William Nally v. Parthasarathi Ghosh, et al

Filing

Filed opinion of the court by Judge Posner. The judgment of dismissal is REVERSED and the case is REMANDED for proceedings to determine the merits of the plaintiff's suit. Richard A. Posner, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and David F. Hamilton, Circuit Judge, concurring in the judgment. [6687029-1] [6687029] [14-3426]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3426
WILLIAM NALLY,
Plaintiff-Appellant,
v.
PARTHASARATHI GHOSH, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 13 C 7268 — James F. Holderman, Judge.

____________________
SUBMITTED MAY 26, 2015 — DECIDED AUGUST 24, 2015
____________________
Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The plaintiff is an inmate of Stateville prison in Illinois. His suit, filed in October 2013 under
42 U.S.C. § 1983, claims that the prison’s medical staff was
deliberately indifferent to the results of blood tests, administered over a period of more than five years, that indicated
that he was either diabetic or prediabetic, or had progressed
from prediabetic to diabetic during the period. There were
eleven such tests in all. The first was in May 2005 and

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showed a glucose count of 121 mg/dl (milligrams per deciliter). The second, in March 2007, showed a count of 118. The
third, seven months later, showed a count of 114. But the
count in the fourth test, in February of the following year,
was 200, and subsequent tests yielded counts of 160, 136,
137, 162, 124, 141, and 222. Nally alleges that not until the
last of these tests was conducted, late in 2010, did he learn
that his blood glucose counts were dangerously high—that
he was either diabetic or en route to becoming diabetic. The
district court, however, dismissed the suit as time-barred.
We need to distinguish between two types of glucose
blood test—fasting and random. See National Institute of
Diabetes and Digestive and Kidney Diseases, “Diagnosis of
Diabetes and Prediabetes,” http://diabetes.niddk.nih.gov/
dm/pubs/diagnosis/ (visited August 5, 2015, as were the other websites cited in this opinion); National Institute of
Health, “Comparing Diabetes Blood Tests,” www.nid
dk.nih.gov/health-information/health-topics/diagnostic-tests
/comparing-tests-diabetes-prediabetes/Documents/Compari
ng_Tests_for_DM_Chart_Only_508.pdf. The fasting test is
administered at least 8 hours after a patient last ate, and for
that test a glucose count of 100 to 125 means the patient is
prediabetic and above 125 means that probably he’s diabetic.
In a random test (called “random” because it doesn’t control
for when the patient last ate), a score below 140 is normal,
140 to 199 is prediabetic, and 200 or higher means the patient
has diabetes. Id.; National Institute of Diabetes and Digestive
and Kidney Diseases, supra, “How Are Diabetes and Prediabetes Diagnosed?”; Cleveland Clinic, “Diabetes–Prevention:
How is Pre-diabetes Diagnosed?” http://my.clevelandclinic.
org/health/diseases_conditions/hic_Diabetes_Basics/hic_Und
erstanding_Pre-Diabetes.

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Unfortunately, we know only what type of test the plaintiff took in May 2005—it was a random test and his glucose
count, 121, was normal. But the counts in five of the eleven
tests were abnormal (141, 160, 162, 200, 222) even if all the
tests were random tests; if the three tests in which his glucose counts were 124, 136, and 137 happen to have been fasting tests, then eight of the eleven test results were abnormal.
Yet apparently Nally was not told by anyone on the prison staff that he was either diabetic or prediabetic. Whichever
he was he required treatment but appears not to have received any. A prediabetic often can avoid or delay becoming
diabetic by cutting his sugar intake in accordance with advice from a nutritionist, by dieting, and by increased exercise
or other physical activity. Most people don’t know the sugar
content of the foods they eat, or that, for example, eating a
lot of fruit at one time can overload the pancreas with sugar
even though fruit is usually and rightly believed to be
healthful. A diagnosis of prediabetes is a wake-up call to
take measures to head off becoming diabetic. For the medical staff of a prison to know that an inmate is diabetic or
prediabetic, yet not tell him, let alone do nothing to treat his
condition, is, therefore, to be reckless (a synonym for deliberately indifferent): that is, to know there is a grave risk, to
be able to do something about the risk at no danger or great
cost to oneself, yet to do nothing. Deliberate indifference to a
prison inmate’s serious health problems is of course actionable under 42 U.S.C. § 1983.
The district judge dismissed the suit as untimely on two
grounds: because the defendant had known that he was diabetic or prediabetic in 2007, so that the two-year statute of
limitations applicable to section 1983 suits brought in Illinois

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had expired before he sued (which remember was not until
2013), and because in any event he had sued more than two
years after learning in November 2010 that his glucose
counts were abnormal. These grounds for dismissal were
erroneous.
The defendant now knows that he was diabetic or prediabetic in 2007, but there is no indication that he learned this
until November 2010. True, he alleges that in 2009 his eyesight began to deteriorate rapidly and he suffered excruciating leg cramps and numbness in his left foot—all of which
are possible symptoms of diabetes. Michael Dansinger,
“High Blood Sugar, Diabetes, and Your Body,” WebMD
(September 3, 2014), www.webmd.com/diabetes/how-sugaraffects-diabetes?page=2. Yet he may not have known that
these were possible symptoms of diabetes—or indeed that
he was diabetic or prediabetic, for the symptoms first occurred in 2009 and as far as appears it was not until November 2010 that he learned that the defendants’ failure to take
any action in response to his abnormal glucose blood counts
was the cause, or a likely cause, of the symptoms. The statute of limitations in federal tort suits starts to run when a
person knows that he is injured and knows what caused his
injury. United States v. Kubrick, 444 U.S. 111, 117–25 (1979).
“Knowledge of the injury and its cause should stimulate inquiry,” as we said in Drazan v. United States, 762 F.2d 56, 58
(7th Cir. 1985) (emphasis added). Nally may not have known
of the cause of his distressing symptoms until November
2010, and the two-year statute of limitations would have
been tolled during the interval between that discovery and
his filing suit because he was exhausting prison administrative remedies as a prelude to suing.

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So the suit was timely, and therefore we reverse the
judgment of dismissal and remand for proceedings to determine the merits of the plaintiff’s suit.
We had occasion to note recently that “where an inmate
alleges an objectively serious medical condition, it may be
better to appoint counsel—so that he or she can investigate
and flesh out any claim that may exist—than to dismiss a potentially meritorious claim and leave the prisoner in harm’s
way.” Perez v. Fenoglio, 2015 WL 4092294, at *11 (7th Cir. July
7, 2015). We placed particular emphasis on the case that has
progressed from the pleading stage “to discovery or trial.
Taking depositions, conducting witness examinations, applying the rules of evidence, and making opening statements
are beyond the ability of most pro se litigants to successfully
carry out. These tasks are even more challenging in cases …
where complex medical evidence (including expert testimony) is needed to assess the adequacy of the treatment received. District courts abuse their discretion where they fail
to consider the complexities of advanced-stage litigation activities and whether a litigant is capable of handling them.”
Id. at *12 (citations omitted). These are considerations for the
district court to bear in mind on remand.
REVERSED AND REMANDED

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HAMILTON, Circuit Judge, concurring in the judgment. I
agree with my colleagues that we must reverse the dismissal
of this case, but my reasons have more to do with federal
civil procedure than with the interpretation of glucose tests
and the treatment of diabetes and its precursors. In my view,
the critical fact here is that the district court dismissed Nally’s pro se complaint at the screening stage for in forma pauperis complaints pursuant to 28 U.S.C. § 1915(e)(2). A proper
liberal construction of that complaint allows room for Nally’s
claims to be timely, a conclusion that defendants can then
test in district court after remand.
In the screening review, the district court ordered Nally
to show cause why his complaint should not be dismissed as
untimely. His response focused on tolling the statute of limitations while he was pursuing the prison’s grievance procedure, as required by the Prison Litigation Reform Act. 42
U.S.C. § 1997e(a); Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir.
2001). Nally also pointed out that he had not discovered until April 2011 that the defendants had long known of his serious medical condition and had refused or failed to provide
appropriate care. Critically, Nally alleged he had not understood until he saw his medical file in April 2011 the significance of the earlier test results. That much was also evident
from his complaint, and at this stage of the case, we must accept his allegations as true.
In dismissing the case, the district court erred by construing the complaint too narrowly, apparently assuming that
Nally knew well before April 2011 that the defendants had
(allegedly) failed to provide appropriate care. Especially at
the screening stage under § 1915(e)(2), it is important to construe the pro se complaint liberally. See, e.g., Erickson v. Par-

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dus, 551 U.S. 89, 94 (2007) (summarily reversing dismissal);
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Hudson v. McHugh,
148 F.3d 859, 864 (7th Cir. 1998). If Nally’s claims did not accrue until April 2011 and if he then pursued the prison
grievance procedure for several months, then his complaint
would have been timely. It should not have been dismissed
at the screening stage under § 1915(e)(2).
Anything we say today on the merits or timeliness
should be taken with a grain of salt. We have before us only
Nally’s complaint and his response to the district court’s order to show cause. Defendants have not even been served
with process. They have not participated in this appeal. They
will have every opportunity to be heard on all issues in the
district court.