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Kinslow v. Pullara

August 14, 2008

JIMMY KINSLOW, PLAINTIFF-APPELLANT,
v.
FRANK PULLARA, ERMA SEDILLO, AND SHANNON MCREYNOLDS, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 4023-Suzanne B. Conlon, Judge.

The opinion of the court was delivered by: Wood, Circuit Judge.

ARGUED FEBRUARY 27, 2008

Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.

Jimmy Kinslow, a state inmate, brought suit under 42 U.S.C. § 1983, alleging that certain prison officials violated his constitutional right to adequate medical treatment while he was being transferred from one institution to another. He sued employees of the Illinois Department of Corrections ("IDOC"), employees of the New Mexico Department of Corrections ("NMDOC"), and TransCor America, LLC, the private company hired to transport him between facilities, along with some of TransCor's employees. The district court dismissed Kinslow's claims against the New Mexico officials for lack of personal jurisdiction. The remaining parties reached a settlement with Kinslow, and the court dismissed those claims on June 21, 2007, subject to reinstatement within 30 days. Nothing happened by July 21, 2007, and on August 17, Kinslow filed his notice of appeal from the dismissal of the New Mexico defendants.

I.

The key facts of this case are not in dispute, though, to the extent that there are different versions, we present them in the light most favorable to Kinslow. For much of his life, Kinslow has been behind bars. He was first incarcerated in 1978 in New Mexico. In 1995 he was transferred to Illinois under the terms of the Interstate Corrections Compact. In June of 2000, while at Stateville Correctional Center in Joliet, Illinois, Kinslow was diagnosed with advanced liver disease caused by hepatitis C. IDOC's medical director prescribed a 12-month chemotherapy regimen for Kinslow. His treatment began in May 2004, but halfway through it, Dr. Frank Pullara, medical director of NMDOC, decided that it would be more economical to treat Kinslow in New Mexico. Pullara contacted NMDOC's general manager, Shannon McReynolds, to arrange for the transfer.

Prison officials in New Mexico and Illinois worked together to arrange Kinslow's transfer back to New Mexico. McReynolds initiated the move by telephoning the IDOC officials twice to set up and confirm the plans. He also selected and arranged for TransCor to transport Kinslow, via bus, from Illinois to New Mexico. The third New Mexico defendant, Erma Sedillo, was NMDOC's director of operations. Beyond being McReynolds's supervisor, Sedillo was not involved in the logistics of the transfer.

The transfer took place in October 2004. Though Kinslow's bus trip to New Mexico could have been completed in less than 24 hours, the route that TransCor chose lasted six days. Moreover, while the Illinois and New Mexico prison officials were all well aware of Kinslow's prescribed treatment and of how strictly it had to be followed, they failed to establish procedures that would ensure proper medical care for Kinslow during the trip.

Kinslow was being treated with PEG-Intron (delivered by injection) and Rebetol pills. The PEG-Intron is a liquid/powder mixture that must be precisely measured and mixed and then immediately administered. Kinslow was to receive an injection once a week, on the same day and at the same time each week. Because of the precision required for measuring, mixing, and administering this treatment, it was handled by medical staff. In addition, Kinslow took a Rebetol pill once daily with food. Both the PEG-Intron ingredients and the Rebetol pills had to be be kept refrigerated at all times, and, if not taken exactly as prescribed, the treatments could lose effectiveness, fail completely, or cause severe side effects. Kinslow also was to be kept on a proper diet and well-hydrated at all times.

During his transfer, everything that could go wrong with Kinslow's treatment, did. No medical personnel were on the TransCor bus; his medications were not refrigerated (they were put on ice before the bus left Illinois, but TransCor employees soon dumped the ice because the container was leaking); a TransCor employee spilled Kinslow's Rebetol all over the bus's floor; and TransCor employees told Kinslow that he had to measure, mix, and inject himself with the PEG-Intron because none of them knew how to do it. Kinslow, who had no medical background, was ill-equipped to handle the injection and, sure enough, experienced a severe reaction almost immediately after self-administering the treatment. He had pain and cramps, began to sweat, felt nauseous, and finally vomited. Afterwards, he could barely walk and his abdomen swelled.

The reaction occurred on the evening of October 18, 2004, roughly 27 hours after the trip began. As we noted already, the trip dragged on for six days. Despite Kinslow's persistent requests for medical attention, the TransCor employees responded that they did not have time to find him a physician, and that only TransCor's (non-medical) employees could provide him with care. When the bus stopped for overnight stays at local jails, Kinslow repeated his requests for medical attention, but again to no avail. In the end, he endured four days of a severe medication reaction with no medical assistance. TransCor employees also refused to give him Clonazepam, a drug that he often took with his treatments because it reduced the anxiety and insomnia that the powerful medications caused. Kinslow believes that his negative reaction resulted from spoiled medication (because of the inadequate refrigeration), an improperly-mixed dose, or perhaps both.

As a direct result of the lack of medical care that Kinslow received during the transfer, his chemotherapy treatments failed. Based on that failure, the NMDOC denied Kinslow additional treatments at the New Mexico facility; NMDOC believed that even if Kinslow were to receive more treatment, it would be unlikely to succeed because of the interruption of the earlier round. (This may or may not be a well-founded view; whether they were correct is not relevant to the outcome of this appeal.) Kinslow's liver continues to deteriorate, and given that his condition now is untreated, he likely will die. (As of the date of oral argument in this case, Kinslow was alive and in New Mexico, pursuing a separate lawsuit that he filed there before initiating this one. That suit focuses on the post-transfer denial of medical care. We are unaware of the current status of either Kinslow or his other lawsuit.)

Kinslow initiated this action, pro se, on December 19, 2005, alleging that the defendants are liable under 42 U.S.C. ยง 1983 for violations of his Eighth and Fourteenth Amendment rights. On December 1, 2006, the district court dismissed Kinslow's claims against the New Mexico defendants-Dr. Pullara, McReynolds, and Sedillo-for lack of personal jurisdiction. In the same order, the court denied the Rule 12(b)(6) motions to dismiss that were ...


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