Submitted February 21, 2017 [*]
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 3563 - John
W. Darrah, Judge.
Wood, Chief Judge, and Posner and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
2014, Herbert Diggs, an Illinois prisoner, sued three doctors
and the former warden of State-ville Correctional Center,
asserting principally that they were deliberately indifferent
to a full tear in his right knee's anterior cruciate
ligament ("ACL"). The tear had been diagnosed in
2009. When he filed suit in 2014 Diggs was (and for all we
know he still is) waiting for surgery to repair the tear. The
district court granted summary judgment for the defendants.
We affirm in part and vacate and remand in part.
we are reviewing a grant of summary judgment, we consider
facts that are undisputed, and where the evidence conflicts,
we consider the version more favorable to plaintiff Diggs as
the non-moving party. We also give him the benefit of
reasonable inferences from the evidence. White v. City of
Chicago, 829 F.3d 837, 841 (7th Cir. 2016). Diggs
injured his knee in a fight with a cellmate in 2006, and for
three years his ACL tear went undiagnosed. In the interim, he
repeatedly complained to medical staff about knee pain,
swelling, and instability (fourteen times he orally requested
treatment from medical staff), for which they gave him pain
2009, Dr. Parthasarathi Ghosh, the prison's medical
director, saw Diggs after he complained of right-knee
instability. Dr. Ghosh recommended that Diggs be assigned to
a lower bunk on a lower floor and ordered an MRI. The
following month Dr. Ghosh referred Diggs to the University of
Illinois-Chicago Medical Center ("UIC") for the
MRI, which revealed that his right ACL had a complete tear.
Dr. Ghosh then got approval from Wexford Health Sources, Inc.
(the private company that contracts with Illinois to provide
medical care to prisoners) for Diggs to receive orthopedic
follow-up at UIC. Wexford's approval is required whenever
an inmate needs outside medical care.
October 2009, Diggs had his first of three visits with Dr.
Alfonso Mejia, an orthopedist at UIC who is not a defendant
in this case. Diggs had a range of motion in his knee of zero
to ninety degrees, which Dr. Mejia thought was too stiff for
ACL surgery. Dr. Mejia explained that Diggs needed "to
be made into a better preoperative candidate" before
being evaluated for knee surgery. Dr. Mejia recommended
ibuprofen, a crutch, "extensive aggressive physical
therapy" and a follow-up appointment in four to six
weeks. A month later, at Dr. Ghosh's request, Wexford
pre-approved knee surgery for Diggs. From a constitutional
standpoint, so far, so good.
then, notwithstanding Dr. Mejia's recommendations, Diggs
received no physical therapy and no medical follow-up. In
February 2010, Diggs complained to Dr. Ghosh of continuing
knee pain. Dr. Ghosh taught Diggs stretching exercises that
he could perform in his cell, and he expanded Diggs's
medical permit to include a crutch, a knee sleeve, and
special boots. Dr. Ghosh did not understand why the
pre-approved surgery had not taken place, so he obtained
approval from Wexford to have Diggs follow up with Dr. Mejia
regarding the reason for the delay.
visit in July 2010, Diggs told Dr. Mejia that he had not
received any physical therapy for his knee in the past nine
months, and Dr. Mejia noted that his range of motion had
decreased slightly to ten to eighty degrees. Dr. Mejia
recommended that Diggs receive physical therapy before being
evaluated for surgery. Dr. Ghosh noted Mejia's
recommendation and promptly referred Diggs to the physical
therapist, an outside contractor who came to the prison twice
weekly. According to the physical therapist's notes,
Diggs steadily improved over the next two months and by
October 2010 was "ready for surgery." Dr. Ghosh
initially approved the physical therapist's
recommendation for surgery, but he later decided to wait and
to reevaluate the situation depending on whether Diggs
continued to complain about pain.
two years passed, during which Diggs had no follow-up. Dr.
Ghosh renewed Diggs's medical permit in February 2011,
but otherwise took no further action. Three months later, Dr.
Imhotep Carter replaced Dr. Ghosh as the prison's medical
director, and he did not examine Diggs for nearly a year. In
the meantime, Diggs regularly complained about his knee pain
to other medical staff. When Dr. Carter examined Diggs in
March 2012, he learned of Diggs's knee injury noted
Diggs's use of a crutch, and renewed his medical permits.
But Dr. Carter did not follow up on Diggs's knee, and he
too left the prison two months later.
around this time, Diggs says, he repeatedly told the warden
that his medical issues were being ignored. Marcus Hardy,
Stateville's warden from December 2009 to December 2012,
did not recall having any conversations with Diggs or seeing
him use a crutch. Diggs, on the other hand, said that he told
Warden Hardy on approximately five occasions that he was
awaiting ACL surgery, and that Warden Hardy responded by
telling him to bring the issue up with the medical
department. Shortly after Dr. Carter's departure, Diggs
filed an emergency grievance in which he requested surgery
for his torn ACL and complained that his placement in a
housing unit with stairs effectively confined him to his
cell. Diggs says that Warden Hardy might have seen this
grievance because the warden's office reviews all
emergency grievances. The warden's office decided that
his grievance was not an emergency and returned it to him
four days later. Diggs then resubmitted it through the normal
grievance process. Months later it was denied by the
Administrative Review Board.
meantime Dr. Saleh Obaisi had taken over as medical director.
He assessed Diggs's knee in September 2012. Dr. Obaisi
obtained Wexford's approval to refer Diggs back to UIC
for follow-up. In December 2012, Dr. Mejia again examined
Diggs, who still complained about knee pain and instability,
and the doctor noted that Diggs had completed physical
therapy and now had a normal range of motion (zero to 125
degrees). Dr. Mejia, with Dr. Obaisi's approval, then
referred Diggs to another orthopedist at UIC for a surgical
March 2013, Diggs saw Dr. Samuel Chmell, an orthopedist at
UIC, who recommended (1) that Dr. Obaisi try to find a
different hospital that had a physician who was willing to
perform ACL reconstruction surgery on inmates (since the
doctors at UIC would not) and (2) that Diggs receive more
physical therapy for the time being. Dr. Obaisi, however, did
not authorize any physical therapy. ...