NONPRECEDENTIAL DISPOSITION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 June 14, 2018*
Decided June 14, 2018
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17‐3594
HAROLD McKAY, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 3:15‐cv‐01337 SMY‐RJD
SHALIZA ODOM, et al., Staci M. Yandle,
Defendants‐Appellees. Judge.
O R D E R
Harold McKay, a former Illinois prisoner, sued the prison’s dental hygienist and
her employer for violating the Eighth Amendment after a prison dentist did not
promptly implant dentures to replace some extracted teeth. The district court granted
the defendants’ motion for summary judgment. On appeal McKay has abandoned any
argument about the hygienist and has presented no evidence that her employer,
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 17‐3594 Page 2
Wexford Health Sources, condoned an unconstitutional dental policy. So we affirm the
district court’s judgment.
McKay first sought dental care from Dr. Elizabeth Brack, the prison’s dentist,
while he was imprisoned in Illinois in May 2014. Dr. Brack examined McKay, found
that he had severe gum disease, and recommended extracting 11 teeth. She recalls
telling him that he needed extensive restorative treatment before he could receive
partial dentures and that she could not predict how long that treatment would take.
McKay, in contrast, said that Dr. Brack assured him that he would receive partial
dentures before his release date. For purposes of our summary‐judgment review, we
accept McKay’s version. See Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017).
After Dr. Brack extracted McKay’s teeth, he received several follow‐up cleanings
with Shaliza Odom serving as the dental hygienist. McKay repeatedly asked when he
could get his dentures, and she reminded him that he needed to complete his
restorative treatment first. Dr. Brack then found that McKay had some cavities that
needed to be filled before implanting dentures, and she placed him on the waiting list
for non‐emergency fillings. At a later appointment, McKay pointed out that his release
date was approaching, and he expressed his concern that he had not yet received his
dentures. Dr. Brack replied that his health would not be in danger if he were released
without dentures, but that he would need to find an outside dentist to complete his
treatment. McKay filed two grievances about his treatment status, but they were
dismissed. McKay was released in October 2015 without receiving dentures.
McKay sued Odom and Wexford (but not Dr. Brack) under 42 U.S.C § 1983. He
alleged that they violated the Eighth Amendment by making him wait 16 months for
partial dentures, during which time he could chew only on the right side of his mouth.
In later moving for summary judgment, Odom argued that she had no control over the
treatment plan put in place by Dr. Brack. Wexford argued that McKay failed to assert
that any of its policies violated the Constitution. Agreeing with these arguments, the
district judge entered summary judgment for Odom and Wexford. The judge added
that even if Dr. Brack had been named as a defendant, she was not deliberately
indifferent because McKay never reported pain or problems eating.
We review the grant of summary judgement de novo. See Estate of Simpson,
863 F.3d at 745. McKay does not question the district judge’s analysis or cite any
applicable legal authority. We could dismiss the appeal on this ground alone. See FED.
R. APP. P. 28(a)(8)(A); Yasinskyy v. Holder, 724 F.3d 983, 989 (7th Cir. 2013). But we have
No. 17‐3594 Page 3
reviewed the record de novo to assure ourselves that the district court’s decision is
sound. See Estate of Simpson, 863 F.3d at 745. And as we now explain, it is.
McKay’s only argument is about Wexford. Section 1983 does not support a
theory of respondeat‐superior liability against an employer like Wexford. See Shields v.
Illinois Depʹt of Corr., 746 F.3d 782, 796 (7th Cir. 2014). McKay can proceed to trial
against Wexford only if he supplied evidence that “his injury was caused by a Wexford
policy, custom, or practice of deliberate indifference to medical needs, or a series of bad
acts that together raise the inference of such a policy.” Id. He has not supplied evidence
that would support a finding that Wexford is liable. In response to the defendants’
motion for summary judgment, McKay asserted in an affidavit only that he was not
provided medical treatment for his gum disease at any of his nine appointments after
his teeth were extracted. He does not mention any Wexford policy that motivated the
conduct of Dr. Brack or any other Wexford employee.
Moreover, even though we have assumed that Dr. Brack told McKay that he
would receive partial dentures before his release, that statement does not provide a
basis for finding that Wexford is liable for a constitutional violation. Dr. Brack’s
prediction that she would implant dentures before McKay’s release was, as later events
(such as McKay’s unexpected cavities) revealed, incorrect. But an incorrect prediction
may at most suggest negligence, and negligence does not violate the Eighth
Amendment. See Duckworth v. Ahmad, 532 F.3d 675, 679–80 (7th Cir. 2008). Furthermore
even if Dr. Brack’s incorrect prediction could make her liable, her single misstatement
would not make Wexford culpable because “isolated acts of misconduct will not
suffice” to establish an unconstitutional policy. Palmer v. Marion Cty., 327 F.3d 588, 596
(7th Cir. 2003).
AFFIRMED