not have evidence that the
speakers, prison nurses whose employment shifted back and
forth between Wexford and the Illinois Department of Cor-
rections, were employees of Wexford on the days they made
the disputed statements. That’s incorrect as a matter of evi-
dence law in two ways: these were not “statements” offered
for their truth, and even if they had been, a person can be an
No. 18-2660 23
agent of a party under Federal Rule of Evidence 801(d)(2)(D)
without being an employee. Nevertheless, other plaintiffs will
need to prepare to meet such arguments in other cases. The
only fair way to let them meet them, if Wexford or similar
prison health-care companies will not stipulate, is to let plain-
tiffs have access to personnel records. Given Wexford’s argu-
ments and the majority opinion’s reasoning here, it would be
an abuse of discretion to deny such discovery in a similar case.
Second, Wexford argues and the majority opinion agrees
that plaintiff does not offer evidence of sufficiently wide-
spread problems with timely refills of critical, life-changing
prescriptions at Menard or other prisons where Wexford has
contracts. I explain below why I disagree. But if a similar
plaintiff must prove that the system in fact fails more fre-
quently, and not just for him, his demands for broad discov-
ery into other inmates’ experiences with Wexford and its refill
system should be undeniable.
Moreover, a good deal of such evidence appears to be dis-
coverable. Other federal lawsuits provide sources of such ev-
idence and describe prescription refill problems at Menard
during times relevant here. See, e.g., First Annual Report of
Monitor Pablo Stewart, MD, at 47, Rasho v. Walker, No. 07-cv-
1298 (C.D. Ill. May 22, 2017) (“Medication orders often ex-
pired and the offender may or may not continue receiving his
or her medication … . At Menard, psychotropic medication
orders were allowed to expire, and often staff did not correct
the problem until an inmate had already missed a week or
two of medication.”); Final Report of the Court Appointed Ex-
pert, at 23, Lippert v. Godinez, No. 1:10-cv-4603 (N.D. Ill. Dec.
2014) (“In the course of our reviews we noted multiple in-
24 No. 18-2660
stances in which patients experienced medication discontinu-
ity for a variety of reasons, yet this went unrecognized and
therefore unaddressed by the treating clinicians. Part of the
problem seems to be dysfunctional medical record keeping
… .”); Barrow v. Wexford Health Sources, Inc., No. 3:14-cv-800,
2017 WL 784562, at *4 (S.D. Ill. Mar. 1, 2017) (plaintiff claimed
he did not receive medication prescribed by Wexford physi-
cian at Menard in 2014; summary judgment granted for Wex-
ford but denied for physician).
There is evidence that these conditions have persisted for
years, with expert findings almost perfectly mirroring Hil-
dreth’s experiences. See Report of the 2nd Court Appointed
Expert, at 83, Lippert v. Godinez, No. 1:10-cv-4603 (N.D. Ill. Oct.
2018) (“We found many examples of patients whose ordered
medications were never provided, were delayed starting, and
were stopped because the patient had not been seen by a pro-
vider to renew medication. Record reviews indicated that ap-
pointments for chronic care are not scheduled to take place
prior to expiration of chronic disease medication orders.”).
The expert reports from the Lippert litigation excoriate Wex-
ford for its oversight of Illinois prison health care—including
the delivery of medication—and the first report was pub-
lished in December 2014, between plaintiff Hildreth’s second
and third grievances.
These reports are not in this record, were not raised in
these briefs, and are not appropriate subjects for judicial no-
tice. But they may be available in future cases. They would
face hearsay objections if offered to prove the matters as-
serted. See Wilson v. Wexford Health Sources, Inc., 932 F.3d 513,
522 (7th Cir. 2019) (holding district court did not abuse its dis-
cretion excluding the Lippert Report when offered as proof
No. 18-2660 25
that Wexford provided substandard care). But these reports
would be admissible to show corporate knowledge of Wex-
ford’s policy failings and of the risks that inmates faced. Dan-
iel v. Cook County,
833 F.3d 728, 743 (7th Cir. 2016) (holding
documents from other jail-condition case were “inadmissible
hearsay to the extent they are offered to prove the truth of the
statements they contain” but “may be admissible to show that
the defendants were on notice of their contents”).
In addition, plaintiffs in similar cases should be able to
find ways to put these reports (or testimony from their au-
thors) into evidence for the truth of the matters asserted to
establish a more extensive record of Wexford’s similar fail-
ures with other prisoners. And of course, evidence about
Wexford’s contracts and the financial incentives it faces in de-
livering, or not delivering, health care to Illinois prisoners
would also be relevant in evaluating the company’s policies
and whether they amount to deliberate indifference to serious
health risks. Given the majority opinion’s reasoning here,
these additional paths of discovery should be available and
would potentially be compensable by Wexford in the end. See
42 U.S.C. § 1988. Given the majority opinion’s reasoning, it
would be an abuse of discretion to deny similar plaintiffs ac-
cess to these lines of discovery to satisfy the standard applied
in this case.
II. Wexford’s Prescription Policies and the Lapses in Hildreth’s
Prescription
Returning to this case and this record, plaintiff Hildreth
has come forward with evidence that defendant Wexford’s
policies for renewing and refilling prescriptions reflect delib-
erate indifference to the serious medical needs of Hildreth
himself and other prisoners who depend on reliable refills of
26 No. 18-2660
prescriptions for medicines that are not kept on-site at the
prison. In reviewing a grant of summary judgment, we view
the facts in the light most reasonably favorable to plaintiff as
the non-moving party. Dixon v. County of Cook, 819 F.3d 343,
346 (7th Cir. 2016).
Hildreth suffers from Parkinson’s disease, a neurological
disease that causes reduced levels of dopamine in the brain,
causing in turn tremors and problems in movement and bal-
ance, among other serious symptoms. Parkinson’s has no
known cure, but medication can help control the symptoms
by mimicking the effects of dopamine.
Hildreth needs a drug called Mirapex to manage his
symptoms. Without Mirapex, his Parkinson’s symptoms re-
turn within a day or two, and he suffers from poor balance,
stiffness, shaking, fevers, memory problems, and freezing ep-
isodes. This leaves him “immobile” and “balled up in bed.”
Any lapse in medication causes pain and puts him at risk of
injury. During one such lapse, he lost his balance and fell in
the shower. For Hildreth, the difference between having med-
ication and not having it is “night and day.”
As an inmate at the Menard Correctional Center, Hildreth
must rely on Wexford—a private health-care contractor—and
the Illinois Department of Corrections (IDOC) to provide him
with health care, including his Parkinson’s medication.1 Both
1
Since the late 1970s, states have increasingly contracted with private
corporations to provide health-care services in prisons. The Pew Charita-
ble Trusts, Prison Health Care: Cost and Quality 11 (2017). As of 2015,
twenty-eight states either contracted out most health-care delivery ser-
vices or split responsibility between state employees and contractors.
Many states, including Illinois, have a capitated payment model, which
means that they pay contractors a fixed per-patient rate for care. Id. at 98.
No. 18-2660 27
Wexford and IDOC play a role in providing health care, and
IDOC employs some health-care workers. Wexford, however,
has primary responsibility for overseeing prisoner treatment,
including prescribing medication and setting prescription
policies. The site medical director at Menard, a Wexford em-
ployee, was supposed to provide oversight. During the events
of this lawsuit, however, this key position was first vacant,
then filled temporarily, occupied briefly by one doctor, and
then by another doctor who soon left the position because he
was not working the required 40 hours per week and “would
leave early.”
Wexford treats the Mirapex that Hildreth needs as a “non-
formulary medication.” This means that the drug is not kept
in stock at the prison but is shipped as needed from an outside
provider, Boswell Pharmacy Services. Wexford’s nonformu-
lary medication refill policy requires a sequence of actions to
get the medicine to an inmate. Hildreth receives one month’s
supply of Mirapex at a time. When he receives the pack of
pills, he also receives a sticker that he must turn in to a nurse
at most seven days before he runs out. After he returns the
sticker to a nurse, Wexford is supposed to send the sticker to
Boswell. Boswell is then supposed to ship a refill to Menard,
and the nursing staff is supposed to deliver the refill to Hil-
dreth. Nurses can be employed by either Wexford or IDOC.
Illinois prisons have among the lowest per-inmate staffing and spending
levels in the country. In 2015, Illinois had the second-lowest per-inmate
staffing and the eighth-lowest per-inmate health-care spending. Its spend-
ing of $3,619 per year was 37 percent below the national median. Id. at 8,
20.
28 No. 18-2660
In addition to the refill policy, Wexford has a prescription
renewal policy for inmates like Hildreth with chronic ill-
nesses. Such inmates are supposed to be signed up automati-
cally for clinic visits at least every six months. These visits
serve a key function in coordinating care for chronically ill pa-
tients and making sure their medical needs are met. At these
clinics, patients are seen by a Wexford physician or nurse
practitioner who will then write any necessary prescriptions,
which will last between six months and one year.
These policies look good on paper, but these are human
systems and people make mistakes. Hildreth did not regu-
larly receive passes for the chronic clinic and did not go every
six months. Instead, he was seen by doctors at irregular inter-
vals and was sometimes just told that his prescription was be-
ing renewed “automatically.” At least one time, Hildreth did
not receive his medication on time because his prescription
had lapsed. Another time, a Wexford nurse refused to accept
Hildreth’s renewal sticker because “she did not like Scott Hil-
dreth’s demeanor.”2
In effect, Wexford policy relied on what a manufacturer
would call “just-in-time” supply control. When a manufac-
turer relies on such a system, it knows it must monitor pro-
gress closely so that mistakes don’t shut down the assembly
line. When the just-in-time system is used to provide critical
medicine, the stakes are even higher. The need for a policy to
catch and correct mistakes before they cause harm is greater.
Without such elements in the Wexford policy, plaintiff was
left without medication he needed to control his Parkinson’s
2 The majority opinion treats this statement as inadmissible. Ante at
15. I disagree for reasons explained below.
No. 18-2660 29
symptoms for days and sometimes more than a week at a
time. As applied, then, the formal policies did not reliably
supply Hildreth with his Parkinson’s medication. The record
contains evidence of at least three medication lapses over a
period of nineteen months. In each instance, Hildreth did the
only things he could to bring the lapse to the attention of those
responsible for his care—speaking to the nurses on duty and
filing grievances.
On April 8, 2014, Hildreth filed his first grievance in the
record about a medication lapse: “I am out of my Parkinsons
meds (AGAIN) … I have serious mobility problems … I’ve
been telling C/Os [correctional officers] and nurses for days I
did not get refill[.] I turned in sticker on time[.] Been without for
days.” (Emphasis added). The next day, Hildreth’s prescrip-
tion was renewed, indicating that the lapse took place because
his prescription had expired and had not been renewed on
time. The record does not indicate when Hildreth received his
refill, but he likely would have gone at least another couple of
days because of the turnaround time from Boswell.
On October 25, 2014, he filed another grievance: “I have
gone thru this before?! I don’t know why I bother with your
griev[ance] syst[em]? I am about to run out of my [] Mirapex
for Parkison’s … I’ve told the nurses for a couple days now.”
Hildreth received the medication on October 30, and Hildreth
said that this meant he had a lapse of two or three days. Hil-
dreth had become so accustomed to medication delays that he
had started preemptively telling nurses about lapses. When
he was told to “wait and see” if the medication came in, he
would preemptively file a grievance to help ensure that he
had only a minimal lapse.
30 No. 18-2660
On November 16, 2015, Hildreth filed yet another griev-
ance regarding the same problem: “Been without Parkinsons
meds again! Since Friday 13th. This is why I filed law suit.”
He said that he had “told nurses” about the situation, but to
“no avail as usual.” This grievance was not reviewed until a
full week later, on November 23. Upon review, the Healthcare
Unit Administrator—an IDOC employee—noted that the
“non-formulary for his meds have expired. The request to
continue use was sent into the pharmacy. We are waiting to
hear back.” During this incident, Hildreth went without his
medication for at least ten days. In reviewing the grant of
summary judgment, we must assume that such a long lapse
was exceptionally painful and dangerous for Hildreth. We
must also assume that Hildreth did his part by complying
with Wexford’s prescription refill and renewal policies.
III. Analysis — The Eighth Amendment and Monell
It’s worth remembering why modern federal courts de-
vote so much attention to health care in prisons. “An inmate
must rely on prison authorities to treat his medical needs; if
the authorities fail to do so, those needs will not be met. In the
worst cases, such a failure may actually produce physical ‘tor-
ture or a lingering death’ … . In less serious cases, denial of
medical care may result in pain and suffering which no one
suggests would serve any penological purpose. The infliction
of such unnecessary suffering is inconsistent with contempo-
rary standards of decency … .” Estelle v. Gamble, 429 U.S. 97,
103 (1976) (citations omitted). That’s why deliberate indiffer-
ence to inmates’ serious medical needs violates the Eighth
Amendment’s prohibition on cruel and unusual punishment.
Daniel v. Cook County,
833 F.3d 728, 733 (7th Cir. 2016), citing
No. 18-2660 31
Estelle, 429 U.S. at 104. A plaintiff shows deliberate indiffer-
ence by establishing that those responsible for inmate health
know that an inmate faces a “substantial risk of serious harm”
and disregard that risk by “failing to take reasonable
measures to abate it.” Farmer v. Brennan,
511 U.S. 825, 847
(1994).
For claims against municipal governments under 42
U.S.C. § 1983, we apply the familiar Monell standard: re-
spondeat superior liability does not apply, and the plaintiff
must show instead that the constitutional violation was
caused by a municipal policy or a custom or practice so per-
vasive as to reflect municipal policy. Monell v. Dep’t of Social
Services, 436 U.S. 658, 691 (1978). The Supreme Court has not
applied the Monell standard to private corporations that act
under color of state law, like prison and jail health-care pro-
viders. Our precedents have applied Monell to such private
corporations, though that doctrine has been questioned
within the court and the academy. See Shields v. Illinois Dep’t
of Corrections,
746 F.3d 782, 789–90 (7th Cir. 2014).
In this case, the correct focus is on Wexford’s systems (i.e.,
its policies) for prescription refills and renewals. Monell liabil-
ity may apply even in the absence of individual liability
where the institutional policies themselves show deliberate
indifference to inmates’ serious medical needs. Glisson v. Indi-
ana Dep’t of Corrections, 849 F.3d 372, 378 (7th Cir. 2017) (en
banc) (contractor chose not to provide for coordinated care for
prisoners with multiple, complex illnesses); see also
Daniel,
833 F.3d at 733–34 (“individual defendants can defend them-
selves by shifting blame to other individuals or to problems
with the ‘system,’ particularly where no one individual seems
to be responsible for an inmate’s overall care”).
32 No. 18-2660
This doctrinal niche is often relevant in prison health-care
cases, particularly where health care is delivered by a combi-
nation of government employees and a private contractor like
Wexford. The combination diffuses responsibility between
government and contractor and among many individuals. In-
mates can suffer because of health-care providers’ lack of pol-
icy, systematic failures to follow official policy, or obvious
gaps in policy. E.g., Glisson, 849 F.3d at 378;
Daniel, 833 F.3d at
735; Thomas v. Cook County Sheriff’s Dep’t,
604 F.3d 293, 303
(7th Cir. 2010). In such cases, it may be that no facially uncon-
stitutional policy tells employees to take actions that violate
someone’s constitutional rights. Instead, the government or
its contractor adopts or tolerates practices that predictably
lead to constitutional harms.
A. Evidentiary Dispute
I need to address briefly the erroneous exclusion of evi-
dence that helps demonstrate why Wexford’s system needs to
have warning systems and back-ups. In opposing summary
judgment, Hildreth offered an affidavit from another inmate,
Michael McGowan, who testified that he overheard two rele-
vant conversations. In October 2015, Susan Kirk—a nurse
who McGowan believed worked for Wexford—refused to ac-
cept Hildreth’s medication refill sticker, “indicating she did
not like Scott Hildreth’s demeanor.” In a second encounter,
Angie Walters—another nurse who McGowan believed
worked for Wexford—refused to check on the status of Hil-
dreth’s medication refill when he reported that he had run
out. The district court excluded McGowan’s testimony about
these statements as hearsay, and the majority opinion up-
holds those rulings.
No. 18-2660 33
As a matter of elementary evidence law, this is just clearly
wrong. Hildreth did not offer the affidavit to prove that what
the nurses said was true. He offered the affidavit to prove
their actions. One nurse refused to accept plaintiff’s refill
sticker. The other refused to check on the status of his refill
when he had already run out. The conversations were not
hearsay at all but instead verbal acts—refusals—falling com-
pletely outside the definition of hearsay in Federal Rule of Ev-
idence 801(c): an out-of-court “statement” offered “to prove
the truth of the matter asserted in the statement.” See Carter
v. Douma, 796 F.3d 726, 735 (7th Cir. 2015) (informant request
for drugs was not hearsay because it was a verbal act);
Schindler v. Seiler,
474 F.3d 1008, 1010 (7th Cir. 2007) (verbal
acts are not hearsay because they “are not offered for their
truth”); see generally 30B Wright & Bellin, Federal Practice &
Procedure, Evidence § 6722 at 66 (2017). The affidavit was of-
fered as evidence that the system (read, policy) that Wexford
had designed could fail and did fail plaintiff because of emi-
nently human failings like impatience and perhaps spite. The
affidavit offered admissible evidence to oppose summary
judgment.3
3 The parties have skipped the “statement” issue and debated whether
Federal Rule of Evidence 801(d)(2)(D) should apply. It excludes from the
definition of hearsay statements by an opposing “party’s agent or em-
ployee on a matter within the scope of that relationship and while it ex-
isted.” As noted above, the debate on this issue shows the need for broader
discovery into Wexford’s or similar contractors’ personnel files to deter-
mine who employed the nurses at the relevant times. The only evidence is
that the affiant said that he believed they were Wexford employees. Wex-
ford obviously has records that could settle that issue, but it has not come
forward with them. Future plaintiffs facing similar gamesmanship will
have to obtain personnel records to prepare to meet such arguments. At a
more fundamental level, however, employment is not the issue. Agency is
34 No. 18-2660
B. Unreasonable Response to Danger of Inevitable Mistakes
Hildreth has presented sufficient evidence of a Monell pol-
icy or custom for his claim to survive. A jury could conclude
that “the failure to establish adequate systems” for providing
essential medication “was so pervasive that acquiescence on
the part of policymakers was apparent and amounted to a
policy decision.” Daniel, 833 F.3d at 734, citing Dixon v. County
of Cook,
819 F.3d 343, 348 (7th Cir. 2016). Hildreth has identi-
fied a policy—or rather, a network of policies and key policy
gaps—that can form the basis of Wexford’s Eighth Amend-
ment liability. The issue is not exactly how often the policy
failed Hildreth. The issue is whether the system established
by Wexford policymakers reflected deliberate indifference to
the inevitability of human mistakes.
A prisoner asserting a deliberate-indifference claim must
show that the defendant had actual knowledge of the danger
or serious condition the prisoner faced, and that the defend-
ant failed to take reasonable steps in the face of the risk.
Farmer v. Brennan, 511 U.S. 825, 843–44 (1994); Ortiz v. Jordan,
562 U.S. 180, 190 (2011) (reinforcing Farmer’s reasonableness
requirement); LaBrec v. Walker,
948 F.3d 836, 841 (7th Cir.
the issue. See, e.g., Mister v. Northeastern Illinois Commuter R.R. Corp.,
571
F.3d 696, 698 (7th Cir. 2009); United States v. Swan,
486 F.3d 260, 264–65
(7th Cir. 2007); Young v. James Green Mgmt., Inc.,
327 F.3d 616, 622 (7th Cir.
2003). The majority opinion further speculates that the statements may not
have been within the scope of the nurses’ employment (or agency). Ante
at 15. Even Wexford didn’t try to make this argument, and it’s hard to
imagine how these statements or actions by nurses responsible for refilling
prescriptions and dispensing drugs could fall outside the scope of their
agency or employment. See
Thomas, 604 F.3d at 309–10 (prison nurse’s
statement that an ill inmate was “just dope sick” was “not hearsay” under
Rule 801(d)(2)(D)).
No. 18-2660 35
2020);
Glisson, 849 F.3d at 381. The Supreme Court explained
in Farmer that a plaintiff can prove actual knowledge with cir-
cumstantial evidence, of course, and that the very obvious-
ness of the danger can support an inference of actual
knowledge. 511 U.S. at 842; see also
LaBrec, 948 F.3d at 841
(citing Farmer); Petties v. Carter,
836 F.3d 722, 729 (7th Cir.
2016) (en banc) (“If a risk from a particular course of medical
treatment (or lack thereof) is obvious enough, a factfinder can
infer that a prison official knew about it and disregarded it.”).
Hildreth has offered evidence to satisfy this demanding
standard. Ample evidence showed that Wexford had actual
knowledge of Hildreth’s Parkinson’s disease, his prescrip-
tion, and the need to ensure a steady supply of the medicine.
Wexford surely had actual knowledge that some prisoners
would have similarly urgent needs for critical prescriptions
not available on-site at the prison. Given that actual
knowledge of serious medical needs, Wexford had a constitu-
tional duty to take reasonable steps to avoid or minimize the
risk of lapses in medication. In other words, Wexford had a
constitutional duty to put in place a reasonably reliable sys-
tem for renewing and refilling such critical non-formulary
drugs and to monitor the performance of that system.
A jury could easily find that Wexford’s system was not
reasonably calculated to be reliable because the system had
no warning channel and back-up mechanisms by which it
could fix mistakes without unnecessary suffering. Wexford’s
system is not required to be perfect and fail-safe. But for a sys-
tem so critical to health—and one with many possible points
of failure—it lacked warnings to alert Wexford to inevitable
mistakes or oversights. This not only prevented Wexford
36 No. 18-2660
from catching mistakes before patients suffered but appar-
ently prevented Wexford from learning about even repeated
failures. Such an unreasonable “conscious decision not to take
action” in the face of a serious medical risk is akin to the deci-
sion of the defendant in Glisson to forgo a protocol for coordi-
nated care to chronically ill inmates. 849 F.3d at 381. Where
there is an obvious risk created by a health-care policy gap—
like coordinated care in Glisson or medication refill oversight
here—a plaintiff need not show some minimum number of
injuries to prevail.
Id. at 382, citing Woodward v. Correctional
Medical Services,
368 F.3d 917, 929 (7th Cir. 2004) (“CMS does
not get a ‘one free suicide’ pass.”).
Compare Hildreth’s situation to that of a hospital patient
on a ventilator that is keeping the patient alive. The machine
runs on electricity. Electrical power will be interrupted from
time to time by storms and equipment failures. Machines like
ventilators occasionally break down. Any reasonable hospital
must anticipate the possibility of those interruptions and
breakdowns, and it must have alerts and a back-up system in
place. Similarly here, Wexford may be deemed to have actual
knowledge of both the obvious possibility, even the inevita-
bility, of mistakes or lapses in its renewal and refill systems
and of the serious consequences for patients if those were not
corrected. Wexford thus had a constitutional duty to take rea-
sonable steps—warnings and back-up systems—to mitigate
the effects of inevitable mistakes and oversights.
In Hildreth’s case, Wexford’s system for providing medi-
cation led to a series of serious delays in providing him with
his medication—at least three times in nineteen months. Each
time this happened, we must assume, Hildreth did every-
No. 18-2660 37
thing he could to avoid the problem and then to make Wex-
ford aware of it. He told the nurses and filed formal griev-
ances. In these grievances, he said that this was an ongoing
problem and that the nurses were not responsive to his needs.
The longest lapse in medication—at least ten days—occurred
after he had recently submitted two grievances related to
other lapses.
Wexford argues that Hildreth’s grievances cannot be used
to infer that it knew about the systemic failure of its medica-
tion policies and that this precludes liability:
Wexford is not involved in the grievance pro-
cess, and would not know of the contents of a
grievance unless an IDOC employee notifies
Wexford about it. Even then, that individual
would have been a member of the onsite
healthcare staff, not necessarily a policymaker.
As such, Wexford policymakers had no reason
to know that any alleged issue existed.
Brief for Appellee Wexford at 21. This argument has things
exactly backwards: Wexford’s lack of involvement in the
grievance process makes it more culpable and strengthens Hil-
dreth’s claim. Humans make mistakes. In implementing sys-
tems known to be critical to life, health, and safety, a company
like Wexford must allow for such mistakes and take reasona-
ble steps to provide warnings and back-up systems. Federal
courts do not and should not design the specifics. As noted,
though, the Eighth Amendment requires reasonable re-
sponses to known risks where prisoners cannot protect their
own health and safety. Wexford’s admission that it lacked any
policy to learn about inmates’ complaints supports the con-
clusion that its prescription policies created an unacceptable
38 No. 18-2660
risk of harm resulting from this form of deliberate indiffer-
ence to Hildreth’s serious medical needs.
Daniel v. Cook County addressed this point: “If a grievance
system is part of a jail’s or prison’s system for communicating
and responding to health care requests, and if the system fails
in a way that causes a deprivation of needed health care, then
the problem with the grievance system may be an important
part of the plaintiff’s case for deliberate indifference to his
health care needs.” 833 F.3d at 737. We have also said, of
course, that “the dangers of delayed responses to medical re-
quests are readily apparent.”
Thomas, 604 F.3d at 304. In the
face of such danger, it is unreasonable for a medical policy-
maker to cut itself off from important feedback about failures
or lapses in its policies.
Dividing responsibility between private contractors and
state agencies can increase these risks. In such cases, the law
should and does provide incentives for actors to take reason-
able steps to mitigate known dangers. The law should not do
what the majority opinion’s reasoning does here: reward di-
vided responsibility and deliberate ignorance by those who
control prisoners’ only access to health care. Hildreth’s griev-
ances give the impression of a person in pain, screaming into
a void. Wexford ignored Hildreth’s grievances, seemingly by
design. And when Hildreth used the only other avenue avail-
able—communication with nurses—he was told only to “wait
and see” if the refill would come. On this record, we should
reverse summary judgment for Wexford.
No. 18-2660 39
C. The Majority Opinion’s Approach to Custom
The majority opinion adopts a highly restricted approach
to establishing a Monell custom that is at odds with our prec-
edent. The majority looks only to the raw number of alleged
failures and the time period over which they took place. Ante
at 11–13. It views the broader policy decisions and context
surrounding the violations as immaterial. This approach di-
vorces the legal doctrine from its purpose of identifying those
cases in which a government or corporate policy causes and
fails to address predictable failures to provide needed medi-
cal care. After acknowledging that we have adopted no
“bright-line rules” for establishing a Monell custom, the ma-
jority opinion adopts one by saying that the number of possi-
bly unconstitutional incidents “must be more than three.”
Ante at 11.
There are at least two problems with the approach. First,
Hildreth does not present the kind of pure custom case where
institutional culpability is inferred solely from repeated em-
ployee misconduct and the question is whether the corpora-
tion can be held liable for tolerating them. While Hildreth
uses the term “custom” in his briefing—presumably because
he asks us to infer something from the repeated medication
lapses he experienced—his theory of Monell liability impli-
cates both official policies and unofficial customs. Hildreth
specifically points to Wexford’s admission that it is “not in-
volved in the grievance process” as evidence of its deliberate
indifference. He asks us to infer from Wexford’s medication
refill policy, its prescription renewal policy, a pattern of non-
compliance with each of those policies, a pattern of medica-
tion lapses, and—importantly—the utter failure of Wexford
to provide a functioning pathway to fix these problems, that
40 No. 18-2660
Wexford tolerated “systematic and gross deficiencies” in its
process for providing inmates with medication. Dixon, 819
F.3d at 348. And as described above, the lack of a policy for
reporting and correcting failures—undoubtedly a failing at-
tributable to Wexford itself rather than a rogue employee—
should be decisive.
Second, even when addressing what could be called pure
custom cases, we have never held that some minimum num-
ber of incidents is needed to establish municipal liability. Ra-
ther, the question is one of corporate knowledge and respon-
sibility, as is always the case under Monell. “[M]unicipal lia-
bility can … be demonstrated indirectly ‘by showing a series
of bad acts and inviting the court to infer from them that the
policymaking level of government was bound to have noticed
what was going on.’” Woodward, 368 F.3d at 927, quoting Es-
tate of Novack v. County of Wood,
226 F.3d 525, 530 (7th Cir.
2000). The majority opinion’s per se rule is at odds with our
approach to Monell, which focuses broadly on indicia of mu-
nicipal or corporate responsibility rather than just the number
of incidents. E.g.,
Dixon, 819 F.3d at 348 (“[W]e look to see if a
trier of fact could find systemic and gross deficiencies in staff-
ing, facilities, equipment, or procedures in a detention cen-
ter's medical care system.”) (internal quotation marks omit-
ted);
Daniel, 833 F.3d at 734 (“[A]n inmate can meet this bur-
den by offering ‘competent evidence tending to show a gen-
eral pattern of repeated behavior (i.e., something greater than
a mere isolated event).’”), quoting Davis v. Carter,
452 F.3d
686, 694 (7th Cir. 2006). As we said in Woodward, a prison
health-care company “does not get a ‘one free suicide’
pass.”
368 F.3d at 929.
No. 18-2660 41
Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008), which
the majority opinion treats as controlling, is easily distin-
guishable. An inmate alleged that the jail maintained a cus-
tomary practice of failing to distribute inmate prescriptions
properly after four instances in which his entire prescription
was distributed at once and then stolen by other inmates.
Id.
at 774. We held that these four incidents were insufficient to
establish a custom. Grieveson differs in two critical ways from
this case: the inmate complained to the prison officials only
once, and the inmate did not allege widespread noncompli-
ance with official policy. Here, by contrast, Hildreth filed at
least three grievances and made even more frequent com-
plaints to nurses where Wexford’s system failed, and nothing
happened. And he described frequent noncompliance with
Wexford’s refill and renewal policies. Wexford’s just-in-time
refill system left little room for mistakes, and such a system
demands warnings and back-ups where health and safety are
at stake. The repeated and foreseeable mistakes in refilling
Hildreth’s prescription and the failure to respond to his com-
plaints make for a much stronger case of systemic deficiencies
here than in Grieveson.
I would reverse and remand for trial, and I would add a
strong suggestion that Hildreth be permitted to pursue addi-
tional discovery to expand the evidence of deliberate indiffer-
ence.
