In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3525
TERRY C. JOHNSON,
Plaintiff‐Appellant,
v.
ABDI TINWALLA,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:13‐cv‐03227 — Sue E. Myerscough, Judge.
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ARGUED APRIL 12, 2017 — DECIDED APRIL 28, 2017
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Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Terry Johnson, the plaintiff, is an
inmate of the Rushville Treatment and Detention Facility—
“an Illinois state facility for the diagnosis, treatment, and
(pending successful treatment) incarceration of persons be‐
lieved prone to sexual violence.” Hughes v. Scott, 816 F.3d
955, 955 (7th Cir. 2016). The defendant, Dr. Tinwalla, is a
psychiatrist, employed by Wexford Health Sources, who
works at the Rushville facility. The suit charges him with
2 No. 15‐3525
having violated both the plaintiff’s constitutional right to
due process of law and Illinois law, by causing the plaintiff
to take the antipsychotic drug Risperdal (and for more than
a month) without the plaintiff’s knowledge or consent. The
district judge granted summary judgment in favor of the de‐
fendant, precipitating this appeal.
In Washington v. Harper, 494 U.S. 210, 229 (1990), the Su‐
preme Court recognized a “significant liberty interest,” cre‐
ated by the due process clause of the Fourteenth Amend‐
ment, in “avoiding the unwanted administration of antipsy‐
chotic drugs”—drugs used to treat mental disorders by “al‐
ter[ing] the chemical balance in a patient’s brain, leading to
changes, intended to be beneficial, in his or her cognitive
processes.” Id. at 221, 229. The Court explained that a per‐
son’s “interest in avoiding the unwarranted administration
of antipsychotic drugs is not insubstantial. The forcible injec‐
tion of medication into a nonconsenting person’s body rep‐
resents a substantial interference with that person’s liberty.”
Id. at 229. One reason is that drugs—including Risperdal—
can have “serious, even fatal, side effects.” Id.; see also
Drugs.com, “Risperdal,” www.drugs.com/risperdal.html
(visited April 27, 2017). Another reason is that altering a per‐
son’s brain functioning against his will is an intrusion on his
liberty—an intrusion that could engender fear that the gov‐
ernment was trying to brainwash its citizens. But a prison‐
er’s interest in liberty gives way if the state establishes, by a
medical finding, that the prisoner has a mental disorder like‐
ly to cause harm to himself or others unless he is treated
with an antipsychotic drug. Washington v. Harper, supra, 494
U.S. at 227, 231.
No. 15‐3525 3
In Harper state law required that any antipsychotic medi‐
cation forced on a prisoner had first to be prescribed by a
psychiatrist and then approved by a reviewing committee
composed of a psychiatrist, a psychologist, and a prison offi‐
cial, thus ensuring that the treatment would be ordered
against the prisoner’s will only if responsibly determined to
be necessary given the prisoner’s medical needs and the
prison’s legitimate penological interests. Id. at 215, 233. The
district judge in this case noted in addition that 59 Ill. Ad‐
min. Code § 299.330 gave the plaintiff a “protected liberty
interest against the arbitrary administration of psychotropic
medication for those individuals involuntarily committed.”
Dr. Tinwalla prescribed Risperdal for the plaintiff after
the latter complained to him of increased irritability and
wanting to assault a staff member and feeling hopeless at
times; in addition his medical history revealed erratic and
aggressive behavior, and we can assume that these com‐
plaints and the medical history justified the prescription. At
the appointment with Dr. Tinwalla the plaintiff initially
signed a form in which he consented to being treated with
Risperdal, but he immediately revoked his consent and
scratched out his signature on the form. Underneath Dr.
Tinwalla wrote that Johnson had “refused consent after sign‐
ing it.”
Dr. Tinwalla didn’t follow Illinois’s procedure for order‐
ing forced medication. He just wrote the plaintiff a prescrip‐
tion for the drug, explaining later in an affidavit that he had
done this so that the plaintiff could take Risperdal if he felt a
need to. Yet he failed to tell the plaintiff about the prescrip‐
tion. That failure had consequences, as we’ll see.
4 No. 15‐3525
The doctor went further and ordered Risperdal “dis‐
pensed” to the plaintiff by the nursing staff nightly, even
though it is conceded that a basis for compelled administra‐
tion of antipsychotic drugs (including therefore Risperdal) to
the plaintiff did not exist because he had not been found to
be dangerous to himself or to others, and so the Harper
standard for compelled administration of such drugs as
Risperdal was not met. And the doctor did not even tell the
plaintiff that he’d ordered Risperdal dispensed to him.
At Rushville medication is dispensed to the inmates by
nurses who hand out cups, each marked with an inmate’s
name and containing his allotted pills. The nurse who dis‐
pensed Risperdal to the plaintiff did not tell him that the lit‐
tle cup of pills she gave him every night for his high blood
pressure, high cholesterol, and stomach ailments now in‐
cluded Risperdal or any other psychotropic drug. And even
if the plaintiff noticed an extra pill, it was unmarked and
therefore he had no reason to think it treated a condition un‐
related to the medical problems that he knew he was taking
pills for. Even the nurse who dispensed pills to him didn’t
know what the new pill was.
So the plaintiff, having refused to take Risperdal as was
his constitutional and statutory right in the circumstances,
ended up as a result of Dr. Tinwalla’s handling of the matter
taking the drug without knowing or having any reason to
know he was doing so and without having consented to take
Risperdal. The statement in the defendant’s brief that the
plaintiff’s “right to refuse medication was never denied” is
empty, as the plaintiff was unaware that he was taking the
medication, which he had refused. Dr. Tinwalla points out
that the plaintiff could have asked the nurse what the new
No. 15‐3525 5
pill was, but having refused to consent to take Risperdal the
plaintiff had no reason to think it would be smuggled with‐
out identification into his nightly cup of pills. And anyway
the nurse’s reply to such a question might just have been: “I
don’t know.”
We mentioned the Illinois law, which Dr. Tinwalla prob‐
ably also violated. It parallels the standard set forth in the
Harper decision, ordaining as it does that psychotropic medi‐
cation “shall not be administered to any resident [involun‐
tarily committed pursuant to the Sexually Violent Persons
Commitment Act] against his or her will … unless … [a]
psychiatrist [or other physician] determine[s] that the resi‐
dent [is mentally ill] and the medication is in the medical in‐
terest of the resident; and the resident is either gravely disa‐
bled or poses a likelihood of serious harm to self or others.”
59 Ill. Admin. Code § 299.300(d)(1)(A)(i). The district judge,
ignoring the Code, thought it critical that Dr. Tinwalla had
not ordered that the plaintiff be forced by staff to ingest the
Risperdal that the staff provided to him at the doctor’s direc‐
tion; for that meant, the judge said, that “at worst [Tinwalla]
metaphorically unlocked the doors to the medicine cabinet
and left the room.” We don’t know what this means, but
what we do know is that by placing an unmarked Risperdal
pill in the plaintiff’s pill cup every night the nurse on duty
was unwittingly causing him to take Risperdal against his
will, just as if he’d been physically forced to. And she was
doing this without knowing the pill was Risperdal—not
knowing because Dr. Tinwalla hadn’t told her, as he should
have done to give the plaintiff a chance to refuse to take it, as
was his right and not just his desire.
6 No. 15‐3525
Nor is this a case merely of negligence on the part of the
defendant. Compare Daniels v. Williams, 474 U.S. 327 (1986).
A jury could reasonably conclude that Dr. Tinwalla had been
deliberately indifferent to the plaintiff’s right to refuse
Risperdal. See Pabon v. Wright, 459 F.3d 241, 250–51 (2d Cir.
2006). It could infer that Dr. Tinwalla, no stranger to Rush‐
ville, must have known that pills were delivered to the in‐
mates, unlabeled, in little cups. And at the time he wrote the
prescription Dr. Tinwalla had recently reviewed the plain‐
tiff’s medical records, so he must have known that the plain‐
tiff also received several other pills three times a day. The
district judge had no basis for concluding as she did (it was
the basis for her grant of summary judgment in favor of the
defendant) that at worst Dr. Tinwalla’s failure to notify the
plaintiff of the prescription “may have been negligent.” A
jury could reasonably find that failure to have constituted
deliberate indifference.
A reasonable jury could also conclude that Dr. Tinwalla
had committed the common law tort of medical battery,
which the plaintiff charged in his complaint and under Illi‐
nois law requires only that the defendant have committed an
intentional, unconsented‐to act resulting in offensive contact
with the plaintiff’s body. Sekerez v. Rush University Medical
Center, 954 N.E.2d 383, 394 (Ill. App. 2011). True, Dr. Tinwal‐
la didn’t touch the plaintiff, but “an ‘offensive contact’ may
be established by proof that the defendant intended to cause
the plaintiff, directly or indirectly, to come into contact with
a foreign substance in a manner which the plaintiff would
reasonably regard as offensive.” Id. That seems an exact de‐
scription of this case, but was ignored by the district judge.
No. 15‐3525 7
It remains to note that the plaintiff had no lawyer in the
district court. Given the medical issues presented by the
case, it would have been a proper case for the district judge
to have recruited a lawyer for the plaintiff. Rushville is only
a four‐hour drive from Chicago, a city crawling with large
law firms likely to respond positively to a request by a fed‐
eral judge to provide a junior lawyer to represent an indi‐
gent plaintiff. The firm and the junior lawyer would benefit
from the experience obtained by the lawyer in what might
well have been his first trial.
To conclude, the district judge erred in granting sum‐
mary judgment in favor of the defendant, and the judgment
therefore is reversed and the case remanded for proceedings
consistent with the analysis in this opinion.