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Cleveland-Perdue v. Brutsche

decided: August 4, 1989.

LINDA CLEVELAND-PERDUE, SUCCESSOR REPRESENTATIVE AND ADMINISTRATRIX OF THE ESTATE OF JOSEPH JONES, JR. (A/K/A ROSCOE SIMMONS), PLAINTIFF-APPELLEE,
v.
ROBERT L. BRUTSCHE, M.D., DEFENDANT-APPELLANT



On Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. TH 76-93-C, Gene E. Brooks, Judge.

Cummings, Cudahy and Flaum, Circuit Judges.

Author: Flaum

FLAUM, Circuit Judge

This difficult case, which involves the issue of a federal prison official's immunity from a suit alleging deliberate indifference to a prisoner's medical needs, comes before us for the third time. See Green v. Carlson, 581 F.2d 669 (7th Cir. 1978), aff'd Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980); Green v. Carlson, 826 F.2d 647 (7th Cir. 1987). Defendant Robert Brutsche appeals from a district court order denying his motion for summary judgment on the ground of qualified immunity. For the reasons discussed below, we affirm.

I.

The facts giving rise to this litigation are adequately set forth in our previous decisions and will be repeated here only as necessary to elucidate the issue presented by this case. On the morning of January 6, 1975, William Lowe, an inmate at the federal penitentiary at Terre Haute, Indiana died in the prison's hospital.*fn1 Shortly before his death, Lowe, on the recommendation of the hospital's sole full-time physician,*fn2 Dr. Silverman, had ingested the drug Demeral. At the time he prescribed the drug, Dr. Silverman was at home and despite the protests of the physician's assistant at the scene, adamantly refused to come to the prison hospital. In addition, Silverman rejected the suggestion that Lowe be transferred to an area hospital.

The death of William Lowe prompted an investigation by defendant Robert Brutsche, the medical director of the federal prison system.*fn3 During the course of his investigation, Brutsche visited the Terre Haute Prison where he interviewed several prison officials about alleged problems in the administration of medical services. Based on these interviews and his own observations, Brutsche recommended that Silverman*fn4 be relieved of his duties and that the record-keeping procedures at the hospital be improved. Silverman ultimately resigned as the hospital's physician leaving a vacancy that was not filled for the next several months. Brutsche, however, did not check whether his proposed changes were implemented.

Between January 6, 1975, the date of Lowe's death, and August, 1975, two more inmates died at the prison's hospital. The first prisoner, Frederick McCain, was admitted to the hospital on April 9, 1975 after complaining of breathing problems. McCain, who suffered from chronic bronchitis, was given drugs normally prescribed for his condition and initially appeared to respond favorably. The next morning, however, McCain was dead. Brutsche investigated the circumstances surrounding McCain's death and concluded that adequate medical care had been provided.

On June 6, 1975, inmate Robert Graham reported to the hospital complaining of fatigue, loss of appetite, nausea and malaise. Graham was examined by a physician's assistant who prescribed treatment and sent Graham back to his cell. Three days later, however, Graham, was removed to the Indiana University Medical Center in Indianapolis where he soon passed away. Brutsche also investigated Graham's death and concluded that adequate medical care had been provided.

In August, 1975, Dr. Robert DeGracias assumed, the duties of full-time physician at the Terre Haute Prison. On August 14, 1975 inmate Joseph Jones was admitted to the prison hospital after a severe asthma attack. Dr. DeGracias prescribed the drug Thorazine over the phone but refused to come to the hospital to examine Jones personally. At approximately 11:00 p.m., Jones went into respiratory arrest. When DeGracias was informed of this fact he ordered Jones sent to a local hospital. Jones, however, died shortly after he was admitted to the hospital.

Jones' death prompted another investigation by Brutsche. As a result of this investigation, Brutsche made a series of recommendations to the warden. These recommendations included keeping full in-patient records on anyone admitted to the prison hospital, utilizing outside facilities, encouraging better communications among the staff, and implementing a policy concerning the availability of physicians during off-duty hours.

Shortly after Jones' death, his mother filed a Bivens suit against Brutsche, DeGracias, and Norman Carlson, the director of the Bureau of Prisons, claiming that her son's death was caused by the defendants' deliberate indifference to Jones' medical needs. See Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). The district court dismissed the complaint on the ground that the federal claim could not survive Jones' death but this court reversed. Green v. Carlson, 581 F.2d 669 (7th Cir. 1978). The Supreme Court affirmed our decision holding that a federal common law of survivorship existed for Bivens suits. Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980).

On remand, the defendants moved for summary judgment on the ground of qualified immunity. The district court denied this motion and the defendants took an interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). In Green v. Carlson, 826 F.2d 647 (7th Cir. 1987), we vacated the district court's decision and remanded with directions for the district court to evaluate the entire record in determining the qualified immunity issue. Id. at 650. On remand, the district court held that Carlson, as a "supervisor of supervisors," was entitled to qualified immunity but that Brutsche and DeGracias were not. With regard to Brutsche, the district court held that there were several disputed issues that precluded the entry of summary judgment in his favor including: (1) whether the physician's assistants were adequately trained; (2) whether DeGracias had received any instruction about transporting seriously ill prisoners to area hospitals; (3) whether Brutsche had conducted a thorough investigation after the first death at the prison hospital; (4) whether the fact that the record-keeping recommendations were not implemented prior to Jones' death reflected on Brutsche's liability and (5) whether Brutsche should ...


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