NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 20, 2012*
Decided August 20, 2012
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐2740
DAVID C. GEVAS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 C 3074
JACQUELINE MITCHELL, TERRY
MCCANN, and WILLIAM SELMER, Ronald A. Guzmán,
Defendants‐Appellees. Judge.
O R D E R
David Gevas, an Illinois inmate, waited four months for the prison dentist who
diagnosed his painful abscessed molar to extract the tooth. Gevas filed suit under 42 U.S.C.
§ 1983 claiming that the dentist, along with the administrator of the prison’s Health Care
Unit and several other defendants, were deliberately indifferent to his suffering in violation
of the Eighth Amendment. The district court refused to let the case proceed against the
dentist or the HCU administrator, though the dentist’s supervisor, who eventually was
found not liable at trial, pointed to both as responsible parties. We conclude that the court
abused its discretion in dismissing the dentist and administrator, and remand for further
proceedings against those defendants.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 11‐2740 Page 2
Gevas was pro se when he sued in May 2008. He amended his complaint twice in
October 2008, and at that time the defendants included Wexford Health Sources along with
the company’s on‐site medical director, Dr. Partha Ghosh, and the Wexford dentist—as yet
unidentified and named only as “John Doe”—who treated Gevas. Also named as
defendants were the prison’s warden, a grievance officer, and Dr. Jacqueline Mitchell, the
acting head of the HCU and herself a dentist. (Our list excludes several other defendants
unconnected to this appeal.)
In his second amended complaint Gevas alleged that on January 30, 2007, he was
treated by the dentist for pain in an upper right molar. The dentist took x‐rays, diagnosed
an infection at the root, and told Gevas that the tooth would have to be extracted. He
prescribed an antibiotic and pain killer and told Gevas that the tooth would be pulled after
the antibiotic had run its course. But Gevas did not receive follow‐up care even after taking
the antibiotic and exhausting his supply of pain medication. His condition quickly
worsened, an abscess developed, and he experienced difficulty eating and sleeping because
of the extreme pain. He also was disciplined when the pain kept him from reporting for a
job assignment. From mid‐February to mid‐March, Gevas asked medical staff for dental
care. In March he also wrote to the dental office requesting immediate treatment and filed
two grievances requesting a dental appointment. An unknown staff member scheduled
Gevas for a March 28 appointment, but he asserts that a guard refused to let him attend. He
wrote again to the dental office requesting care, and continued to pursue relief through the
grievance process. Gevas finally saw the treating dentist on June 5, 2007, and the dentist
removed his molar.
In this complaint, Gevas alleged that the warden and Dr. Mitchell, the HCU
administrator, had failed to follow procedures to address his dental needs. Gevas attached
the prison’s responses to his grievances, which show that on April 12 the warden had
declared those grievances to be routine and said they should be processed through normal
channels. That same day, and again on April 27, Gevas’s counselor sent the
grievances—which disclose that on January 30 the dentist had diagnosed an abscessed tooth
that must be pulled—to Dr. Ghosh, the Wexford medical director, for review and response.
In addition, according to Gevas, the grievances also were received by Dr. Mitchell on April
27 (the grievances are stamped “received” by HCU on that date). A month later the
defendant grievance officer received a written reply from Dr. Ghosh (dated April 28)
explaining that Gevas “saw” a dentist in January and then was a no‐show for his
appointment on March 28, 2007. Dr. Ghosh said nothing about the reason for the January
visit or the dentist’s conclusion that the infected molar must be removed. He instead punted
the matter back to Dr. Mitchell and wrote that Gevas should contact her for any dental
issues. Gevas did not see this response until July, however, because it took that long for the
No. 11‐2740 Page 3
grievance officer to conclude, and the warden to agree, that all was well in view of what
Dr. Ghosh had written. And by then Gevas had received the dental treatment prescribed in
January.
The defendants moved to dismiss Gevas’s second amended complaint on the ground
that it failed to state a claim. The warden and grievance officer argued that their roles were
limited to reviewing Gevas’s grievances and that they could not have been deliberately
indifferent for deferring to the medical staff. Dr. Mitchell conceded that she did have
responsibility for providing medical care, but she argued that Gevas had his tooth extracted
only 38 days after she became involved and therefore she could not be liable. The district
court, without even acknowledging that Dr. Mitchell had described herself as part of the
prison’s “medical personnel,” reasoned that she and the warden and the grievance officer
were “supervisory and grievance officials” who investigated Gevas’s grievances, referred
him to medical providers, and personally played no part in treating his abscessed tooth. The
court dismissed those defendants and directed Wexford and Dr. Ghosh to answer Gevas’s
complaint. Days after that ruling in March 2009, counsel entered an appearance on Gevas’s
behalf. Discovery was set to close at the end of October 2009.
Five weeks before the close of discovery, Gevas (through counsel) moved to extend
the discovery deadline and to file a third amended complaint. Gevas sought to reinstate his
claims against the warden and Dr. Mitchell, and for the first time identified “John Doe,” the
treating dentist, as “Dr. Selmer.” According to counsel, the Department of Corrections
finally had disclosed medical records with that name but only after being served with a
subpoena. Gevas added in a pro se submission that he had been asking for those records, to
no avail, since before filing his complaint more than a year earlier. In the proposed
amended complaint, Gevas offered few new facts, but he did say explicitly that Dr. Mitchell
was not being sued in a supervisory capacity but because, as the head of the HCU, it was
her job to assure that needed medical care was scheduled. Gevas alleged that Dr. Mitchell
had failed to fulfill her responsibility to schedule him for an emergency appointment with
the dentist. Based on her dental training and a Department of Corrections administrative
directive, Gevas continued, Dr. Mitchell would have known that an abscessed molar
required urgent care.
In early October the district court allowed Gevas to file his third amended complaint
but invited the defendants to move for reconsideration. Later that month counsel for the
warden and Dr. Mitchell did so, and though Dr. Mitchell previously had acknowledged her
position within the prison’s medical staff, she now asserted that Gevas’s allegations against
her, like his allegations against the warden, concerned only the handling of prison
grievances. (No one said anything about the naming of Dr. Selmer.) The warden and
Dr. Mitchell argued that Gevas had waited too long—a few weeks before the close of
No. 11‐2740 Page 4
discovery and six months after counsel entered her appearance—to amend his complaint.
The defendants would be prejudiced, they said, by having to exchange new rounds of
written discovery, depose Gevas again, and depose the warden and Dr. Mitchell. Moreover,
defense counsel argued, the revised complaint still failed to allege personal involvement by
the warden or Dr. Mitchell, and so amendment would be futile.
For more than three months that motion remained pending, and during the interim
the parties proceeded on the assumption that Gevas’s third amended complaint was the
operative complaint. During that time Dr. Ghosh moved to dismiss the third amended
complaint, he and Wexford filed answers, and the district court granted the joint motion of
all parties to continue the discovery deadline until the end of December 2009. Dr. Mitchell
was deposed, and although the lawyers for the nonparties had agreed on a date to depose
Dr. Selmer, Wexford stalled a September 1 interrogatory seeking his full name and address
until the district court granted Gevas’s motion to compel until early December.
Then in February 2010 the district court granted the motion and struck the third
amended complaint. The court reasoned that Gevas had unduly delayed seeking to amend,
that the defendants would be prejudiced, and that the proposed amendment was futile.
Gevas could not justify his delay, the court asserted, because the latest version included
nothing new about the involvement of the warden or Dr. Mitchell. And allowing the
reinstated claims to proceed at that late date, the court added, would prejudice the
defendants by requiring them to spend more time and money litigating. The court did not
mention Dr. Selmer.
Gevas countered with his own motion to reconsider, pointing out that the district
court had not given a reason for denying him the opportunity to proceed against
Dr. Selmer. Gevas noted that at screening, see 28 U.S.C. § 1915A, the court had allowed the
claim against Dr. Selmer to proceed even though his name was still unknown, and yet now
that the dentist was identified (at least by surname) the court effectively had dismissed the
claim with prejudice by not letting Gevas add the name to the existing claim. Counsel
recounted that almost 11 months before—just days after entering the case—she had started
serving interrogatories and requests for production to discover the identity of “John Doe”
but got nowhere until the defendants and the Department of Corrections eventually began
complying in the summer and finally, at the end of July, released medical records disclosing
the involvement of “Dr. Selmer.” Gevas added that discovery had continued, and he now
possessed an expert witness’ report criticizing the actions of both Dr. Selmer and Dr.
Mitchell. But the district court, after taking no action for another four months, finally issued
a minute order in late June 2010 denying Gevas’s motion on the ground that Gevas had
failed to exercise diligence during discovery and that allowing him to “add a new party and
No. 11‐2740 Page 5
claim would unduly delay the resolution of this case.” The court did not explain either
conclusion.
Dr. Ghosh and his employer, Wexford, then moved for summary judgment.
Dr. Ghosh argued that he could not have been deliberately indifferent to Gevas’s abscessed
tooth because he knew that Gevas was under the care of the dental staff and that Dr. Ghosh
did not schedule dental appointments. He admitted that Illinois Department of Corrections
Administrative Directive 04.03.102 classified an “acute penapical abscess” as a condition
that requires emergency treatment; the Directive also specifies that any offender
experiencing a dental emergency must receive an examination the following business day.
Dr. Ghosh stated in his deposition that Dr. Mitchell was handling some of the dental
scheduling at that time but that Dr. Selmer likely would have been responsible for
scheduling his own follow‐up appointments. Dr. Mitchell asserted in her deposition that
she had no responsibility for scheduling dental patients while she worked as the HCU
administrator. She did respond to grievances, but it was ultimately Dr. Ghosh’s
responsibility to determine whether treatment was necessary. She too stated that the dental
staff or the dentist himself would be responsible for scheduling follow‐up for patients. As a
dentist, Dr. Mitchell admitted, she would have scheduled a follow‐up extraction of an
infected molar like Gevas’s within a week of his first appointment.
The district court concluded that Gevas’s evidence was inadequate for Wexford to be
liable under § 1983 but reasoned that whether Dr. Ghosh had been deliberately indifferent
was a question for the jury. The court reasoned that Directive 04.03.102 classifies an acute
abscess as a dental emergency requiring an examination within one business day, Gevas’s
abscess had worsened in February, he filed emergency grievances in March seeking
previously prescribed treatment, and Ghosh reviewed those grievances and his medical file
in April and yet did nothing after learning that Gevas had not had any dental treatment
since January. Inexplicably, the district court also noted at the beginning of its written
decision that Gevas had never identified or served “John Doe” and thus he would be
dismissed as a defendant. At trial Dr. Ghosh, who moved in limine to prevent Gevas from
presenting evidence of wrongdoing by Dr. Selmer and Dr. Mitchell or suggesting that he
could be responsible for their actions, was found not liable.
On appeal Gevas does not take issue with the outcome of the trial but instead
contends that Dr. Selmer, Dr. Mitchell, and the warden should have been tried along with
Dr. Ghosh. The district court abused its discretion, Gevas maintains, by not allowing his
amended complaint to proceed.
A district court should freely give leave to amend a complaint when justice requires.
FED. R. CIV. P. 15(a)(2); Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 943 (7th
No. 11‐2740 Page 6
Cir. 2012); Johnson v. Cypress Hill, 641 F.3d 867, 871–72 (7th Cir. 2011). “[W]hile a court may
deny a motion for leave to file an amended complaint, such denials are disfavored.” Bausch
v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010). A district court may deny leave to file an
amended complaint in the case of undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, or where the
amendment would be futile. Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009);
Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). We review the court’s denial of a motion
to amend for abuse of discretion. Agnew v. Nat’l Collegiate Athletic Assʹn, 683 F.3d 328, 347
(7th Cir. 2012); Carroll v. Stryker Corp., 658 F.3d 675, 684 (7th Cir. 2011).
We start with Dr. Selmer. The district court asserted that Gevas had failed to
diligently engage in discovery to identify the “John Doe” dentist. Dr. Selmer echoes that
contention in this court, and even represents to us that “[n]ot once” during those months
did Gevas or his lawyer “engage in discovery to learn of Dr. Selmer’s identity.” Our review
of the record shows, however, that the district court was mistaken and that Dr. Selmer’s
brief in this court is, at a minimum, grossly inaccurate. What the record establishes
conclusively is that, before he even filed his lawsuit, Gevas had written three letters to
prison administrators asking for copies of his medical records, and each time was met with
a form response saying that “Medical Records” had put him on a “list” for production.
Those requests, Gevas explained, had yielded one page pertaining to the dental care he
received, and that document did not mention Dr. Selmer. It was only after counsel became
involved that Gevas received the medical records identifying Dr. Selmer as his treating
dentist, and even for those records counsel needed a subpoena because her requests for
production were ignored. What’s more, the medical records from the prison did not give
Dr. Selmer’s first name, and in September 2009 when counsel served an interrogatory
asking for that information from the lawyers representing Wexford—the same lawyers who
now say that “not once” did Gevas or his lawyer engage in such discovery—counsel was
ignored, even after repeated follow‐up requests to Wexford’s lawyers. It took an order from
the district court compelling production before Wexford reacted. So if there was delay in
obtaining Dr. Selmer’s name, it was because Wexford—his former employer—and the
Department of Corrections stonewalled Gevas, not because Gevas and his lawyer were
dilatory.
Moreover, “delay on its own is usually not reason enough for a court to deny a
motion to amend.” Johnson, 641 F.3d at 872; see Joseph v. Elan Motorsports Tech. Racing Corp.,
638 F.3d 555, 558–59 (7th Cir. 2011) (explaining that district court should have permitted
amendment to replace mistakenly named affiliate with actual corporate defendant); Dubicz
v. Commonwealth Edison Co., 377 F.3d 787, 792–93 (7th Cir. 2004). Gevas sought to add
Dr. Selmer within the two‐year statute of limitations, which began to run in October 2007
No. 11‐2740 Page 7
when the Administrative Review Board finalized Gevas’s grievance process. See 735 ILCS
5/13‐202; Gomez v. Randle, 680 F.3d 859, 864 n.1 (7th Cir. 2012); Dominguez v. Hendley, 545
F.3d 585, 588 (7th Cir. 2008). Discovery had not yet closed, and Gevas’s lawyer had been in
the case for only six months. The other defendants did not explain in the district court, nor
does Dr. Selmer elucidate on appeal, how any of them would have been prejudiced by
allowing the claim against Dr. Selmer to go forward at that time. Gevas’s original complaint
put the named defendants—including Dr. Selmer’s boss and his corporate employer—on
notice that Gevas intended to sue the Wexford dentist who treated him. Everyone except
Gevas knew who that dentist was, and the suggestion that the named defendants were
prejudiced because it took time and effort for Gevas to learn what they always knew is
frivolous. During the months that the third amended complaint was the operative
complaint (between October 2009 and February 2010), the parties deposed Dr. Ghosh and
Dr. Mitchell, who discussed their knowledge of Dr. Selmer’s involvement in Gevas’s care.
And that is because, as is evident from their position at summary judgment, Wexford and
Dr. Ghosh were focused on Dr. Selmer’s involvement in promoting their own defense. Even
after Dr. Selmer had been dismissed, his conduct still played a prominent part as the case
continued for another 17 months. Dr. Selmer does not even suggest that he would have been
prejudiced by allowing the claim against him to go forward, nor do any of the other
defendants suggest that their own efforts would have been made more difficult by his
presence. So in the end, only Gevas was prejudiced by the district court’s ruling, since the
statute of limitations already had expired before he learned that his third amended
complaint would be stricken. That ruling, we conclude, was an abuse of discretion.
The warden and Dr. Mitchell are more difficult. A district court may deny a motion
to amend if the amendment would not cure the original deficiencies, or could not survive a
motion to dismiss. Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008); Crestview Vill.
Apartments v. U.S. Dep’t of Hous. and Urban Dev., 383 F.3d 552, 558 (7th Cir. 2004). That
limitation on amendment is dispositive for the warden. Prison directors and wardens are
“entitled to relegate to the prison’s medical staff the provision of good medical care.” Burks
v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009); see George v. Smith, 507 F.3d 605, 609–10 (7th
Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not cause or
contribute to the violation.”); Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006); Greeno v.
Daley, 414 F.3d 645, 656 (7th Cir. 2005). Gevas alleges no personal involvement by the
warden outside of the grievance process, and for that reason his third amended complaint,
just like the previous iterations, fails to state a claim against the warden. That claim was
properly dismissed.
Adding Dr. Mitchell back into the case, however, would not have been a futile
gesture because the district court never should have dismissed the claim against her in the
first place. In his second amended complaint, Gevas alleged that Dr. Mitchell knew about
No. 11‐2740 Page 8
his dental problems and failed to get him the required medical care. This was enough to
state a claim. See Swanson v. Citibank, N.A., 614 F.3d 400, 409–10 (7th Cir. 2010). As we said
in Burks, 555 F.3d at 594, an inmate’s allegation “that he repeatedly alerted medical
personnel to a serious medical condition, that they did nothing in response, and that
permanent injury ensued, is enough to state a claim on which relief may be granted—if it
names the persons responsible for the problem.” Dr. Mitchell initially acknowledged her
role as a member of the medical staff, and in moving to dismiss, her only defense to Gevas’s
claim was the preposterous assertion that she could not be held responsible under the
Eighth Amendment since, even without her help, Gevas somehow got his tooth extracted
after just 38 more days of pain. See McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)
(delays in referring inmate to dentist, to oral surgeon, and ENT specialist over the course of
several months while inmate continued to suffer significant pain and his condition
deteriorated was sufficient to state a claim of deliberate indifference); Berry v. Peterman, 604
F.3d 435, 442 (7th Cir. 2010) (one‐month delay in referring inmate to dentist created issue of
material fact about prison doctor’s deliberate indifference); Boyd v. Knox, 47 F.3d 966 (8th
Cir. 1995) (failure to send referral for dental care for three weeks after observing inmate’s
swollen and infected mouth, coupled with knowledge of inmate’s suffering, could support a
finding of an Eighth Amendment violation).
In the district court Dr. Mitchell did not argue—as she does in this court—that
passing the file on to Dr. Ghosh would have been an appropriate response to learning that
an abscessed tooth had not been extracted ten weeks after the diagnosis. Dr. Mitchell is a
practicing dentist, and when deposed she conceded that the extraction should have taken
place within a week, and she also conceded that Directive 04.03.102 required her to take
immediate action. Moreover, we reject Dr. Mitchell’s contention in this court that she could
not have known that Gevas had a serious medical condition because she “was aware from
the response to his grievance that he did not attend” the dental appointment schedule for
March 28, 2007. In fact, there is no evidence that Dr. Mitchell ever saw that response from
Dr. Ghosh, and, in fact, what the record shows is that no one saw that response until May 31,
more than a month after Dr. Mitchell allegedly learned about Gevas’s untreated abscess.
And, finally, in his third amended complaint, Gevas adds that Dr. Mitchell had some
responsibility for scheduling the follow‐up dental appointment, an allegation that later was
borne out by Dr. Ghosh’s deposition. All of this was more than enough to state a claim, and
the dismissal on that basis was an abuse of discretion.
Anticipating this conclusion, Dr. Mitchell argues in the alternative that we should
supplement the record with the trial transcript since, in her view, the jury’s verdict might
preclude the claim against her. But Dr. Mitchell—whose lawyers are from the same office
that represented other defendants at trial—doesn’t say that the trial evidence did undermine
Gevas’s case against her; what she says is that Gevas should be faulted for not signaling that
No. 11‐2740 Page 9
her lawyers perhaps should obtain and review the trial transcript. According to Dr.
Mitchell, since Gevas did not order a transcript and purportedly failed to serve her with a
statement of the issues he intended to raise in this appeal, see FED. R. APP. P. 10(b)(3)(A), she
was unable “to order any portion of the trial transcript . . . necessary to dispute the issues
involved.” This contention is meritless. In his notice of appeal Gevas could not have been
clearer that he intended only to challenge the district court’s refusal to allow his third
amended complaint to proceed. If that document was not enough to alert Dr. Mitchell that
Gevas did not need, and would not obtain, the trial transcript, then surely Gevas’s motion
asking us to narrow the case caption was enough to put Dr. Mitchell on notice: Gevas wrote
that “[n]o appeal has been taken from” the judgment on the jury verdict, and that the
defendants who went to trial thus “have no interest in this appeal.” Those steps satisfied
Rule 10(b)(3)(A), and if the record is inadequate to support an alternative argument by Dr.
Mitchell, the fault is hers, not Gevas’s. See United States ex rel. Cal’s A/C & Elec. v. The Famous
Constr. Corp., 220 F.3d 326, 330 (5th Cir. 2000). Dr. Mitchell has not briefed, and thus has
waived, any contention that the outcome of the trial makes a remand unnecessary.
Likewise, she has waived any contention that the evidence developed during discovery
makes unlikely the prospect of Gevas overcoming a motion for summary judgment. Those
questions are not before us.
Accordingly, the judgment of the district court dismissing Dr. Selmer and
Dr. Mitchell is VACATED, and the case is REMANDED with instructions to reinstate
Gevas’s third amended complaint as against those two defendants. In all other respects the
judgment is AFFIRMED.