James Lewis v. Angela McLean, et al

Filing

Filed opinion of the court by Judge Rovner. The district court's judgment is VACATED to the extent that it grants summary judgment on the deliberate-indifference claim against Cichanowicz and McLean. On remand, the district court should consider whether to reinstate the medical malpractice claim against McLean. The remainder of the judgment is AFFIRMED, and the case is REMANDED to the district court for further proceedings Daniel A. Manion, Circuit Judge, concurring; Ilana Diamond Rovner, Circuit Judge and Sharon Johnson Coleman, District Court Judge. [6855920-1] [6855920] [16-1220]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-1220
JAMES A. LEWIS,
Plaintiff-Appellant,
v.
ANGELA MCLEAN, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 14 CV 280 — James D. Peterson, Chief Judge.

ARGUED APRIL 20, 2017 — DECIDED JULY 21, 2017

Before MANION and ROVNER, Circuit Judges, and COLEMAN,
District Judge.*
ROVNER, Circuit Judge. James Lewis, a Wisconsin prisoner,
claimed in this action under 42 U.S.C. § 1983 that staff at the

*

The Honorable Sharon Johnson Coleman, of the Northern District of
Illinois, sitting by designation.

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Wisconsin Secure Program Facility violated the Eighth Amendment by delaying medical attention for a painful back condition and then using excessive force when eventually taking
him to the hospital. Lewis also claimed that two of the defendants, a nurse and a physician, committed malpractice under
state law. The district court granted summary judgment for the
defendants on the constitutional claims and relinquished
supplemental jurisdiction over the state-law claim, and Lewis
appeals. We conclude that a jury reasonably could find that
two of the defendants were deliberately indifferent to Lewis’s
serious medical need.
I.
The facts are largely undisputed, and we recount them, as
we must at this stage of the proceedings, in the light most
favorable to Lewis, noting disputes where relevant. In February 2014, Lewis was an inmate in the Wisconsin Secure
Program Facility in Boscobel, Wisconsin. On February 8, he
woke up at approximately 5:15 a.m. and experienced a sharp
pain shooting from the base of his neck to his tailbone when he
attempted to get out of bed. On account of the pain, he could
neither lie back down or stand up. He remained immobilized
by pain until approximately thirty minutes later, when at 5:39
a.m., he leaned forward just far enough to press the emergency
call button on the wall of his cell. Lewis was housed in segregation (the reason is not disclosed in the record and when
asked at oral argument the state did not know), and the guard
who answered the call looked at the live video feed from the
security camera in Lewis’s cell and saw him sitting on the bed.
The guard asked what the emergency was, and Lewis replied

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that he was suffering from extreme pain in his back that left
him unable to move.
The guard relayed this information to Lieutenant Joseph
Cichanowicz, a security supervisor. After some time passed,
Cichanowicz went to Lewis’s cell, where Lewis explained that
he was in terrible pain and could not stand up or lie back
down. Lewis told Cichanowicz that he needed a nurse. After
another ten or fifteen minutes passed and no nurse appeared,
Lewis carefully eased himself forward again to push the
emergency call button and request medical assistance. Sometime thereafter, Cichanowicz visited Lewis’s cell with Nurse
Angela McLean. According to McLean’s progress report, she
visited Lewis’s cell at approximately 6:05 a.m., although in her
answers to interrogatories she claimed that she went to his cell
at 6:30 a.m. When Lewis saw McLean he told her that he was
experiencing “terrible pain in his back” and “couldn’t move.”
Prison policy discourages staff from examining an inmate in
his cell, so McLean told Lewis that guards would escort him to
the infirmary after head count, which was typically conducted
at 6:15 a.m. McLean and Cichanowicz added, however, that
Lewis would first have to stand with his back to the cell door
so that he could be cuffed from behind through a slot in the
door. Lewis again told them that he was in terrible pain in his
back and neck and that he could not move or stand.
Cichanowicz replied that he must be able to stand because he
had pressed the emergency call button. Lewis then demonstrated that he could lean forward slightly to press the call
button, and told them yet again that he was unable to stand or
move.

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Cichanowicz warned Lewis that if correctional officers had
to be sent into the cell without first shackling Lewis that they
would throw him to the ground and cuff him from behind, but
that if he would come to the cell door they could cuff him from
the front through the slot in the door. When Lewis replied that
he was unable to stand or to reach the slot, Cichanowicz told
him to get on his knees and crawl to the door. Lewis again told
them he was in severe pain and unable to move. McLean
reiterated to Lewis that if he wanted help he needed to follow
Cichanowicz’s orders, and then they walked away. The head
count occurred as scheduled at approximately 6:15 a.m., but no
one came to check on Lewis or take him to the infirmary.
After Cichanowicz and McLean left Lewis’s cell,
Cichanowicz viewed the video footage from Lewis’s cell.
Around 6:40 a.m., Cichanowicz told McLean that Lewis had
not moved from a seated position on his bed since 5:15 a.m.,
but she still did nothing. Close to an hour later, Sergeant
Wayne Primmer heard from other staff that Lewis was
complaining about being in pain and unable to stand. Primmer
checked the live video feed from Lewis’s cell and saw him
edge himself off the bed, fall to the floor on his knees, and then
fall over onto his side on the floor. Lewis then cried out and
pulled a blanket over himself. Primmer contacted Lieutenant
Joni Shannon-Sharpe and briefed her about Lewis’s earlier
encounter with Cichanowicz and his continuing complaints of
pain and inability to stand or walk. Primmer added that Lewis
now was lying on the floor.
Shannon-Sharpe went to Lewis’s cell at approximately 7:30
a.m. Like Cichanowicz, she told Lewis that guards could not
enter the cell to take him to the infirmary unless he was

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restrained. Lewis repeated that he could not reach the door
because of excruciating pain in his back, and also told her that
Cichanowicz told him no one would help him unless he
crawled to the cell door and that being on the floor was
increasing his pain. Shannon-Sharpe then conferred with
McLean, and someone (we are not told who) directed McLean
to contact the on-call physician, Dr. Meena Joseph.
McLean telephoned Dr. Joseph around 7:40 a.m.—over an
hour and a half after Lewis had told her and Cichanowicz that
he was in severe pain and could not move. Dr. Joseph directed
that Lewis be taken to a hospital, and Shannon-Sharpe gathered five guards, two of them with medical training, to
transport Lewis. They entered his cell at 7:58 a.m., restrained
him, placed him in a wheelchair, searched him with a handheld metal-detector (after abandoning the effort to force him
into a standing position for a search when Lewis screamed that
they were causing him extreme pain), lifted him into a van,
and drove him to a local hospital. Lewis was admitted to the
emergency room at 8:53 a.m. Doctors gave him morphine for
his back pain, Ativan for his agitation, and diagnosed him with
muscle spasms of the neck and upper back and myalgia
(muscle pain). An hour later, Lewis was able to stand and walk
again. He was prescribed ibuprofen and a muscle relaxant, and
was discharged from the hospital at 10:24 a.m.
Lewis filed this suit two months later, naming as defendants Lieutenants Cichanowicz and Shannon-Sharpe, Nurse
McLean, Dr. Joseph, and the five guards who removed him
from his cell. He claimed that all of the defendants had shown
deliberate indifference to his severe back pain by delaying his
access to medical care, and that Shannon-Sharpe and the five

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guards had been indifferent to his pain because they restrained
him and did not take him to the hospital on a stretcher. Lewis
also claimed that Shannon-Sharpe and the guards had used
excessive force when cuffing him and transporting him to the
hospital. Additionally, he asserted state-law medical malpractice claims against Nurse McLean and Dr. Joseph.
During discovery Lewis asked the district court to recruit
counsel. The court declined after expressing doubt about the
complexity of the medical issues and noting that Lewis had
“not shown that the legal and factual difficulty of the case
actually exceed his ability to prosecute it.” Although Lewis
obtained his medical records and the incident reports from
February 8, he encountered difficulty getting the video from
that day. He asked for “[a]ll video footage of the Plaintiff in his
cell on February 8, 2014,” but the defendants released only
twenty-four minutes of clips run together into a single file,
which Lewis could watch by contacting the prison's complaint
examiner. The first eighteen minutes show snippets of what
occurred in the cell between 7:12 and 8:00 a.m., including
Lewis sliding off his bed to the floor; the last six minutes show
Lewis being removed from the cell.
Lewis moved to compel discovery, explaining that he
believed additional video evidence existed because of a
notation Nurse McLean had written in her treatment notes
from February 8. According to that notation, Cichanowicz had
called her at 6:40 a.m (thirty minutes after she and
Cichanowicz had met with Lewis) and said that recorded video
from his cell showed Lewis sit up “from lying position” at 5:15
a.m. and “then not move again” except when “leaning forward
to push intercom button.” In response, their lawyer insisted

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that the defendants were “not in possession of any other video
evidence depicting Lewis on the date of the subject incident.”
The defendants later submitted a declaration from Douglas
Konichek, who maintains the prison's video-monitoring
system, explaining that the in-cell cameras do not record sound
and “do not record during times when there is no movement.”
According to Konichek, the prison’s digital video recorders
automatically overwrite the oldest recording on the hard drive
“when the drive’s storage capacity is reached, and thus all
recordings are overwritten unless someone downloads a
recording … and saves it on a separate database.” Konichek is
not specific in the declaration about the storage capacity of the
hard drive but does state that the “earliest recordings” available when the declaration was filed were from 20 days earlier.
His declaration does not explain why the prison saved video
of Lewis’s removal from his cell but not video covering the
time frame referenced in McLean’s treatment notes—video
apparently showing Lewis sitting immobile for nearly 25
minutes before he managed to reach the emergency call button.
Before the district judge ruled on the motion to compel or
Lewis’s renewed motion for counsel, the parties filed crossmotions for summary judgment. Lewis relied on documents
obtained during discovery, including incident reports, responses to interrogatories, and McLean’s treatment notes,
along with his verified complaint (the equivalent of an affidavit for purposes of summary judgment, see 28 U.S.C. § 1746;
Devbruw v. Gallegos, 735 F.3d 584, 587 (7th Cir. 2013)). In his
complaint, Lewis explains that when he talked to Cichanowicz
and McLean he was “sobbing and crying” because of his back
pain and the “frustration of trying to get them to understand”

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his need for medical care. Cichanowicz’s response, avers
Lewis, was to tell him to “crawl to the door” on his knees. At
that point, Lewis says in his complaint, he “finally shouted,
‘What part of I can't move don't y’all understand?’” Then, after
Cichanowicz and McLean had departed and he realized he
“would not get help,” he “eased” himself from the bed to the
floor “in the hope of being able to make it to the door.” But
once his knees hit the floor, Lewis recounts in his complaint,
“the pain immediately increased” and he collapsed to the
ground. Lewis emphasized Cichanowicz’'s admission in
response to an interrogatory that he “could have instructed an
emergency cell extraction” of Lewis at 6:00 a.m He did not do
so, Cichanowicz insists in that response, because Lewis “did
not appear to be in medical distress.” Lewis also maintained
that the guards who had transported him used excessive force
because they restrained him, moved his limbs, made him stand
up, and did not place him on a stretcher. And he argued that
Nurse McLean and Dr. Joseph had committed medical malpractice by not ensuring that he was treated promptly and
transported appropriately.
The defendants asserted that Lewis could not establish an
Eighth Amendment violation based on deliberate indifference
to a need for medical care because he lacked evidence of a
serious medical need and because they were making “meaningful and reasoned decisions and following the institution
policies and procedures that were designed to protect both the
staff and inmates.” The “undisputed evidence,” according to
the defendants, establishes that Lewis was not taken to the
infirmary and treated when he first complained of pain only
because he “refused repeated requests by the officers for him

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to present his extremities to the cell trap doors.” As evidence
of this “refusal to be restrained,” the defendant guards
submitted declarations averring that they had seen him move
his arms and legs.
Shannon-Sharpe and the defendant guards also contended
that the force used in restraining and taking Lewis to the
hospital was minimal and necessary. They submitted the six
minutes of video of the cell extraction as evidence that “"the
officers entered the cell in a calm and directed manner, and did
not ‘throw’ themselves upon Lewis or ‘twist’ or ‘snatch’ his
legs” as he alleged in his complaint. As for the claim of medical
malpractice, Dr. Joseph and Nurse McLean asserted that Lewis
lacked expert testimony establishing the standard of care,
which, in any event, they had satisfied.
Among the documents submitted by the defendants is an
incident report by Primmer, the sergeant who alerted ShannonSharpe after seeing Lewis on the floor of his cell around 7:20
a.m. Primmer wrote that he “informed Lieutenant
Cichanowicz of the situation,” but Cichanowicz’s declaration
does not mention this. In his declaration, Cichanowicz does not
deny watching the video recording of Lewis sitting in his cell
from 5:15 to 6:40 a.m. (indeed, he fails to mention it at all); he
also fails to mention that he called Nurse McLean and told her
about it, as documented in McLean’s treatment notes. Instead,
Cichanowicz simply repeats in his declaration that he never
ordered an emergency cell extraction because he “did not
observe a medical emergency that required an emergency
extraction.” And in her declaration, McLean similarly avers
that, after meeting with Lewis around 6:00 a.m., she “did not
believe Lewis had an urgent medical need that required

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emergency assistance.” She, too, is silent about the account in
her progress notes of the telephone call from Cichanowicz.
The district court denied Lewis’s renewed request for
counsel and entered summary judgment for the defendants.
The court acknowledged that Lewis was in pain while restrained and transported, but reasoned that the undisputed
evidence establishes that only “a modest amount of force” was
used, and none of it was applied “maliciously or sadistically
for the purpose of inflicting pain.” The court further reasoned
that, even if Lewis's back pain was a serious medical need, a
jury could not reasonably find from the evidence “that defendants took longer than was necessary to assess plaintiff’s
medical issue and get him treatment” or that they “treated him
unnecessarily roughly in restraining him.” Finally, the district
court relinquished supplemental jurisdiction over Lewis’s
claim of medical malpractice.
II.
With the assistance of court-appointed counsel on appeal,
Lewis now argues that summary judgment was inappropriate
on his Eighth Amendment deliberate indifference claim and
that the district court should have recruited counsel to assist
him with obtaining necessary discovery to support that claim.
Lewis has narrowed his arguments on appeal to focus primarily on his claim of deliberate indifference against McLean and
Cichanowicz.
The Eighth Amendment’s proscription against “unnecessary and wanton infliction of pain” is violated when prison
officials demonstrate “deliberate indifference to serious
medical needs” of prisoners—whether the indifference “is

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manifested by prison doctors in response to prison needs or by
prison guards in intentionally denying or delaying access to
medical care.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A claim
of deliberate indifference to a serious medical need contains
both an objective and a subjective component. Thus, a prisoner
must first establish that his medical condition is “objectively,
‘sufficiently serious,’” Farmer v. Brennan, 511 U.S. 825, 834
(1994), and second, that prison officials acted with a “sufficiently culpable state of mind,” id., at 834 (citations omitted)—i.e., that they both knew of and disregarded an excessive
risk to inmate health. see id. at 837; see also Greeno v. Daley, 414
F.3d 645, 653 (7th Cir. 2005).
As for the objective component, we conclude that there is
enough evidence to support a finding that Lewis’s medical
condition—his muscle spasm and the accompanying back
pain—was serious. A medical need is sufficiently serious if the
inmate’s condition “has been diagnosed by a physician as
mandating treatment or … is so obvious that even a lay person
would perceive the need for a doctor’s attention.” Greeno, 414
F.3d at 653. Moreover, a “medical condition need not be lifethreatening to be serious; rather, it could be a condition that
would result in further significant injury or unnecessary and
wanton infliction of pain if not treated.” Gayton v. McCoy, 593
F.3d 610, 620 (7th Cir. 2010); see also Roe v. Elyea, 631 F.3d 843,
857 (7th Cir. 2011). The defendants no longer appear to be
contending that Lewis’s condition was not serious. We assume
given the excruciating pain that Lewis described being in as
well as the ultimate diagnosis of a muscle spasm treated with
morphine that Lewis has established that he had a serious
medical condition. See Gomez v. Randle, 680 F.3d 859, 865 (7th

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Cir. 2012) (concluding that plaintiff alleged serious medical
condition by stating in complaint that “he was in pain” from
wound he believed “was becoming infected”).
We thus move to the question whether Lewis presented
enough evidence of deliberate indifference to survive summary judgment. As discussed above, counsel for Lewis has
wisely limited his deliberate indifference claim primarily to
McLean and Cichanowicz . Any discussion of the remaining
defendants in Lewis’s brief is limited. In any event, we agree
with the district court that a jury could not reasonably find that
Lieutenant Shannon-Sharpe, Dr. Joseph, and the guards who
transported Lewis from his cell were deliberately indifferent in
assessing Lewis's medical condition or in restraining and
transporting him to the emergency room. The evidence at
summary judgment shows that Shannon-Sharpe immediately
went to talk to Lewis after learning of his distress. Within ten
minutes of her arrival, Dr. Joseph had been called and directed
that Lewis be taken to the emergency room. Shannon-Sharpe
then assembled a team of guards who restrained Lewis and
transported him to the emergency room. These defendants’
response to Lewis's distress was reasonable, and the district
judge correctly entered summary judgment in their favor.
The deliberate-indifference claim against Lieutenant
Cichanowicz and Nurse McLean, however, is another matter.
“A delay in treatment may show deliberate indifference if it
exacerbated the inmate’s injury or unnecessarily prolonged his
pain,” and “even brief, unexplained delays in treatment may
constitute deliberate indifference.” Perez v. Fenoglio, 792 F.3d
768, 777–78 (7th Cir. 2015) (emphasis added); see also McGowan
v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010); Grieveson v. Ander-

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son, 538 F.3d 763, 779 (7th Cir. 2008); Williams v. Liefer,491 F.3d
710, 715–16 (7th Cir. 2007). Here, a jury reasonably could find
that Cichanowicz and McLean exhibited deliberate indifference
by delaying Lewis's treatment for approximately one and a half
hours—the time that passed between their learning of Lewis’s
condition and Dr. Joseph’s directive prompting action—thus
causing Lewis unnecessary suffering.
Rather than provide a sensible explanation for their
inaction, Cichanowicz and McLean blame Lewis for the delay.
They assert in their brief that it is irrelevant whether McLean
should have known that Lewis was unable to follow commands because she was “assessing and responding to the
circumstances as they unfolded.” We reject this characterization of the evidence. By contending that they were entitled to
do nothing because Lewis failed to comply with their orders (a
shift in their characterization of the evidence in the district
court, where they insisted that Lewis bore responsibility
because he “refused” to comply) Cichanowicz and McLean are
asking us to construe the evidence against Lewis rather than in
his favor and thus attempting to turn summary judgment on
its head. See Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014)
(“We must … construe the record in the light most favorable to
the nonmovant and avoid the temptation to decide which
party’s version of the facts is more likely true.”).
Construed in the light most favorable to Lewis, the evidence at summary judgment shows that Lewis experienced
severe back pain from 5:15 a.m. until after he received a
morphine injection at the hospital approximately 4 hours later;
that he told Cichanowicz and McLean around 6:00 a.m.; that
his back pain was severe and that he could not reach the cell

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door; and that he started sobbing and begged Cichanowicz and
McLean for help after they had told him that he would not
receive treatment unless he came to the door to be restrained.
Yet Cichanowicz did nothing to help Lewis, and McLean
likewise did nothing until Shannon-Sharpe’s involvement
prompted her to call Dr. Joseph. Their failure to act is all the
more puzzling given the indication in McLean’s treatment
notes that, 30 minutes after visiting Lewis, Cichanowicz called
McLean to tell her that he had watched recorded video from
Lewis’s cell and had confirmed that he had been sitting
motionless on his bed since 5:15 a.m. Neither of these defendants has acknowledged this video or their apparent conversation about it, and certainly they do not suggest that what
Cichanowicz saw on the video reinforced their purported
belief that Lewis could get to the door and was stubbornly
refusing to do so. This evidence, when construed in Lewis’s
favor, does not square with the defendants’ insistence on
appeal that they were working with Lewis and attempting to
assist him given his inability to comply with their demands on
account of his crippling pain.
Furthermore, these two defendants have never explained
why Sergeant Primmer’s report to Cichanowicz and ShannonSharpe that Lewis was prone on the floor prompted ShannonSharpe, a supervising officer who held the same rank as
Cichanowicz, to spring into action while Cichanowicz continued to do nothing. In their declarations, Cichanowicz and
McLean both aver that they did not believe Lewis needed
emergency assistance, but a jury reasonably could disbelieve
them given Dr. Joseph’s unequivocal opinion that Lewis
should be taken to the emergency room and the disparity

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between Cichanowicz's inaction and the initiative demonstrated by Shannon-Sharpe. Moreover, Cichanowicz has never
stated that his inaction was based on any medical opinion
expressed by McLean, and McLean has offered no reason why
she didn't call Dr. Joseph until an hour and a half after her first
encounter with Lewis. See Berry v. Peterman, 604 F.3d 435, 443
(7th Cir. 2010) (explaining, when analyzing deliberate-indifference claim against nurse, that “a nurse confronted with an
inappropriate or questionable practice should not simply defer
to that practice, but rather has a professional obligation to the
patient to take appropriate action, whether by discussing the
nurse’s concerns with the treating physician or by contacting
a responsible administrator or higher authority” (internal
quotation marks omitted)). Viewing the facts in the light most
favorable to Lewis, Cichanowicz and McLean encountered an
inmate in severe distress, sobbing in pain and complaining that
he was unable to move, and did, literally, nothing. Indeed, had
Sergeant Primmer not reported his own observations to
Shannon-Sharpe, it is unclear if McLean and Cichanowicz
would have assisted Lewis at all. See Liefer, 491 F.3d at 716
(upholding a jury’s finding that prison employees had violated
the Eighth Amendment by delaying treatment for an inmate’s
chest pain and causing him “six extra hours of pain and
dangerously elevated blood pressure for no good reason”).
In short, the disputed facts surrounding McLean and
Cichanowicz’s state of mind preclude a grant of summary
judgment in their favor on Lewis’s claim of deliberate indifference to a serious medical need. On remand, the district court
may also wish to reassess its decision to relinquish jurisdiction
over the medical-malpractice claim against McLean and

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consider recruiting counsel to represent Lewis. See Miller v.
Campanella, 794 F.3d 878, 880 (7th Cir. 2015) (explaining that
district court should appoint counsel in potentially complex
medical case, especially one that has advanced to discovery or
trial); Perez, 792 F.3d at 785; Greeno, 414 F.3d at 658.
On a closing note, we are troubled by the failure to preserve
the video from Lewis’s cell recorded between 5:15 a.m. (when
he sat up) and 7:12 a.m. (when the clips provided by the
defendants begin). See Trask-Morton v. Motel 6 Operating L.P.,
534 F.3d 672, 681 (7th Cir. 2008) (noting that courts have
imposed spoliation sanctions “where a party has a duty to
preserve evidence because it knew, or should have known, that
litigation was imminent”); Guzman v. ]ones, 804 F.3d 707, 713
(5th Cir. 2015) (“A party’s duty to preserve evidence comes
into being when the party has notice that the evidence is
relevant to the litigation or should have known that the
evidence may be relevant.”). The missing recordings, which
McLean’s treatment notes tell us that Cichanowicz viewed at
some point, could help Lewis at trial by corroborating his
statements that he was immobilized for two hours and that he
cried and begged for help when talking to Cichanowicz and
McLean. And yet there is no explanation in the record why the
defendants did not preserve this video but did preserve the six
minutes of favorable video showing Lewis being removed
from his cell. Konichek's declaration suggests that the recordings are stored for approximately twenty days before being
erased, so whoever preserved the video of the cell extraction
likewise could have saved the video covering the preceding 3
hours. On remand, the district court should consider reopening
discovery so that Lewis—possibly aided by recruited coun-

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sel—can successfully depose Cichanowicz and McLean as to
their state of mind and explore more fully whether additional
recordings exist and, if not, why more video was not preserved.
Finally, we reject the defendants’ claim that they are
entitled to qualified immunity from Lewis’s suit. Qualified
immunity protects government employees from liability for
civil damages for actions taken within the scope of their
employment unless their conduct violates “clearly established
… constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Viewing the facts in the light most favorable to Lewis, we ask
whether the defendants violated a clearly established constitutional right. See, e.g., Saucier v. Katz, 533 U.S. 194, 201 (2001); see
also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (establishing
that Saucier’s two-step sequence is not mandatory). In establishing whether a constitutional right has been clearly established, it is unnecessary for the particular violation in question
to have been previously held unlawful. Anderson v. Creighton,
483 U.S. 635, 640 (1987). Instead, we ask whether the “contours
of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Id.
It has long been clear that deliberate indifference to an inmate’s
serious medical needs violates the Eighth Amendment. As for
whether Cichanowicz and McLean’s delay in assisting Lewis
ran afoul of that clearly established right, as the discussion
above makes clear, when viewed in the light most favorable to
Lewis, his factual allegations could demonstrate a constitutional violation. Thus, the defendants are not entitled to
immunity from suit.

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III.

The district court's judgment is VACATED to the extent
that it grants summary judgment on the deliberate-indifference
claim against Cichanowicz and McLean. On remand, the
district court should consider whether to reinstate the medicalmalpractice claim against McLean. The remainder of the
judgment is AFFIRMED, and the case is REMANDED to the
district court for further proceedings.

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Filed: 07/21/2017

Pages: 20

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MANION, Circuit Judge, concurring. Because the court’s
opinion correctly applies our controlling precedent, I join it in
full. A reasonable juror could conclude from the record presented that Lieutenant Cichanowicz and Nurse McLean delayed Lewis’s treatment by more than an hour when they
knew that he was in severe pain. Such a juror could infer deliberate indifference because both defendants were aware that
the video feed from Lewis’s cell showed that he had not
moved since 5:15 a.m., but they still chose to do nothing rather
than move the extraction process along. Under our case law,
that would constitute deliberate indifference.
I write separately to make two points. First, I don’t read
the court’s opinion as being contingent on the length of the
delay the defendants caused. On another set of facts, an hour
or so delay of treatment for a similar condition may not be
enough to establish deliberate indifference. The particular
facts of this case—namely that Cichanowicz and McLean appear to have confirmed that Lewis was suffering severe pain
via the video feed—are what permit Lewis to survive summary judgment. Because a jury could view these facts as establishing the reckless state of mind necessary for liability, the
court is correct to send this case to trial.
Second, and more broadly, although I think the court correctly applies controlling precedent, this case is a striking example of how far we have departed from the text of the Eighth
Amendment. We should not forget that the Amendment prohibits the imposition of “cruel and unusual punishment.” The
deliberate indifference standard is at best tangentially related
to the text. It seems quite unlikely to me that a prisoner who

Case: 16-1220

Document: 44

Filed: 07/21/2017

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Pages: 20

No. 16-1220

was taken to the hospital and entirely cured within five hours
of suffering pain has endured anything “cruel and unusual”
in the context of the prison system. We should eventually return to faithfully applying the text of the Constitution.
With these reservations, I concur.