Ashoor Rasho v. Willard Elyea, et al
Filed AMENDED Opinion by Judge Wood. Original Opinion issued on 03/07/2017. We AFFIRM the district court s grant of summary judgment in favor of Defendants Elyea, Blank, and Jones, but REVERSE the grant of summary judgment in favor of Defendants Massa and Garlick. This case is REMANDED for further proceedings.  [14-1902]
United States Court of Appeals
For the Seventh Circuit
WILLARD O. ELYEA, ET AL.,
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:11-CV-01308 — Michael M. Mihm, Judge.
ARGUED APRIL 17, 2015 — DECIDED MARCH 7, 2017
AMENDED MAY 5, 2017 *
Before POSNER and WILLIAMS, Circuit Judges, and WOOD,
WOOD, District Judge. Ashoor Rasho arrived at the Pontiac
Correctional Center (“Pontiac”), an Illinois prison, in 2003.
This amended opinion replaces and supersedes the opinion that
was issued by the panel on March 7, 2017 and reported at 850 F.3d 318.
Of the Northern District of Illinois sitting by designation.
Rasho has a history of mental illness and, after he stopped
taking his medication and began showing escalating symptoms, he was transferred into Pontiac’s Mental Health Unit.
He remained in the Mental Health Unit until 2006, when he
was transferred to the North Segregation Unit. Rasho believes that he was transferred out of the Mental Health Unit
not because he no longer required the specialized treatment
offered there but instead in retaliation for complaints he had
lodged against various prison staff. According to Rasho, after he was transferred, he was denied even minimally adequate mental health care for more than 20 months.
Rasho subsequently filed a lawsuit pursuant to 42 U.S.C.
§ 1983 against the Pontiac staff psychiatrist and psychology
services administrator who recommended his transfer out of
the Mental Health Unit, as well as the warden, medical director, and director of mental health, alleging that each acted
with deliberate indifference to his serious medical needs in
violation of the Eighth Amendment to the United States
Constitution. 1 The district court granted summary judgment
in favor of all of the defendants. Rasho now appeals.
As explained in the district court’s opinion, Rasho’s individual
action has been separated from the putative class action Rasho, et
al. v. Director Roger E. Walker, Jr., et al., Case No. 07-cv-1298 (C.D.
Ill.). The present appeal, like the lower court ruling from which it
has been taken, addresses only Rasho’s individual claims.
Rasho has been an inmate in the custody of the Illinois
Department of Corrections (“IDOC”) since 1996, although he
did not arrive at Pontiac until 2003. He has a history of mental illness—characterized by auditory hallucinations, severe
depression, agitation, self-mutilation, and suicide attempts—
for which he has been prescribed psychotropic medications.
At various times, he has been diagnosed with the Axis I
mental disorders “Major Depressive Disorder, Recurrent,
with Psychotic Features or Schizophrenia” and “Major Depressive Disorder with Psychotic Features, Recurrent.” 2
While at Pontiac, he also received an Axis I diagnosis of “history of polysubstance abuse and dependence” and an Axis II
diagnosis of “antisocial personality disorder and borderline
personality disorder.” As described by his expert witness in
this case, Rasho is a “very, very sick man.”
In April 2004, after Rasho stopped taking his medications
and began cutting himself, a psychiatrist at Pontiac recommended that he be transferred to the prison’s Mental Health
Unit. Inmates assigned to that unit have more frequent access to mental health professionals and receive greater continuity of mental health care than those in other prison units.
Among the therapeutic benefits available to inmates in the
Mental Health Unit are group therapy, cells with open bars,
and the ability to have private and confidential conversa“Axis I” is a classification for clinical disorders recognized in the
Diagnostic and Statistical Manual of Mental Disorders (4th ed.
Text Rev. 2000) (“DSM-IV”), published by the American Psychiatric Association and widely recognized as an authoritative source
for information about mental conditions. “Axis II” is the DSM-IV’s
classification for personality disorders.
tions with mental health staff more easily. Inmates in the
Mental Health Unit also may receive individual therapy, crisis intervention, and psychotropic medication management.
While Rasho was in the Mental Health Unit, he met with
mental health professionals at least monthly and was prescribed psychotropic medications. Yet the record reveals that
Rasho still cut himself on approximately five or six occasions—including at least twice that resulted in Rasho being
placed on crisis watch—and engaged in other disruptive and
self-destructive behavior. He complained frequently and
acted out while in the Mental Health Unit and filed several
grievances regarding Pontiac staff.
Rasho remained in the Mental Health Unit until he was
transferred to the North Segregation Unit in November 2006.
The transfer was initially recommended by Dr. Michael
Massa, who worked as a staff psychiatrist at Pontiac and
treated Rasho. The transfer was also approved by Dr. John
Garlick, who held the position of Psychology Services Administrator and was Dr. Massa’s supervisor. At the time, Dr.
Massa provided mental health services to Pontiac inmates
pursuant to the IDOC’s contract with private contractor
Wexford Health Sources, Inc. (“Wexford”). Dr. Massa first
recommended that Rasho be transferred out of the Mental
Health Unit on May 25, 2006; he followed with another recommendation on August 3, 2006. Rasho was eventually
transferred in November 2006.
The parties dispute the reason for Dr. Massa’s and Dr.
Garlick’s determination to transfer Rasho out of the Mental
Health Unit. Dr. Massa claims that he recommended the
transfer because he did not believe that Rasho had a diagnosis or set of symptoms such that he was benefitting from the
placement. Dr. Massa also claims that he had become concerned that Rasho’s continued presence in the Mental Health
Unit would be detrimental to other inmates in the unit—
specifically, Rasho was showing signs of antisocial personality disorder that made him a risk to the genuinely mentally
ill and vulnerable inmates there. Dr. Garlick claims that he
agreed that Rasho should leave the Mental Health Unit
based on his own interactions with Rasho and his
knowledge of Rasho’s condition and behavior. According to
Dr. Garlick, he too was concerned that Rasho’s continued
presence in the Mental Health Unit would have a detrimental effect on other inmates and he also doubted that
Rasho was benefitting from placement there.
Rasho challenges Dr. Massa’s and Dr. Garlick’s stated
reasons for recommending his transfer out of the Mental
Health Unit. He contends that they actually decided to have
him transferred as punishment for his complaints. In fact,
Rasho claims that both Dr. Massa and Dr. Garlick actually
told him that he was kicked out of the Mental Health Unit
because he filed too many grievances. Rasho also points out
that Dr. Massa recommended the transfer even though Dr.
Massa was well aware of Rasho’s history of mental health
problems and continued to prescribe Rasho powerful psychotropic medications after making the recommendation.
One of those medications was Geodon, which is primarily
used to treat schizophrenia and mania and to provide
maintenance for bipolar disorder. If Dr. Massa truly believed
that he did not require specialized mental health treatment,
Rasho argues, then why would he continue to prescribe
medications indicated only for that purpose?
Rasho also has presented testimony from Dr. Jose Matthews, who treated Rasho in the North Segregation Unit,
and Dr. Joel Silverberg, an expert witness retained on
Rasho’s behalf for purposes of this case. Dr. Matthews testified that after treating Rasho for some time in the North Segregation Unit (and initially believing that Rasho might be
malingering), he came to believe that Rasho did require
greater care than would be provided in the North Segregation Unit and should be transferred back to the Mental
Health Unit. When Dr. Matthews raised the issue, however,
Dr. Garlick rejected the idea stating “no, no, no, [Rasho]
can’t go there.”
Similarly, Dr. Silverberg has offered an expert opinion
that Rasho should have been kept in the Mental Health Unit
and not transferred to the North Segregation Unit, an environment that he considers to have been “toxic” to Rasho’s
mental health and where there was no meaningful mental
health treatment. According to Dr. Silverberg, inmates in the
North Segregation Unit were isolated and treated like animals. Moreover, the filth and noise there aggravated Rasho’s
condition and, because the unit did not have places that allowed Rasho to talk to mental health staff in private, Rasho
was forced to downplay his issues. Dr. Silverberg concluded
that Rasho was undertreated while at Pontiac but did respond when provided with appropriate care—i.e., beginning
no earlier than 2008 (or approximately 20 months after
Rasho was transferred), when Dr. Matthews arrived at Pontiac and began paying special attention to Rasho beyond
what would otherwise have been provided.
Although it is undisputed that Rasho cut himself both
while he was in the Mental Health Unit and after he was
transferred, supported by the testimony from Dr. Matthews
and Dr. Silverberg, Rasho claims that his mental health deteriorated and his self-mutilation escalated after he was transferred.
Rasho was transferred from Pontiac to Stateville Correctional Center in 2011, but then returned to Pontiac’s North
Segregation Unit in February 2012. Rasho claims that his
mental health treatment upon his return to Pontiac was very
different than during his prior stint there. The difference was
the attention he received from Dr. Matthews, who began
meeting with Rasho for two hours each week. Rasho characterizes the treatment that Dr. Matthews provided him as exceptional and not at all typical of the care usually provided
to inmates in the North Segregation Unit. Dr. Matthews has
acknowledged that he initially felt that Rasho might be faking his symptoms. By the time he left Pontiac in September
2012, however, Dr. Matthews had changed his mind and
recommended that Rasho be transferred to the Mental
Health Unit. As noted above, this recommendation was rejected by Dr. Garlick.
Rasho claims in his lawsuit that Dr. Massa and Dr. Garlick acted with deliberate indifference to his serious medical
needs by transferring him out of the Mental Health Unit.
Rasho also has sued three supervisory IDOC staff for their
purported deliberate indifference: Dr. Wendy Blank (originally named in Rasho’s lawsuit under her prior name, Wendy Navarro) served as IDOC’s Director of Mental Health beginning in 2006; Dr. Willard Elyea served as IDOC’s medical
director from 1999 until April 2007; and finally, Eddie Jones
was Pontiac’s warden from 2006 to 2008. Rasho seeks to hold
these defendants liable under a theory that they failed in
their respective duties to take reasonable steps to ensure adequate medical care for seriously mentally ill inmates.
The district court granted summary judgment in favor of
all of the defendants. Focusing on his claim against Dr. Massa, the district court found that Rasho could not show that he
actually received inadequate care while in the North Segregation Unit. Key to the district court’s conclusion was the
opinion from Dr. Silverberg that the care provided to Rasho
by Dr. Matthews fell within the appropriate standard of care.
As the district court explained, “the importance of [Dr. Silverberg’s] testimony is the fact that Rasho was capable of
getting ‘appropriate and reasonable’ treatment while being
housed in North Segregation unit. Given this, it is difficult to
find that Dr. Massa’s recommendation to transfer Rasho to
North Segregation would violate the Constitution.” The district court went on to express skepticism that Rasho would
be able to establish any injury as a result of the alleged constitutional violation, since he self-mutilated both before and
after the transfer.
Having concluded that Rasho could not prevail against
the medical provider most directly responsible for the
decision to transfer him out of the Mental Health Unit, the
district court next considered Rasho’s claims against Dr.
Garlick, Dr. Elyea, Dr. Blank, and Warden Jones. With
respect to Dr. Garlick, the district court found that he was
even further removed from the transfer decision than Dr.
Massa and, in any case, that there was no evidence he knew
a transfer from the Mental Health Unit would be detrimental
to Rasho’s mental health. With respect to Dr. Elyea and Dr.
Navarro, who were even further removed from the transfer
decision than Dr. Garlick, the district court concluded that
there was no evidence their actions caused any harm to
Rasho in particular. Finally, the district court held that the
record could not support a finding that Warden Jones failed
to comply with any duty by not preventing Rasho from
being transferred out of the Mental Health Unit into the
allegedly terrible conditions of the North Segregation Unit.
We review the district court’s grant of summary
judgment de novo, viewing the record in the light most
favorable to Rasho and drawing all inferences in his favor.
Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). Summary
judgment is appropriate if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
It is well-established that prison officials and medical
staff violate the Eight Amendment’s prohibition on cruel
and unusual punishment when they act with deliberate
indifference to a prisoner’s serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976);
Chatham v. Davis, 839 F.3d 679, 684 (7th Cir. 2016). “To
determine if the Eighth Amendment has been violated in the
prison medical context, we perform a two-step analysis, first
examining whether a plaintiff suffered from an objectively
serious medical condition, and then determining whether
the individual was deliberately indifferent to that
condition.” Petties, 836 F.3d at 727–28 (citing Farmer v.
Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811
(1994); Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010)).
For purposes of summary judgment, the defendants
conceded below that whether Rasho suffered from an
objectively serious medical condition constitutes a triable
issue of fact for a jury to decide. And so the question to be
determined here is whether Rasho has produced sufficient
evidence to permit a jury to find that any of the defendants
were deliberately indifferent to his condition.
Deliberate indifference requires that a defendant actually
know about yet disregard a substantial risk of harm to an
inmate’s health or safety. Petties, 836 F.3d at 728. “The
standard is a subjective one: The defendant must know facts
from which he could infer that a substantial risk of serious
harm exists and he must actually draw the inference.” Zaya
v. Sood, 836 F.3d 800, 804 (7th Cir. 2016). Emphasizing the
deference owed to the professional judgment of medical
providers, we have observed that “[b]y definition a
treatment decision [that is] based on professional judgment
cannot evince deliberate indifference because professional
judgment implies a choice of what the defendant believed to
be the best course of treatment.” Id. at 805; see also McGee v.
Adams, 721 F.3d 474, 481 (7th Cir. 2013); Sain v. Wood, 512
F.3d 886, 894–95 (7th Cir. 2008). “A medical professional
acting in his professional capacity may be held to have
displayed deliberate indifference only if the decision by the
professional is such a substantial departure from accepted
professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did not
base the decision on such a judgment.” Sain, 512 F.3d at 895
(internal quotation marks omitted).
The defendants would like us to view the decision to
transfer Rasho out of the Mental Health Unit as an exercise
of medical judgment entitled to judicial deference. But Rasho
claims that Dr. Massa and Dr. Garlick did not exercise
medical judgment at all in deciding to recommend that he be
transferred. Instead, Rasho contends, their decision was
motivated by spite: they sought to have him transferred in
retaliation for his several grievances against prison staff and
In Petties, we recognized that the choice of “an easier and
less efficacious treatment without exercising professional
judgment” can constitute deliberate indifference. 836 F.3d at
730 (internal quotation marks omitted). Most often, this
concern arises when a medical provider is alleged to have
chosen a treatment—or lack thereof—based on cost
considerations rather than medical judgment. See, e.g., Roe v.
Elyea, 631 F.3d 843, 863 (7th Cir. 2011) (“Although
administrative convenience and costs may be, in appropriate
circumstances, permissible factors for correctional systems to
consider in making treatment decisions, the Constitution is
violated when they are considered to the exclusion of
reasonable medical judgment about inmate health.”
(emphasis omitted)); Johnson v. Doughty, 433 F.3d 1001, 1013
(7th Cir. 2006) (“The cost of treatment alternatives is a factor
in determining what constitutes adequate, minimum-level
medical care, but medical personnel cannot simply resort to
an easier course of treatment that they know is ineffective.”
(citations omitted)). But a similar concern arises if a medical
provider bases his or her treatment decision on personal
prejudices or animosity. In either circumstance, the medical
provider may violate the patient-inmate’s constitutional
rights by failing to exercise medical judgment at all. See Roe,
631 F.3d at 863.
Rasho here has put forward sufficient evidence from
which a reasonable jury could decide that Dr. Massa and Dr.
Garlick caused him to be transferred out of the Mental
Health Unit for reasons that had nothing to do with medical
judgment. Such evidence includes Rasho’s own testimony
that Dr. Massa and Dr. Garlick each explicitly told him that
he was transferred in response to his complaints. The district
court discounted Rasho’s testimony on this point as not
sufficiently unequivocal in its language. But Rasho’s
credibility and the weight to be afforded his testimony is a
matter for a jury to decide. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)
(“Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge[.]”). Together with his
mental health history, the continued prescription of
psychotropic medications after his transfer, the testimony
from Dr. Matthews regarding his need for mental health
treatment and Dr. Garlick’s refusal to allow him to return to
the Mental Health Unit, and Dr. Silverberg’s expert
testimony, Rasho’s testimony is sufficient to create a
disputed issue of material fact regarding whether Dr. Massa
and Dr. Garlick recommended the transfer as retaliation
rather than as a matter of medical judgment.
Furthermore, we reject the suggestion that a reasonable
jury could not find that Dr. Massa and Dr. Garlick acted in
retaliation for Rasho’s grievances simply because those
grievances were directed toward other Pontiac staff
members. To the contrary, a reasonable inference to be
drawn from the evidence could be that Dr. Massa and Dr.
Garlick were motivated either to punish Rasho for his
complaints against their colleagues or by a desire to remove
a troublemaking inmate before they became the next targets
of his complaints.
In addition, drawing all reasonable inferences from the
evidence in Rasho’s favor, a jury could conclude that Rasho
was harmed as a result of his transfer out of the Mental
Health Unit. The district court expressed skepticism that
such a causal connection could be proved. But a jury could
agree with Dr. Silverberg that being transferred out of the
Mental Health Unit increased the risk that Rasho’s mental
condition would deteriorate, leading to self-mutilation and
other self-destructive behavior. That Rasho was capable of
getting appropriate and reasonable treatment while in the
North Segregation Unit is not dispositive where a jury could
find that to have been the case only due to an extraordinary
effort by Dr. Matthews.
As an alternative basis for its grant of summary
judgment in favor of Dr. Massa, the district court concluded
that Rasho’s claim is barred by the Prison Litigation Reform
Act, 42 U.S.C. § 1997e(e), because he cannot present evidence
of a physical injury. Section 1997e(e) provides that “[n]o
Federal civil action may be brought by a prisoner confined in
a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual
act.” 42 U.S.C. § 1997e(e). The district court found that Rasho
could not present evidence of a physical injury resulting
from his transfer out of the Mental Health Unit and therefore
his claim is barred. But Rasho did present evidence of at
least one undisputed incident of self-mutilation. That
incident is sufficient to satisfy the physical harm
requirement. And as discussed above, Rasho has
demonstrated that there is a triable issue of fact regarding
whether that harm is attributable to the increased risk to his
mental health resulting from his transfer.
Even if Rasho were unable to point to any physical
injury, the lack of such an injury would not bar his claim but
rather merely limit the damages he could recover: if Rasho
proved his claim, he would still be able to recover nominal
and punitive damages. Gray v. Hardy, 826 F.3d 1000, 1007
(7th Cir. 2016); Calhoun v. Detella, 319 F.3d 936, 941–42 (7th
Cir. 2003). Thus the district court erred in suggesting that the
lack of a physical injury provided an independent basis to
grant summary judgment in Dr. Massa’s favor.
As noted above, in addition to Dr. Massa and Dr. Garlick,
Rasho also sued three defendants with more tenuous
connections to his mental health treatment: Dr. Elyea, Dr.
Blank, and Warden Jones. Specifically, Rasho sought to hold
Dr. Elyea accountable for his alleged failure to supervise
properly the contract between IDOC and its medical
provider, Wexford; he asserted a claim against Dr. Blank
based on the allegation that she knew the mental health staff
at Pontiac was less than half as large as needed to provide
adequate care for its inmates and that Wexford’s
psychiatrists were not working enough hours to comply
with their contractual requirements; and finally, he sued
Warden Jones based on the theory that, as the prison official
in charge of ensuring proper implementation of the policies
and procedures established by IDOC’s Director of Mental
Health, Warden Jones was ultimately responsible for the
decision to transfer him from the Mental Health Unit to the
North Segregation Unit.
But in order to hold an individual defendant liable under
§ 1983 for a violation of an inmate’s constitutional rights, the
inmate must show that the defendant was personally
responsible for that violation. Childress v. Walker, 787 F.3d
433, 439 (7th Cir. 2001); Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001). “A defendant will be deemed to have
sufficient personal responsibility if he directed the conduct
causing the constitutional violation, or if it occurred with his
knowledge or consent.” Sanville, 266 F.3d at 740 (internal
quotation marks omitted). While the defendant need not
have participated directly in the deprivation of the plaintiff’s
constitutional right to be held liable, he or she must
nonetheless have “‘know[n] about the conduct, facilitate[d]
it, approve[d] it, condone[d] it, or turne[d] a blind eye for
fear of what they might see.’” Matthews v. City of East St.
Louis, 675 F.3d 793, 708 (7th Cir. 2012) (quoting Jones v. City
of Chicago, 856 F.2d 985, 992–93 (7th Cir. 1988)).
As the district court correctly concluded, Rasho has
presented no evidence to show that any of Dr. Elyea, Dr.
Blank, or Warden Jones was personally responsible for the
decision to transfer him out of the Mental Health Unit or
otherwise to connect the alleged conduct of those defendants
to the deficient mental health care he claims to have received
after that transfer. There is no evidence, for example, that Dr.
Elyea’s alleged failure to supervise properly Wexford’s
contract or Dr. Blank’s alleged failure to promulgate
protocols led to Rasho’s transfer or caused him any harm.
Nor is there any evidence that Warden Jones knew about,
facilitated, approved, condoned, or turned a blind eye
toward the psychiatric staff’s purported decision to punish
Rasho by transferring him out of the Mental Health Unit.
Rasho also has failed to put forward any facts suggesting
that Dr. Elyea, Dr. Blank, or Dr. Jones had any reason to
doubt that Dr. Massa and Dr. Garlick based their
recommendations on anything other than medical judgment.
Prison officials generally are entitled to rely on the judgment
of medical professionals treating an inmate, see Rice ex rel.
Rice v. Corr. Med. Servs., 675 F.3d 650, 676 (7th Cir. 2012)
(noting that “jail officials ordinarily are entitled to defer to
the judgment of medical professionals”); Arnett v. Webster,
658 F.3d 742, 755 (7th Cir. 2011) (noting that non-medical
prison officials can rely on the expertise of medical
personnel and will generally be justified in believing that the
prisoner is in capable hands). While Dr. Elyea and Dr. Blank
were themselves medical professionals who might
ordinarily be held to a different standard than a non-medical
prison official, in this case Rasho seeks to hold Dr. Elyea and
Dr. Blank accountable as prison administrators and
policymakers, not treaters. Rasho has not presented evidence
that either of them should have realized that something was
amiss with Dr. Massa’s and Dr. Garlick’s transfer
recommendation. Accordingly, the grant of summary
judgment in their favor was appropriate as well.
As the district court found that Rasho could not show
that any of the defendants acted with deliberate indifference
to his serious medical needs, the court did not reach the
issue of qualified immunity. But in light of our
determination that the district court erred in granting
summary judgment on that basis as to Dr. Massa and Dr.
Garlick, the qualified-immunity defense warrants some
This Court has construed the Supreme Court’s holding
that employees of privately-operated prisons may not assert
a qualified-immunity defense also to deny that defense to
employees of private corporations that contract with the
state to provide medical care for prisoners. Zaya, 836 F.3d at
807 (citing Richardson v. McKnight, 521 U.S. 399, 412, 117 S.
Ct. 2100, 138 L. Ed. 2d 540 (1997)). Thus, Dr. Massa, as an
employee of the private contractor Wexford, cannot assert
qualified immunity as a defense to Rasho’s claims. See
Petties, 836 F.3d at 734 (“[Q]ualified immunity does not
apply to private medical personnel in prisons.”) (citing
Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 794 (7th Cir. 2014));
see also Currie v. Chhabra, 728 F.3d 626, 632 (7th Cir. 2013)
(citing with approval the Sixth Circuit’s holding in
McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), that “a
[private] doctor providing psychiatric services to inmates at
a state prison is not entitled to assert qualified immunity”).
Even if a qualified-immunity defense were available to
Dr. Massa, it would be inappropriate to award summary
judgment on that basis in favor of either Dr. Massa or Dr.
Garlick, who is a state employee rather than a private
contractor and thus permitted to raise the defense, while
such threshold factual questions as their states of mind
remain disputed. See Petties, 836 F.3d at 734; see also Zaya, 836
F.3d at 807 (finding summary judgment on a qualifiedimmunity defense inappropriate because the plaintiff’s claim
turned on the defendant’s mental state and “it is well
established what the law requires in that regard”). If Dr.
Massa and Dr. Garlick denied Rasho mental health
treatment to retaliate against him for his grievances, then
their conduct violates clearly-established law under the
Eighth Amendment. For reasons we have discussed above,
that is a question of fact for the jury to decide.
For the reasons stated above, we AFFIRM the district
court’s grant of summary judgment in favor of Defendants
Elyea, Blank, and Jones, but REVERSE the grant of summary
judgment in favor of Defendants Massa and Garlick. This
case is REMANDED for further proceedings.
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