Palmer v. Hardy et al

Filing 177

MEMORANDUM Opinion and Order: For the foregoing reasons, Franz's motion for summary judgment 160 is granted. Judgment in favor of Franz is hereby entered on Palmer's Eighth Amendment claim (Count II), while the Court dismisses Palmer's negligence claim against Franz (Count I) without prejudice. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 9/18/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LEROY PALMER,
Plaintiff,
v.
CRAIG P. FRANZ, RN,
Defendant.

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No. 13 C 1698
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
This is a § 1983 action brought by Leroy Palmer alleging negligence and
deliberate indifference while an inmate at the Northern Reception and
Classification Center (“NRC”) located at the Stateville Correctional Center
(“Stateville”). The only defendant remaining in the case is Craig P. Franz, a
registered nurse formerly employed by Wexford Health Sources (“Wexford”). 1 For
the reasons that follow, Franz’s motion for summary judgment is granted.
STANDARD
Summary judgment is appropriate “if the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
Wexford is a private company that provides health care services to the Illinois
Department of Corrections (“IDOC”).

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most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
BACKGROUND
Palmer was an inmate in the IDOC during the relevant time period. On
January 11, 2012, he was transferred from the Shawnee Correctional Center
(“Shawnee”) to the NRC. The NRC is a facility located at Statesville where an
inmate is temporarily housed when he needs to make a court appearance. See
Verser v. Smith, 2017 WL 528381, at *9 (N.D. Ill. Feb. 9, 2017). An inmate
temporarily assigned to the NRC does not have his complete medical records with
him; they remain at his home or “parent” institution. Medical staff at the inmate’s
parent facility prepare a “transfer summary” to travel with the inmate to the NRC,
which is supposed to contain information about the inmate’s acute and chronic
medical conditions, significant medical history, current medications and treatment,
and active medical permits. The transfer summary is reviewed by an intake nurse
upon the inmate’s arrival at the NRC. The intake nurse observes the inmate for
obvious signs of illness, asks questions about the inmate’s health history, and then
makes notations on the bottom portion of the transfer summary. The summary is

2

then placed in the inmate’s medical file at the NRC. Franz worked for Wexford at
the Stateville facility from December 2011 through April 2012, and was the nurse
who performed Palmer’s intake screening when he arrived at the NRC. At the time
of Palmer’s screening, Franz was new to both performing intake screenings and to
the practice of nursing in general, having obtained his nursing degree only months
earlier. During the five months he worked at Stateville, he performed intake
screenings on only one or two occasions.
Palmer was born with a congenital deformity of the left arm. Essentially, he
is missing most of his left hand. 2 Medical staff at Shawnee made note of Palmer’s
missing hand at the top part of his transfer summary, where on the line marked
“Physical Disabilities/Limitations” it was written: “L arm not fully developed/low
bunk, low gallery/slow eating pass.” 3 R. 161-6. Palmer testified he told Franz during
Franz disputes that Palmer “is missing his left hand in its entirety,” R. 173 at 1,
and claims instead that Palmer “does not have all of the fingers on his left hand,”
R. 161 at 2 (¶ 7). Palmer argues that Franz “understates the severity of [his] birth
defect,” and that he “was born with no left hand.” R. 166 at 2 (¶ 7). Having viewed a
picture in the record of Palmer’s disability, the Court believes that Palmer’s
description is more accurate, although the dispute, to the extent there is one, is not
relevant to the outcome of Franz’s summary judgment motion.

2

A low bunk permit based on Palmer’s left arm disability is the only permit at issue
here, and therefore the Court is not concerned with the fact that Shawnee also had
issued Palmer a slow eating pass and a low gallery permit. The Court notes,
however, that it is unclear from the record why Palmer had a low gallery permit at
Shawnee. Gallery refers to the floor or level within the institution on which the
inmate’s cell is located. An inmate who had a medical limitation affecting his ability
to walk up or down stairs would need a low gallery permit. There is evidence in the
record showing that Palmer had a preexisting arthritic condition in his knee. After
the incident at issue in this case in which Palmer injured his knee, Stateville issued
Palmer both a low bunk and a low gallery permit. But since Palmer’s knee injury
occurred after he was transferred to the NRC, only his arthritis would explain the
preexisting Shawnee low gallery permit.

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the screening that Shawnee had given him a low bunk permit of indefinite duration,
and he needed a low bunk permit for the NRC because of his missing hand.
According to Palmer, Franz responded that he would need to see a doctor if he
wanted to get a low bunk permit from Stateville. R. 161-2 at 13, 24 (Palmer Dep. 4647, 90). The entire encounter between Palmer and Franz lasted no more than ten to
fifteen minutes, and Franz testified at his deposition (which occurred more than
four years later) he had no memory of Palmer. The transfer summary shows Franz
made note at the bottom of the form on a line marked “Deformities: Acute/Chronic”
that Palmer’s left arm was “not fully developed,” and that, under the heading “Plan:
Disposition,” Franz had marked the box next to “Sick Call: Routine.” Although the
form also gave the option of choosing “Emergency Referral” or Sick Call: Urgent,”
Franz did not check the box next to either of those things. On the line next to the
heading “Current Medications/Treatment,” Franz wrote the words “see above,”
where Shawnee medical staff had listed Palmer’s current medications and indicated
that he had a low bunk permit. See R. 161-6.
After the intake screening, Palmer was taken to his cell by correctional
officers. The bottom bunk in his assigned cell was already occupied. Palmer testified
he told a correctional officer about his low bunk permit from Shawnee, but the
officer told Palmer there was nothing he could do because Palmer did not have the
permit with him. R. 161-2 at 13 (Palmer Dep. 47). A correctional officer (either the
same one or a different one who was a “lieutenant”) informed Palmer he needed to
get a new permit from “medical,” even though it was his (Palmer’s) understanding

4

that his “low bunk pass from Shawnee would apply.” Id. at 16-17 (Palmer Dep. 6162). Palmer testified he never asked his cell mate to switch bunks with him because
he believed it was the correctional officer’s job to do so. Id. at 12 (Palmer Dep. 45).
When asked about the possibility of putting his mattress temporarily on the floor of
the cell until a new medical permit was issued to him, Palmer testified “Why would
I?” Id. at 12-13 (Palmer Dep. 45-46).
In the days following his arrival at the NRC, Palmer claims to have
submitted two requests for medical treatment to obtain a low bunk permit to
replace the Shawnee one that the correctional officers were not honoring. He placed
the requests in the door for a correctional officer to pick up and turn in because “[a]t
NRC, you’re in the cell 24 hours a day.” Id. at 23 (Palmer Dep. 87). The record does
not contain any additional information regarding what happened to Palmer’s sick
call requests, although it is undisputed that Palmer was not taken to see a doctor
before the date of the incident, which occurred ten days after his arrival at the NRC.
On the morning of January 22, 2012, Palmer was attempting to get out of his bunk
when he fell trying to lower himself without the aid of a ladder, 4 causing injury to
his right knee. IDOC medical records state that Palmer’s knee showed no signs of
trauma after the fall. Palmer, on the other hand, claims that the fall caused damage
to his knee requiring knee replacement surgery, and he has submitted expert
medical testimony to support that claim.

The “absence of ladders is a common feature of prison bunk beds.” Withers v.
Wexford Health Sources, Inc., 710 F.3d 688, 691-92 (7th Cir. 2013).
4

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DISCUSSION
A.

EIGHTH AMENDMENT

Courts have “routinely dismissed” Eighth Amendment claims based on the
lack of a ladder to access the top bunk, “finding that this condition does not pose a
serious risk of harm.” Richard v. Ill. Dep’t of Corr., 2016 WL 2941210, at *5 (S.D. Ill.
May 20, 2016) (collecting cases); see also Blue v. Baenen, 2016 WL 8711729, at *9
(E.D. Wis. May 20, 2016) (same). But the issue here is different because Palmer has
only one hand and had a permit from Shawnee indicating that he needed to be
assigned a low bunk for medical reasons. Palmer argues that Franz violated his
Eighth Amendment right to be free from cruel and unusual punishment by failing
to take steps to ensure he was issued a low bunk permit during his stay at the NRC.
“[D]eliberate indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth
Amendment. This is true whether the indifference is manifested by prison doctors
in their response to the prisoner’s needs or by prison guards in intentionally
denying or delaying access to medical.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)
(internal citations and footnote omitted). A claim of deliberate indifference to a
serious medical need contains both an objective and a subjective component. A
prisoner first must establish that his medical condition is “objectively, ‘sufficiently
serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation omitted). If he
establishes the objective component, he then must establish that prison officials
acted with “a ‘sufficiently culpable state of mind,” i.e., that they both knew of and

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disregarded an excessive risk to inmate health. Id. at 834, 837; see Greeno v. Daley,
414 F.3d 645, 653 (7th Cir. 2005). Franz argues that neither component is met here.
1.

SERIOUS MEDICAL NEED

In the recent case of Estate of Simpson v. Gorbett, 863 F.3d 740 (7th Cir.
2017), the Seventh Circuit addressed the objective component of an Eighth
Amendment claim in the context of an accident involving an inmate’s assignment to
a high bunk. The inmate in Simpson “was intoxicated when he reported to [a
county] jail to serve his weekend stay, prompting officers initially to place him in a
holding cell. After they thought he was sober, they assigned him to an upper bunk
in a two-person cell, even though he was obviously obese. While sleeping, [the
inmate] went into convulsions and fell off the bunk on to the hard concrete floor. He
died from his injuries.” Id. at 742. The inmate’s estate brought an Eighth
Amendment claim against five officers and the sheriff. In affirming the district
court’s grant of summary judgment in favor of the defendants, the Seventh Circuit
said that the question posed was not whether “top bunks[ ] are unconstitutional for
all inmates,” but whether “the assignment of a morbidly obese man to this narrow,
upper bed” was. Id. at 746. Nevertheless, the court said, the “argument that the
bunk was unreasonably dangerous to [the obese inmate] rest[ed] almost entirely on
hindsight—that is, what happened after [the inmate] had been sleeping in apparent
safety for several hours, when he suddenly had convulsions, tumbled off, and
suffered his fatal injury.” Id. Because the inquiry was objective, the court said it
could not “base [its] conclusion exclusively on what came to pass,” and, given the

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record, could not “conclude that [the inmate’s] bunk assignment objectively was so
dangerous that it denied [the inmate] ‘the minimal civilized measure of life’s
necessities.’” Id. (citations omitted).
This case is distinguishable from Simpson because of the fact that Palmer
already had been issued a Shawnee medical permit requiring a low bunk. 5 See
Greeno, 414 F.3d at 653 (a medical need is an objectively serious condition if it has
“been diagnosed by a physician as mandating treatment”).

Moreover, Palmer’s

physical disability warranting the Shawnee low bunk permit was obvious. The
Simpson court “assume[d] that there are some circumstances where a small,
elevated bed might pose a ‘substantial risk of serious harm’ to an inmate’s health or
safety.” 863 F.3d at 745-46 (quoting Farmer, 511 U.S. at 834). A jury could conclude
based on Palmer’s missing left hand and the existence of a medical permit that this
is one of them. See, e.g., Bolling v. Carter, 819 F.3d 1035, 1036 (7th Cir. 2016)
(implicitly recognizing that an inmate who had been issued a low bunk permit has a
serious medical need).
Franz argues that Palmer’s missing hand does not meet the definition of a
serious medical condition because Palmer did not need treatment for his arm. See
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (defining a serious medical
condition as one “that would result in further significant injury or unnecessary and
Franz’s response to Palmer’s Local Rule 56.1 Statement neither admits nor denies
that Palmer had a low bunk permit from Shawnee. Therefore, the Court will deem
that fact to be admitted. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir.
2012) (if a party fails to respond to a L.R. 56.1 statement of uncontested facts, then
those facts are deemed admitted to the extent they are supported by the evidence in
the record).

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wanton infliction of pain if not treated.”) (emphasis added). But the Seventh Circuit
did not intend to use the word “treated” in the limiting sense suggested by Franz, as
the test is sometimes expressed as being a medical condition requiring a “doctor’s
attention.” Greeno, 414 F.3d at 653 (emphasis added). Although Palmer’s medical
condition may not have required treatment per se, it did require accommodation.
For Palmer to receive that accommodation, he needed to be examined by a physician
or other authorized medical personnel, 6 who then would determine based on
medical judgment whether to issue a permit for a low bunk assignment. 7 In short, a
reasonable jury could find that an inmate who a doctor has recognized is in need of
a medical permit meets the objective test of a serious medical condition. Franz’s
argument to the contrary is rejected.
2.

DELIBERATE INDIFFERENCE

Turning to the subjective part of the test, “[a] jail or prison official may be
found liable only if he knows of and disregards an excessive risk to inmate health or
safety. This means that the defendant[ ] must have acted with more than simple or
even gross negligence, although [he] do[es] not need to act purposefully or
knowingly inflict harm.” Estate of Simpson, 863 F.3d at 746 (internal quotation
Medical permits typically are issued by physicians, but they also may be issued by
physician assistants and nurse practitioners. See R. 167-3 at 21-22 (Fisher Dep. 8081).
6

See R. 167-3 at 82 (testimony by Wexford representative that issuance of a permit
requires the exercise of medical judgment); R. 167-5 at 4 (Duffield Dep. 8)
(testimony of IDOC representative that a low bunk/low gallery permit is “a special
order that’s provided by the attending physician or practitioner that grants the
privilege of a low bunk/low gallery according to their medical assessment”).

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marks and citations omitted). The defendant must know of facts from which he
could infer that a substantial risk of serious harm exists, and he must actually draw
the inference.” Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir.
2016).
Palmer argues that Franz knew a high bunk assignment exposed Palmer to a
substantial risk of serious harm because of his missing hand.

“An inmate can

demonstrate that a prison official knew of a substantial risk of harm if the fact of
that risk is obvious.” Calhoun v. Howard, 2015 WL 5462221, at *4 (N.D. Ill. Sept.
16, 2015); see Estate of Simpson, 863 F.3d at 746 (“The requisite level of knowledge
may be inferred in instances where the risk posed by the condition is obvious.”).
Franz admits that Palmer “has an obvious congenital deformity of his left hand.”
R. 173 at 1. Still, Franz makes a number of arguments for why a reasonable jury
could not infer knowledge on his part of a substantial risk of serious injury from a
high bunk assignment to someone like Palmer with a missing hand. For instance,
Franz argues that Palmer was able to get in and out of the top bunk for ten days
without injuring himself and that it would have been reasonable for him to have
assumed that, because Palmer has lived with his disability since birth, he is likely
to have learned how to overcome his physical limitations.
In Estate of Simpson, the Seventh Circuit noted that “[t]he Eighth
Amendment demands that officials ensure ‘reasonable safety,’ not that they protect
against all risks. The risk of injury from a fall onto a concrete floor is obvious, [ ] the
chance that someone would fall is not.” 863 F.3d at 746 (internal citations omitted).

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The Simpson court held that there was no evidence in that case that the
correctional officers were aware of the risk posed by a high bunk assignment to an
obese man who obviously had an alcohol problem, or that they knew the risk was
excessive, pointing out that there was no evidence showing that other obese inmates
or others suffering from alcohol withdrawal had ever fallen out of their bunks at the
jail. Id. Similarly, here, there is no evidence that other persons with physical
disabilities similar to Palmer’s had ever fallen while trying to get down from a high
bunk without a ladder. And, as the Seventh Circuit noted, “[t]he rule is that an
official who should have, but failed, to perceive a significant risk cannot be held
liable.” Id. at 747 (citing Farmer, 511 U.S. at 844).
Despite the above, the Court declines to resolve the question of Franz’s
knowledge on the basis of the current record. The obviousness of the risk here is
greater than the obviousness of the risk in Simpson, where the inmate’s fall from
the bunk was due to not just the inmate’s obvious obese condition but also to the
inmate having suffered from alcohol-induced convulsions during his sleep,
something which the defendants may not have been able to foresee. Nevertheless,
even assuming that a reasonable jury could conclude from the evidence that Franz
knew of the risk of injury to Palmer from a high bunk assignment, that would not
be enough. Palmer’s deliberate indifference claim against Franz requires proof not
only that Franz knew of the serious risk of injury but that he “acted or failed to act
in disregard to that risk.” Calhoun, 2015 WL 5462221, at *4.

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Because Franz is a nurse, his actions or failure to act in disregard of the risk
to Palmer must relate to the provision of medical treatment for Palmer’s missing
left hand (as opposed to Palmer’s condition of confinement of being assigned to a
high bunk, for which Franz has no responsibility). The only medical treatment that
could be provided for Palmer’s condition was issuance of a low bunk permit. But
Franz did not have the authority to issue medical permits. See R. 161-4 at 15
(Garcia Dep. 57) (medical permits can be issued only by medical personnel who are
licensed to diagnosis, and nurses are not in that category); see also R. 267-3 at 35
(Fisher Dep. at 134-35). Palmer suggests that Franz might have had the authority
to issue a low bunk permit by citing the testimony of a Wexford representative, who
said he had been unable to find an IDOC health services directive specifically
stating that nurses could not issue medical permits. See R. 267-3 at 22 (Fisher Dep.
81). But the absence of an IDOC health services directive prohibiting nurses from
issuing medical permits is not evidence to support a finding that nurses have the
authority to issue medical permits. All witnesses knowledgeable on the subject
testified that nurses do not have such authority, not because of any IDOC policy or
practice but by virtue of licensing requirements. 8 Therefore, the Court concludes it
is undisputed that Franz did not have the authority to issue a low bunk permit.

The Court finds that the testimony of Nicolette Duffield does not create a disputed
fact issue on this question. Duffield is an IDOC employee whose job is to supervise
the health care unit at Stateville including the administration of Wexford’s contract
to provide health care services. She was asked several questions about what a
screening nurse could do if he sees that an in-coming inmate has a low bunk permit
from the transferring institution. In response to those questions, Duffield made
general statements about the nurse “act[ing] upon it at that time,” or “issu[ing] [the
8

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The undisputed fact that Franz did not have the authority to issue low bunk
permits would seem to put an end to Palmer’s Eighth Amendment claim against
Franz. In Estate of Miller by Chassie v. Marberry, 847 F.3d 425 (7th Cir. 2017), the
Seventh Circuit made clear that the identity of the defendant sued is crucial in
deciding whether an inmate can maintain a deliberate indifference claim based on a
high bunk assignment. Id. at 426 (“Miller’s principal problem is the identity of the
two defendants”). In that case, the plaintiff complained to various prison officials
about his high bunk assignment, telling them he had a low bunk permit and needed
to be placed on the bottom bunk because he had a brain tumor. According to the
court, the plaintiff should have sued the officers in charge of the inmate’s bunk
assignment rather than the correctional officers who the inmate informed about his
brain tumor and medical permit. Id. at 426-27 (noting that there was no evidence
the correctional officers to whom the plaintiff complained played any role in the
inmate’s bunk assignment). The court rejected the plaintiff’s argument that the
defendant correctional officers whom he told about his need for a low bunk
assignment were responsible for his injuries, calling “[t]hat line of argument [ ]
deficient” because, among other things, it “supposes that every federal employee is
inmate] a low bunk/low gallery, according to the current order.” R. 167-5 at 6
(Duffield Dep. 16-17). But Duffield also listed the medical practitioners who could
issue permits, and did not include nurses among them. Id. at 4 (Duffield Dep. 8).
When asked later to clarify her testimony about what the screening nurse could do
in light of the fact that nurses cannot issue permits, Duffield testified that the nurse
could take steps to have appropriate medical personnel issue a Stateville permit in
place of the Shawnee permit, as opposed to the nurse himself issuing the permit. In
particular, the Court reads Duffield’s testimony regarding issuance of a “bridge”
order as being that the nurse could write the bridge order out for the physician or
other authorized medical personnel to sign. See R. 167-5 at 13 (Duffield Dep. 44).
13

responsible, on pain of damages, for not implementing the decision of any other
federal employee, so that all [the plaintiff] need show is the existence of a lowerbunk order.” Id. at 427. An Eighth Amendment violation, the court said, required a
showing of deliberate indifference, and “[a] lower-bunk permit does not supplant
that framework.” Id. at 428.
Palmer’s arguments against Franz similarly rely on a medical permit to
supplant the Eighth Amendment framework. The mere fact that Palmer told Franz
about his Shawnee medical permit or that Franz knew about that permit and
Palmer’s need for a low bunk does not necessarily mean Franz was responsible “on
pain of damages” for making sure Palmer was assigned a low bunk. Franz testified,
and the Court finds it is undisputed that, the placement of inmates in particular
cells and assignment to particular bunks is the responsibility of IDOC security
and/or placement officers, not medical personnel. While IDOC personnel will try to
honor a low bunk permit issued by medical personnel, 9 Franz could not issue a low
bunk permit. The question then becomes whether Franz’s failure to take any steps
short of issuing a medical permit himself, which he could not do, constitutes
deliberate indifference. According to Palmer, there were at least two things Franz
could have done to ensure that a low bunk permit got issued to Palmer: call a doctor
on the phone during or immediately after the intake screening to get authorization
See R. 161-5 at 7 (Rabideau Dep. 25) (if an inmate has a low bunk permit, he
“should be” assigned to a low bunk at the NRC “contingent on whether the security
staff can validate that he actually has one”); see also Buford v. Obaisi, 2016 WL
4245513, at *1 (N.D. Ill. Aug. 11, 2016) (“If an inmate has a valid low bunk permit,
IDOC provides the inmate a low bunk if there is one available. If there is not an
available bunk, the inmate has to wait until one becomes available.”).

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for a low bunk permit, 10 or place Palmer on the urgent sick call to see a doctor
within 24-48 hours. See R. 168 at 14-15. 11
The Court does not believe a reasonable jury could conclude that Franz was
deliberately indifferent when he failed to do either of those two things. Both of the
options suggested by Palmer assume that the situation of an inmate transferring
into the NRC with an already-issued medical permit from his parent institution for
a low bunk assignment was so urgent that it justified an immediate after-hours call
to a physician. In arguing that a high bunk assignment posed an “imminent” danger
to him, Palmer cites to Withers, in which the plaintiff alleged that he asked a nurse
to let him stay overnight in the prison’s Health Care Unit because of back pain he
was experiencing. 710 F.3d at 689. He claimed that the nurse “refused and wheeled
him back to his cell in a wheelchair; that he told her he wouldn’t be able to climb
into his bunk (the upper one) and she replied ‘when you get tired you’ll figure it out,’
and left him; [and] that because of his back pain he fell trying to climb into the
upper bunk . . . and as a result was injured.” Id. at 689. The Seventh Circuit held
The record indicates that inmates usually arrive at the NRC in the evening when
no one with authority to issue permits is present at the institution. If a doctor is
needed because of an urgent situation, the nurse would place a call to the medical
director. R. 167-5 at 9-10, 14 (Duffield Dep. 27-30, 49).
10

Palmer also mentions a third option of issuing a “bridge” order to recognize that
he already had low bunk permit from Shawnee, the transferring institution. But as
the Court already has noted (at footnote 8), Duffield’s testimony on which Palmer
relies for this option appears to be that the nurse would write up the bridge order
for a physician to sign, not that the nurse would issue the “bridge” order himself. To
obtain a physician’s signature, the nurse would either have to call the physician
that night to get phone authorization for his signature, or else refer the inmate to
an urgent sick call visit in the next 24-48 hours. Therefore, the “bridge” order option
is not a separate and distinct option from the other two.
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15

that “if this narrative is true, it is evidence of deliberate indifference to an
imminent danger of injury to a prisoner[.]” Id.
Withers involve a “classic case of turning a blind eye to ‘a substantial risk of
serious harm to a prisoner.’” Estate of Miller by Chassie, 847 F.3d at 432 (Posner, J.,
dissenting) (citation omitted). This is not such a case. Palmer was not in a
wheelchair and Franz was not “on the scene” and hence aware of any acute
situation regarding Palmer’s disability and his bunk assignment. See id. (“If a
prisoner is writhing in agony, the guard cannot ignore him on the ground of not
being a doctor; he has to make an effort to find a doctor, or in this case a dentist, or
a technician, or a pharmacist—some medical professional.”) (internal quotation
marks and citation omitted). Franz was performing an intake screening at the time
in question; he made note of Palmer’s disability; and apparently in response to
Palmer’s request for a low bunk permit, he marked on Palmer’s transfer summary
that Palmer needed to see a doctor for a “sick visit.” Palmer also knew how to access
health care at the institution and could always request a sick visit himself at any
time. Typically, an inmate asking for a routine sick call will be seen by a doctor
within 72 hours. R. 167-5 at 14 (Duffield Dep. 47-48). Prior to being seen for a sick
visit, Palmer could avoid any “imminent” risk of harm by asking his cell mate to
switch bunks or by temporarily moving his mattress to the floor. E.g., Buford, 2016
WL 4245513, at *3 (inmate who was denied a low bunk assignment and could not
climb into top bunk because of Achilles tendon injury was given a mattress to sleep

16

on the floor). 12 The fact that Palmer submitted two requests to see a doctor in the
ten days before the incident occurred, neither of which was honored by IDOC
correctional officers, is irrelevant. Franz had no further contact with Palmer after
the initial screening and there is no evidence he was aware that Franz would be or
was assigned to a high bunk. Nor was it Franz’s job to follow-up to see whether
Palmer had been assigned to a low bunk. Palmer’s need for a medical permit did not
present as an “imminent” danger upon his arrival at the NRC merely because of the
possibility that some other prison official might not do his job. See Greeno, 414 F.3d
at 657 (a prison official is not deliberately indifferent because of his “failure to
realize the potential gravity of the situation” caused by the deliberate indifference of
another official).
In Whiting, the Seventh Circuit noted that “[w]hen a prison medical
professional is accused of providing inadequate treatment (in contrast to no
treatment), evaluating the subjective state-of-mind element can be difficult.” 839
F.3d at 662 (emphasis in original). But “where evidence exists that the defendant [ ]
knew better than to make the medical decision[ ] that [he] did, then summary
judgment is improper and the claim should be submitted. State-of-mind evidence
sufficient to create a jury question might include the obviousness of the risk from a
particular course of medical treatment; the defendant’s persistence in a course of
treatment known to be ineffective; or proof that the defendant’s treatment decision
Palmer was in prisons before where the cell had a top bunk and a bottom bunk
yet he did not always have a low bunk permit. He testified that he always had the
bottom bunk because frequently, “whoever I was in there with would just be
courte[ous] enough to let me have it.” R. 161-2 at 15 (Palmer Dep. 56).
12

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departed so radically from accepted professional judgment, practice, or standards
that a jury may reasonably infer that the decision was not based on professional
judgment.” Id. at 662-63 (internal quotation marks and citations omitted). Given
the record before the Court, no reasonable jury could conclude that Franz’s state of
mind fell into any of these categories. Indeed, it appears to the Court that how a
medical permit from a transferring institution is supposed to be treated by the
receiving institution is a subject on which even IDOC and Wexford officials with
supervisory responsibilities could not provide a clear or consistent answer. 13

Duffield testified that a transferring inmate with a permit from his parent
institution should be given a Stateville permit without need for further medical
evaluation, but she did not know what the procedure was for that to happen. See
R. 167-5 at 13 (Duffield Dep. 44) (“I don’t know. I don’t want to answer
incorrectly.”). While she suggested that one possibility was that the nurse could
somehow make it happen, she also testified that the inmate had other opportunities
as well to obtain a “bridge” permit to apply while he was housed at the NRC. Id. at
14 (Duffield Dep. 45-50) (“If that did not happen, they can sign up for sick call to
request to go see the physician.”). Karen Rabideau, the IDOC placement officer
responsible for making cell assignments at Stateville, testified that the Shawnee
permit should have been honored by the correctional officers at Stateville without
the need for any further steps. According to Rabideau, an inmate who is temporarily
transferred to Stateville from another institution “would have to let the [security]
staff know [about his current permits at his home institution] . . . because that
offender would not have been able to bring his paperwork with him.” Id. at 6
(Rabideau Dep. 19). If the security staff could confirm that the transferring inmate
had a permit, they would order the inmate who already occupied the lower bunk in
the cell to which the transferring inmate had been assigned to give it up to the
transferring inmate with the permit. Id. (Rabideau Dep. 20, 28-29). While this
process depended on whether the security staff could confirm the existence of the
permit from the transferring institution, Rabideau testified that the computer
system in use in 2012 (the Offender Tracking System) would have shown the permit
if one had been issued. Id. at 8 (Rabideau Dep. 27-28); see also Buford, 2016 WL
4245513, at *2 (“The Offender Tracking System, a computing system used by the
placement office, shows whether an inmate has a low bunk permit on file.”). A
supervisory employee of Wexford also suggested that the Shawnee permit might
have been honored by IDOC placement or other correctional officers responsible for
13

18

If, as the Court finds, the responsible supervisory officials gave inconsistent
and/or unclear testimony about the proper procedure to follow in Palmer’s situation,
then there is no factual basis for saying a nurse who spent less than fifteen minutes
with Palmer handled the intake screening in so obviously an inappropriate manner
as to warrant in inference that his conduct was “something akin to criminal
recklessness.” Norfleet v. Webster, 439 F.3d 392, 397 (7th Cir. 2006). “It is obduracy
and wantonness, not inadvertence or error in good faith, that characterize the
conduct prohibited by the Cruel and Unusual Punishments Clause.” Whitley v.
Albers, 475 U.S. 312, 319 (1986). While the Court’s analysis at first glance may give
the appearance that liability for deliberate indifference can be avoided by having
incoherent or confusing policies or practices in place, that would not be an accurate
reading of the opinion. Acknowledging that the policies put in place by IDOC and/or
Wexford for handling permits from other institutions are confusing at best and
incoherent at worst could mean, as the Court finds that it does here, that a
particular defendant escapes individual liability for injury caused by deliberate
indifference. But the need for clear policy guidelines may itself constitute deliberate

Palmer’s cell assignment and to whom Palmer complained when he actually
received a low bunk assignment. See R. 167-3 at 54 (Fisher Dep. 210) (noting it was
possible “the pass Palmer had from Shawnee was still in effect”); id. at 50 (Fisher
Dep. 194) (it could be that the actual policy or practice in effect was to “recognize
[permits] from other institutions for a period of weeks before the individual is there
knowing that people come in and out [of the NRC] for court”). If, as the IDOC
placement officer testified, the Shawnee permit should have been honored by IDOC
correctional officers when they placed Palmer in his cell, then, as previously noted,
Franz cannot be held liable for the failure of correctional officers to do so. See
Greeno, 414 F.3d at 657.
19

indifference of the institution. See Glisson v. Indiana Dep’t of Corr., 849 F.3d 372
(7th Cir. 2017). 14
Ultimately, summary judgment in favor of Franz is appropriate here because
there is a complete absence of evidence on which a jury could base a conclusion that
Franz’s handling of Palmer’s intake screening demonstrated deliberate indifference.
The most directly applicable principle is that a prison official “whose role was
limited” is not deliberately indifferent where there is “[n]othing in the record [to]
indicate[ ] that [he] shirked his duty in any way or failed to appropriately handle”
the situation. Greeno, 414 F.3d at 657; see also Berry v. Peterman, 604 F.3d 435, 440
(7th Cir. 2010) (fact that a prison official may not have taken any “further action
[beyond what was required of him] cannot be seen as deliberate indifference”). The
only evidence to show deliberate indifference cited by Palmer is Duffield’s
testimony. But she testified she did not know anything about the intake process in
the time period relevant to Palmer’s Eighth Amendment claim, which was January
2012, id. at 7 (Duffield Dep 18), and, in any event, her testimony about what Palmer
“could have “ done to ensure that Palmer was assigned to a low bunk is insufficient

In Glisson, the Seventh Circuit said that “[i]t is somewhat unusual to see an
Eighth Amendment case relating to medical care in a prison in which” the issue is
whether “an organization might be liable [for deliberate indifference] even if its
individual agents are not.” 849 F.3d at 378. The court stated, however, that such a
case was not impossible, explaining that, “[w]ithout the full picture, each person
might think that [his] decisions were an appropriate response to a problem; [his]
failure to situate the care within a broader context could be at worst negligent, or
even grossly negligent, but not deliberately indifferent. But if institutional policies
are themselves deliberately indifferent to the quality of care provided, institutional
liability is possible.” Id.
14

20

to show that Franz “shirked his duties” or that his handling of the situation was
inappropriate. 15
On the other hand, Franz’s supervisor, Cynthia Garcia, who was Director of
Nursing at Stateville, testified that there was nothing further Franz should have
done regarding Palmer’s need for a low bunk assignment because, as a nurse, Franz
could not issue low bunk permits. R. 161-4 at 15 (Garcia Dep. 55-56). According to
Garcia, the screening nurse’s job is to verify the information provided by the
transferring institution on the top portion of the inmate’s transfer summary and
document on the bottom portion any changes that may have occurred from the time
the inmate left the transferring institution to his arrival at Stateville. The nurse
would document something he observed or learned about the inmate during the
screening “[i]f it’s not documented on the top or if it’s something that’s in a crisis
situation.” R. 161-4 at 5 (Garcia Dep. 14-15). Garcia noted that Palmer’s low bunk
permit already was documented by Shawnee medical personnel at the top of his
transfer summary. When asked specifically what a nurse should do if during the
transfer screening process he perceives that the patient needs a low-bunk permit,
Garcia answered: “[ ]he would mark it routine, and . . . tell the offender to fill out

Even if Duffield’s testimony established that Franz violated some IDOC policy in
existence at the time (which it doesn’t), the Seventh Circuit has said that a jury
cannot “use [a] policy as circumstantial evidence of [the defendant’s] knowledge of
the risk.” Estate of Simpson, 863 F.3d at 763, 746-47 (rejecting inmate’s reliance on
“bottom bunk policy” as evidence from which a jury could conclude that defendants
were deliberately indifferent to inmate’s need for a low bunk assignment because
“Section 1983 protects against ‘constitutional violations, not violations of . . .
departmental regulation and . . . practices.”) (citations omitted).
15

21

sick call slips to be seen by the doctor.” R. 161-4 at 19 (Garcia Dep. 70). That is
exactly what Franz did here.
None of the high bunk cases Palmer cites supports a contrary finding of
deliberate indifference here. Moses v. Shah, 2011 WL 5298599 (C.D. Ill. Nov. 2,
2011), only involved a preliminary review of a pro se complaint pursuant to 28
U.S.C. § 1915A. Moreover, the court in that case held only that the plaintiff had an
“arguable” Eighth Amendment claim against the doctor who refused on multiple
occasions to issue him a low bunk permit, even though he had been given a permit
while residing at two previous institutions and had fallen once before while at the
current institution narrowly avoiding serious injuries. Id. at *1-2. The court
dismissed the plaintiff’s Eighth Amendment claims against the nurse and the
health care unit administrator because they did “not have the authority to override
[the doctor’s] treatment decisions.” Id. at *2. Here, there is no evidence that Franz
repeatedly refused to issue Palmer a low bunk permit, or that Palmer had
previously fallen from a high bunk and Franz knew about the fall.
Palmer also cites two other cases that are distinguishable because they
involve Eighth Amendment claims against the placement officers or security guards
who had control over bunk assignments and meaningful exposure to the plaintiff’s
need for a low-bunk assignment over an extended period of time such that a
reasonable jury could conclude that the defendants were deliberately indifferent to
the inmate’s situation. See Bolling, 819 F.3d at 1036-37 (reversing a grant of
summary judgment for six correctional officers where the officers refused to move

22

an inmate to a low bunk despite the inmate’s fall attempting to reach the top bunk
and his subsequent acquisition of a low-bunk permit); Burford, 2016 WL 4245513,
at *5-7 (denying summary judgment to IDOC security personnel who, over an
extended period of time, failed to ensure that the plaintiff was given a low bunk
assignment where he suffered from ongoing Achilles tendon pain; ambulated with
crutches; informed officers he could not access the top bunk; was consistently
provided a low-bunk permit by the medical unit; and fell attempting to access the
top bunk within hours of assignment to it). Judge Posner relied on similar facts in
his dissent in Estate of Miller by Chassie to argue that, “[a]fter [the inmate’s] first
fall, and certainly after his second, it must have been obvious to [the two
correctional officers] and any other prison personnel who knew of [the inmate’s]
condition that he should not be consigned to an upper bunk.” 847 F.3d at 431. Franz
is neither a placement officer responsible for bunk assignment nor a physician
responsible for issuing permits, and, in any event, there is no evidence that Franz
had repeat contact with Palmer or knowledge of any previous falls.
In short, there is no evidence from which a reasonable jury could conclude
that Franz was deliberately indifferent with regard to Palmer’s need for a low bunk
permit while at the NRC. For individual liability to attach, Palmer needed to
present evidence sufficient to show that Franz’s handling of the intake screening
was “so far afield of accepted professional standards as to raise the inference that it
was not actually based on a medical judgment.” Whiting, 839 F.3d at 664. He did

23

not do so. Therefore, Franz’s motion for summary judgment on Palmer’s Eighth
Amendment claim will be granted.
B.

NEGLIGENCE

Palmer also asserts a state law claim for negligence. As the Court sees it, the
primary problem with Palmer’s negligence claim is that Garcia, Franz’s supervisor,
testified that Franz’s handling of Palmer’s intake screening was consistent with
institutional and administrative directives on how inmates are to access care. Id. at
19-20 (Garcia Dep. 74) (There are institutional directives and administrative
directives that we follow on how to access care. The offenders are given a handbook
describing how to access care.”). Garcia further testified that, while there were
“many things the nurse ‘could’ do” to ensure that an inmate received a medical
permit more quickly, “that isn’t the standard of care.” R. 161-4 at 19-20 (Garcia
Dep. at 70, 74). Palmer has presented no evidence that the standard of care for a
nurse in Franz’s position was any different than that to which Garcia testified.
For this reason, the Court would be inclined to conclude that no reasonable
jury could find that Franz’s conduct was legally negligent. See, e.g., Goodson v.
Willard Drug Treatment Campus, 615 F. Supp. 2d 100, 102 (W.D.N.Y. 2009) (noting
that the evidence was not sufficient for a factfinder to “reasonably conclude that
defendants were negligent in assigning plaintiff to a top bunk”). Yet, in moving for
summary judgment, Franz does not make this argument other than in a single
sentence in the introduction of his reply brief. See R. 172 at 1. The arguments Franz
does make include the following: (1) Palmer has failed to comply with the affidavit

24

requirement of the Healing Arts and Malpractice Act; (2) Palmer cannot establish
proximate causation; and (3) Palmer has failed to exhaust his administrative
remedies. The Court agrees with Franz on the first issue and therefore need not
address the second and third.
“To minimize frivolous malpractice suits, Illinois law requires the plaintiff to
file a physician’s certificate of merit and accompanying report with every
malpractice complaint.” Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000).
Specifically, the Healing Arts and Malpractice Act provides that
In any action, whether in tort, contract or otherwise, in
which the plaintiff seeks damages for injuries . . . by
reason of medical, hospital, or other healing art
malpractice, the plaintiff's attorney . . . shall file an
affidavit attached to the original . . . complaint” certifying
that the attorney has conferred with a qualified,
knowledgeable healthcare professional who, upon
reviewing the medical record, concluded that the plaintiff
had a reasonable and meritorious cause for filing suit.
735 ILCS 5/2-622(a)(1). The failure to file such a certificate is grounds for dismissal.
735 ILCS 5/2-622(g). If section 2-622 would apply to Palmer’s negligence claim in
state court, then it also applies in this Court. Baumann v. Am. Nat’l Red Cross, 262
F. Supp. 2d 965, 966 (C.D. Ill. 2003); see Fleming v. Livingston Cnty., Ill., 2009 WL
596054, at *3 (C.D. Ill. 2009) (“Although Section 2-622 is a provision located in the
Illinois Code of Civil Procedure, many district judges in the Seventh Circuit have
treated it as a substantive provision of Illinois law.”) (citing cases)). Palmer did not
file a section 2-622 affidavit with his complaint. He argues that no affidavit was

25

necessary because his negligence claim against Franz does not sound in
malpractice.
For purposes of section 2-622, “malpractice” is defined, in part, as
“[p]rofessional misconduct or unreasonable lack of skill.” Cohen v. Smith, 648
N.E.2d 329, 332 (Ill. App. 1995) (internal quotation marks and citation omitted).
The term has also been defined as “incorrect or negligent treatment of the patient
by a person responsible for his health care,” and as “dereliction from a professional
duty or a failure to exercise an adequate degree of care in rendering service.”
Bommersbach v. Ruiz, 461 F. Supp. 2d 743, 749 (S.D. Ill. 2006) (internal quotation
marks and citations omitted). In Woodard v. Krans, 600 N.E.2d 477 (Ill. App. 1992),
the Illinois Appellate Court delineated three types of negligence suits against
providers of medical services: “(1) malpractice suits requiring expert testimony;
(2) malpractice cases not requiring expert testimony; and (3) negligence suits,
essentially common-law in character, that happen to be directed against health care
providers.” Id. at 487-88. The court held that only in the last category—common law
negligence suits that happen to be against providers of medical services—is a
plaintiff required to follow section 2-622. Id. at 488. “[T]he possibility that the
standard of care may be established by lay knowledge does not necessarily” mean
that an affidavit is not required. Id. Instead, “the broad realm of medical, hospital
or healing art malpractice” includes any case where “the standard of care requires
applying distinctively medical knowledge or principles, however basic.” Id. This
means that “the type of case in which a plaintiff need not file a section 2-622

26

affidavit against a defendant health care provider is the exceptional one, defined by
the inherent character of the conduct involved rather than whether expert
testimony will later be necessary to prove the plaintiff’s case.” Id. (emphasis added).
The conduct on which Palmer relies for his negligence claim is described in
the complaint as follows: (1) failing to perform an adequate physical examination of
him; (2) failing to assess and determine his medical condition and his medical
needs; (3) failing to obtain and examine his relevant administrative and/or medical
records; (4) failing to recognize his medical need for a low bunk assignment;
(5) failing to document his medical need for a low bunk assignment; (6) failing to
notify the correctional staff at the Stateville/NRC facility of his medical need for a
low bunk assignment”; (7) failing to ensure that he received an assignment to a low
bunk “to ensure his health and safety”; and (8) failing to otherwise ensure his
health and safety. R. 65 at 5-6. Regardless of whether expert testimony would be
necessary to establish whether Franz’s conduct fell below the standard of care on
any of these issues, the character of the conduct involved is medical, i.e., the
assessment and reporting of the medical needs of a patient. Non-medical personnel
do not “assess” and “report” medical conditions. Thus, Palmer’s negligence claim
raises issues of medical judgment, dereliction from professional duty as a nurse,
and/or failure to exercise an adequate degree of care in rendering service as a nurse,
and thereby implicates the requirements of section 2-622.
Palmer cites to this Court’s opinion in Hales v. Timberline Knolls, LLC, 2017
WL 25174 (N.D. Ill. Jan. 3, 2017), to argue that section 2-622 does not apply to his

27

negligence claim. But Hales involved a claim for breach of fiduciary duty, id. at *2,
while this case involves a claim for negligence. Therefore, the Court finds Warren ex
rel. Warren v. Dart, 2010 WL 4883923 (N.D. Ill. Nov. 24, 2010), to be more helpful
than Hale. There the court stated that the plaintiff’s claims against the nurse
defendants stated a malpractice claim rather than a general negligence claim
because the nurses “would be held to a standard of care that applies distinctively
medical knowledge or principles.” Id. at *12. Specifically, the court explained, the
nurses’ “acts or omissions with respect to McDowell—i.e., their activity concerning
whether and/or how to treat [the plaintiff]—necessarily involve medical judgment in
light of [the plaintiff’s] medical needs and the nurses’ professional roles at the jail.”
Id.; see also Johnson v. United States, 2016 WL 3387156, at *11 (N.D. Ill. June 20,
2016) (“insofar as Johnson’s claims are predicated on the acts or omissions of
Dr. Mohan or nurse Folami, they sound in malpractice and must be accompanied by
a certificate of merit”). Palmer’s negligence claim similarly concerns Franz’s activity
of deciding whether and/or how to treat Palmer, which necessarily involves medical
judgment in light of Palmer’s medical needs and Franz’s professional role at the jail.
Therefore, like the court in Warren, this Court dismisses Palmer’s state law claim
without prejudice for failure to file the required section 2-622 affidavit. Id. (citing
McCastle v. Mitchell B. Sheinkop, M.D., Ltd., 520 N.E.2d 293, 296 (Ill. 1988) (ruling
that failure to comply with the § 5/2–622 does not require dismissal with
prejudice)). Because an negligence claim is a state court action, any refiling with a
section 2-622 affidavit must be done in state court.

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CONCLUSION
For the foregoing reasons, Franz’s motion for summary judgment, R. 160, is
granted. Judgment in favor of Franz is hereby entered on Palmer’s Eighth
Amendment claim (Count II), while the Court dismisses Palmer’s negligence claim
against Franz (Count I) without prejudice.
ENTERED:

Honorable Thomas M. Durkin
United States District Judge
Dated: September 18, 2017

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