James Smith v. Ronald Schaefer

NONPRECEDENTIAL DISPOSITION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 April 19, 2013*
Decided May 6, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 12-2995 Appeal from the United
States District Court for the
JAMES H. SMITH, Central District of Illinois.
Plaintiff-Appellant,

v. No. 10-1224
James E. Shadid, Chief Judge.
RONALD SCHAEFER, et al.,
Defendants-Appellees.

Order

James Smith, a prisoner of Illinois, broke his hip after falling on ice while walking
across an area exposed to the elements. The fall occurred on December 7, 2009. An x-ray
taken the next day revealed the fracture. Smith was taken to a hospital on December 9,
and surgery was performed.

Smith contends in this suit under 42 U.S.C. §1983 that several physicians, assistants,
and others violated the cruel and unusual punishments clause of the eighth amendment
by withholding pain medication before the surgery and delaying needlessly in taking
him to the hospital. The district court dismissed most of his claims, against most de-

* 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. 12-2995 Page 2

fendants, on screening under 28 U.S.C. §1915A, because the complaint did not allege
that particular defendants had done anything worse than negligence or because Smith
had failed to exhaust his administrative remedies. But it allowed the suit to proceed
against Dr. Ronald Schaefer. The §1915A screening was correct; we therefore limit our
discussion to the claim against Schaefer.

Smith contends that Schaefer, who was on duty on December 7, saw him and did
not help him—no pain-killing drugs, no x-rays, no progress toward surgery. Schaefer
concedes that he was at the prison that day but contends that he did not see Smith until
he returned to the prison following surgery. According to Schaefer, all decisions on De-
cember 7 and 8 were made by someone else, who prescribed Motrin (600 mg up to three
times daily) pending evaluation and, if necessary, surgery. After discovery Schaefer
moved for summary judgment, which the district court granted. The court stated that
there was no material factual dispute. On the one side were Smith’s bare allegations,
and on the other were Schaefer’s affidavit of non-involvement plus the prison’s medical
records, which showed that Smith had received pain-control medication and surgery
before Schaefer saw Smith as a patient.

The prison’s medical records state that personnel at the prison’s urgent care unit
concluded that Smith’s fracture was not especially painful, allowing some delay in sur-
gery, and that, given the amount of pain Smith displayed (the records say that his vital
signs were normal, while severe pain would have elevated his respiration, heart rate,
and blood pressure), emergency surgery was not called for and 600 mg of Motrin was
adequate for pain control. If the records were all we had to go on, Smith would not have
a plausible claim under the eighth amendment. But they are not all we have. Smith tes-
tified at his deposition that he was in “extreme” pain. We must assume for current pur-
poses that the record, viewed in the light most favorable to Smith (the party opposing
summary judgment), would allow a reasonable jury to find that the prison was deliber-
ately indifferent to his serious medical need. See Farmer v. Brennan, 511 U.S. 825 (1994).

Schaefer contends, and the district court concluded, that he is entitled to summary
judgment even if Smith’s care fell below the constitutional minimum. Schaefer contends
that he had nothing to do with Smith’s care until after the surgery had been performed.
The district court concluded that no reasonable jury could find otherwise. Yet Smith tes-
tified by deposition that Schaefer treated him on December 7 and that he does not re-
member receiving any medication. Smith allowed that his pain might have prevented
him from understanding what the medical staff was doing; but he added that, if he re-
ceived any medication, it did not reduce his level of pain. Smith also filed an affidavit
asserting that Schaefer was the attending physician and that he had not administered
any pain-control medication. (Schaefer contends that this aspect of the affidavit is in-
consistent with Smith’s deposition; that is not clear to us, since at the deposition Smith
said that he did not remember receiving any drugs. “I did not receive drugs” and “I do
not remember receiving drugs” are consistent statements.)
No. 12-2995 Page 3

Courts, including this one, occasionally have issued opinions asserting that self-
serving affidavits and depositions may be discounted. Yet “we long ago buried—or at
least tried to bury—the misconception that uncorroborated testimony from the non-
movant cannot prevent summary judgment because it is ‘self-serving.’” Berry v. Chicago
Transit Authority, 618 F.3d 688, 691 (7th Cir. 2010); see also Darchak v. Chicago Board of
Education, 580 F.3d 622, 631 (7th Cir. 2009); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504–
06 (7th Cir. 2004); Payne v. Pauley, 337 F.3d 767, 770–73 (7th Cir. 2003).

Schaefer relies on decisions that predate Payne, which reconciled inconsistent lines of
precedent within the circuit. Schaefer does not cite any opinion more recent than 1998
on this topic. Since 2003 this court’s precedents have uniformly rejected the contention
that “self-serving” affidavits and testimony may be discounted, when the same evi-
dence from a disinterested witness would prevent summary judgment. The district
judge did not cite Payne or any of this circuit’s other recent opinions on the role that liti-
gants’ depositions and affidavits play at summary judgment.

Smith was a witness to his own treatment. He is competent to testify about who
treated him, and how. His memory may be faulty, but then so may Schaefer’s. This rec-
ord contains incompatible stories about what happened to Smith on December 7 and 8,
and who was responsible for his treatment. Perhaps someone is not telling the truth.
But summary judgment cannot be granted when there is a disputed issue of material
fact. Questions about who treated Smith, and how, are both material and disputed. The
grant of summary judgment was improper.

REVERSED AND REMANDED