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Glisson v. Indiana Department of Corrections

United States Court of Appeals, Seventh Circuit

February 21, 2017

Alma Glisson, Personal Representative of the Estate of Nicholas L. Glisson, Plaintiff-Appellant,
Indiana Department of Corrections, et al., Defendants-Appellees.

          Argued September 7, 2016

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12-cv-1418-SEB-MJD - Sarah Evans Barker, Judge.

          Before Wood, Chief Judge, and Bauer, Posner, Flaum, Easterbrook, Kanne, Rovner, Williams, Sykes, and Hamilton, Circuit Judges.

          WOOD, Chief Judge.

         Nicholas Glisson entered the custody of the Indiana Department of Corrections on September 3, 2010, upon being sentenced for dealing in a controlled substance (selling one prescription pill to a friend who turned out to be a confidential informant). Thirty-seven days later, he was dead from starvation, acute renal failure, and associated conditions. His mother, Alma Glisson, brought this lawsuit under 42 U.S.C. § 1983. She asserts that the medical care Glisson received at the hands of the Department's chosen provider, Correctional Medical Services, Inc. (known as Corizon) violated his rights under the Eighth Amendment to the U.S. Constitution (made applicable to the states by the Fourteenth Amendment). A panel of this court concluded that Corizon was entitled to summary judgment in its favor. See Glisson v. Indiana Dep't of Con., 813 F.3d 662 (7th Cir. 2016). The court decided to rehear the case en banc in order to examine the standards for corporate liability in such a case. We conclude that Glisson presented enough evidence of disputed, material issues of fact to proceed to trial, and we therefore reverse the district court's judgment.


         There is no doubt that Glisson had long suffered from serious health problems. He had been diagnosed with laryngeal cancer in 2003. In October of that year, he had radical surgery in which his larynx and part of his pharynx were removed, along with portions of his mandible (jawbone) and 13 teeth. He was left with a permanent stoma (that is, an opening in his throat), into which a tracheostomy tube was normally inserted. He needed a voice prosthesis to speak.

         And that was not all. Glisson's 2003 surgery and follow-up radiation left his neck too weak to support his head; this in turn made his head slump forward in a way that impeded his breathing. Because physical therapy and medication for this condition were ineffective, he wore a neck brace. He also developed cervical spine damage. In 2008 doctors placed a gastrojejunostomy tube ("G-tube") in his upper abdomen for supplemental feeding. In addition to the problems attributable to the cancer, Glisson suffered from hypothyroidism, depression, and impairments resulting from his smoking and excessive alcohol use. Finally there was some evidence of cognitive decline.

         Despite all this, Glisson was able to live independently. He learned to clean and suction his stoma. With occasional help from his mother, he was able to use his feeding tube when necessary. He was able to swallow well enough to take his food and other supplements by mouth most of the time. His hygiene was fine, and he helped with household chores such as mowing the lawn, cleaning, and cooking. He also provided care to his grandmother and his dying brother.

         The events leading up to Glisson's death began when a friend, acting as a confidential informant for the police, convinced Glisson to give the friend a prescription painkiller.[1]Glisson was charged and convicted for this infraction, and on August 31, 2010, he was sentenced to a period of incarceration and transferred to the Wayne County Jail. (All relevant dates from this point onward were in 2010.) Before sentencing, Dr. Richard Borrowdale, one of his physicians, wrote a letter to the court expressing serious concern about Glisson's ability to survive in a prison setting. Dr. Borrowdale noted Glisson's severe disabilities from cancer and alcohol dependence, his difficulty speaking because of the laryngectomy, his trouble swallowing, his severe curvature of the spine (kyphosis), and his problems walking. The conclusion of the letter was, unfortunately, prophetic: "This patient is severely disabled, and I do not feel that he would survive if he was incarcerated." Dr. William Fisher, another of Glisson's physicians, also warned that Glisson "would not do well if incarcerated."

         Many of Glisson's disabilities were apparent at a glance, and his family tried to prepare him (and his custodians) for his incarceration. They brought his essential supplies, including his neck brace and the suction machine, mirror, and light that he used for his tracheostomy, to the Jail. When he was transferred on September 3 to the Reception Diagnostic Center of the Indiana Department of Corrections ("INDOC"), the Jail sent along his mirror, light, and neck brace. It is unclear what happened next to these items, but Glisson never received the neck brace, nor was he given a replacement.

         At INDOC's Diagnostic Center, Glisson first came under Corizon's care, when upon his arrival Nurse Tim Sanford assessed his condition. Sanford recorded Glisson's account of his medication regimen and noted that Glisson appeared to be alert and able to communicate. Sanford noted that Glisson had a tracheostomy that had to be suctioned six times a day, and that Glisson had a feeding tube but that he took food through it only when he had difficulty swallowing. While Glisson was at the Diagnostic Center, medical personnel noted occasional problems with his blood pressure, pulse, and oxygen saturation level, as well as some signs of confusion and anger.

          Several different medical providers saw Glisson while he was at the Diagnostic Center: Drs. Jill Gallien and Steven Conant (a psychiatrist); Nurses Rachel Johnson, Carla DeWalt, and Victoria Crawford; and mental health counselor Mary Serna. In addition, Health Services Administrator Kelly Kurtz contacted Glisson's mother to ask about his medical history and his behavior at home. Her inquiry was the only one that occurred throughout Glisson's incarceration, and there is no evidence that Mrs. Glisson's response (that Glisson did not behave oddly at home) was communicated to anyone else.

         Ultimately the Diagnostic Center decided to place Glisson in INDOC's Plainfield Correctional Facility. Glisson was transferred there on September 17; an intake examination performed by Licensed Practical Nurse (LPN) Nikki Robinson revealed that he weighed 119 pounds and had normal vital signs. On September 21, Dr. James Mozillo ordered Glisson to be placed in the general population with a bottom-bunk pass.

         Upon reaching Plainfield, Glisson's medical care-again furnished by Corizon-began to resemble the blind men's description of the elephant. A host of Corizon providers at Plain-field had a hand in Glisson's treatment. As far as we can glean from the record, they include the following: Drs. Malak Hermina (the lead physician at Plainfield), Mozillo, and Conant (again); Director of Nursing Rhonda Kessler; Registered Nurses (RNs) Mary Combs, Carol A. Griffin, Melissa Pearson, and Jennifer Hoffmeyer; LPNs Robinson, Allison M. Ortiz, and Paula J. Kuria; and mental health professional Catherine Keefer. Andy Dunnigan, Plainfield's Health Services Administrator, also played some part. We assume for the sake of argument here that none of these people, and none of the individual providers at the Diagnostic Center, personally did anything that would qualify as "deliberate indifference" for Eighth Amendment purposes. Most of them had so little to do with Glisson that such a conclusion is quite unlikely. The question before us is instead whether, because of a deliberate policy choice pursuant to which no one was responsible for coordinating his overall care, Corizon itself violated Glisson's Eighth Amendment rights.

         Predictably, given the number of actors, Glisson's care over the first few weeks of his residence at Plainfield was disjointed: no provider developed a medical treatment plan, and thus no one was able to check Glisson's progress against any such plan. In fact, for his first 24 days in INDOC custody (including the time at the Diagnostic Center), no Corizon provider even reviewed his medical history. Granted, before Glisson arrived at Plainfield, Dr. Gallien had requested his medical history on September 10. But there is no evidence that anyone responded to this request. Indeed, no one at the Center followed up, nor did anyone at Plainfield do anything until September 27, when Dr. Hermina saw Glisson and asked for the records; he received them within several hours.

         At that visit, Dr. Hermina made an alarming observation about Glisson's weight. As we noted, when Glisson arrived at Plainfield he weighed only 119 pounds. On September 27, Dr. Hermina noted that Glisson appeared cachectic, which means undernourished to the point that the person has physical wasting and loss of weight and muscle mass-in a word, he is starving. See MedicineNet, Definition of Cachectic, (last visited on February 21, as were all websites cited in this opinion). Although the medical personnel at the

          Diagnostic Center had ordered the nutritional supplement Ensure for Glisson, and apparently that order carried over to Plainfield, Dr. Hermina ordered a second nutritional supplement, Jevity. Remarkably, it appears that he did not weigh Glisson-at least, there is no record of a September 27 weight. He did, however, review Glisson's earlier lab work, which showed anemia and high creatinine (a sign of impaired kidney function). Later that day, Dr. Hermina reviewed the medical records he had just received and learned that Glisson suffered from (among other things) kyphosis and back pain (for which he was treated with the opioids OxyContin and Oxycodone), gastroparesis (partial paralysis of the stomach), neck pain, and several mental conditions (depression, poor memory, mild cognitive decline).

         As time went on, along with the physical problems of cachexia, renal decline, and neck weakness (in part attributable to the fact that no one ever gave him his neck brace), Glisson's mental status was deteriorating. Dr. Hermina wondered if Glisson belonged in the psychiatric unit at a different prison, but he displayed no awareness of the fact that Dr. Conant had just conducted a mental-health evaluation on Glisson on September 23. Dr. Conant's findings were worrying, but no one connected them with any of the physical data on file, such as Glisson's tendency to have inadequate oxygen profusion and his cachexia. Dr. Conant found that Glisson was restless, paranoid, delusional, hallucinating, and insomniac. He placed Glisson under close observation and settled on a diagnosis of unspecified psychosis; he saw no need for medication. (This too is odd: Glisson was actually already on psychotropic medications; while at Plainfield he was abruptly switched from Effexor to Prozac without any evaluation, weaning, or monitoring. The two drugs work quite differently, and Dr. Diane Sommer, the expert retained by Glisson's estate, concluded that "[t]his abrupt change in medication contributed to [Glisson's] acute decline in function.")

         Had Dr. Conant looked at something resembling a complete chart, he would have seen that Glisson had no history of psychosis, and he might have considered, as the post-mortem experts did, the more obvious possibility that lack of oxygen and food was affecting Glisson's mental performance. Dr. Conant noted that Glisson had been experiencing hallucinations, which the doctor thought were caused by morphine. This observation was reached in an information vacuum. In fact, as the medical records Dr. Hermina reviewed just days later show, Glisson had been on narcotic medication without adverse effects for quite a while prior to his incarceration. Had Dr. Conant known of Glisson's medical history, he would have known that morphine was an unlikely cause for the hallucinations and he would have looked further.

         The Corizon providers never took any steps to integrate the growing body of evidence of Glisson's malnutrition with his overall mental and physical health. The physical signs were clear even before he arrived at Plainfield. On September 4, Glisson's urinalysis results showed the presence of ketones and leukocytes. Dr. Sommer's report notes that "[k]etones suggest the presence of other medical conditions such as anorexia, starvation, acute or severe illness and hyperthyroidism to name a few." The Corizon staff at the Diagnostic Center did nothing to address either potential problem, even though a second urine sample taken on September 5 showed an increase in ketones and leukocytes. No physician reviewed either of those lab results, despite the fact that a note dated September 5 says that Glisson was not eating and seemed confused. Rather than probing the signs of infection, starvation, and dehydration further, the staff opted to put Glisson in the psychiatric unit under suicide watch.

         The blood work at the Center continued to raise red flags. On September 9, it came back with signs of abnormal renal function. Although Glisson met with Dr. Gallien the next day, no one looked at the bloodwork until ten days after Glisson's transfer to Plainfield, at his September 27 visit with Dr. Hermina. At that point, Dr. Hermina ordered fasting labs for September 28. When the results were returned on September 29, they showed acute renal failure-information that prompted Dr. Hermina to send Glisson immediately to Wishard Hospital. Taking the facts favorably to Glisson, the record indicates that he was already slipping into renal distress as early as September 4 or 9, and that the uncoordinated care Corizon furnished was a central cause for the increasing acuteness of his condition.

         Glisson was discharged from Wishard and returned to Plainfield shortly after midnight on October 7. The discharge summary included the following diagnoses:

• Acute renal failure/acidosis/hyperkalemia on top of chronic kidney disease
• Acute respiratory insufficiency/pneumonia
• Tracheoesophageal voice prosthesis replacement
• Hypothyroidism
• Malnutrition
• Squamous cell carcinoma of left ...

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