Resel v. Fox

26 F. App'x 572
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 20, 2001
DocketNo. 01-1599
StatusPublished
Cited by26 cases

This text of 26 F. App'x 572 (Resel v. Fox) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Resel v. Fox, 26 F. App'x 572 (7th Cir. 2001).

Opinion

ORDER

Harold Resel sued Waushara County (Wisconsin) Sheriff Patrick Fox1 under 42 U.S.C. § 1983, alleging that Sheriff Fox [574]*574violated his Eighth Amendment right to be free from cruel and unusual punishment when he was deliberately indifferent to Mr. Resel’s medical needs while incarcerated at the Waushara County Jail (“WCJ”). Mr. Resel also alleged that Sheriff Fox violated the Americans with Disabilities Act (“ADA”). 42 U.S.C. § 12101, and various state laws. The district court granted summary judgment in Sheriff Fox’s favor on the Eighth Amendment and ADA claims. The district court then declined to exercise supplemental jurisdiction over Mr. Resel’s pendent state-law claims. Mr. Resel appeals, and we affirm.

I. Background

On July 28, 1998, Mr. Resel was booked into the WCJ for a traffic offense. When he arrived. Mr. Resel needed a colonoscopy because he had undergone surgery for an acute mechanical bowel obstruction the previous week, and he had been experiencing post-operative rectal bleeding. After Mr. Resel was booked, a jailer called the county nurse to schedule a colonoscopy for Mr. Resel. The nurse scheduled the procedure for August 6. The colonoscopy was performed as scheduled, and two days later Mr. Resel had his staples removed.

Throughout August Mr. Resel saw the county nurse three times for flu-like symptoms and gum problems, including cold sores. The nurse first prescribed a saltwater gargle, and when that proved unsuccessful she treated Mr. Resel with peroxide and iron supplements. At the end of August, Mr. Resel saw a dentist for his gum problems. The record is unclear regarding the extent of these problems, but there is no indication that they were serious or life-threatening.

Some two months later, on October 15, Mr. Resel told a jailer that the stitches from his bowel surgery had opened up and his intestines were “herniated.” A few minutes later the jailer called the county nurse. The WCJ daily log indicates that, after examining Mr. Resel, the nurse left instructions that “Resel should have stomache [sic] looked at by Dr. If bulge doesn’t go back in or if becomes painfull [sic], immediate Dr. attn. needed! Surgery.” The nurse’s medical report further explains her instructions: “Advised should see M.D. sometime - in the meantime need to be aware that if he complains of pain in area that isn’t relieved, or if bulge does not go down when laying, it is an emergency and should seek immediate medical assessment.” Mr. Resel was taken to a doctor the following morning. The record does not include any information regarding this visit to the doctor or any treatment that Mr. Resel received

Five days later, on October 21, Mr. Resel requested to see a doctor for abdominal pain, and Sheriff Fox told him that he would get the help that he needed. The following day Mr. Resel again requested to see a doctor, and the jail staff told him that he would see a doctor as soon as possible. On several occasions Mr. Resel asked “Tom, the head jailer,” to make a doctor’s appointment for him, but according to Mr. Resel. “Tom” would either tell him that he forgot to make the appointment or that his condition was not life-threatening. According to Mr. Resel and the affidavits of several other inmates. Mr. Resel specifically asked Sheriff Fox to make a doctor’s appointment for him. In his affidavit. Sheriff Fox denies that he “personally receive[d] any requests from Harold James Resel for medical attention.”

The WCJ log shows that on October 29 - eight days after Mr. Resel’s first request for a doctor - a jailer called to “reschedule” an appointment for Mr. Resel, but was unable to get through. An [575]*575October 30 WCJ log entry states. “Rescheduled Resels [sic] Dr. Appt. for 11/12/98. That’s the earliest available time, finally got thru to someone.” On November 12 - twenty-three days after Mr. Resel’s first request - he was taken to see the doctor. Although the record contains no medical notes regarding this visit to the doctor, the WCJ log indicates that Mr. Resel returned from the doctor with instructions that he needed surgery and was not to lift anything. One week later Mr. Resel was released from the WCJ based on the Sheriff Department’s and District Attorney’s joint request to modify Resel’s sentence to “time-served” in order to accommodate his medical problems.

Mr. Resel filed this lawsuit in November 1999, alleging that Sheriff Fox violated his Eighth Amendment rights by being deliberately indifferent to his serious medical needs. Mr. Resel also alleged an ADA violation, assault, and battery. The district court granted the defendant’s motion for summary judgment, concluding that Sheriff Fox did not act with deliberate indifference to Mr. Resel’s serious medical needs and that the ADA was not relevant to this case because “[t]he ADA cannot be used as a basis to bring an action for inappropriate medical care.” The court then declined to exercise supplemental jurisdiction over Mr. Resel’s state-law claims and dismissed them without prejudice.

II. Analysis

We review a grant of summary judgment de novo, construing all facts and drawing all reasonable inferences from the record in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir.2000). Summary judgment is proper when the record reveals no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).

A. Eighth Amendment

Mr. Resel argues that the district court erred in granting summary judgment because Sheriff Fox acted with deliberate indifference in delaying his access to medical treatment for his hernia, thereby causing him pain and suffering. The Eighth Amendment protects prisoners from deliberate indifference to serious medical needs, including delayed access to medical care. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir.2000). To establish liability, the prisoner must show: (1) that his medical need was objectively serious; and (2) that the official knew of and disregarded an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994): Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir.2001).

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26 F. App'x 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/resel-v-fox-ca7-2001.