Dennis Scott v. Travis Smith, et al
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6862850-1]  [16-2029]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2017*
Decided August 21, 2017
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
TRAVIS SMITH and RYAN KERR,
Appeal from the United States District
Court for the Central District of Illinois.
Harold A. Baker,
O R D E R
Dennis Scott, a civil detainee in Illinois, appeals from an adverse jury verdict in
his suit claiming that two employees at the Rushville Treatment and Detention Facility
were deliberately indifferent to his need for dialysis. See 42 U.S.C. § 1983. Scott
challenges the strength of the evidence supporting the verdict.
We restate the trial evidence in favor of the prevailing parties. See Burzlaff v.
Thoroughbred Motorsports, Inc., 758 F.3d 841, 849 (7th Cir. 2014). Scott requires dialysis
* We have agreed to decide this case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
for end‐stage renal disease, a failure of his kidneys to remove toxins and excess fluid
normally excreted through urine. Without dialysis, Scott would experience gradual
buildup of waste and fluid, leading to high blood pressure and eventually death.
Rushville employs a nurse who, since August 2012, has administered dialysis to
Scott on Mondays, Wednesdays, and Fridays. The nurse decides when to provide
dialysis. Most times she started Scott’s dialysis between 5:00 and 5:15 a.m. A staff
member, at the nurse’s direction, would summon Scott to the infirmary. He could
decline treatment and wait for his next opportunity for dialysis, which he had done six
times in late 2012. First, he refused dialysis on a Monday in November because the
nurse wanted to start early, and then he declined again that Wednesday. Scott refused a
third time that month because the nurse decided not to apply a numbing cream to his
arm before inserting the dialysis needle. He skipped treatment two more times in
December, leading Rushville administrators to call a special meeting to discuss Scott.
After that meeting the nurse offered Scott immediate dialysis, but he declined because
the time did not suit him.
The events underlying this action occurred on a Monday in March 2013. That day
the nurse arrived about three hours late because of a snow storm. She alerted the staff
member on duty, Travis Smith, that she was ready for Scott and he had ten minutes to
report for dialysis. Smith informed Scott, and when Scott arrived, Smith said he was late
and had missed his chance. Scott responded by suing Smith and his supervisor,
Ryan Kerr, claiming they had denied him due process by deliberately ignoring his need
for dialysis on that single March day.
At a one‐day trial, Scott, Smith, Kerr, the nurse, and Rushville’s physician all
testified. Scott insisted that he reported to Smith “about three seconds” after being
called. And when he arrived, Scott said, he was having difficulty breathing, his face was
puffy, and he was nearly immobile because of his need for dialysis. Scott denied that
any rule requires him to report within 10 minutes of being called for dialysis. And, he
added, he later complained to supervisor Kerr but was brushed off. Until his next
dialysis session his breathing remained labored and eventually he could not walk.
Smith contradicted this testimony, and Kerr said he could not recall speaking to
Scott that day. According to Smith, the nurse had told him that Scott must report for
dialysis within 10 minutes of being called, yet he was 10 to 20 minutes late. And, Smith
continued, Scott did not have a puffy face or appear to be having difficulty breathing.
Rushville’s physician testified that the day after this incident he treated Scott for
an unrelated foot wound. Scott’s blood pressure was not elevated, and he was not
having shortness of breath or difficulty walking. The doctor opined that missing one
dialysis treatment would not have resulted in pain or permanent harm, even though
five days had elapsed between sessions. The nurse confirmed that at the December 2012
meeting Rushville staff had set a rule—which Scott understood—that he would be
deemed to have refused treatment if he did not report for dialysis within 10 minutes of
being summoned. She testified that on Wednesday, two days after the missed session,
Scott received dialysis as usual. She did not notice Scott having difficulty breathing or
walking. He probably did have some swelling, she said, because that day she withdrew
7 kilograms of excess fluid, though that amount still was less than the 8 to 10 kilograms
she had removed on other occasions.
Scott is not represented on appeal, and although the defendants have read his
brief generously, we see just one developed contention: that the verdict in favor of
Smith and Kerr is against the manifest weight of the evidence. Scott says that Smith
could not have relied on a nonexistent 10‐minute rule, and that Kerr lied when he
denied remembering talking to him about the missed dialysis session. Yet Scott never
made this argument before or after the verdict in a motion for judgment as a matter of
law. See FED. R. CIV. P. 50(a), 50(b). For that reason we are “‘powerless’ to review” his
challenge to the sufficiency of the evidence. See Unitherm Food Sys., Inc. v. Swift–Eckrich,
Inc., 546 U.S. 394, 405 (2006); Collins v. Lochard, 792 F.3d 828, 831 (7th Cir. 2015).
Moreover, even if Scott had preserved this issue for our review, we would not set aside
the jury’s verdict. He needed to demonstrate that the verdict lacks a “legally sufficient
evidentiary basis,” see Maher v. City of Chicago, 547 F.3d 817, 824 (7th Cir. 2008), but
ample evidence supports the conclusion that Smith and Kerr were not deliberately
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?