In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2660
SCOTT HILDRETH,
Plaintiff-Appellant,
v.
KIM BUTLER, LORI OAKLEY, and
WEXFORD HEALTH SOURCES, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:15-cv-00831-NJR-DGW — Nancy J. Rosenstengel, Chief Judge.
____________________
On Petition for Rehearing and Rehearing En Banc
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AUGUST 19, 2020
____________________
Before SYKES, Chief Judge, FLAUM, EASTERBROOK, KANNE,
ROVNER, WOOD, HAMILTON, BARRETT, BRENNAN, SCUDDER,
and ST. EVE, Circuit Judges.
PER CURIAM. On consideration of plaintiff-appellant’s pe-
tition for rehearing and rehearing en banc, filed on June 16,
2 No. 18-2660
2020, a majority of the panel voted to deny rehearing. A judge
in regular active service requested a vote on the petition for
rehearing en banc. A majority of judges in regular active ser-
vice voted to deny the petition for rehearing en banc. Judges
Rovner, Wood, Hamilton, and Scudder voted to grant the pe-
tition for rehearing en banc.
Accordingly, the petition for rehearing and rehearing en
banc is DENIED.
HAMILTON, Circuit Judge, joined by ROVNER, WOOD, and
SCUDDER, Circuit Judges, dissenting from denial of rehearing
en banc.
This case poses important questions about Monell liability
in the context of prison healthcare. We may assume that con-
victed prisoners deserve their punishment in prison, but the
Eighth Amendment imposes limits on that punishment. In
important ways, prisoners are dependent and vulnerable.
Their custodians may not act with deliberate indifference to-
ward serious dangers to their prisoners or to their serious
health needs. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Custo-
dians who learn of such dangers or needs must respond rea-
sonably to them, whether the threat comes from violence at
the hands of other prisoners, Farmer v. Brennan, 511 U.S. 825,
844–45 (1994), hazards in the prison environment, Helling v.
McKinney, 509 U.S. 25, 33 (1993), suicide, Woodward v. Correc-
tional Medical Services, 368 F.3d 917, 929 (7th Cir. 2004), or in-
jury, illness, or pain. Estelle, 429 U.S. at 104–05. See also Ortiz
v. Jordan, 562 U.S. 180, 190 (2011) (Farmer’s requirement of a
reasonable response was clearly established law).
No. 18-2660 3
The question worth deciding en banc in this case is
whether plaintiff Hildreth has come forward with evidence
sufficient to find that defendant Wexford acted with deliber-
ate indifference to his and other prisoners’ serious medical
needs by establishing unreasonable systems (“policies” in the
language of Monell) for refilling and renewing prescriptions
for needed medicines. See Monell v. Dep’t of Social Services, 436
U.S. 658, 691 (1978). As the health care contractor for the
prison, Wexford of course knew of the need for timely and
reliable prescription refills and renewals. As explained in the
panel dissent, a reasonable jury could also find that Wexford
failed to take reasonable steps to meet that need. Hildreth v.
Butler, 960 F.3d 420, 435 (7th Cir. 2020) (Hamilton, J., dissent-
ing). Wexford designed and implemented systems that left
plenty of room for human error or even malice, but without
alerts or safeguards to learn of and correct inevitable prob-
lems with prescription refills and renewals. As a result, plain-
tiff Hildreth repeatedly suffered easily avoidable pain and de-
bilitation, for days or more than a week at a time, while wait-
ing for the medicine he needed for his Parkinson’s disease.
The broader legal question posed here is whether the
panel majority decision is consistent with our recent en banc
decisions on Monell liability in Glisson v. Indiana Dep’t of Cor-
rections, 849 F.3d 372, 382 (7th Cir. 2017) (“There is no magic
number of injuries that must occur before [defendant’s] fail-
ure to act can be considered deliberately indifferent.”), and
J.K.J. v. Polk County, 960 F.3d 367, 380 (7th Cir. 2020) (“‘in a
narrow range of circumstances,’ deliberate indifference could
be found when the violation of rights is a ‘highly predictable
consequence’ of a failure to provide officers what they need
to confront ‘recurring’ situations”), quoting Board of Comm’rs
of Bryan County v. Brown, 520 U.S. 397, 409 (1997), as well as
4 No. 18-2660
whether it is consistent with Woodward v. Correctional Medical
Services, 368 F.3d 917, 929 (7th Cir. 2004) (“CMS does not get
a ‘one free suicide’ pass.”).
In both Glisson and J.K.J., we held that plaintiffs were enti-
tled to a jury trial or verdict on their Monell claims without
requiring proof of a minimum number of previous failings. In
both cases, the Monell defendant was on notice of a serious
risk of harm to certain prisoners. In Glisson it was the risk to
patients with complex disease combinations if there were no
effort to coordinate care. In J.K.J., it was notice of the risk of
sexual abuse by guards. Both Glisson and J.K.J. applied two
key lessons from Farmer v. Brennan. First, knowledge of a dan-
ger or serious health need may be inferred from circumstan-
tial evidence, including the obviousness of the risk or need.
511 U.S. at 842. Second, a state actor with actual knowledge of
such a danger or need is expected to take reasonable, though
not perfect, steps to address the danger or need. Id. at 843–45.
More generally still, this case poses the question whether
courts need to channel Monell claims into separate and dis-
tinct categories depending on how the plaintiff characterizes
his claim, whether as one based on a “pattern” of violations
showing an unconstitutional custom or as one based on a
more direct challenge to an explicit policy of the governmen-
tal or corporate defendant. The panel majority erred by ad-
hering too rigidly to these categories as separate channels and
failing to engage with the policy problem and holding of Glis-
son. As a result, the panel majority allowed Wexford to treat
the case as only a “pattern” case, which in turn allowed Wex-
ford to defend itself by saying that it had not known—and had
no way to know—of the repeated acts of individual oversight
or malice that delayed Hildreth’s medicine. That defense was
No. 18-2660 5
actually an unintentional admission that Wexford’s systems
(i.e., its policies) for prescription refills and renewals were
themselves unreasonable. They were unreasonable in the face
of inevitable human error precisely because they did not in-
clude means for monitoring whether or not urgent medical
needs were being met.
The categories for Monell cases can be helpful, but we
should not let them distract us from the central issue. Regard-
less of how the claim is categorized, “The central question is
always whether an official policy, however expressed (and we
have no reason to think that the list in Monell is exclusive),
caused the constitutional deprivation.” Glisson, 849 F.3d at
379.
I respectfully dissent from the denial of rehearing en banc.