Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:05-cv-00246-LJM-JMS-Larry J. McKinney, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, MANION and KANNE,Circuit Judges.
Arboleda Ortiz, an inmate on federal death row in Terre Haute, Indiana, is before us for the second time, suing under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He argues, as he did in his first appeal, that Dr. Thomas Webster, the prison's medical director, was deliberately indifferent to his need for eye surgery. We originally reversed the district court's grant of summary judgment on the ground that Ortiz had established fact disputes on the seriousness of his condition and the constitutionality of Dr. Webster's delayed response. Ortiz v. Bezy, 281 F. App'x 594, 598-99 (7th Cir. 2008). The record changed very little on remand, yet the district court granted Dr. Webster's renewed motion for summary judgment. Because the evidence remains insufficient to eliminate the fact disputes that we previously identified, we vacate that decision and remand with instructions that the case proceed to trial.
We assume familiarity with the facts set forth in our first decision. Ortiz, 281 F. App'xat 595-97. Nonetheless, we summarize them here both to illustrate the dispute that has existed since Ortiz filed suit and to demonstrate how the additions to the record on remand merely make that dispute more pronounced.
Shortly after Ortiz was placed in custody in Terre Haute in 2001, a physician determined that he needed eye surgery. Ophthalmologist Jonathan McGlothan examined Ortiz and diagnosed him with pterygia, which is a thin film that covers the eye. Although the condition is often confined to the white part of the eye, Dr. McGlothan noted that it had extended over Ortiz's corneas and that his uncorrected vision was 20/80 as a result. Ortiz complained that, in addition to obscuring his vision, the pterygia caused persistent itching and irritation, and that he often felt like sandpaper was in his eye. Dr. McGlothan described the pterygia as "visually significant," prescribed glasses, and recommended excision. Six months later (but before Dr. Webster became medical director), the prison rejected the request. The note "NO TOWN TRIPS" was handwritten on the recommendation.
Over the next two years, Ortiz continued to complain about his eyes. Two more doctors agreed with the original opinion that surgery was necessary, but the prison still refused the treatment. First, Dr. David George signed off on Dr. McGlothan's recommendation for surgery. Then Dr. D.W. Conner, an optometrist, ob-served that Ortiz's vision had deteriorated to 20/100 and that the pterygia was "causing corneal distortion." Dr. Conner therefore also recommended excision and referred Ortiz back to Dr. McGlothan for surgery. But another optometrist, Dr. Christian Radaneata, thought the condition not sufficiently serious to require surgery and instead prescribed eyedrops and a topical anti-inflammatory.
In May 2003, Dr. Webster, now the prison medical director for about a year, became personally involved in Ortiz's treatment. He reviewed the file containing the opinions of three doctors that surgery was necessary and one that it was not. Based on this information, Dr. Webster then reached his own opinion about Ortiz: with uncorrected vision of 20/100, Ortiz "may need surgery within the next two years." To determine whether Ortiz needed surgery, Dr. Webster decided that further evaluation was needed. Although Ortiz saw a specialist at times over the next two years, as far as the record shows his visual acuity was never measured, and he was not evaluated for further corneal distor-tion despite his continued complaints of redness and irritation.
In a declaration that he furnished in this litigation, Dr. Webster explains that he refused to order surgery in this two-year period as not "medically necessary" because the doctors who had previously examined Ortiz determined that the pterygia was not affecting his vision. But the medical record that Dr. Webster says he consulted contradicts his description of the examining doctors' conclusions. Ortiz's medical file shows that all the doctors who examined him found the pterygia had impaired his vision (Dr. Webster himself knew in May 2003 that Ortiz's vision had deteriorated to 20/100), and the majority of specialists added that it had encroached on the visual axes of his eyes.
Ortiz filed this suit two years later, in 2005, to obtain the surgery and damages for the delay. Over the next three years, with three more specialists urging excision (beyond the three doctors who had recommended it starting in 2001), Ortiz received surgery in stages. In July 2006, on Dr. Webster's request, Ortiz saw an optometrist who noted that the pterygia was continuing to encroach on Ortiz's corneas (as it had been for years) and recommended surgery. Ortiz then went to an ophthalmologist, Dr. Padma Ponugoti, who noted that the pterygia was causing irritation and needed to be removed. A few months later Dr. Ponugoti performed surgery on Ortiz's left eye. The follow-up that Dr. Ponugoti ordered, however, including similar surgical treatment of Ortiz's right eye, was delayed for over a year. Ortiz finally saw Dr. Robert Deitch in March 2008, and he recommended that the pterygia in Ortiz's right eye be removed and that he undergo an additional procedure in both eyes to prevent it from returning. The prison rejected that recommendation in May 2008, but Ortiz got the surgery in June 2008, two weeks after our initial remand.
In this lawsuit, Ortiz asserts that delay in his treatment was based on deliberate disregard of his documented medical needs. He attributes the indifference to an unofficial prison policy of denying off-site medical care based on an inmate's death-row status. As circumstantial evidence of this policy, he points to the "NO TOWN TRIP" notation on his chart and to affidavits from other deathrow inmates attesting that neither they nor anyone they knew left the facility for medical care between 2001 and 2005.
In our initial decision, we rejected the district court's grant of summary judgment, identifying two genuine fact disputes. We first noted that, "because most of the doctors-including specialists-who examined Ortiz recommended surgery," there was a fact question as to the seriousness of Ortiz's condition. Ortiz, 281 F. App'x at 598. Second, we explained that the rationale Dr. Webster advanced during the litigation for denying surgery (Ortiz's vision was not impaired) was an inaccurate representation of the medical record that he had consulted; we concluded that this gap in reasoning created a fact dispute on the motivation behind Dr. Webster's prolonged refusal to provide surgery. Id. As for the "NO TOWN TRIP" note, we described it as "unex- plained" and said that, viewed in Ortiz's favor, it added to the facts already in dispute on deliberate indifference. Id.
On remand, Dr. Webster added two notable items of evidence. First, he explained the "NO TOWN TRIP" notation in a supplemental affidavit and with a declaration from Debi Lamping, its author. Lamping attested that she made the notation on Ortiz's chart after the initial surgery request was denied and that she merely meant that outside medical care, a "town trip," had been denied for Ortiz. She denied knowledge of a policy that would foreclose off-site medical care for death-row inmates. In his own affidavit, Dr. Webster attested that some inmates had received off-site medical treatment during the relevant time period and that all inmates receive the same level of care regardless of their security status.
The other piece of new evidence came in the form of an expert opinion supplied by Dr. Raj Maturi, a non-treating ophthalmologist. He opined that surgical removal of pterygia "is generally an elective procedure" that does not become necessary "until corneal distortion occurs." He added that, in his view, Dr. Webster's treatment for Ortiz was "within the standard of care at all times" because the pterygia was "mild" and did not require excision until 2006 when Ortiz's vision "dropped" to 20/80 without correction. Instead, Dr. Maturi concluded that the doctors who had recommended surgery acted outside of the standard of care because they did ...