author: EASTERBROOK, Circuit Judge.

text:
    Esmeralda Y. MORFIN and Adrian Ulloa, Plaintiffs-Appellants, v. Rex W. TILLERSON, Secretary of State, and John F. Kelly, Secretary of Homeland Security, Defendants-Appellees.
    No. 15-3633
    United States Court of Appeals, Seventh Circuit.
    Argued December 2, 2016
    Decided March 20, 2017
    Charles Roth, Attorney, NATIONAL IMMIGRANT JUSTICE CENTER, Chicago, IL, for Plaintiffs-Appellants.

      Craig A. Oswald, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, Stacey I. Young, Attorney, Washington, DC, for Defendants-Ap-pellees.
    Robert Pauw, Attorney, Devin Theriot-Orr, Attorney, GIBBS HOUSTON PAUW, Seattle, WA, for LAW SCHOOL PROFESSORS, Amicus Curiae
    Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.
   EASTERBROOK, Circuit Judge.

In 2009 Adrian Ulloa, a citizen of Mexico, married Esmeralda Morfin, a citizen of the United States. She began the process of getting approval for his permanent residence (and ultimately citizenship). But because Ulloa was present in the United States without authority, this process required him to return to Mexico and obtain a visa for a lawful entry. In 2014 he applied at the consulate in Ciudad Juarez. After twice interviewing Ulloa, the State Department denied his request for a visa, stating that it had reason to believe that he is (or was) involved in drug trafficking. In 2001 Ulloa had been indicted for possessing more than 500 grams of cocaine, with intent to distribute. See 21 U.S.C. § 841(a)(1). The U.S. Attorney dismissed the indictment a few months later (the record does not show why), and Ulloa denies the charge, but the absence of a trial means that he lacks a favorable adjudication.

In this suit under the Administrative Procedure Act, 5 U.S.C. § 702, Morfin and Ulloa asked the district court to find that the decision not to give Ulloa a visa is ■arbitrary and not supported by substantial evidence. Defendants (the Secretaries of State and Homeland Security) replied that decisions to grant or deny visa applications are committed to agency discretion and so are outside the scope of judicial review under the APA. See 5 U.S.C. § 701(a)(2). The district court agreed and dismissed the suit for lack of subject-matter jurisdiction. That was a misstep. As we explain in Builders Bank v. FDIC, 846 F.3d 272 (7th Cir. 2017), § 701(a)(2) does not curtail jurisdiction granted by other laws. Commitment of a topic to agency discretion is a reason to decide in the agency’s favor but does not imply that a court lacks adjudicatory competence. We concluded in Builders Bank that § 701(a)(2) “is no more a limit on subject-matter jurisdiction than are doctrines of absolute and qualified immunity, statutes of limitations, and many other rules that prevent courts from deciding whether the defendant acted properly.” 846 F.3d at 275.

But. the fact remains that for more than a hundred years courts have treated visa decisions as discretionary and not subject to judicial review for substantial evidence and related doctrines of administrative law. See Kleindienst v. Mandel, 408 U.S. 753, 765-70, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (collecting cases). Mandel recognized a potential exception for situations in which denial of a visa violates the constitutional rights of a U.S. citizen (in Mandel the right was the First Amendment), and Morfin tries to take advantage by contending that the rejection of Ulloa’s application violated her, right to due process of law under the Fifth Amendment. A similar line of argument was advanced in Kerry v. Din, — U.S. -, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015), and did not prevail. The district judge concluded that Din forecloses Morfin’s contention.

Before considering Din we must say a few words about Mandel. The Court concluded that the First Amendment creates at least a conditional right of U.S. citizens to receive. information, in this country, from foreign nationals. But the Justices did not find this a sufficient reason for the judiciary to make an independent decision about when a foreign national is entitled to a visa. Instead the Court reaffirmed earlier opinions saying that Congress has plenary authority to exclude particular categories of aliens. The possibility of an exception for speech arose only because Congress had authorized the Attorney General to waive some speech-related conditions of excludability. The Justices did not decide whether review of a decision not to waive a condition of inadmissibility ever would be proper. They thought the final decision on that subject unnecessary because the Attorney General had informed “Mandel’s counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide.” 408 U.S. at 769, 92 S.Ct. 2576. The Court wrapped up:

We hold that when the Executive exercises this [waiver] power .negatively on the basis of a facially legitimate and bona fide reason, the courts will' neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Id. at 770, 92 S.Ct. 2576. That holding set the stage for Din, in which the plaintiffs tried to find a constitutional theory that would not require the judiciary to look behind the Executive Branch’s reasons for denying a visa.

Fauzia Din, a citizen of the United States, married Kanishka Berashk, a citizen of Afghanistan. After the State Department denied Berashk’s application for a visa to enter this nation, Din filed suit. She contended that the Department had violated her right under the Due Process Clause of the Fifth Amendment to live with her husband, at least without a formal hearing to determine whether Berashk was excludable. Recognition of such a right would have avoided any need for the judi•ciary to review the substance of the State Department’s decision. But a majority of the Court ruled against Din. Three members (the Chief Justice plus Justices Scalia and Thomas) concluded that the Fifth Amendment does not apply, because a citizen has neither a liberty nor a property interest in an alien’s presence in the United States. 135 S.Ct. at 2131-38. Four members (Justices Ginsburg, Breyer, Soto-mayor, and Kagan) disagreed with that reading of the Fifth Amendment and concluded that a U.S. citizen is entitled to an administrative procedure at which she can test the accuracy of allegations or beliefs that lead the State Department to deny her spouse a visa. 135 S.Ct. at 2141-47.

The Court’s other two members (Justices Kennedy and Alito) thought that they did not have to decide whether the U.S. spouse has a liberty or property interest, because the case could be resolved in the same way as Mandel: with a conclusion that judges will not go behind apparently legitimate explanations. 135 S.Ct. at 2139-41. The State Department had revealed the basis of its decision — that Berashk was a terrorist excluded by 8 U.S.C. § 1182(a)(3)(B). The Department had not set out facts supporting this view, but Justices Kennedy and Alito thought that unnecessary (135 S.Ct. at 2140):

The provisions of § 1182(a)(3)(B) establish specific criteria for determining terrorism-related inadmissibility. The consular officer’s citation of that provision suffices to show that the denial rested on a determination that Din’s husband did not satisfy the statute’s requirements. Given Congress’ plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 [70 S.Ct. 309, 94 L.Ed. 317] (1950), it follows that the Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.

Justices Kennedy and Alito considered the possibility that a groundless decision might fall outside the set of “facially legitimate and bona fide” reasons but wrote that the exclusion of Berashk could not be so classified, for he conceded working as an officer of the Taliban government when that group ruled Afghanistan.

[This] provides at least a facial connection to terrorist activity. Absent an affirmative showing of bad faith on the part of the consular officer who denied Ber-ashk a visa — which Din has not plausibly alleged with sufficient particularity— Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed.

135 S.Ct. at 2141.

The district court found that Din forecloses Morfin’s claim, and we agree with that conclusion. Morfin advances the same due process argument as Din. Whether the denial of Ulloa’s visa application affected any of Morfin’s liberty or property interests is unresolved after Din, because Justices Kennedy and Alito did not address that subject. Instead they left things as Mandel had left them — and the opinion in Mandel spoke for a majority of the Court, sparing us the need to determine how to identify the controlling view in Din given that the concurring opinion is not a logical subset of the lead opinion (or the reverse). See Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Mandel tells us not to go behind a facially legitimate and bona fide explanation.

The consular officer in Ciudad Juarez gave Ulloa a facially legitimate and bona fide explanation. The officer relied on 8 U.S.C. § 1182(a)(2)(C), which disqualifies “[a]ny alien who the consular officer or the Attorney General knows or has reason to believe — (i) is or has been an illicit trafficker in any controlled substance”. The State Department cited this provision when denying Ulloa’s application, just as it had cited § 1182(a)(3)(B) when denying Ber-ashk’s. And just as in Din, the record forecloses any contention that the State Department was imagining things. Ulloa had been indicted for possessing a substantial quantity of cocaine with intent to distribute.

All § 1182(a)(2)(C) requires is “reason to believe” that the applicant is or was a drug dealer. An indictment provides a “reason to believe” that its accusation is true; indeed, it conclusively establishes probable cause to believe that the accusation is true. That’s why Kaley v. United States, — U.S. -, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014), holds that a federal court cannot go behind the face of the indictment to explore a defendant’s contention that the charge is not based on probable cause. The question in Kaley was whether the defendant could deny the charge of the indictment and so free up resources for paying counsel, resources that otherwise would be sequestered as the proceeds of crime. The Court said no; the indictment is conclusive on the question whether there is probable cause to believe that the accused committed the charged acts. Likewise a federal court will' not go behind the face of an indictment when an alien seeks to undermine the State Department’s reasons for denying a visa.

Perhaps the refusal to issue Ulloa a visa could be said to lack a “facially legitimate and bona fide reason” (in Mandel’s words) if the consular official had concluded that the indictment’s charges were false, or if Ulloa had presented strong evidence of innocence that the consular officer refused to consider. But neither his complaint nor his appellate brief makes such an argument.

Because the consular officer gave a legitimate reason for denying Ulloa’s application, and the indictment supplies “reason to believe” that he trafficked in cocaine, Mandel prevents the judiciary from reweighing the facts and equities. Whether Congress acted wisely in making “reason to believe” some fact sufficient to support (indeed, compel) the denial of a visa application is not a question open to review by the judiciary. The district court’s judgment is modified to reject plaintiffs’ claim on the merits rather than for lack of jurisdiction and as so modified is

AFFIRMED-.


source: Caselaw Access Project

author: WOOD, Chief Judge. POSNER, Circuit Judge,

license: Public Domain

text:
    Craig J. CESAL, Plaintiff-Appellant, v. Scott MOATS, Defendant-Appellee.
    No. 15-2562
    United States Court of Appeals, Seventh Circuit.
    Argued November 8, 2016
    Decided March 20, 2017

      Jory Hoffman, Barry Levenstam, Attorneys, Jenner & Block LLP, Chicago, IL, for Plaintiff-Appellant.
    Lillian Stewart, Attorney, Office of the United States Attorney, Springfield, IL, for Defendants-Appellees.
    Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
   WOOD, Chief Judge.

While lifting a heavy door at his prison job at the Pekin Correctional Institution on March 21, 2008, Craig J. Cesal heard a “snap” in his back and felt pain in his leg and hip. He promptly sought treatment from the prison’s medical staff, but he was dissatisfied with their response. He alleges that he received only a three-year long medical runaround during which his pain was ignored. Worse, he says, Pekin’s Clinical Director, Dr. Scott Moats, canceled Cesal’s insulin prescription in retaliation for Cesal’s filing of a complaint about the inadequate care for his back. Without the prescription, Cesal — an insulin-dependent diabetic — was unable to control his blood sugar and consequently suffered additional unnecessary pain and physical harm. He filed a second complaint with the prison about the insulin deprivation.

Cesal ultimately sued Dr. Moats and Dr. Andreas Molina, another Pekin physician, alleging that they exhibited deliberate indifference in the care they gave him. At the screening phase, see 28 U.S.C. § 1915A, the district court identified two claims in Cesal’s pro se complaint: an Eighth Amendment deliberate-indifference claim regarding his back treatment, and a First Amendment retaliation claim related to the withholding of insulin. The district court granted summary judgment for the defendants on both issues, reasoning that the statute of limitations on his complaints had run and that, in any event, there was no question of material fact that would justify allowing his case to move forward. Cesal appeals only the judgment in favor of Dr. Moats, and so we largely disregard Dr. Molina’s role in these events. Although Cesal’s allegations are troublesome, we conclude in the end that the district court’s judgment must be affirmed.

I

Because this is an appeal from the grant of summary judgment, our review is de novo. Conley v. Birch, 796 F.3d 742, 746 (7th Cir. 2015). At this stage of the litigation, we assume that the facts alleged by Cesal are true, and we draw all reasonable inferences in his favor. Dixon v. Cnty. of Cook, 819 F.3d 343, 346 (7th Cir. 2015). Summary judgment is appropriate when there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Between March 21, 2006, and March 28, 2011, Cesal was serving a life sentence at the Pekin Federal Correctional Institution, which is run by the Bureau of Prisons (BOP). There, he worked as a welder — a physically demanding job that required him to move 320-pound doors. He was lifting one such door on Friday, March 21, 2008, when he heard a “snap” in his back and felt sharp pain in his left hip and knee. He immediately sought care at the medical unit, but was told that the facility was closing and instead to report to sick-call on Monday, March 24. He did so, meeting with a nurse that day. By then, Cesal had been given a wheelchair and was temporarily excused. from his job. Dr. Moats gave him a verbal order for Motrin (the active ingredient of which is ibuprofen) but was not otherwise involved in his treatment that day.

Cesal was next seen by a physician assistant on March 27. Cesal reiterated his report of pain and numbness in his leg and hip. Although he still was using the wheelchair, the physician assistant noted that Cesal had “no difficulties getting up to sit on exam table” and that Cesal displayed normal gait and posture. During the exam, the physician assistant reviewed x-rays of Cesal’s back. These x-rays had been taken on March 12, 2008 — before Cesal’s lifting accident — in response to his earlier reports of hip pain and numbness in his knee and thigh. The physician assistant prescribed Cesal ibuprofen for another ten days.

Dr. Molina saw Cesal at a follow-up appointment on March 31, when Cesal reported having moderate low-back pain and some numbness in his leg. Four days later, on April 3, the medical staff took an x-ray of Cesal’s lumbar spine, which is the area between the rib cage and pelvis. That x-ray showed that Cesal had degenerative joint disease and disc disease, a diagnosis which previously had shown up in a different x-ray. Otherwise it revealed no problems.

The very next day Cesal filed an informal complaint — the first step in the administrative grievance process — about the treatment he was receiving for his back. In this complaint, Cesal reported that he had “acute pain in my hip and knee, also numbness along the front of my thigh” and that he could not “stand or walk for a worthwhile duration.” He said that he “ha[d] been to Medical Dept, repeatedly, but examination or care have been denied.” Cesal asked for a medical evaluation and appropriate treatment. .

His complaint was rejected. On May 6, 2008, Cesal appealed this denial to the Warden — the proper next step for an inmate who is unsatisfied by the response to an informal complaint. Cesal alleged that he had been evaluated only superficially and never seen by a doctor for acute pain in his left hip and knee and numbness in his left thigh. He did not allege back pain. The Warden rejected Cesal’s appeal on June 9, 2008, noting that Cesal’s medical records indicated that he was receiving appropriate care.

The Warden’s denial also noted that medical officials were awaiting the results of a June 4, 2008, MRI of Cesal’s lumbar spine. This scan had been requested on April 15, and was approved sometime in the interim. By June 16, 2008, the results were in. The MRI revealed a few problems — mild stenosis (narrowing of the spinal canal) in one spot, and disc degeneration with mild bulging elsewhere without major stenosis. But this diagnosis did not assuage Cesal’s concerns. He appealed the denial of his grievance on June 25, 2008, moving up another rung on BOP’s grievance ladder.

Two days after Cesal filed that appeal, on June 27, Dr. Moats saw him in the prison’s chronic care clinic for what Cesal describes as a “non-routine visit.” As Cesal tells it, Dr. Moats had learned of Cesal’s grievance for the treatment of his back issue and was angry. Dr. Moats told Cesal that he would “show him” what providing no medical care looked like, and then abruptly terminated Cesal’s prescription for insulin for no medical reason. Cesal is an insulin-dependent Type II diabetic; he had been taking sliding scale insulin. Without insulin, Cesal was left to manage his blood sugar through diet, exercise, and metformin, a prescription drug that Dr. Moats did not cancel, which is commonly-used for type II diabetes to control high blood sugar. Metformin, WebMD, http:// www.webmd.eom/drugs/2/drug-112857061/ metformin-oral/metformin — oral/details (last visited March 20, 2017). “Metformin works by helping to restore your body’s proper response to the insulin you naturally produce. It also decreases the amount of sugar that your liver makes and that your stomach/intestines absorb.” Id. Cesal skipped meals or went for runs when his blood sugar level got too high. But despite these efforts, Cesal’s blood sugar soared. As a result, he felt dizzy and saw stars, and his toenails fell off. '

Cesal’s back pain also continued to bother him. Dr. Moats requested a consultation for a “back specialist” for Cesal on October 6, 2008; his request was approved about a month later. In the meantime, Cesal appealed his back-pain grievance in accordance with BOP rules; he exhausted this process on November 25, 2008, when his last appeal was denied. He finally saw the specialist on March 31, 2009, some five months after the visit had been approved. Cesal told the consulting neurologist that his pain was moderate, but he also reported that he usually jogged two or three miles a day. The neurologist recommended no major changes to Cesal’s current “conservative” treatment plan and indicated that he did not believe that surgery or steroid injections would help.

On December 23, 2008, after nearly six months without his sliding scale insulin, Cesal filed a second administrative grievance concerning his diabetes treatment. He specifically requested the restoration of his insulin prescription. Again, his grievance and related appeals were denied at each level of the BOP administrative process. The denial dated. January 21, 2009, noted that Pekin’s clinical director (presumably Dr. Moats) had discussed with Cesal a different diabetes management program that was “tailored to prevent hyperglycemia, not to treat it after it occurs.” A subsequent denial from March 6, 2009, noted that Cesal still had oral medication for his diabetes and concluded that “sound clinical judgment is being demonstrated” in Cesal’s treatment. Cesal exhausted the prison grievance process for this claim on May 26, 2009, when his final appeal was denied.

Medical records show that Cesal had several visits with Dr. Moats in 2009 and 2010, but Dr. Moats did not re-prescribe him insulin until October 29, 2010. On that date, Dr. Moats prescribed Cesal five units of insulin — half the dosage he had been receiving in June 2008, when his prescription had been cancelled. In the months following the insulin renewal, Dr. Moats stepped up Cesal’s dosage incrementally. By February 22, 2011, Cesal was back on the same ten-unit dosage he had received in June 2008.

On March 28, 2011, Cesal was transferred from Pekin to the Federal Correctional Institution in Greenville, Illinois. His back pain worsened, and so he sought treatment there. An October 9, 2012 x-ray of Cesal’s middle back revealed an old, partial fracture of a vertebra. Cesal attributes this injury to his March 2008 lifting accident, although his medical records show this was just his guess — no medical professional ever concluded as much.

Cesal filed a suit against Drs. Moats and Molina on December 20, 2012, invoking the doctrine of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); he amended his complaint three months later. (His suit included other claims against different Pe-kin officials; because they are not relevant to this appeal, we do not discuss them.) His amended complaint alleged, in relevant part, that Drs. Moats and Molina refused to provide care for his fractured vertebra and that they terminated his insulin prescription after he complained about their lack of care for his back. At screening, see 28 U.S.C. § 1915A, the district court pared down his pro se complaint to two counts: an Eighth Amendment claim of deliberate indifference to the back injury, and a First Amendment retaliation claim for withholding the insulin prescription.

The district court granted summary judgment for both defendants on March 24, 2015, reasoning that Cesal filed his lawsuit after the two-year statute of limitations had run — a defense that the defendants promptly raised in that court. It added that even if Cesal’s lawsuit was timely, summary judgment was also appropriate because Cesal’s evidence showed that at most the defendants were negligent in misdiagnosing his back injury, and there was no evidence supporting his retaliation argument.

II

Cesal appeals the judgment in favor of Dr. Moats (only) on the two theories the district court identified. He also asserts that the court, on screening, improperly failed to recognize that he had alleged a deliberate-indifference claim regarding his insulin prescription.

A

We begin with Cesal’s challenge to the district court’s screening of his pro se complaint because that affects the scope of the case that is before us. Cesal argues that the district court erred in the initial screening of his complaint, see. 28 U.S.C. § 1915A, when it failed to recognize that he pleaded an Eighth Amendment deliberate-indifference claim regarding his insulin cancellation, in addition to the retaliation claim. We review a dismissal under § 1915A de novo, using the standard that applies to ordinary Rule 12(b)(6) dismissals. Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012). We construe pro se complaints liberally, holding them to a less stringent standard than pleadings drafted by lawyers. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015).

Cesal’s amended complaint alleged, in relevant part:

When Cesal complained, through the Administrative Remedy Procedure, about the lack of care, the requisite policy makers would neither grant nor deny Cesal’s request for treatment. Angry regarding the complaint against them, Moats and Molina terminated Cesal’s insulin prescription even though Cesal is an insulin-dependent diabetic....
Cesal continues to endure middle back pain, pain in his hip area, and numbness in his left leg from the spinal injury. His feet are swollen and numb, his vision blurred, and he experiences kidney pain from the lack of adequate diabetes therapy. Moats and Molina violated Cesal’s Eighth Amendment right to be free from cruel and unusual punishment when Defendants knew their actions would both inflict pain and cause permanent physical harm. Cesal’s First Amendment rights were impinged by the deliberate retaliation and lack of due process regarding his loss.

Prison officials violate the Eighth Amendment’s prohibition against cruel and unusual punishment when they act with deliberate indifference to the serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To state a claim for deliberate indifference for deficient medical care, the plaintiff “must allege an objectively serious medical condition and an official’s deliberate indifference to that condition.” Perez, 792 F.3d at 776.

Objectively serious medical needs are those that have either been diagnosed by a physician and demand treatment, or are “so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012). For present purposes, Dr. Moats concedes that Cesal’s allegations of kidney pain, vision blurriness, and numbness meet this standard.

The complaint also alleges that Dr. Moats had a sufficiently culpable state of mind. See Farmer v. Brennan, 511 U.S. 825, 834, 839-40, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The subjective component requires the plaintiff to allege that the official actually knew of, but disregarded, a substantial risk to the inmate’s health. Id. at 836-38, 114 S.Ct. 1970; Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A failure to act in the face of an obvious risk of which the official should have known is insufficient to make out a claim. Farmer, 511 U.S. at 836-38, 114 S.Ct. 1970. Cesal’s allegation clears that bar because he alleges that Dr. Moats knew that terminating Cesal’s insulin would cause him pain, but that he took that step anyway.

Dr. Moats argues that Cesal has failed to state a claim under the Eighth Amendment, but this argument misconstrues Cesal’s allegation as one of subjective inadequacy. Dr. Moats is correct that the Eighth Amendment does not reach disputes concerning the exercise of a professional’s medical judgment, such as disagreement over whether one course of treatment is preferable to another. Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996); see Estelle, 429 U.S. at 107, 97 S.Ct. 285. But Cesal has alleged more than this. His complaint accused Dr. Moats of abusing his position as Cesal’s care-provider by adjusting his treatment plan with the knowledge that doing so would result in unnecessary pain. This allegation, if true, constitutes deliberate indifference for purposes of the Eighth Amendment.

Having concluded that Cesal properly alleged á deliberate-indifference claim for the insulin withholding, we move to the question whether Dr. Moats was entitled to summary judgment on all three theories.

B

We begin with Cesal’s back pain. The district court granted summary judgment for Dr. Moats on this part of the case for two reasons: first, because the statute of limitations had run; and second, because Cesal failed to present facts that would have permitted a jury to find in his favor. We may affirm based on any properly preserved ground. Hester v. Ind. State Dep’t of Health, 726 F.3d 942, 946 (7th Cir. 2013).

1

We begin with the statute of limitations. Cesal argues that the district court miscalculated the date by which he needed to file his Bivens action against Dr. Moats because it failed to appreciate the ongoing nature of his injury. He is correct.

The statute of limitations for Bivens claims against federal officers is the same as for § 1983 actions against state officers: both periods are borrowed from the state in which the alleged injury occurred. King v. One Unknovm Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir. 2000). In this case, Cesal’s injury took place in Illinois, which has a two-year statute of limitations. 735 ILCS 5/13-202. Although Cesal injured his back on March 21, 2008, he could not bring suit until he exhausted the prison grievance process. 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983; 152 L.Ed.2d 12 (2002) (noting that federal prisoners suing under Bivens, like state prisoners suing under § 1983, must exhaust inmate grievance procedures before they can file their suit). The district court concluded that the limitations period was tolled while Cesal pursued the grievance. See Walker v. Sheahan, 526 F.3d 973, 978 (7th Cir. 2008) (limitations period for a § 1983 action is tolled while the prisoner completes the administrative grievance process). And so, by the district court’s calculation, Cesal needed to file his claim by November 25, 2010, two years after his back grievance was finally denied.

But this calculation does not take into account the ongoing nature of Cesal’s injury. When a plaintiff alleges that inaction is leading to an ongoing harm, he can “reach back to its beginning even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant’s unlawful conduct.” Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001). In these cases, “it would be unreasonable to require or even permit [the prisoner] to sue separately over every incident of the defendant’s unlawful conduct.” Id. The statute of limitations thus “starts to run (that is, the cause of action accrues) from the date of the last incidence of that violation, not the first.” Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013); see also id. at 654 (Easterbrook, J., concurring).

Cesal was not required to sue until after the unlawful conduct ended. But Cesal says it never ended while he was at Pekin; he alleges that Dr. Moats’s deliberate indifference ended only on March 28, 2011, when Cesal was transferred to Greenville and thus out of Dr. Moats’s care. We conclude that summary judgment on statute of limitations grounds for Cesal’s back claim was not appropriate.

2

Next is the question whether Cesal presented enough to raise a genuine issue of material fact, again with respect to his back injury. Cesal contends that a reasonable jury could find that Dr. Moats was deliberately indifferent to his back injury from the facts he was able to collect. A prison official acts with deliberate indifference when he knows of and disregards an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. The plaintiff must show that the defendant acted or failed to act in a way that disregarded an excessive risk of harm to the inmate; he does not need to show that the defendant intended or desired to cause harm. Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). Intentional delays in medical care may constitute deliberate indifference, even if the inmate’s medical condition is non-life threatening. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011). A doctor’s choice of “easier and less efficacious treatment” for an objectively serious medical condition also may be sufficient. Estelle, 429 U.S. at 104 & n. 10, 97 S.Ct. 285. But “mere disagreement with a doctor’s medical judgment” is not enough to support an Eighth Amendment violation. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).

Our review of the undisputed facts in the record convinces us that no reasonable trier of fact could find that Dr. Moats was deliberately indifferent to Cesal’s back pain. Although no doctor examined Cesal on the afternoon of the accident, he was excused from his job and was given a wheelchair after he reported that his pain was getting worse. Cesal saw a nurse on Monday, March 24, and he then saw a physician assistant on March 27. He also received medication for his pain. In other words, he was under active treatment; no one was ignoring him. See Perez, 792 F.3d at 777 (“Prison officials must provide inmates with medical care that is adequate in light of the severity of the condition and professional norms.”).

Importantly, there is no indication that Dr. Moats was personally involved in Ces-áis early care. Dr. Moats could not have acted with the subjective intent that a deliberate indifference claim requires if he was not aware of a risk of a harm to Cesal. See Farmer, 511 U.S. at 838-39, 114 S.Ct. 1970. While Cesal alleges that Dr. Moats refused to see him in the days immediately following his March 21, 2008 accident, no evidence substantiates that allegation, nor is there any reason in this record to think that starting with the physician assistant and nurse was not a reasonable step. Cesal acknowledges that Dr. Moats never treated him before June 27, 2008, the day the doctor terminated Cesal’s insulin prescription. In any event, a prison official’s refusal to indulge an inmate’s request to see a specific staff member, when the prisoner is receiving care' from other members of the medical staff, is not deliberate indifference.

Cesal continued to receive appropriate care in the months that followed his accident. This care included an x-ray of his back, taken just two weeks after his lifting accident, and an MRI of his lumbar spine on June 16, 2008. Dr. Moats also successfully arranged for an outside consult. Cesal writes off these measures because they did not target his middle back, where his fractured vertebra was located, but he ignores the fact that he failed for many months to identify his middle back as the source of his pain. Initially Cesal complained only of pain in his left hip, knee, and thigh. His initial prison grievance said nothing about back pain. Cesal also denied having any back pain in a September 17, 2008 appeal of his grievance in which he questioned the reason for the’ MRI. As he concedes in his brief to this court, Dr. Moats may not have been aware of any middle back pain until November 29, 2009, the date on which Dr. Moats’s exam notes reflect that Cesal had reported middle back pain. Although Ces-áis leg and hip pain may have stemmed from a spinal injury, Cesáis inability to provide any relevant details precludes a factfinder from concluding that Dr. Moats was deliberately indifferent. Dr. Moats could not have disregarded Cesal’s middle back injury if he was not aware of it.

To be sure, the rendering of some medical care does not necessarily disprove deliberate indifference; the treatment rendered may be so blatantly inappropriate that it can support an inference of intentional mistreatment. See Petties v. Carter, 836 F.3d 722, 731 (7th Cir. 2016) (en banc); Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007). Continuing an ineffective treatment plan also may evidence deliberate indifference. See Berry, 604 F.3d at 441-42. But no trier of fact could find that Dr. Moats’s treatment of Cesal was blatantly inappropriate. The consulting neurologist recommended that the Pekin staff continue Cesal’s “conservative” treatment; he believed that more extreme measures, such as steroids or surgery, would be ineffective. Cesal also told the consulting physician that he was jogging two or three miles a day, despite his report of moderate pain. That is a marked improvement from the days after Cesal’s accident, when he needed a wheelchair.

The fact that Dr. Moats “never diagnosed Mr. Cesal’s broken spine,” as Cesal argues, does not push this over the line. Deliberate indifference requires more than evidence of negligence or medical malpractice. See Estelle, 429 U.S. at 106, 97 S.Ct. 285; McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013). Cesal’s dissatisfaction with Dr. Moats’s medical judgment and care is insufficient to survive summary judgment. See Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662-63 (7th Cir. 2016).

C

That brings us to Dr. Moats’s withholding of insulin, which forms the basis for both Cesal’s retaliation theory and his deliberate indifference theory. With respect to the former, the district court assumed that the withholding of insulin described a violation that existed as long as the medication was withheld. (This was not a single injury that accrued when Cesal first lost his insulin; each new day brought with it new injury, and a new violation.) Accordingly, the court concluded that the limitations period began to run on October 29, 2010, the day when Dr. Moats restored the prescription, though at the reduced, five-unit, level. Cesal filed his suit on December 20, 2012, well more than two years after that date, and this was too late in the court’s view. If October 29, 2010, is the correct starting point, Cesal cannot prevail. Dr. Moats did not waive his right to rely on the statute of limitations, and we are aware of no rule of law that would entitle us to strip him of that defense on our own. Cesal has not argued otherwise, either in the district court or in this court. Instead, he contends that his insulin problem was not solved until February J22, 2011, when Dr. Moats finally restored Cesal’s insulin prescription to ten units — the same amount he had been prescribed back in 2008.

Because we must take Cesal’s allegation as true at the summary judgment stage, we disregard Dr. Moats’s explanation of the cancellation as his attempt to manage Cesal’s blood sugar using a different, proactive method. Indeed, we are troubled by Dr. Moats’s cancellation of Cesal’s insulin and his failure to prescribe any insulin — whether sliding scale, or otherwise — for nearly 2 ⅛ years. We conclude, however, that for purposes of both retaliation and deliberate indifference, the critical date is October 29, 2010, when Dr. Moats put Cesal back on the reduced insulin dose.

Cesal’s argument assumes, without any basis, that there is a fixed, “correct” dosage of sliding-scale insulin for his diabetes. There is no evidence .that this is true, either generally or for Cesal himself. All he has managed to do is to register disagreement with Dr. Moats’s medical judgment. That is insufficient to prove deliberate indifference, Berry, 604 F.3d at 441, or any retaliatory motive.

If Cesal had given us some reason to think that Dr. Moats knew that the five-unit dosage would be ineffective, we would have a different case. The Eighth Amendment protects against a physician’s persistence with a course of treatment that he knows will be ineffective, id. at 441, as well as a treatment decision that is “so far afield of accepted professional standards” that a jury could find it was not the product of medical judgment. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). But Cesal has not pointed to any evidence that would permit a factfinder to conclude that Dr. Moats knew that five units would be inadequate in controlling Cesal’s blood sugar or that the prescription was wildly out of line with professional standards. Indeed, Cesal’s medical records from Greenville support the opposite inference: officials there repeatedly adjusted Cesal’s insulin prescription, and at one point lowered it to five units.

Cesal’s contention that the five-unit prescription was insufficient cannot extend the length of the violation. He needed to file suit within two years of October 29, 2010 — the day Dr. Moats again prescribed him insulin. Either as of that date or very shortly afterwards, he knew that he was dissatisfied with the new dose. It is not too much to ask that he file suit within two years of the date when his insulin was partially restored, and after filing, ask the district court to appoint the kind of medical expert our dissenting colleague thinks should have been recruited. But Cesal did not file until December 20, 2012, more than two years after the restoration. This was almost two months too late. Summary judgment in favor of Dr. Moats was thus proper for both the deliberate indifference and the retaliation claims based on the insulin deprivation.

Ill

This case illustrates yet again the important difference between ordinary, or even aggravated, medical malpractice, and an Eighth Amendment violation. Our task is not to resolve whether Cesal’s care — especially the cancellation of his insulin — was appropriate. We must instead apply both the statutes of limitations that apply to Bivens claims such as this one and the underlying constitutional standards. Doing so, we see no error in the district court’s judgment, and so we Affirm.

POSNER, Circuit Judge,

dissenting.

This case is indistinguishable from Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), which reversed a grant of summary judgment for the defendants in a state prisoner’s suit for deliberate indifference to his medical needs and remanded for a closer look, with a strong exhortation to the district judge to recruit a lawyer for Rowe and, if necessary by invoking Rule 706 of the Federal Rules of Evidence, an expert witness for him as well. Lacking these aids, Rowe had been incapable of proving that the prison medical staff, mainly his treating physician, had gravely endangered his health by failing, seemingly out of spite, to provide him with the medicine that he needed for treatment of his potentially fatal gastroesophageal reflux disease. This case involves a similar claim of misconduct by prison medical staff, specifically (as in Rowe) the plaintiffs treating physician, Dr. Scott Moats.

To quote from the majority opinion (with minor alterations for clarity):

“As Cesal tells it, Dr. Moats had learned of Cesal’s filing of a grievance concerning Moats’s treatment of Cesal’s back injury, and the grievance had made Moats angry with Cesal. Telling Cesal he’d ‘show him’ what providing no medical care looked like, Moats terminated Cesal’s prescription for insulin — seemingly for no medical reason.

“Cesal is an insulin-dependent Type II diabetic who had been taking sliding-scale insulin [whereby the size of the insulin dose is based on the patient’s blood-sugar level just before his meal; the higher the level, the more insulin the patient takes]. Without insulin Cesal was left to try to manage his blood-sugar level through diet, exercise, and the diabetes-management drug metformin, which Moats had not canceled. Cesal skipped meals or went for runs when his blood-sugar level got too high. But despite these efforts and the metformin, his blood sugar soared. As a result he felt dizzy and saw stars and his toenails fell off....

“On December 23, 2008, after nearly six months without insulin, Cesal filed a second administrative grievance concerning his diabetes treatment, specifically requesting the restoration of his sliding-scale insulin prescription. Again his grievance and related appeals were denied at each level of the BOP [Bureau of Prisons] administrative process. A denial dated January 21, 2009, noted that the clinical director (Dr. Moats) of the prison [Pekin Correctional Institution] had discussed with Cesal a different diabetes-management program, one ‘tailored to prevent hyperglycemia [high blood sugar — a hallmark sign of diabetes], not to treat it after it occurs.’” This meant that rather than following a sliding-scale insulin regime, in which Cesal would check his blood sugar before meals and take insulin if his blood sugar had risen to a high level, he would once or twice each day at the same time or times take a long-lasting form of insulin that would prevent his blood-sugar level from rising throughout the day.

But were prison officials — Moats in particular — really putting Cesal on that program, given the sudden cancellation of his old prescription, the delay in writing him a new one, and his allegation that Moats was retaliating against him? Although a subsequent denial of his grievance, on March 6, 2009, noted that he was taking oral medications (but not insulin) for his diabetes, and concluded that “sound clinical judgment is being demonstrated” in his treatment, how can we be confident that Moats was demonstrating “sound clinical judgment”? The doctor’s anger, the sudden withdrawal of all insulin, and the long delay before its restoration, make this case sound a lot like Rowe v. Gibson.

Even the judges in the majority in this case acknowledge being “troubled by Dr. Moats’s cancellation of Cesal’s insulin and his failure to prescribe any insulin— whether sliding scale, or otherwise — for nearly 2½ years.” Yet the majority retract their concern, dismissively, with the remark that “Cesal’s argument assumes, without any basis, that there is a fixed, ‘correct’ dosage of sliding-scale insulin for his diabetes. There is no evidence, however, that this is true, either generally or for Cesal himself. All he has managed to do is to register disagreement with Dr. Moats’s medical judgment. That is insufficient to prove deliberate indifference.”

But what does the majority expect of Cesal, a prisoner who had no lawyer and no witnesses, let alone an expert witness? What more could he do than “register disagreement”?

The majority opinion attaches decisive significance to the two-year statute of limitations applicable to the case, which according to the opinion expired before Cesal filed his suit. The purpose of statutes of limitations is to protect defendants from being sued after the evidence on which their defense would depend has disappeared, and there is no indication that the government would be prejudiced in this ease by our waiving the statute of limitations. Cesal argues plausibly that Dr. Moats’ deliberately indifferent treatment of his diabetes continued until February 22, 2011, the date on which Moats restored the full insulin prescription — and that was a date within the statute of limitations. Although Moats had prescribed insulin for Cesal — albeit a reduced dose — on October 29, 2010 (almost two years after Cesal had filed his grievance complaining about the cancellation of his insulin), Cesal argues that Moats must have known that the reduced dose was inadequate, because Cesal’s blood-sugar levels had become severely elevated, probably as a result of Moats’ having withheld insulin from Cesal for that long period.

The argument for waiving the statute of limitations is strengthened by the fact that Cesal was unrepresented in the district court. For all we know, he’s never heard of statutes of limitations. He has made a plausible case of deliberate indifference by Dr. Moats to an acute medical need. I would reverse the judgment in favor of the defendant and remand the ease for an evidentiary hearing, with a strong suggestion that the district judge recruit a lawyer for Cesal and, pursuant to Rule 706 of the Federal Rules of Evidence, appoint a neutral expert witness — a specialist in diabetes and its treatment — as well.

      . Some of the documents show the filing date as December 17, 2012, and others indicate that it was December 20, 2012. The difference, we assume, is attributable to the mailbox rule. We use December 20, 2012, because it is the date that appears in the district court’s docket, and the three-day difference is immaterial for present purposes.


author: FLAUM, Circuit Judge.

text:
    Kenneth COLLINS, Plaintiff-Appellant, v. Nadir AL-SHAMI and Advanced Correctional Healthcare, Inc., Defendants-Appellees.
    No. 15-3179
    United States Court of Appeals, Seventh Circuit.
    Argued October 26, 2016
    Decided March 20, 2017

      Michael K. Sutherlin, Attorney, Suther-lin & Associates, Indianapolis, IN, Plaintiff-Appellant.
    Carol A. Dillon, Attorney, Bleeke Dillon Crandall, PC, Indianapolis, IN, for Defendants-Appellees.
    Before FLAUM, EASTERBROOK, and WILLIAMS, Circuit Judges.
   FLAUM, Circuit Judge.

Following an arrest for driving while intoxicated, Kenneth Collins was booked into the Jackson County Jail in Indiana. Collins later sued a jail physician and the physician’s employer (a private corporation) under 42 U.S.C. § 1983 and Indiana state law, claiming that the doctor had provided inadequate medical care to Collins during his detention. The district court awarded summary judgment to defendants, and we affirm.

I. Background

On August 12, 2012, Kenneth Collins was arrested for operating a vehicle while intoxicated. Collins was a regular drinker, and he drank heavily' — often consuming around thirty beers every two days. Because he had in the past suffered from symptoms of alcohol withdrawal, Collins usually kept with him a bottle of Librium, a benzodiazepine commonly prescribed to treat withdrawal and anxiety disorders. See http://www.drugs.com/cdi/librium.html (last visited March 20, 2017). Collins had the bottle of Librium with him when he was arrested in August 2012, and a booking officer at the Jackson County Jail telephoned the assigned jail physician, Dr. Nadir Al-Shami, to ask about the medication. Dr. Al-Shami approved Collins’s use of the Librium while in custody, and directed that he take the medication in accordance with the dosages listed on the prescription bottle. Collins was taken to a jail cell around 7:00 PM, and from 9:00 PM to around 11:30 PM, an officer checked on him approximately every fifteen minutes.

Officers continued to check on Collins into the‘next morning, observing that he was responsive and had no complaints. At approximately 8:30 AM on August 13, however, Collins began to complain of shaking from alcohol withdrawal, and he was given some of the Librium, as well as some thiamine (vitamin Bl) and a multivitamin. By lunchtime, Collins was feeling better and eating normally; but in the afternoon, he began to complain again of having withdrawal symptoms, including shaking, nausea, and vomiting. A nurse measured his heart and respiratory rates, temperature, oxygen levels, and blood pressure, and called Dr. Al-Shami to report her findings. The doctor ordered that Collins be given the normal treatment for alcohol withdrawal: Librium, thiamine, and multivitamins. Dr. Al-Shami also ordered that Collins be monitored for signs of withdrawal, such as shaking, sweating, and changes in mental state.

Around 7:30 the next evening (on August 14), an officer at the jail heard Collins talking to himself in his cell, and so went over to check on him. Collins was responsive and knew where he was, but seemed indifferent to his surroundings. When a nurse entered his cell around midday on August 15, Collins was delusional and showing signs of paranoia. The nurse called Dr. Al-Shami, but he was unavailable, so she telephoned another on-call physician. That physician advised the nurse to discontinue the Librium treatment and to instead administer a one-time dose of Haldol, an anti-psychotic agent. See http://www.drugs.com/cdi/haldol.html (last visited March 20, 2017). The nurse gave Collins the Haldol, but his symptoms did not improve; so - when Dr. Al-Shami returned the nurse’s earlier phone call, he told her to send Collins to the emergency room.

Collins was taken to the hospital around 1:00 PM, where medical staff measured his vital signs — -all of which were normal — and performed a blood work-up. The latter showed slightly low potassium levels, and higher-than-normal levels of lactic acid and bilirubin (high bilirubin is a common symptom of alcoholism), but the examining physician, Dr. Mark Guffey, concluded that Collins was not suffering from delirium tremens (an acute form of alcohol withdrawal), because his heart and respiratory rates were not very high, and because he was not sweating, shaking, or otherwise acting “jittery.” Dr. Guffey thought the Librium pills were unnecessary, and so did not advise the jail staff to continue treating Collins with that medication upon his discharge from the hospital.

After Collins returned to the jail, officers saw that he was having trouble sleeping and was standing on the top bunk of his bed, so they moved him to a padded cell for his safety. Then, in the early morning of August 17, 2012, an officer thought that Collins was having “bad [delirium tre-mens] from alcohol,” and called Dr. Al-Shami. The doctor ordered that Collins be given some Librium immediately, and again each day for the next ten days. Later that morning, the doctor made his weekly visit to the jail and examined Collins in person. Dr. Al-Shami took Collins’s pulse and listened to his heart, which were both normal (though Collins did appear jaundiced). Dr. Al-Shami also reviewed Collins’s medical records (from both the jail and the recent hospital visit), and ordered that he be given a potassium supplement and sodium bicarbonate to treat his low potassium and high lactic-acid levels, respectively. Dr. Al-Shami believed that Collins was suffering from delirium tre-mens, but because Collins had just been released from the hospital, and because his condition had not changed since then, Dr. Al-Shami thought Collins’s symptoms could be monitored and treated adequately by jail personnel.

Collins continued to display strange behavior, however. Late at night on August 19, Collins told an officer that Collins was “in a room of a house and [could not] fix it”; and a few hours later, in the early morning of August 20, jail staff overheard Collins talking to himself about two kids “going around [and] stealing stuff.” Collins refused to eat breakfast that morning, or lunch later that day — though by 10:30 PM, he was responsive and walking around his cell. Collins was still responsive on August 21, but on the morning of the 22nd, he spent several hours lying on the floor of his cell, at times disrobing, and would not eat any food. A nurse spoke with him and thought him capable of some coherent conversation, but noted that he had an unsteady gait, and so renewed the instruction for continuous monitoring. Jail officers began to observe Collins every fifteen minutes per the nurse’s orders, and by lunchtime, Collins was eating once more. In the evening, Collins was still responsive but again tried to take his clothes off.

Officers continued to check on Collins every fifteen minutes, and Collins was sitting up and eating at 9:15 AM on August 23. Collins was still sitting up in his cell when officers checked on him again at 9:30 and 9:45 that morning; but when a nurse came by around 10:00 AM, she found that Collins’s mental state had deteriorated. He was unable to converse with her or maintain eye contact, and he could not sit up or stand without help. The nurse called Dr. Al-Shami, who instructed her to send Collins back to the emergency room for further evaluation and lab work. The nurse complied, and Collins was taken to the hospital for a second time. Hospital staff determined that Collins was hypothermic (his body temperature was 84.2 degrees), that he had low blood pressure, and that he was suffering from dehydration, sepsis, and acute respiratory failure. Collins was treated at the hospital and remained there, in a medically-induced coma, for several days. He did not return to the jail.

In November 2013, Collins sued Dr. Al-Shami under Indiana common law and 42 U.S.C. § 1983, claiming that the doctor had been negligent and had violated Collins’s Fourteenth Amendment rights. Collins also named as a defendant Dr. Al-Shami’s employer, Advanced Correctional Healthcare, Inc., which had contracted with the Jackson County Sheriffs Department to provide physician services at the jail. Defendants filed a motion for summary judgment, which the district court granted as to both the state-law and constitutional claims. Collins appeals.

II. Discussion

We review de novo a district court’s grant of summary judgment, construing all facts and drawing all reasonable inferences in favor of the non-moving party. See Frye v. Auto-Owners Ins. Co., 845 F.3d 782, 785 (7th Cir. 2017) (citation omitted). Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

A. The Federal Claims

“[D]ifferent constitutional provisions, and thus different standards, govern depending on the relationship between the state and the person in the state’s custody.” Currie v. Chhabra, 728 F.3d 626, 630 (7th Cir. 2013) (citing Graham v. Connor, 490 U.S. 386, 394-95, 395 n.10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Belbachir v. Cty. of McHenry, 726 F.3d 975, 979 (7th Cir. 2013)). The Fourth Amendment applies to the period of confinement between a warrantless arrest and the probable-cause determination, id. at 629, 631 (citations omitted); the Due Process Clause of the Fourteenth Amendment governs after the probable-cause determination has been made, see Lopez v. City of Chi., 464 F.3d 711, 719 (7th Cir. 2006) (citations omitted); and the Eighth Amendment applies after a conviction, id. The parties in this case agree that Collins’s federal claims are subject to the Due Process Clause, but disagree on what that Clause entails.

In the past, we have applied to due-process claims of inadequate medical care the deliberate-indifference standard derived from the Eighth Amendment. See, e.g., Pittman ex rel. Hamilton v. Cty. of Madison, Ill., 746 F.3d 766, 775 (7th Cir. 2014); Smith v. Knox Cty. Jail, 666 F.3d 1037, 1039 (7th Cir. 2012); Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010). That standard includes both an objective and subjective component, see Minix, 597 F.3d at 831 (citations omitted), and thus is more difficult to satisfy than its Fourth Amendment counterpart, which requires only that the defendant, have been objectively unreasonable under the circumstances, see Lopez, 464 F.3d at 718 (citing Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th Cir. 2005)). Collins argues that under Kingsley v. Hendrickson, — U.S. -, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), it is the objective-unreasonableness standard that governs here, see id. at 2473 (applying a “solely ... objective” standard to a pre-trial detainee’s claims) — but Kingsley was an excessive-force case, and we have not yet addressed whether its reasoning extends to claims of allegedly inadequate medical care, cf. Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 554 n.31 (7th Cir. 2016). We need not (and do not) resolve that issue here, however, as even under the less-demanding standard, Collins’s federal claims still cannot succeed.

1. The Claim Against Dr. Al-Shami

Collins argues that the treatment he received from Dr. Al-Shami was objectively unreasonable under the circumstances, because Dr. Al-Shami did not monitor Collins’s vital signs, or ensure that his vital signs were monitored, on a regular basis. In support of this argument, Collins points to the deposition testimonies of some of his other treating physicians, to a journal article on the evaluation and treatment of individuals suffering from alcohol withdrawal, and to an “Alcohol Withdrawal Protocol” issued by Dr. Al-Shami’s employer, Advanced Correctional Healthcare. These materials do not demonstrate what Collins urges.

Dr. Guffey, the emergency-room doctor who treated Collins when he was first sent to the hospital on August 15, 2012, did refer to vital signs when asked at his deposition about diagnosing delirium tre-mens (an acute form of alcohol withdrawal). Patients suffering from delirium tre-mens, explained Dr. Guffey, typically will have a very high heart rate and a “fairly high” respiratory rate, and may have a higher-than-normal body temperature. However, Dr. Guffey also described more qualitative indicators of acute withdrawal, explaining that patients with delirium tre-mens will be “sweaty, very jittery, [or] shaking.” Dr. Jonathan Light, who treated Collins after he returned to the same hospital on August 23, 2012, similarly described a collection or “cluster” of relevant symptoms, including, on the quantitative side, an elevated heart rate and hypertension (high blood pressure), but also including symptoms that may be observed or discovered through visual inspection or conversing with the patient, such as tremulousness, agitation, confusion, severe anxiety, headaches, hallucinations, diarrhea, vomiting, and excessive sweating.

Dr. Grant Olsen, an inpatient specialist who also treated Collins during his second hospital visit on August 23, likewise discussed a comprehensive approach to diagnosing delirium tremens. While Dr. Olsen would often use vital signs to look for delirium tremens, he stated that, for inpatients, he would typically evaluate alcohol-withdrawal symptoms using the Clinical Institute Withdrawal Assessment, or “CIWA,” scale. The CIWA method, as explained in the journal article on which Collins also relies, see Max Bayard et al., Alcohol Withdrawal Syndrome, 69(6) Am. Fam. Physician 1325, 1443-50 (2004), calls for healthcare providers to complete a worksheet that ascribes a numeric score to an array of symptoms typically associated with alcohol withdrawal, such as nausea and vomiting; tremors; “[pjaroxysmal sweats”; anxiety; agitation; tactile, auditory, and visual disturbances; headaches; and disorientation and “clouding of senso-rium.” The more severe the symptom, the higher the score and, collectively, the higher the risk of developing delirium tremens. (The worksheet also includes fields for recording the patient’s heart rate and blood pressure, but ascribes a score to neither.)

Collins highlights that the Bayard article lists tachycardia (elevated heart rate), fever, and hypertension as specific indicia of delirium tremens. The article does mention those symptoms in connection with severe alcohol withdrawal; but the article also refers to qualitative symptoms of the condition (e.g., agitation, disorientation, and hallucinations), id. at Table 2. Vital signs are not the article’s sole, or even primary, focus, and nothing in that document suggests that if a patient’s vital signs are not measured frequently, healthcare providers will be unable to assess the severity of the patient’s withdrawal.

Collins next points to the Alcohol Withdrawal Protocol created by Dr. Al-Shami’s employer, Advanced Correctional Healthcare. The protocol suggests to jail personnel the actions they should take if they suspect a detainee might be suffering from withdrawal. These actions include: asking the detainee a series of questions (when the detainee last drank alcohol, how much they drink daily, and whether they have a history of liver disease or seizures); examining the detainee — i.e., taking their “[v]itals” (blood pressure, temperature, pulse, and respiratory rate) and looking for other symptoms (e.g., tremors, confusion) that might require treatment; recording the results of that examination; and scheduling a visit with a physician or “responsible medical provider.” The protocol also states that, after treatment with any medication (as directed by a healthcare provider), the detainee’s vital signs should be monitored every four hours for the first day of confinement, and then again during each shift while medications continue.

Collins argues that the protocol establishes a standard of medical care, and that the standard therefore includes the regular monitoring of a detainee’s vital signs. On each page of the document, however, is written:

These Protocols are designed to assist the staff in the gathering of information to be communicated to the medical staff. The Protocols are not intended to establish a standard of medical care and are not standing orders. All treatments must be ordered and approved b[y] a Nurse Practitioner, Physician Assistant or Physician.

(emphasis added). Several jail employees also testified at their depositions that the protocol forms are in general used by non-medical jail staff for the limited purpose of collecting information when medical professionals are not present or available to see detainees in person. At most, the protocol reflects the kind of data that some physicians thought might be helpful in assessing a detainee’s alcohol withdrawal. The majority of those data concern the detainee’s appearance and behavior, not his vital statistics, and in any event, there is no suggestion that acute alcohol withdrawal cannot be treated or diagnosed absent those particular statistics.

Vital signs aside, Collins argues that Dr. Al-Shami is still liable under § 1983, because the on-site jail staff should have at least monitored Collins’s overall condition, and Dr. Al-Shami did not advise those staff members about when to contact him should Collins’s symptoms worsen. This argument, too, is unpersuasive. First, it is not apparent from the record that Dr. Al-Shami was responsible for giving orders of precisely this kind. Moreover (and relatedly), Collins points to no evidence reasonably suggesting that the orders Dr. Al-Shami did give were deficient. Dr. Al-Sha-mi. instructed that Collins be observed for signs of withdrawal (including sweating, shaking, and changes in mental state), and Collins was checked — frequently—by on-site personnel, who collectively telephoned Dr. Al-Shami at least four times about Collins’s condition and twice sent him to the hospital at Dr. Al-Shami’s request.

Collins stresses that Dr. Olsen was unable to assess the quality of care actually given to Collins during his detention because, according to Dr. Olsen, he did not have a complete “clinical picture” of Collins’s condition. That Dr. Olsen could not opine on the adequacy of Collins’s treatment is not evidence that the treatment was objectively inadequate — and nor do the records from Dr. Light, on which Collins also relies, fill that gap. Dr. Light had remarked in his treatment notes from August 28, 2012, that Collins’s altered mental state was likely symptomatic of delirium tremens that had been “inadequately managed ... with oral Librium at [the] jail.” At his deposition, however, Dr. Light clarified that this comment was not about the relevant standard of care. According to Dr. Light, he had meant to convey only that, despite the Librium treatment (as ordered by Dr. Al-Shami), Collins’s alcohol withdrawal had continued to progress — a possibility even where alcohol-withdrawal symptoms have been managed appropriately.

Defendants’ medical expert, Dr. Benton Hunter, reviewed Collins’s medical records and a chronology of his treatment at the Jackson County Jail, and concluded that Dr. Al-Shami’s conduct was reasonable and in accordance with the applicable standard of care. Collins has not presented any evidence suggesting that this conclusion was erroneous. The district court thus correctly dismissed Collins’s § 1983 claim against Dr. Al-Shami.

2. The Claim Against Advanced Correctional Healthcare

Collins argues that, if Dr. Al-Shami is liable under § 1983, Al-Shami’s employer should likewise be held liable under the doctrine of respondeat superior. Under existing precedent, neither public nor private entities may be held vicariously liable under § 1983. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (discussing municipal liability); Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (extending Monell to suits against private corporations) (citations omitted). Though we have recently questioned whether the rule against vicarious liability should indeed apply to private companies, see Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 786, 789-95 (7th Cir. 2014), we again leave that question for another day. Dr. Al-Shami is not liable, so — even if the theory of respondeat superior were available — neither is his employer.

B. The State-Law Claims

Collins also brought a medical-malpractice claim against Dr. Al-Shami and Advanced Correctional Healthcare under Indiana law. (There is no dispute that re-spondeat superior applies in Indiana.) To succeed on such a claim, Collins must show that Dr. Al-Shami owed Collins a duty of care, that the doctor’s actions did not conform to that standard of care, and that Collins was proximately injured by the doctor’s breach. See McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 910 (Ind. 2009).

Collins seeks, to avoid summary judgment on his state-law claims using the same evidence he presented in support of his § 1983 claims. That evidence, however, for reasons already discussed, is insufficient to create a genuine issue of material fact. The state-law claims against Dr. Al-Shami and Advanced Correctional Healthcare were correctly dismissed.

III. Conclusion

For the foregoing reasons, we Affirm the judgment of the district court.

      . Collins initially sued several employees of Jackson County and the City of Seymour, as well, but settled with those defendants in April 2015. The term “defendants,” as used in this opinion, therefore refers only to Dr. Al-Shami and Advanced Correctional Healthcare.

      . Available at http://www.aafp.org/afp/2004/ 0315/p 1443.html (last visited March 20, 2017).

      . The “[s]ource” of the protocol is listed as the "Physician Advisory Board.”


author: HAMILTON, Circuit Judge.

text:
    Tamara SIMIC, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
    No. 15-2496
    United States Court of Appeals, Seventh Circuit.
    Argued February 16, 2016
    Decided March 20, 2017

      Ilia Usharovich, Attorney, Wheeling, IL, for Plaintiff-Appellant.
    Irina Y. Dmitrieva, Attorney, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendant-Appellee.
    Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

On November 7, 2014, plaintiff Tamara Simic was driving in Chicago and texting on her cell phone. A police officer issued her a ticket because texting while driving violates a Chicago ordinance. Simic failed to pay the ticket, and the City took steps to collect a fine. Simic then sued the City, claiming that the ordinance is unconstitutional. She moved for a preliminary injunction to halt enforcement of the ordinance throughout Chicago, but the City then non-suited its case against her. The district court denied Simic’s motion for an injunction, and Simic has appealed.

We affirm the district court’s denial of Simic’s motion for a preliminary injunction for two reasons. Simic did not face any threat of irreparable harm. Also, without assessing her likelihood of success on the merits of her constitutional arguments, it appears that Simic lacks Article III standing for the relief she seeks. Once our mandate issues, the district court should consider dismissing Simic’s lawsuit for lack of jurisdiction.

I. Factual and Procedural Background

A 2005 Chicago ordinance prohibits drivers from using handheld mobile telephones while operating their vehicles. Chic. Mun. Code § 9-76-230. On November 7, 2014 a Chicago police officer ticketed Simic for violating the ordinance. The ticket directed Simic to appear for a hearing or to pay a $100 fine by mail. Simic did neither. The Chicago Department of Administrative Hearings entered a default judgment against her for $540. As the ticket had warned, $500 was the maximum fine for Simic’s infraction and $40 was for administrative costs.

Simic did not dispute that she was text-ing while driving; instead she challenged the constitutionality of the Chicago ordinance. She sued the City on January 3, 2015, seeking declaratory and injunctive relief and monetary damages in excess of one million dollars. She alleged that Chicago’s cell phone ordinance violates the Fourteenth Amendment’s Due Process Clause and the Eighth Amendment’s Excessive Fines Clause. She also alleged several state-law claims and sought certification of a plaintiff class.

Simic’s main theory is that the ordinance somehow violates the United States Constitution because it exceeds the powers the State of Illinois has granted to the City of Chicago. Illinois prevents municipalities from creating ordinances regarding certain traffic offenses, such as those offenses in the Illinois Vehicle Code. See 65 ILCS 5/1-2.1-2. The Illinois Vehicle Code contains a prohibition on cell phone use while driving. 625 ILCS 5/12-610.2 (prohibiting a person from operating “a motor vehicle on a roadway while using an electronic communication device”). Simic argues that Chicago’s cell phone ordinance is preempted by the Illinois statute. See Catom Trucking, Inc. v. Chicago, 351 Ill.Dec. 797, 952 N.E.2d 170, 175-76 (2011) (holding city could not enforce through administrative adjudication a city ordinance limiting vehicle weight). The Illinois statute on cell phone use while driving caps the amount a driver may be fined: “A person who violates this Section shall be fined a maximum of $75 for a first offense, $100 for a second offense, $125 for a third offense, and $150 for a fourth or subsequent offense.” Id.

How such an issue of state law presents a federal constitutional issue remains something of a mystery. Simic’s theory seems to be that Chicago’s fines are both “excessive and disproportionate to the gravity of the offense” and imposed without authority under state law, from which she concludes that the city’s fines violate the Excessive Fines Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth ■ Amendment. As explained below, however, Simic’s case runs into trouble at the preliminary level of standing.

On January 23, 2015, after Simic filed her motion for a preliminary injunction, the Department granted Simic’s motion to set aside the default judgment in her state case and continued her case until March 11, 2015. On May 18, after several agreed continuances, the city non-suited the administrative proceeding. Simic never paid any money for violating the Chicago ordinance, and she is no longer liable for the fine.

On June 24, 2015, the district court denied Simic’s motion for a preliminary injunction because she failed to show a threat of irreparable injury and because her prospects for success on the merits were “doubtful.” There was no threat of irreparable harm because “the very nature of Simic’s claim that the $500 fine is excessive necessarily means that her complaints can be remedied by monetary damages, and thus, there exists an adequate remedy at law.” Simic was unlikely to prevail on the merits, the court said, because Chicago is a home rule unit of government so that state law does not preempt the ordinance. Simic appealed the denial of an injunction.

II. Analysis

We have jurisdiction under 28 U.S.C. § 1292(a)(1) to review the district court’s denial of a preliminary injunction. We affirm the denial. The district court correctly found that Simic failed to show any threat of irreparable harm, and we agree with the court’s explanation. At worst, Simic faced the threat of a $540 assessment as a fine and court costs, so a damages remedy would be sufficient to remedy any harm. In addition, without delving further into the merits of her constitutional claim, it is apparent that Simic lacks standing to assert her federal claims, meaning that subject matter jurisdiction is lacking. A district court has jurisdiction to decide its jurisdiction, so it can address a motion for a preliminary injunction without making a . conclusive decision about whether it has subject matter jurisdiction. Yet issues of subject matter jurisdiction are always on the table in federal courts, including appeals from grants or denials of preliminary injunctions. See Munaf v. Geren, 553 U.S. 674, 691, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). Simic does not have standing to seek injunctive relief, and she seems unable to show any injury in fact to support her claim for damages.

A. Standing to Seek Injunctive Relief

To invoke federal jurisdiction, Simic must have standing, which is a short-hand term for the right to seek judicial relief for an alleged injury. See Susan B. Anthony List v. Driehaus, 573 U.S. -, -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014). To have standing, a plaintiff must allege and ultimately show: (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. Id. A plaintiff bears the burden of showing that she has standing for each form of relief sought. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). For Simic’s case to survive, she must show that she has standing to seek either injunctive relief or damages, or both.

To have standing for prospective injunctive relief, a plaintiff must face a “real and immediate” threat of future injury as opposed to a threat that is merely “conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal quotation marks omitted); see also Sierakowski v. Ryan, 223 F.3d 440, 444-45 (7th Cir. 2000). Unlike with damages, a past injury alone is insufficient to establish standing for purposes of prospective in-junctive relief: “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” Lyons, 461 U.S. at 95-96, 103 S.Ct. 1660, citing O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

Simic’s claimed threat of future injury is conjectural. The threat is contingent upon her once again driving while using her cell phone and receiving a citation under the Chicago ordinance. This hypothetical scenario would also require her to violate a separate law that she does not challenge — the Illinois statute that prohibits using cell phones while driving. 625 ILCS 5/12-610.2.

For purposes of standing to seek injunctive relief against future harm, courts generally assume that litigants “will conduct their activities within the law and so avoid prosecution and conviction.” O’Shea, 414 U.S. at 497, 94 S.Ct. 669. That assumption surely holds with respect to obeying laws that are not themselves the target of a party’s constitutional challenge, as was the case in O’Shea and is the case here.

We hope, and in any event we must assume, that Simic does not have concrete plans to violate Illinois law by using her cell phone while driving in Chicago. That fact undermines her standing to seek in-junctive relief. “General assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws” cannot form the basis for allegations of real and immediate future injury sufficient to confer standing. O’Shea, 414 U.S. at 497, 94 S.Ct. 669; see also Lyons, 461 U.S. at 109-10, 103 S.Ct. 1660 (plaintiff lacked standing to seek injunction against future police use of chokehold; he could only speculate that he would be subjected to illegal chokehold again in course of possible future confrontation with police).

If Simic were claiming a constitutional right to drive while using her cell phone, our standing analysis would be different, although it is difficult to imagine how such a claim would succeed on the merits. A person is not necessarily required to risk prosecution in order to challenge a law’s validity. See, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 15, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010); American Civil Liberties Union v. Alvarez, 679 F.3d 583, 590-91 (7th Cir. 2012). But Simic makes no such claim here. Any future injury would require her to violate an Illinois statute of unquestioned validity.

B. Standing to Seek Damages

Simic also seems to have no viable claim for damages because she has alleged no injury. Simic won in the state proceedings. The default judgment was set aside and the city later dismissed the case. Simic paid no fíne. Her due process rights could not have been violated by merely issuing the citation that called upon her to defend herself. The citation gave her the very notice and opportunity to be heard that are the essence of due process of law.

There are some exceptions to this injury analysis in extreme situations, such as where a government official harasses a particular person by repeatedly bringing charges and then dismissing them or a government official acts without a color-able legal basis. See, e.g., Geinosky v. Chicago, 675 F.3d 743 (7th Cir. 2012) (pattern of harassing parking tickets issued against plaintiff). There is no claim of such repeated harassment in this case, and the ticket was issued under a facially valid ordinance.

Simic alleged that the ordinance’s fine violated the Eighth Amendment’s Excessive Fines Clause and the Fourteenth Amendment’s Due Process Clause. Whether the Eighth Amendment’s Excessive Fines Clause even applies to state and local governments is an open question. See McDonald v. Chicago, 561 U.S. 742, 765 n.13, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (noting question is open). If it does apply, the Excessive Fines Clause “limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.” United States v. Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (citation and internal quotation marks omitted). But in this case Chicago has not extracted any payment from plaintiff and no longer seeks to do so. Simic’s Fourteenth Amendment due process claim requires a deprivation of property, Kerry v. Din, 576 U.S. -, -, 135 S.Ct. 2128, 2132, 192 L.Ed.2d 183 (2015), but she has not been deprived of any property. She did not pay any money to Chicago and she is no longer liable for this ticket. On her Eighth or Fourteenth Amendment claims, there is no injury for a federal court to redress with damages.

The fact that Simic litigated her ticket in the Chicago administrative court does not provide a redressable injury. Having to defend oneself in a legal proceeding ordinarily does not give rise to a redressable injury. For example, undergoing trial in a criminal prosecution does not give rise to a due process violation. See Alexander v. McKinney, 692 F.3d 553, 557 n.2 (7th Cir. 2012) (“It would be anomalous to hold that attending a trial deprives a criminal defendant of liberty without due process of law, when the purpose of the trial is to effectu ate due process.”)- Whether being prosecuted and tried without probable cause gives rise to a federal constitutional claim is a controversial issue, as shown by the multiple opinions in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Simic has no arguable claim along even those lines, however, since the citation was issued and the fine initially assessed on the basis of undisputed probable cause to believe she violated a facially valid city ordinance.

For essentially the same reasons, Simic’s claim for declaratory relief does not provide a case or controversy. In determining whether a claim for declaratory relief presents a case or controversy under Article III of the Constitution, “basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (citation and internal quotation marks omitted; emphasis omitted); see also Alvarez v. Smith, 558 U.S. 87, 93, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009) (claim for declaratory and injunctive relief moot because it was “an abstract dispute about the law, unlikely to affect these plaintiffs any more than it affects other Illinois citizens”).

Simic’s lack of standing to seek injunc-tive relief also means that she may not seek that relief on behalf of the putative class she alleged in her complaint. O’Shea, 414 U.S. at 494, 94 S.Ct. 669. Similarly, Simic may not seek damages or declaratory relief on behalf of a not-yet-certified class. Board of School Comm’rs of City of Indianapolis v. Jacobs, 420 U.S. 128, 129-30, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975) (per curiam).

We AFFIRM the denial of a preliminary injunction. Consistent with this opinion, the district court should consider dismissing Simic’s suit for lack of subject matter jurisdiction.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ralph SHANNON, Defendant-Appellant.
    No. 15-2780
    United States Court of Appeals, Seventh Circuit.
    Argued February 16, 2017
    Decided March 20, 2017

      Laura A. Przybylinski Finn, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
    Johanna M. Christiansen, Thomas W. Patton, Attorneys, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
    Before FLAUM, MANION, and KANNE, Circuit Judges.
   FLAUM, Circuit Judge.

Ralph Shannon appeals the imposition of a special condition of release following his 2007 conviction for possession of child pornography, 18 U.S.C. § 2252(a)(4)(B). Specifically, he argues that Special Condition 2 — requiring notice to the probation office before using certain devices — is unconstitutionally vague and that the district court imposed it without adequate explanation. We affirm.

I. Background

On April 20, 2007, Shannon pleaded guilty to one count of possessing child pornography. He had saved over 400 encrypted illicit images of children on his computers. On July 17, the district court sentenced him to forty-six months’ imprisonment and supervised release for the remainder of his life. Shannon appealed his sentence, and we affirmed. United States v. Shannon, 518 F.3d 494, 495-97 (7th Cir. 2008).

On August 20, 2010, Shannon finished his term of imprisonment and began supervised release. Since that' date, appellant has participated in several hearings to modify the conditions of his release. On November 28, 2011, the district court found that Shannon had violated the terms of those conditions by possessing a web camera without previously notifying his probation officer, and sentenced Shannon to twenty-eight days of incarceration. Shannon appealed, and we vacated one of the conditions of his supervised release, leaving the remainder intact. United States v. Shannon, 743 F.3d 496, 503 (7th Cir. 2014).

In April and May 2015, the probation office notified the district court that appellant had temporarily uninstalled the monitoring software on his computer, viewed legal adult pornography, encrypted digital files, possessed external storage devices, and installed “scrubbing” software. As a result of these reports, the district court conducted a revocation hearing on July 30, 2015. Though the district court found that Shannon had indeed used encryption, external storage devices, and scrubbing software, and found that Shannon was not particularly compliant with his release conditions, the court declined to revoke his supervised release.

At the July 30 revocation hearing, Shannon, objected to his conditions of supervised release. Accordingly, the court scheduled a modification hearing for August 5, 2015. The parties disputed the proper wording of Amended Special Condition 2, the purpose of which was to require appellant to give notice to the probation office before using certain electronic devices. (On appeal, Shannon does not challenge the imposition of any other conditions of supervised release.) Ultimately, the district court imposed the following condition over Shannon’s objection:

Defendant shall provide the supervising U.S. probation officer advance notification of any devices associated with or falling within the general category of information technology (IT) that produce, manipulate, store, communicate or disseminate information and that he will use during the term of supervision. The probation office is authorized to install any application as necessary on any such devices owned or operated by defendant and shall randomly monitor those media. Defendant shall consent to and cooperate with unannounced examinations of any technological equipment owned or used by him, including but not limited to retrieval and copying of all data from all information technology devices and any internal or external peripherals. The examinations may involve removal of such equipment for the purpose of conducting examination.

The court reasoned that Special Condition 2 was “related to the offense of conviction which involves the sexual exploitation of minors from a computer in [Shannon’s] home and will protect the public. [Shannon’s] demonstrated non-compliance with external storage devices indicates he is at a continued risk to reoffend.” The same day, the court entered an order reflecting the new conditions, including Special Condition 2. The order stated that Shannon’s “demonstrated non-compliant behavior requires the continuation of his life term of supervision to protect the public, to promote rehabilitation and to achieve parity with the terms of supervised release imposed in the cases of similarly situated defendants who, like defendant, were convicted of offenses involving possession of hundreds of images of child pornography.” This appeal followed.

II. Discussion

This Court reviews the imposition of an objected-to condition of supervised release for abuse of discretion. United States v. Armour, 804 F.3d 859, 867 (7th Cir. 2015) (citing United States v. Kappes, 782 F.3d 828, 844 (7th Cir. 2015)). The constitutionality of a condition of release is a legal determination that we review de novo. Cf. United States v. Mosley, 759 F.3d 664, 667 (7th Cir. 2014) (we review de novo constitutional arguments for revocation of supervised release) (citation omitted). Finally, we review de novo whether the district court adequately explained a chosen condition of supervised release. See Armour, 804 F.3d at 867-68. (citations omitted); Kappes, 782 F.3d at 864 (citation omitted); United States v. Poulin, 745 F.3d 796, 800 (7th Cir. 2014) (citations omitted).

A. Vagueness

A condition of supervised release is unconstitutionally vague if it would not provide a person of reasonable intelligence with sufficient notice as to the condition’s requirements. Armour, 804 F.3d at 868 (quoting United States v. Schave, 186 F.3d 839, 843 (7th Cir. 1999)). Shannon argues that Special Condition 2, requiring “advance notification of any devices associated with or falling within the general category of information technology (IT) that produce, manipulate, store, communicate or disseminate information,” is impermissibly vague because it does not sufficiently explain what devices trigger the notice requirement. For example, appellant queries whether he is required to provide advance notification before purchasing a microwave. However, the scope of the “devices” that trigger the notification requirement is circumscribed by the condition’s two limiting clauses. Appellant need not provide notice for all devices he might use; rather, he must provide notice only for devices that satisfy both qualifying clauses: (1) The device falls within the general category of information technology or is associated with information technology, and (2) the device produces, manipulates, stores, communicates, or disseminates information. This limiting language provides adequate notice of the condition’s requirements. And these qualifications clearly exclude things like microwaves, which are simply household appliances, not information technology, and which do not deal with information under any plausible reading of the condition.

Shannon’s concern is further allayed by the nature of the condition itself. Special Condition 2 is not an outright prohibition against using “devices.” Rather, it is a notice requirement. Thus, if appellant truly is unsure about whether a particular device will trigger the notice requirement, he • can satisfy any potential obligation simply by notifying the probation office. Shannon is at little risk of suffering from the vagueness doctrine’s principal concern: unknowingly running afoul of a legal requirement.

Shannon next argues that the district court should have employed his alternative wording for Special Condition 2. At the modification hearing, appellant advocated for a condition that required notice for “devices able to obtain, store or transmit illicit sexual depictions or illicit sexual information.” He argued that such a condition would be similar to a condition approved by the Second Circuit in United States v. Balon, 384 F.3d 38 (2d Cir. 2004). However, the district court declined to adopt that language, and appellant provides no authority to support an argument that the rejected language bears on whether the condition ultimately adopted is unconstitutionally vague. Rather, courts’ vagueness assessments are grounded in the language of operative conditions, not in conditions that have never come into force. Cf. Armour, 804 F.3d at 868-70 (assessing the vagueness of the actual conditions of release imposed).

Relatedly, Shannon claims that Special Condition 2 is over-broad. “[I]m-posed conditions ‘cannot involve a greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, incapacitation, and rehabilitation.’ ” United States v. Warren, 843 F.3d 275, 281 (7th Cir. 2016) (quoting United States v. Goodwin, 717 F.3d 511, 522 (7th Cir. 2018)). Special Condition 2, which simply requires notifying the probation office before using certain devices, is not broader than is reasonably necessary in light of Shannon’s crime of conviction, use of computer systems to obtain child pornography, subsequent use of external storage, and the district court’s stated concern that Shannon is “at a continued risk to reof-fend.” Such underlying facts justify a condition encompassing a range of devices, and Shannon has not shown that the condition as written sweeps in more than what is reasonably necessary in these circumstances.

B. Adequate Explanation

Appellant next argues that the district court imposed Special Condition 2 without adequately explaining the need for that condition. Conditions of release are part of a defendant’s sentence. United States v. Thompson, 777 F.3d 368, 373 (7th Cir. 2015). It follows that the district court must apply several of the factors found in 18 U.S.C. § 3553(a) in assessing “the propriety of any conditions of supervised release that the judge is thinking of imposing.” Id. (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); 18 U.S.C. § 3583(c). The court must provide an explanation for its decision that shows that it “has given meaningful consideration to the 3553(a) factors and the parties’ arguments” in determining the proper sentence. Kappes, 782 F.3d at 864.

After imposing Special Condition 2, the district court stated that this condition.was “related to the offense of conviction which involves the sexual exploitation of minors from a computer in his home and will protect the public. His demonstrated noncomplianee with external storage devices indicates he’s at a continued risk to reoffend.”

Shannon principally argues that the condition lacks justification because it is substantially broader than would be needed to address the district court’s stated concerns. We disagree. At the time it imposed Special Condition 2, the district court was aware that Shannon had been convicted for saving over 400 encrypted images of child pornography. After his release from prison, he had continued to use encryption, external storage devices, and scrubbing software, all of which make tracking his access to illicit images more difficult. The district court acted reasonably in concluding that Shannon had “not [been] particularly compliant,” was playing games with respect to his conditions of supervised release, and was at risk of reof-fending. Such evasive behavior — which the district court referenced during the August 2015 hearing — coupled with the court’s stated concerns of protecting the public and preventing misuse of external storage devices, justified the imposition of the notice condition; and the court adequately explained its reasons for imposing that condition.

III. Conclusion

For the foregoing reasons, we Affirm the order of the district court.

      . The language Shannon proposed at the hearing was not similar to the Baton condition. The condition approved in Baton read, "The defendant must provide ... notification of any computer(s), automated service(s), or connected device(s) that he will use during the term of supervision.” 384 F.3d at 41.

      . Shannon also argues that Special Condition 2 is unnecessarily broad compared to his proposed alternatives, and that the difference between the reaches of the respective conditions lacks justification. He states in his brief that he "was willing to agree to” language similar to that of the Balón case. However, the test for sufficient justification does not depend on a defendant's willingness to submit to the challenged condition relative to alternatives. For reasons similar to those mentioned above, the existence of proposed alternative conditions does not bear on whether the operative condition was adequately justified.

      . Shannon also briefly argues that "the court inappropriately wanted to 'achieve parity among other offenders' convicted of similar crimes,” and that such a concern "is not one of the considerations when imposing a condi- ■ tion of supervised release.” On the contrary, the district court was required to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” in fashioning Shannon's conditions of release. 18 U.S.C. § 3553(a)(6). The district court’s consideration of parity satisfied that requirement.