NONPRECEDENTIAL DISPOSITION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 September 22, 2015*
Decided September 25, 2015
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14-‐‑3070 Appeal from the United
States District Court for the
RAMON MONTAGUE, Northern District of Illinois,
Plaintiff-‐‑Appellant,
Eastern Division.
v.
No. 11 C 5080
WEXFORD HEALTH SOURCES, INC., George M. Marovich, Judge.
Defendant-‐‑Appellee.
Order
Ramon Montague, in prison following his conviction for murder, was diagnosed
with colonic cancer. Surgery was successful; the cancer had not metastasized. He sued
several prison physicians under 42 U.S.C. §1983, contending that they violated the
Eighth Amendment by delaying medical evaluations and treatment. He also sued Wex-‐‑
ford Health Sources, which employed the physicians and manages medical care in Illi-‐‑
nois’s prisons, contending that it has a policy of imposing pointless delays on the con-‐‑
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 14-‐‑3070 Page 2
duct of medical procedures that occur outside the prison. The district court first granted
judgment in favor of all the individual defendants and then awarded summary judg-‐‑
ment to Wexford, ruling that the evidence would not permit a reasonable jury to find
that it has a policy or practice of pointless delay. 2014 U.S. Dist. LEXIS 102700 (N.D. Ill.
July 28, 2014). Montague filed an appeal limited to Wexford.
This circuit has held that private corporations are treated the same as public organi-‐‑
zations for the purpose of the principle, announced in Monell v. New York City Dep’t of
Social Services, 436 U.S. 658 (1978), that §1983 does not authorize vicarious liability. See,
e.g., Iskander v. Forest Park, 690 F.2d 126 (7th Cir. 1982); Hahn v. Walsh, 762 F.3d 617 (7th
Cir. 2014). Montague asks us to overrule Iskander and similar decisions, but that could
not do him any good. There cannot be vicarious liability without primary liability. The
individual defendants all prevailed in this suit, so there is no constitutional tort for
which Wexford could be vicariously liable. See Los Angeles v. Heller, 475 U.S. 796 (1986).
The claim directly against Wexford is that it has a policy of delaying referrals to (or
consultations with) medical personnel outside the prison. It is not clear why such a pol-‐‑
icy would be to Wexford’s advantage; unwarranted delay in obtaining medical assis-‐‑
tance leads to medical complications that drive up the eventual cost. Moreover, the dis-‐‑
trict judge pointed out that most of the outside referrals from Montague’s prison are to
the University of Illinois at Chicago, which does not charge Wexford for its services.
2014 U.S. Dist. LEXIS 102700 at *11. But the main problem with Montague’s claim, the
district judge concluded, is lack of evidence: Wexford produced documents showing
the absence of any policy of purposeful delay—though it concedes that bureaucratic is-‐‑
sues, and the need to find a time acceptable to the outside medical provider, sometimes
yield unintended and unwanted delay. (One week of delay is built into Wexford’s poli-‐‑
cy of internal consultation, but Montague does not contend that Wexford’s use of “col-‐‑
legial review” violates the Constitution.) Against Wexford’s documents, Montague re-‐‑
lied on his own opinion and that of some other inmates. But that’s not personal
knowledge of Wexford’s practices, so it does not count as evidence. Montague pointed
to a five-‐‑month delay between one referral and the outside consultation in his own situ-‐‑
ation, but Wexford observed that the next procedure (a colonoscopy) occurred within
two weeks, and surgery occurred less than a month after the colonoscopy revealed a
cancer. One instance of apparently unnecessary delay does not show a policy. See Cal-‐‑
houn v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005).
Montague offered better affidavits in support of a motion for reconsideration—
though these, too, lack evidence about Wexford’s policies, as opposed to evidence that
some other prisoners experienced delays. Wexford contends that most delays are at-‐‑
tributable to the congested schedules of the outside providers. Montague’s evidence is
No. 14-‐‑3070 Page 3
consistent with that explanation. At all events, the district court was entitled to (and
did) disregard this evidence, ruling that Montague should have presented it before the
ruling on Wexford’s motion for summary judgment. Montague blames his lawyer, but
errors and other shortcomings of counsel in civil litigation are imputed to the client and
do not justify relitigation. See, e.g., Choice Hotels International, Inc. v. Grover, 792 F.3d 753
(7th Cir. 2015) (collecting authority).
We agree with the district judge that the record in this suit would not permit a rea-‐‑
sonable trier of fact to find that Wexford has a policy or practice of senseless, and medi-‐‑
cally inappropriate, delay in arranging for consultations and procedures outside prison
walls. The district court’s decision therefore is affirmed.