James Gaston v. Parthasarathi Ghosh

920 F.3d 493
Court of Appeals for the Seventh Circuit·Decided April 3, 2019·No. 17-3618; 18-1281·Published·Cited by 36 cases

Opinions

Easterbrook, Circuit Judge.

Iskander v. Forest Park , 690 F.2d 126 (7th Cir. 1982), holds that private corporations, when deemed to be state actors in suits under 42 U.S.C. § 1983, must be treated the same as municipal corporations. This means that they are not subject to vicarious liability. See, e.g., Ashcroft v. Iqbal , 556 U.S. 662, 676-77, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Monell v. New York City Department of Social Services , 436 U.S. 658, 691-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Iqbal , Monell , and other decisions hold that municipalities and public employees may be held liable for their own decisions and policies but are not liable under the doctrine of respondeat superior for the acts, decisions, and policies *495of other persons, including subordinate public officials. Iskander held that the same approach applies to private corporations and their agents, to the extent that they are treated as state actors for the purpose of § 1983. James Gaston asks us to overrule Iskander and hold that in litigation under § 1983 a private corporation may be liable vicariously to the same extent as a private corporation in the law of torts.

That argument has been made before but left unresolved, because the appeals could be decided on other grounds. See, e.g., Collins v. Al-Shami , 851 F.3d 727, 734 (7th Cir. 2017) ; Glisson v. Indiana Department of Corrections , 849 F.3d 372, 379 (7th Cir. 2017) (en banc); Shields v. Illinois Department of Corrections , 746 F.3d 782 (7th Cir. 2014). That is equally true today, and for the same reason as in Collins : the employee "is not liable, so-even if the theory of respondeat superior were available-neither is his employer."

Gaston, a prisoner of Illinois, suffered injuries that led to surgery on both of his knees. (He had other medical problems, but treatment for them is no longer in dispute.) He first complained about pain in his left knee in May 2009. Drugs did not solve the pain, and the knee did not heal on its own. Liping Zhang, a physician employed by Wexford Health Sources, which Illinois uses to provide medical care in the state's prisons, eventually alerted Parthasarathi Ghosh, who referred Gaston to an orthopedic surgeon. Delay in implementing that decision followed; the consultation occurred in September 2010. Dr. Ghosh, the head of medical services at the prison, approved a magnetic resonance imaging (MRI) exam, which the specialist had recommended, but it was not conducted until February 2011. It revealed a lingering injury. In August 2011 Samuel Chmell performed arthroscopic surgery on Gaston's left knee, a step approved by Imhotep Carter, who replaced Dr. Ghosh after his retirement. (Dr. Chmell is an orthopedic surgeon on the staff of the University of Illinois hospital system, which handled all of the specialist work, MRI exams, and surgeries we mention.)

While Gaston's left knee was healing, a consultative body within Wexford delayed approving an MRI image of his right knee, stating that one knee had to be sound before treatment of the other could proceed. In May 2012 the prison's interim medical director (Dr. Carter having left) referred Gaston for an MRI exam on the right knee. It showed serious problems, and Dr. Chmell recommended another arthroscopic surgery. In August 2012 Saleh Obaisi, the prison's new medical director, approved Dr. Chmell's recommendation, and surgery occurred in October 2012. This did not bring the hoped-for relief, and Dr. Chmell recommended arthroplasty (i.e., knee replacement). That surgery, a much more substantial medical intervention, was delayed while specialists determined whether Gaston's pulmonary and cardiology systems would handle the strain. More delay may have been caused by inattention to the case. The arthroplasty took place in February 2015 and was successful.

Gaston acknowledges that he has received a great deal of medical care. He does not contend that the diagnosis or the selected interventions can lead to § 1983 liability under the approach of Estelle v. Gamble , 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; Farmer v. Brennan , 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ; and Petties v. Carter , 836 F.3d 722 (7th Cir. 2016) (en banc). Instead he contends that the delays while waiting for surgeries reflect deliberate indifference to his pain, so that the pain became a form of *496unauthorized punishment in violation of the Eighth Amendment (applied to the states through the Due Process Clause of the Fourteenth Amendment).

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James Gaston v. Parthasarathi Ghosh, 920 F.3d 493 (7th Cir. 2019).

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