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

text:
    Calvin WHITING, Plaintiff-Appellant, v. WEXFORD HEALTH SOURCES, INC., and Alfonso David, Defendants-Appellees.
    No. 15-1647
    United States Court of Appeals, Seventh Circuit.
    Argued October 26, 2015
    Decided October 12, 2016

      Arthur Gold, Attorney, Gold & Associates, Ltd., Chicago, IL, for Plaintiff-Appellant.
    Karen Kies DeGrand, Attorney, Dono-hue, Brown, Mathewson & Smyth, Chicago, IL, for Defendant-Appellee Wexford Health Sources, Incorporated.
    Julie Ann Teuscher, Matthew H. Weller, Attorneys, Cassiday Schade LLP, Chicago, IL, for Defendant-Appellee Alfonso C. David.
    Before WOOD, Chief Judge, BAUER and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

While serving a probation-revocation sentence in an Illinois prison, Calvin Whiting fell ill with what turned out to be a rare form of non-Hodgkin’s lymphoma. A prison doctor initially diagnosed an infection and prescribed antibiotics and nonprescription pain relievers. It was not until two months later that the doctor ordered a biopsy and the cancer was discovered.

Whiting filed this lawsuit under 42 U.S.C. § 1983 against the prison doctor and the prison’s private medical provider alleging that they were deliberately indifferent to his serious medical needs during the two months that his cancer went undiagnosed. The district court granted summary judgment to both defendants. We affirm.

I. Background

Calvin Whiting violated the terms of his probation on an Illinois burglary conviction and was sent to the Shawnee Correctional Center 'in Vienna, Illinois, in July 2010. Wexford Health Sources, Inc., provides medical services for inmates in Illinois prisons. Dr. Alfonso David is the medical director at Shawnee. On October 15, 2010, Whiting went to the prison’s medical center seeking treatment for pain in his left jaw, left ear, and groin; he also discovered nodules developing in these areas. A nurse examined him and thought he had an ear infection; she gave him amoxicillin (an antibiotic) and Motrin.

About a week later Whiting returned to the medical center complaining that his pain had worsened and the amoxicillin had given him a rash. He was given Bactrim, a different antibiotic, instead. .Chest and abdominal x-rays also were ordered. Dr. David is listed as the prescribing physician for these orders, but it’s not entirely clear whether he or the nurse saw Whiting that day.

Over the next few days, Whiting told two different nurses that his pain and the bumps were getting worse. The nurses gave him Tylenol and scheduled an examination with Dr. David. On October 26 Whiting was sick enough to be admitted to the infirmary. Dr. David saw him the next day.

Dr. David’s observations from the October 27 examination indicate that Whiting’s pain was continuing (and possibly worsening), his lymph nodes were swollen, and he had developed a mass in his jaw. Dr. David ordered blood work and submitted a biopsy request to Wexford’s “Collegial Review Committee.” This “committee”—just Dr. David himself and one other physician— denied the biopsy request on November 1. The two doctors decided to try two different antibiotics (doxycyeline and Augmen-tin), one after the other, and proceed with a biopsy if this course of treatment did not work. Dr. David implemented this treatment plan that same day. Whiting continued to receive nonprescription pain medication.

The first few days on the new antibiotic regimen showed promise: Two nurses reported some improvement in Whiting’s condition. But by November 7 Whiting was reporting new bumps and increased pain. On November 29 a nurse observed many more bumps and scheduled another appointment with Dr. David. On December 2 Dr. David examined Whiting and resubmitted the biopsy request. It was approved four days later, and the biopsy was performed on December 21, almost two full months after Dr. David first submitted the biopsy request to the “committee.” The results revealed that Whiting had a rare type of non-Hodgkin’s lymphoma.

Dr. David referred Whiting to an outside oncologist, Dr. Mahnaz Lary, who diagnosed Stage IV SLK positive anaplastic large cell lymphoma, a rare and aggressive form of the disease. Chemotherapy began in early January 2011. In June 2011 Whiting’s lymphoma appeared to be in complete remission, but by August the disease had returned. Whiting began another round of chemotherapy. In October 2011 he was approved for a stem-cell transplant at Barnes Jewish Hospital in St. Louis. A scan in December 2011 showed the lymphoma again in remission.

Whiting’s prison sentence ended in January 2012. After his release he received additional chemotherapy and a stem-cell transplant at the University of Chicago Medical Center. A biopsy in June 2012 brought bad news: the lymphoma was back. Since then Whiting has been receiving palliative chemotherapy and remains a candidate for another stem-cell transplant.

Whiting filed this suit against Dr. David and Wexford alleging that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. His claim focuses on the period from late October 2010, when Dr. David first examined him, and early January 2011, when chemotherapy began. Whiting argues that the decision to postpone the biopsy and continue to treat him for an infection forced him to endure severe pain during this two-month period.

Both defendants moved for summary judgment. Dr. David argued that the evidence was insufficient to support an inference that he acted with the necessary culpable state of mind. Wexford argued that Whiting failed to produce evidence showing that his injury was caused lay a policy or custom, a necessary element for liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district judge accepted these arguments and entered judgment for the defendants.

II. Discussion

We review the court’s order granting summary judgment de novo, viewing the evidence and drawing all reasonable inferences in Whiting’s favor. Burton v. Downey, 805 F.3d 776, 783 (7th Cir. 2015). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Dr. David

“[Djeliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)) (citation omitted). To prevail on a deliberate-indifference claim, the plaintiff must prove that he suffered from “(1) an objectively serious medical condition to which (2) a state official was deliberately, that is subjectively, indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). Lymphoma is an objectively serious medical condition, and Whiting submitted expert testimony that he would have suffered significantly less pain during November and December of 2010 if a biopsy had been ordered and chemotherapy begun. As in many deliberate-indifference cases, the dispute rests on the second element of the claim.

A prison official is deliberately indifferent only if he “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The state-of-mind element is measured subjectively: The defendant must know of facts from which he could infer that a substantial risk of serious harm exists, and he must actually draw the inference. Id.-, see also Petties v. Carter, No. 14-2674, 836 F.3d 722, 728, 2016 WL 4631679, at *3 (7th Cir. Aug. 25, 2016) (en banc) (“[T]he Supreme Court has instructed us that a plaintiff must provide evidence that an official actually knew of and disregarded a substantial risk of harm.”). The requirement of subjective awareness tethers the deliberate-indifference cause of action to the Eighth Amendment’s prohibition of cruel and unusual punishment; “an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain.’ ” Estelle, 429 U.S. at 105, 97 S.Ct. 285 (emphasis added).

When a prison medical professional is accused of providing inadequate treatment (in contrast to no treatment), evaluating the subjective state-of-mind element can be difficult. It’s clear that evidence of medical negligence is not enough to prove deliberate indifference. Id. at 106, 97 S.Ct. 285 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); Petties, 836 F.3d at 728, 2016 WL 4631679, at *3 (“[Plaintiffs must show more than mere evidence of malpractice to prove deliberate indifference.”); see also McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013); Duckworth, 532 F.3d at 679 (“Deliberate indifference is not medical malpractice; the Eighth Amendment does not codify common law torts.”); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (“[Neither medical malpractice nor a mere disagreement with a doctor’s medical judgment amounts to deliberate indifference.”). So without more, a mistake in professional judgment cannot be deliberate indifference.

By definition a treatment decision that’s based on professional judgment cannot evince deliberate indifference because professional judgment implies a choice of what the defendant believed to be the best course of treatment. A doctor who claims to have exercised professional judgment is effectively asserting that he lacked a sufficiently culpable mental state, and if no reasonable jury could discredit that claim, the doctor is entitled to summary judgment.

Zaya v. Sood, No. 15-1470, 836 F.3d 800, 805-06, 2016 WL 4621045, at *3 (7th Cir. Sept. 6, 2016).

On the other hand, “where evidence exists that the defendant! ] knew better than to make the medical decision[ ] that [he] did,” then summary judgment is improper and the claim should be submitted to a jury. Petties, 836 F.3d at 730-31, 2016 WL 4631679, at *6. State-of-mind evidence sufficient to create a jury-question might include the obviousness of the risk from a particular course of medical treatment, id. at 730, 2016 WL 4631679 at *4; the defendant’s persistence in “a course of treatment known to be ineffective,” id.; or proof that the defendant’s treatment decision departed so radically from “accepted professional judgment, practice, or standards” that a jury may reasonably infer that the decision was not based on professional judgment, id. (quotation marks omitted).

,N° evidence in, this case supports an inference that Dr. David “knew better” than to pursue the course of treatment that he did. He explained in his deposition that although he considered the possibility of lymphoma, he thought "Whiting had an infection and treated him for that condition, putting off an invasive biopsy until it was clear that aggressive antibiotic treatment wasn’t working. "Whiting argues that Dr. David’s decision on November 1 to try two more antibiotics when the first two were ineffective is sufficient for a jury to infer that the doctor was deliberately indifferent. But no expert testified that Dr. David’s chosen course of treatment was a substantial departure from accepted medical judgment, and the decision was not so obviously wrong that a layperson could draw the required inference about the doctor’s state of mind without expert testimony.

Our decision in Duckworth is instructive on this point. There we confronted a claim that two prison physicians should have ordered a cystoscopy to rule out bladder cancer as soon as they noticed blood in the plaintiffs urine. The first physician didn’t suspect cancer; the second physician was aware of the cancer risk but thought that the plaintiff had another condition and pursued a course of treatment consistent with that diagnosis. 532 F.3d at 680-81. The plaintiff provided expert testimony from an experienced urologist that cancer should always be ruled out when a patient has blood in his urine. Id. at 681. We held that the expert’s testimony showed only “how a reasonable doctor would treat Duckworth’s symptoms, but it [did] not shed any light into [the defendant’s] state of mind.” Id. In other words, it “just ... reiterate[d] the standard for medical malpractice, which .falls short of deliberate indifference.” Id.

The evidence here falls even further short of what’s required. Whiting doesn’t have any expert testimony indicating that Dr. David’s infection diagnosis and concomitant treatment plan departed from accepted medical practice, much less substantially so.

Whiting compares his case to Hayes v. Snyder, 546 F.3d 516 (7th Cir. 2008), but the similarities are superficial. The prison physician in Hayes gave the plaintiff an antibiotic and Tylenol III for obvious and excruciatingly painful testicular cysts; he also refused to authorize a referral to a specialist. Unlike this case, the plaintiff in Hayes produced considerable evidence showing that the physician’s choice of treatment was not based on a mere mistake in professional judgment. For example, the physician—the medical director at the prison—acknowledged in his deposition that other prison doctors who saw the plaintiff ordered prescription-strength pain medication and a referral to a specialist. Id. at 524. The defendant’s approval was required before these steps could be taken, but he “refused to give that approval,” asserting an after-the-fact justification that he didn’t have the proper paperwork. Id. He also claimed, implausibly, that he “wouldn’t know which specialist to send [the plaintiff] to” without more clinical information. Id. at 526. We concluded on these facts that the evidence was sufficient for a fact finder to conclude that the doctor was subjectively indifferent to the plaintiffs medical needs. Id.

Here, in contrast, the record contains no evidence from which a jury could infer that Dr. David was subjectively indifferent to Whiting’s condition—in short, that Dr. David knew that the additional antibiotics would be ineffectual but persisted in this course of treatment anyway. Without expert testimony a lay jury could not infer that because amoxicillin and Bactrim did not work, it was obvious to Dr. David that the doxycycline and Augmentin also would fail. To survive summary judgment Whiting needed to present evidence sufficient to show that Dr. David’s decision was “so far afield of accepted professional standards as to raise the inference that it was not actually based on a medical judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). He did not do so. The district court properly granted summary judgment for Dr. David.

B. Wexford

Whiting’s claim against Wexford meets the same fate. Wexford is a private corporation, but we’ve held that the Mo-nell theory of municipal liability applies in § 1983 claims brought against private companies that act under color of state law. Shields v. Ill. Dept. of Corr., 746 F.3d 782 (7th Cir. 2014) (noting every circuit court that has addressed the issue has extended the Monell standard to private corporations acting under color of state law). To prevail on his Monell claim, Whiting needs to show that Wexford’s policy, practice, or custom, caused a constitutional violation, Thomas v. Cook Cty. Sheriffs Dep’t, 604 F.3d 293, 303 (7th Cir. 2009). This requirement can be satisfied by evidence that “an official with final policy-making authority” acted for the corporation. Id. That’s the theory Whiting invokes on appeal: He argues that Dr. David was a final policymaker for Wexford.

But Whiting’s filings in the district court weren’t entirely clear on this point, so the argument is probably waived. Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 480 (7th Cir. 2010). Waiver aside, the claim fails on the merits for two independent reasons.

First, Dr. David did not have final poli-cymaking authority in the relevant sense. He may have had the final say on Whiting’s treatment plan and thus was the final decision-maker with respect to his care, but that’s not nearly enough to show he was the final policymaker. See Valentino v. Village of South Chicago Heights, 575 F.3d 664, 675 (7th Cir. 2009) (noting difference between having decision-making authority for some decisions and having the responsibility “for establishing final government policy on a particular issue”).

Second, Whiting’s theory of Mo-nell liability is contingent on a finding that Dr. David, the ostensible final policymaker, was individually liable for deliberate indifference. Our decision in Thomas makes clear that Monell liability does not always require a finding of individual liability. 604 F.3d at 305. But if the plaintiffs theory of Monell liability rests entirely on individual liability, as Whiting’s does here, negating individual liability will automatically preclude a finding of Monell liability. Id.

AFFIRMED.

WOOD, Chief Judge,

concurring in part and dissenting in part.

Calvin Whiting is suffering from a deadly disease: a rare form of non-Hodgkin’s lymphoma. The Mayo Clinic’s website describes this as “a cancer that originates in your lymphatic system,” and then spreads throughout the body. See Non-Hodgkin’s lymphoma, Definition, Mayo Clinio, http:// www.mayoclinic.org/diseases-conditions/ non-hodgkins-lymphoma/basics/definition/ con-20027792 (last visited Oct. 12, 2016). Whiting fell ill while he was serving a sentence in Illinois’s Shawnee Correctional Center for a probation violation, and so of necessity he turned for help to the prison doctors. Dr. Alfonso David, the medical director at Shawnee and an employee of Wexford Health Sources, Inc., the company that holds the contract for medical services at that institution, was Whiting’s treating physician.

It took Dr. David almost two months from Whiting’s first visit to the infirmary in mid-October 2010 to get approval for a biopsy of nodules in Whiting’s swollen lymph nodes, even though he had power to order one if he deemed it an “emergency,” Despite the fact that Whiting presented not only with pain in his left jaw and his ear, but also with nodules and pain in his groin, a nurse at Shawnee thought he had an ear or throat infection and gave him amoxicillin (plus Motrin for his pain). .The amoxicillin caused a rash, and so a few days later Dr. David switched him to Bac-trim and ordered chest and abdominal x-rays. Those results showed enlarged cervical (neck) nodes and a mass in Whiting’s left jawbone. Whiting was also complaining of severe pain. It was then that Dr. David suggested a biopsy of the nodules to a second colleague, who vetoed that course. (Defendants describe this as submission to a “review committee,” but that is a bit grandiose for a simple process through which one doctor consults with a second and allows the second to override his recommendation.)

During November and December, Dr. David continued with the fruitless course of antibiotics, although he changed the particular drugs to doxycycline -and Aug-mentin. In early December, he again suggested a biopsy to the other colleague. This time the two agreed to order the biopsy. It was performed on December 21 and revealed that Whiting had Stage IV SLK positive anaplastic large cell lymphoma. (A group called the Lymphoma Research Foundation describes this as a rare type of aggressive T-cell lymphoma, which can progress rapidly without treatment. See Lymphoma Research Foundation, http://www.lymphoma.org/site/pp.asp?c= bkLTKaOQLmK8E& b=6293639 (lást visited Oct. 12, 2016).) Whiting began chemotherapy at that point and has continued his battle with cancer, cycling between remission and relapse.

Focusing only on the two months between his first visit to Dr. David and the start of his chemotherapy, Whiting sued both Dr. David and Wexford, contending that the care he received violated his Eighth Amendment right to be free from cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). During that period, he contends, he was in severe pain and his cancer was going untreated. Dr. David knew that Whiting was suffering and that a biopsy was necessary, yet he proceeded on a “business as usual” basis. Dr. Nancy Bartlett, who treated Whiting later at Barnes Jewish Hospital in St. Louis, described this delay in treatment as “cruel and unusual,” Whiting’s treating oncologist after his release from Shawnee, Dr. Justin Kline, said much the same thing. Dr. Kline opined that if chemotherapy had been started right away, it would have had two desirable effects: alleviation of Whiting’s pain and destroying the cancer. He also declared that Whiting “would not have experienced the pain he did between October 27, 2010, and January 2011” if the biopsy had been performed, when Dr. David, first mentioned that possibility.

The district court granted summary-judgment for both defendants, and my colleagues have voted to affirm. I agree with them that Whiting’s case against Wexford was properly rejected, but, without taking any position on the ultimate outcome, I would reverse and remand for further proceedings against Dr. David.

It is well established that a prisoner asserting an Eighth Amendment claim based on the medical care he received must show two things: first, that he has a serious medical need, and second that the defendant was deliberately indifferent— not merely negligent or oblivious—to his needs. Gamble, 429 U.S. at 104, 97 S.Ct. 285; see also Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). I focus here only on the subjective element of the test, because all members of this panel agree with the district court that there was enough evidence to reach a jury on the objective element. This is the same type of case as the one we considered in Petties v. Carter, No. 14-2674, 836 F.3d 722, 2016 WL 4631679 (7th Cir. Aug. 25, 2016) (en banc), in which the inmate received some medical care, but the facts permit more than an inference of medical malpractice—they permit an inference of deliberate indifference.

The critical point that Petties established is that the furnishing of some care does not automatically defeat an Eighth Amendment claim (raised through the Fourteenth Amendment for a state prisoner). Instead, as Petties held, it is essential to “look at the totality of an inmate’s medical care when considering whether that care evidences deliberate indifference to serious medical needs.” Id. at 728, 2016 WL 4631679 at *3. We went on to say that “[i]f a risk from a particular course of medical treatment (or lack thereof) is obvious enough, a factfinder can infer that a prison official knew about it and disregarded it.” Id. Acknowledging that the line between (minimally) competent medical judgment and deliberate indifference can be difficult to draw, we gave several examples of situations in which a finding of an Eighth Amendment violation is possible. At least two of them fit Whiting’s allegations: “[persistence] in a course of treatment known to be ineffective,” id. at 730, 2016 WL 4631679 at *4, and the choice of “an easier and less efficacious treatment without exercising professional judgment,” id. at 730, 2016 WL 4631679 at *5 (internal quotation marks omitted). We summarized the central point as follows:

[Rjepeatedly, we have rejected the notion that the provision of some care means the doctor provided medical treatment which meets the basic requirements of the Eighth Amendment. Rather, the context surrounding a doctor’s treatment decision can sometimes override his claimed ignorance of the risks stemming from that decision. When a doctor says he did not realize his treatment decisions (or lack thereof) could cause serious harm to a plaintiff, a jury is entitled to weigh that explanation against certain clues that the doctor did know.

Id.

In my view, the rule most recently reaffirmed in Petties (dating back to Gamble) governs Whiting’s case. It would be possible on this record for a jury to conclude that Dr. David was exercising his medical judgment over the critical period, even if that judgment was mistaken or even negligent. He saw Whiting on several occasions; he tried various antibiotics, which he says he regarded as conservative responses to Whiting’s symptoms, and the antibiotic treatments at times seemed to be having some positive effect. He did not perceive Whiting’s situation to be an emergency, and so he did not exercise his limited authority to order a biopsy on his own. Instead, he invoked the “Collegial Review Committee” process described above.

But that is not the, only inference that is possible from these facts. Whiting has brought forth evidence that would permit a trier of fact to infer deliberate indifference. No one, Dr. David included, paid any attention to the fact that nodules were not limited to Whiting’s neck and face, but instead were also in his groin. A jury could conclude that Dr. David paid no heed to the fact that the antibiotics and Motrin he was prescribing for Whiting’s pain were, by Whiting’s account, utterly ineffective. Had he cheeked the medical records, he would have seen that Whiting repeatedly informed Shawnee’s medical unit that he was in extreme pain. In McGowan v. Hulick, 612 F.3d 636 (7th Cir. 2010)—decided before Whiting’s first complaint about nodules in his left jaw and groin, and accompanying pain—we reaffirmed that “[a] delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate’s pain.” Id. at 640 (citing Gamble, 429 U.S. at 104-05, 97 S.Ct. 285); Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010); and Edwards v. Snyder, 478 F.3d 827, 832 (7th Cir. 2007). See also Petties, 836 F.3d at 730-31, 2016 WL 4631679 at *5; Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011). A delay when the physician recognizes that the condition may be life-threatening (as Dr, David did, given his initial request for a biopsy) is even more troublesome. Perhaps if Dr. David had tried one or two courses of antibiotics before moving to more serious measures, this case would be different. But a jury could find that it was apparent by the time the third and fourth antibiotics were tried that this course of treatment was ineffective for both the underlying condition and the pain.

Finally, the existence of the so-called collegial review mechanism does not compel summary judgment in favor of Dr. David. It -is, in effect, a device to obtain a second opinion. As the record presently stands, it is unclear whether the second doctor’s “no” automatically trumps the treating physician’s judgment that a procedure is necessary (a situation that would undermine a finding of deliberate indifference on the first doctor’s part), or if the second doctor just has an opportunity to persuade the first doctor to reconsider his opinion. The former does not strike me as “collegial,” and the latter is not something that deserves to be called a “review.” Nothing reveals whether, or why, Dr. David changed his mind about the need for a biopsy at the end of October. Taking the facts and reasonable inferences from them in the light most favorable to Whiting, I must assume that Dr. David saw no reason to invoke his authority to override the second doctor and obtain a biopsy on an urgent basis. A jury would be entitled to infer deliberate indifference to Whiting’s serious medical need on the basis of those facts.

Looking at the record as a whole in the light most favorable to Whiting, I conclude that summary judgment in Dr. David’s favor should not have been granted. I therefore dissent to that extent and would order further proceedings on this part of the case.

      . The suit named other defendants as well, but Whiting did not pursue his claims against them.


source: Caselaw Access Project

author: FLAUM, Circuit Judge.

license: Public Domain

text:
    Nicholas HESS, Plaintiff-Appellant, v. The BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, et al., Defendants-Appellees.
    No. 16-1064
    United States Court of Appeals, Seventh Circuit.
    Argued September 15, 2016
    Decided October 13, 2016

      Darrell Dunham, Attorney, Darrell Dun-ham & Associates, Carbondale, IL, for Plaintiff-Appellant.
    Thomas H. Wilson, Attorney, Hepler Broom, LLC, Springfield, IL, for Defendants-Appellees.
    Before FLAUM, MANION, and HAMILTON, Circuit Judges.
   FLAUM, Circuit Judge.

Nicholas Hess was suspended and later expelled from Southern Illinois University (SIU) after he was arrested for aggravated battery. Hess sued the Board of Trustees of the university, as well as several school administrators in their individual and official capacities, for violations of his procedural and substantive due-process rights. After dismissing some of the claims as barred by sovereign immunity, the district court awarded summary judgment to defendants on the remaining claims. We affirm.

I. Background

In the early morning of November 28, 2013, law-enforcement officials responded to a call about a bar fight in Marion, Illinois. Marion police officer Adam Byrne was one of the first to arrive at the scene. As he approached the bar, Byrne spotted one man chasing another across the parking lot. The latter individual ran to a parked car and was able to get in before the pursuer, not far behind, also reached the car and began punching at the driver’s-side window. Byrne restrained the pursuer, and the man in the car drove away.

The pursuer was Nicholas Hess, a student at SIU. Hess told Officer Byrne that a fight had broken out at the bar, so he and his brother, sister, and girlfriend had tried to leave the venue. Before they could do so, however, a man Hess recognized as Aaron Franks had hit Hess’s sister in the face. Hess had then given chase, but claimed to have never made contact with Franks because Franks had jumped into his car. Hess’s girlfriend and his siblings corroborated his story, though the sister did not have any injuries suggestive of facial trauma.

The Marion Police Department sent an officer to speak with Aaron Franks, who had driven himself to a nearby hospital. Franks, it turned out, had been stabbed several times, and he gave to the police officer a physical description of the person Franks believed had attacked him. This description closely matched Hess’s appear-anee on the morning in question, and Hess was taken into custody a short time later. After a second round of questioning—during which Hess gave the same account as he had previously—Hess was released. A few days later, however,- he was charged with- aggravated battery, and a warrant was issued for his arrest on December 4, 2013. Hess turned himself in on December 9, and was released on bail later that day.

News of the arrest soon reached SIU’s Director of Student Rights and Responsibilities, Chad Trisler, who requested the relevant incident reports from the police department. After reviewing the reports, Trisler recommended to the acting Dean of Students, Katherine Sermersheim, that Hess be suspended from the university pending a hearing. Sermersheim concurred, and asked Trisler to issue the interim suspension

On December 11, 2013, SIU police officers told Hess to come to the campus police department to receive a letter. Hess went to the department with his mother, and Trisler met with them and explained that Hess was being suspended. Trisler also gave to Hess a written notice of suspension, which stated that Hess was being suspended from all university property and events in light of allegations from the Williamson County Sheriffs Department that he had stabbed someone several times during a bar fight. If Hess wished to appeal the suspension, the notice explained, he could ask for an interim appeal hearing, which would take place within two days of the request. Hess did not request an interim hearing, and, while suspended, he missed two final exams. .

On December 13, Hess received from Trisler a “charge and notification” letter, which listed the provisions of the SIU Student Conduct Code that school administrators believed Hess had violated during the bar incident. These alleged violations included: (1) intentional, negligent, or attempted homicide; (2) physical assault or abuse; (3) violent behavior; (4) “group actions” (defined in Section 2.3.6.2 of the Code as any incident in which a group of two or more persons engaged in violence, or the threat of violence, against an individual); (5) reckless disregard for the risk one’s actions presented to others; (6) reckless conduct presenting a danger to property; (7) the possession, carrying, or use of any object intended for use as, or used as, a weapon; and (8) disorderly conduct. The letter instructed Hess to complete and return to SIU within five days an attached form, in which Hess could either admit his responsibility for the offenses charged, or deny his responsibility and request an administrative hearing. Hess requested a hearing, which was scheduled (in light of the winter holiday) for January 17, 2014.

Four days before the January hearing, Hess received a letter explaining that Chad Trisler would be his assigned hearing officer, and that Hess could call as a witness any person who had been present at, or who otherwise had firsthand knowledge of, the events at issue. Hess decided to testify on his own behalf, but had little to say at the hearing, as his counsel—who was present as Hess’s advisor throughout the proceeding—had instructed him not to answer any questions about what had happened at the bar. Hess’s girlfriend testified that she, Hess, and his siblings had decided to leave the bar after another person had told them that someone there had a gun. It was in trying to exit that Hess had seen Aaron Franks (the stabbing victim) punch Hess’s sister in the nose, and Hess had given chase. Up until that point, said the girlfriend, she and Hess had been holding hands.

Officer Byrne also testified at the hearing. He described what he had seen after arriving at the bar—ie., Hess chasing Franks across the parking lot—and what Hess (and, later, his girlfriend and siblings) had told Officer Byrne about Franks punching Hess’s sister in the face. Byrne had then gone inside the bar to investigate, he explained, and had concluded that several “incidents of battery” had taken place there—though he did not believe Hess had participated in those fights. Byrne testified that Franks had later described his attacker as resembling Hess, and that police officers had looked for evidence that Hess had had with him at the bar a knife or other weapon, but that no such evidence was found.

Trisler nonetheless thought Franks’s description was credible, and concluded that Hess was responsible for the stabbing. In a letter dated January 21, 2014, Trisler informed Hess of the decision to expel him from the university. The letter enumerated the seven sections of the Student Conduct Code that Trisler believed Hess had violated—oddly, only “use of a weapon” was dropped from the original list of eight alleged violations—and explained that Hess had three days in which to file an administrative appeal. Hess did so, and his appeal was considered by a three-member panel of SIU employees. The panel recommended that Trisler’s decision be upheld, and the Chancellor of the university, Rita Cheng, agreed.

Hess filed suit under 42 U.S.C. § 1983 against SIU’s Board of Trustees, and Cheng, Sermersheim, and Trisler—each in their individual and official capacities—for violations of Hess’s procedural and substantive due-process rights. According to Hess, he had a property interest in a continued education at SIU, as well as a liberty interest in his reputation with his instructors and fellow students (and in his ability to pursue additional education elsewhere), and defendants had unlawfully deprived him of those interests by: (1) suspending him without first affording him an opportunity to tell his side of the story; and (2) expelling him after conducting an unfair hearing. Hess requested money damages, as well as an injunction compelling both his readmission to the university and the opportunity for Hess to take his missed final exams.

Defendants filed a motion to dismiss the complaint, arguing first that the official-capacity claims and claims against the Board for monetary relief were barred by the Eleventh Amendment, and, second, that the claims as a whole were inadequately pleaded. The motion to dismiss was still pending when the parties later cross-moved ■ for summary judgment, so the district court resolved all three motions in the same opinion.

The court granted the motion to dismiss insofar as it concerned the damages claims against the Board, and against the administrators as- sued in their official capacities, as these were claims against the university. The university, reasoned the court, was not a “person” from whom money damages could be obtained under § 1983. The court then converted the remainder of the motion to dismiss into a motion for summary judgment, and "ruled, in connection with the existing motions for summary judgment, in defendants’ favor. Hess had established neither a protected property interest nor a protected liberty interest, said the court; and even if he had proven such an interest,- defendants had in any event provided Hess with sufficient procedural protections in depriving him of it. The district court was similarly unconvinced of any substantive due-process violation.

Hess now appeals the granting of defendants’ summary-judgment motion. He does not challenge either the denial of his own summary-judgment motion or the court’s dismissal of his money-damages claims against the university.

II. Discussion

We review de novo a district court’s decision on cross-motions for summary judgment, construing all facts and drawing all reasonable inferences in favor of the party against whom the motion under consideration was filed. Calumet River Fleeting, Inc. v. Int’l Union of Operating Eng’rs, Local 150, AFL-CIO, 824 F.3d 645, 647-48 (7th Cir. 2016) (citations omitted). As we consider here only defendants’ motion for summary judgment, we resolve all factual disputes in Hess’s favor. 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. Procedural Due Process

We undertake a two-part analysis in .procedural due-process cases: first, we determine whether the plaintiff was deprived of a protected interest; if so, we determine what process was due under the circumstances. See Charleston v. Bd. of Trs. of the Univ. of Ill. at Chi., 741 F.3d 769, 772 (7th Cir. 2013) (citing Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003)); Pugel v. Bd. of Trs. of the Univ. of Ill, 378 F.3d 659, 662 (7th Cir. 2004) (citing Doherty v. City of Chi, 75 F.3d 318, 322 (7th Cir. 1996)). Hess argues that he had a protected interest in, among other things, a continued education at SIU—both at the time of his interim suspension, and, later, when Hess was permanently expelled from campus. We will assume for present purposes that Hess did have, such an interest, and that defendants therefore deprived him of this interest in removing Hess from school. We turn, then, to the procedures used by the university in effecting that alleged deprivation.

Where students are suspended from school for only brief periods of time—ie., for ten days or fewer—due process requires only minimal safeguards: notice of the charges asserted against the student, and, if he denies them, an explanation of the evidence and an opportunity for the student to present his side of the story. See Goss v. Lopes, 419 U.S. 565, 581, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); see also id. at 584, 95 S.Ct. 729 (discussing an “informal give-and-take” between the student and disciplinarian)., Hess was suspended for more than ten days, but the temporary exclusion from school property and activities was, as a practical matter, much shorter than the calendar would otherwise suggest, as the suspension coincided with SIU’s winter break. The Goss standard thus applies here. Hess does not quarrel with the application of this standard to his interim suspension, but maintains that the standard was not satisfied in this case because there was no “give-and-take” before the punishment was imposed. See 419 U.S. at 582, 95 S.Ct. 729 (noting that, in’ general, the required notice and hearing should precede the student’s removal from school). Hess was merely given a letter describing the conduct of which he had been accused.

As we have explained in the past, however, schools may in some instances dispense with certain pre-disciplinary procedures without running afoul of the Due Process Clause. In Medlock v. Trustees of Indiana University, 738 F.3d 867 (7th Cir. 2013), for example, we addressed the suspension of a college student found to have cultivated and hidden in his dorm room a large quantity of marijuana. This flagrant violation of university rules—and of Indiana criminal law—in our -view warranted immediate remedial action, and therefore obviated the need for a pre-suspension hearing. See id. at 871 (citing Goss, 419 U.S. at 581-83, 95 S.Ct. 729). There are, as Hess points out, differences between Medlock and the present case: Whereas in Medlock all evidence pointed toward the student’s guilt, leaving no doubt that he had engaged in the conduct charged, see id. at 871-72, here, as we shall see, the balance does not tilt so clearly in the university’s favor. Nevertheless, an arrest warrant for aggravated battery was compelling evidence that Hess may have been responsible for the stabbing of Aaron Franks—permitting SIU, in the interest of protecting other members of its community, to promptly remove Hess from campus pending a later hearing. See Goss, 419 U.S. at 582-83, 95 S.Ct. 729 (observing that schools may provide a post-removal hearing where, as here, the student’s presence “poses a continuing danger to persons or property’).

Hess insists that he was not a threat to anyone at SIU, and that defendants could not reasonably have believed that he was, because the person Hess had allegedly injured was not a student at the university. Hess had also been on campus multiple times between the stabbing incident and when he was suspended, and on none of those occasions had he behaved violently toward anyone. Moreover, says Hess, the school had no policy of prohibiting convicted persons from entering university property—so it made no sense to bar from campus those who had been merely accused, but not convicted, of committing a crime. None of these arguments is persuasive. Whether SIU had formally banned all convicted felons from coming onto campus says nothing about the actions school administrators could, or would, take when faced with a particularized threat; and, as evidenced by the warrant for Hess’s arrest, administrators in this case had reason to be concerned. The police believed Hess had stabbed another person multiple times—thus suggesting to defendants that Hess was not in full command of his emotions or, consequently, his behavior, and might without warning endanger other individuals. That Aaron Franks was not a member of the SIU community, or that Hess had returned to campus without issue since the stabbing had occurred, would not have obviated the risk defendants reasonably thought Hess’s presence posed. It was logical for the university to suspend him pending a later hearing. Cf. Gilbert v. Homar, 520 U.S. 924, 933-34, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (concluding, in the public-employment context, that a pre-suspension hearing was rendered unnecessary by an arrest and the filing of charges, as these events ensured that there were reasonable grounds for disciplinary action) (citation omitted).

Moreover, we question the degree to which Hess actually valued the interest he says was curtailed by the interim suspension—and thus the importance to Hess of any pre-disciplinary safeguards he claims ought to have been employed here—as Hess chose not to appeal that suspension in the first instance. See, e.g., Goss, 419 U.S. at 578, 95 S.Ct. 729 (noting that procedural due process is a practical concept, dependent on context) (citation omitted); id. at 579, 95 S.Ct. 729 (examining, in context, the private interest at stake); Pugel, 378 F.3d at 663-64 (same). The written notice of disciplinary action that Hess received on December 11, 2013, explained that Hess could request an interim appeal meeting; and that meeting, had Hess asked for one, would have taken place within two days of the request. So Hess could have had his say by December 13. Hess urges that a conversation at that time would have served no purpose, because he still would have missed his final exams. Yet even if an interim appeal would not have allowed Hess to take all of his exams as scheduled, we do not see why a student in his position, as concerned with his academic record as Hess claims to have been, would not have availed himself of every opportunity to protect—or at least mitigate the possible damage to—that record.

In any event, Hess argues that the hearing he ultimately did receive—that is, the post-suspension (but pre-expulsion) hearing—was procedurally deficient, because the presiding officer, Chad Trisler, was biased against Hess and had prejudged his case. Trisler must have been biased, says Hess, because: Trisler was smiling when he first told Hess about the interim suspension in December 2013; Trisler purportedly communicated to the Dean of Students that, before the hearing in January 2014, Trisler had already decided Hess was guilty of the conduct charged; and Trisler not only presided over that hearing, but was also responsible for collecting the evidence presented during the proceeding.

Although biased decision-making does violate due process, see Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), the combination of investigative and adjudicative functions into a single administrator does not, in itself, demonstrate such bias, see id. at 47-55, 95 S.Ct. 1456. This is because we presume that administrators are honest and impartial, id. at 47, 95 S.Ct. 1456, and therefore “capable of judging a particular controversy fairly on the basis of its own circumstances,” id. at 55, 95 S.Ct. 1456 (quoting United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)). The presumption is a rebuttable one, but the burden of rebuttal is heavy indeed: To carry that burden, the party claiming bias must lay a specific foundation of prejudice or prejudgment, such that the probability of actual bias is too high to be constitutionally tolerable. Id. at 47, 55, 95 S.Ct. 1456; see also Amundsen v. Chi. Park Dist., 218 F.3d 712, 716 (7th Cir. 2000) (explaining that the plaintiff typically must show that the adjudicator had a pecuniary interest in the outcome of the case, or that he was previously the target of the plaintiffs personal abuse or criticism (quoting Withrow, 421 U.S. at 47, 95 S.Ct. 1456)).

To show prejudgment here, Hess relies in part on the deposition testimony of Dean Sermersheim—which, according to Hess, demonstrates that Trisler thought him guilty from the get-go. Sermersheim testified as follows:

Q: What was your understanding of what the charges were that had been lodged against Hess on December 11,2013?
A: The information I had at the time was a bar fight, resulting in Mr. Hess stabbing another individual multiple times.
Q: Did you conclude that Hess had stabbed another individual multiple times?
A: At that time, based on the information we had, yes.
Q: Really?
A: Yes.
Q: You had concluded that Hess had stabbed another individual multiple times, correct?
A: Yes.
Q: Who told you that, that Hess had stabbed another individual multiple times?
A: That was the information that we had at that time shared with me by Chad Trisler.
Q: Well, “we.” Who is “we”?
A: Chad, uh, the information that was shared with him, which in turn, following our policy, when we believe there’s information to suggest a threat to the university community, uh—
Q: But my question is, did Chad Trisler tell you that he believed that Hess had stabbed another individual multiple times?
A: Yes. Based on not him believing, but based on information that we had received through our community partners, uh, the information was shared that that is what was believed to have occurred at that time.
Q: [S]o Chad Trisler told you that he had reviewed information that had been supplied to him by your, quote, partners, which I take it in this case was the Marion Police Department, right?
A: I’m not exactly sure who the source was, but it was police, law enforcement.
Q: And based on his review of that information, he concluded, he told you that Hess had stabbed another individual multiple times; is that accurate?
A: Yes.

We agree with the district court that only a tortured reading of these statements would permit an inference of predetermination on Trisler’s part. Read sensibly and as a whole, the testimony clearly communicates that it was the police, not Trisler, who initially thought Hess responsible for the stabbing, and that SIU administrators simply credited those beliefs in deciding whether to remove Hess temporarily from campus. Nothing in these statements indicates that Trisler had conclusively determined Hess’s guilt before the January hearing.

This leaves us with Hess’s assertion that Trisler was smiling when the latter informed Hess of his interim suspension in December 2013. Even if true, this evidence is insufficient to overcome the presumption of impartiality. Smiling at another’s misfortune may reflect malice, as Hess urges; but one may also smile in sympathy, or to ease the tension of a difficult moment—or simply out of awkwardness. And there is no suggestion that Trisler’s facial expressions here were in fact the product of bad faith. Trisler did not know Hess before their December 2013 meeting, and thus had no reason to dislike him. Nor is there any evidence that Trisler knew the stabbing victim. The alleged smile is not enough to show an unacceptable likelihood of bias on Trisler’s part. > •

Moreover, even if Trisler had displayed bias, Hess was able to (and did) appeal that administrator’s decision to afiother adjudicative body. Trisler’s decision was considered—and upheld—by a three-member panel of university employees, and later by Cheng, the university Chancellor. While Hess implies that Cheng neglected to conduct an independent review of the facts, and so effectively rubber-stamped the recommendations she received, there is no evidence reasonably suggesting that this was the case. In any event, the decision to expel, as just noted, was also reviewed by the three-member appeals panel; and there is no contention that any of the latter individuals was biased against Hess. Thus, to the extent Hess’s procedural due-process claim rests on allegations of bias,- that claim suffers from a fatal flaw. Cf. Schacht v. Wis. Dept of Corr., 175 F.3d 497, 503 (7th Cir. 1999) (no due-process violation where the plaintiff could still obtain administrative remedies from unbiased decision-makers), overruled on other grounds by Higgins v. Mississippi, 217 F.3d 951 (7th Cir. 2000).

“Due process does not ... require a judicial or quasi-judicial trial ... before a school may punish misconduct.” Coronado v. Valleyview Pub. Sch. Dist. 365-U, 537 F.3d 791, 795 (7th Cir. 2008) (citations and internal quotation marks omitted). In addition to notice, the Constitution requires only that students facing expulsion receive a meaningful opportunity to be heard. Id.; Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1010 (7th Cir. 2002) (citing Limvood v. Bd. of Educ., 463 F.2d 763, 769-70 (7th Cir. 1972)). Hess received exactly that. He had a hearing, at which he was permitted to call' witnesses, question those witnesses, and testify on his own behalf; and he had counsel, present with him and advising him, throughout that proceeding. These procedural safeguards were constitutionally adequate.

B. Substantive Due Process

Because there is no fundamental right to education, see Charleston, 741 F.3d at 774 (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35-37, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)), Hess’s substantive due-process claim, like his procedural claim, rests on the alleged deprivation of an independent property or liberty interest, see id. (citing Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009)). We again suppose the existence of such an interest here, and ask instead whether the alleged deprivation of that interest was constitutionally problematic. To demonstrate a substantive due-process violation, Hess must show that the university’s actions were so wholly arbitrary as to “shock[ ] the conscience.” Remer, 286 F.3d at 1013 (quoting Dunn v. Fairfield Cmty. High Sch. Dist. No. 225, 158 F.3d 962, 965 (7th Cir. 1998)); see also id. (“Only the most egregious official conduct is arbitrary in the constitutional sense.” (quoting Dunn, 158 F.3d at 965)) (internal brackets and quotation marks omitted).

Hess argues that Trisler’s conduct was egregious enough to shock the conscience, because there was no evidence that Hess had stabbed Aaron Franks. Thus, Hess contends, there was no evidence supporting Trisler’s decision to expel Hess from SIU, as the lesser charges of disorderly conduct, etc., would not have warranted such an extreme (and, according to Trisler, rarely-used) sanction. It is true that not all of the available evidence pointed to Hess as Franks’s attacker. Hess’s girlfriend, for example, testified at the hearing that she had been holding Hess’s hand before Hess had gone after Franks, and that the two men had “never made bodily contact.” And Officer Byrne testified that he did not think Hess had been involved in the “incidents of battery” inside the bar. Byrne also stated that the police had uncovered no evidence that Hess had had a knife with him that morning.

Franks, however, had described his attacker, and that description—by’ Hess’s own admission—closely matched Hess’s appearance on the morning in question. Hess argues that Trisler should not have given the description any weight, because Franks’s credibility was never tested. And it was never tested, says Hess, because Franks was not called as a witness at the hearing—an omission Hess seeks to lay at the feet of the university. The criticism is misplaced. Trisler could have asked Franks to attend the hearing, but Hess could have done so, as well. Hess also could have asked Trisler to make the request on his behalf, as explained in Section 4.4 of SIU’s Student Conduct Code. Hess did neither. And more importantly, at the hearing, Hess did not communicate any reasons he may have had for suspecting Franks was lying. Trisler, meanwhile, had reason to be skeptical of Hess’s story. According to Hess—as he explained to the police in November 2013 (and as reflected in the police report provided to SIU)—he had run after Franks because Franks had punched Hess’s sister in the face. Yet the sister did not have on her face any markings indicating she had in fact been hit there, and she did not seek criminal charges against Franks until after her brother had been arrested for the stabbing (which was almost a week after the incident had taken place). Franks, moreover, was bleeding from multiple stab wounds when the attack on Hess’s sister purportedly took place. Trisler thought it odd— and we cannot say he was wrong to so believe—that someone with Franks’s injuries would act so aggressively toward a woman he did not know.

We do not say that all signs pointed to Hess as the person responsible for the stabbing. But there was enough evidence of Hess’s culpability to preclude us from disturbing Trisler’s assessment of guilt. See McDonald v. Bd. of Trs. of Univ. of Ill., 375 F.Supp. 95, 102-03 (N.D. Ill. 1974) (explaining that a disciplinarian’s findings must be sustained where supported by “some,” but not necessarily substantial, evidence), aff'd and adopted by McDonald v. Bd. of Trs. of Univ. of Ill., 503 F.2d 105 (7th Cir. 1974). The Fourteenth Amendment is not a vehicle for re-litigating in federal court evidentiary questions arising in school disciplinary proceedings, or for correcting a university’s allegedly bad decision-making. See Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Flint v. City of Belvidere, 791 F.3d 764, 770 (7th Cir. 2015) (citations omitted). To succeed on his substantive due-process claim, Hess needed to show much more: He needed to show that defendants acted with a mens rea approaching that of criminal recklessness. See Flint, 791 F.3d at 770 (citations omitted). Even when viewing the facts in Hess’s favor, no reasonable juror would find such recklessness here.

III. Conclusion

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

      . According to Byrne's written police report, he had seen inside the bar Aaron Franks's brother, Aadam, and two men with blood on them, Mikeal Simmons and Dustin Kendrick. Aadam claimed to have been injured by Simmons, and Simmons by Aadam, after Simmons had exchanged angry words with Aaron Franks. Kendrick maintained that he had been punched in the face—though he did not say by whom—when attempting to break up a fight betwéen his friends and another man, who had attacked them.

      . Hess cites to Goss for the proposition that even his arrest was not reason enough to do away with a pre-disciplinary hearing, as one of the students in Goss had likewise been arrested, and due process required for that student a pre-deprivation opportunity to explain herself. See 419 U.S. at 580 n.9, 95 S.Ct. 729. However, the problem with the procedures afforded in Goss was not the lack of a pre-suspension hearing in particular, but the failure to provide a disciplinary hearing at any time. See id..; id. at 571, 584, 95 S.Ct. 729. Indeed, and as noted above, the Supreme Court was careful to explain that the kind of pre-disciplinary procedures Hess now demands are not required in situations where, as here, the student’s presence potentially poses a continuing danger to the school community. See id. at 582-83, 95 S.Ct. 729 (observing that, in such cases, the rudimentary hearing should take place “as soon as practicable”).

      . Before the district court, Hess argued that Trisler was likely biased against him because of some offensive remarks Hess (and his mother) allegedly made to Trisler after learning of the suspension. The district court rejected this argument, however, and Hess has not renewed it on appeal.

      . Hess complains that Trisler referred to Franks's description as an. "identification,” when in fact no line-up or other formal identification procedure was used. While a formal identification may have been stronger evidence of Hess's culpability, this does not mean that the description Franks did provide ought not to have been considered at all.

      . For example, Hess now suggests that Franks knew him, and so would have referred to him by name if Franks had actually intended to identify Hess as Franks's attacker.

      . Because there was no constitutional violation, we do not reach defendants’ alternative argument that the individual administrators are qualifiedly immune from suit.


author: SYKES, Circuit Judge.

text:
    Jocelyn CHATHAM, Administrator of the Estate of Marvin T. McDonald, Plaintiff-Appellant, v. Randy DAVIS, Warden, Pinckneyville Correctional Center, et al., Defendants-Appellees.
    No. 14-3318
    United States Court of Appeals, Seventh Circuit.
    Argued October 26, 2015
    Decided October 17, 2016

      Christopher R. Smith, Attorney, Smith, Johnson & Antholt, LLC, Chicago, IL, for Plaintiff-Appellant.
    Carl J. Elitz, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, Rodney M. Sharp, Attorney, Sandberg Phoenix & Von Gontard P.C., St. Louis, MO, for Defendants-Appellees.
    Before WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

Marvin McDonald died after suffering an asthma attack while he was an inmate at Pinckneyville Correctional Center, an Illinois prison. His estate, administered by Jocelyn Chatham, sued the prison’s warden, Wexford Health Services (a private corporation contracted to run the prison’s healthcare unit), a prison doctor and nurse, and several prison guards under 42 U.S.C. § 1983. Chatham claimed that the defendants were deliberately indifferent to McDonald’s serious medical needs, violating his rights under the Eighth Amendment. A magistrate judge entered summary judgment for the warden and Wexford. The other claims went to trial, and a jury found for the remaining defendants. Chatham now appeals, challenging the order granting summary judgment for the warden and Wexford. She also challenges the denial of her motions for leave to amend her complaint, for discovery sanctions, and for a new trial.

We affirm. The magistrate judge was right to enter summary judgment for the warden and Wexford. Chatham did not produce evidence to support a reasonable inference that the warden consciously disregarded a substantial risk of harm to McDonald. Nor did she have evidence showing that a Wexford policy, practice, or custom caused a constitutional injury. Finally, the judge did not abuse his discretion in declining to allow leave to amend, impose a discovery sanction, or grant a new trial.

I. Background

McDonald was an inmate at Pinckney-ville Correctional Center, an Illinois prison, and was housed in the segregation unit. At about 5 p.m. on May 26, 2010, he began to suffer an asthma attack in his cell. His symptoms persisted, and after a few hours, he told his cellmate about his situation. Unlike certain other units in the prison, the segregation cells did not have emergency call buttons, so his cellmate banged on the cell door to alert the guards. A guard eventually responded and escorted McDonald to the prison’s healthcare unit. By that time it was approximately 12:15 a.m.

Pinckneyville’s healthcare unit is run by Wexford, a private company under contract with the Illinois Department of Corrections (“IDOC”). The healthcare unit was supposed to be managed by a permanent medical director, but the post had been vacant for more than a year. To cover the position, two Wexford doctors split the medical director’s responsibilities: Dr. Jill Wahl, a traveling medical director, and Dr. Dennis Larson, a regional medical director.

When McDonald arrived at the healthcare unit, he was wheezing and using his accessory muscles to breathe. Nurse Rhonda Reuter checked his vital signs, assessed the oxygen saturation in his blood, and measured his peak expiratory flow rate, which was extremely low. Nurse Reuter started him on oxygen and administered an albuterol nebulizer and epinephrine. She then phoned Dr. Larson for a consult.

Dr. Larson was on call for about a dozen IDOC facilities that evening, although he was only the backup on-call doctor for most of these facilities. He slept through Nurse Reuter’s call. At about 2 a.m. he finally returned her call and was briefed on McDonald’s situation. He continued the oxygen, prescribed more albuterol, and added prednisone, a steroid. Dr. Larson called back again about a half hour later'to check on McDonald’s status and was told that he was still using his accessory muscles to breathe. At that point Dr. Larson ordered McDonald transferred to Pinek-neyville Community Hospital via ambulance, calling ahead to alert the emergency-room staff of his condition.

In the ambulance McDonald was given more albuterol and another asthma medication. He arrived at the hospital at 3:45 a.m. and was seen by a Dr. Reyes 15 minutes later. Dr. Reyes treated him with more albuterol, still another medication to aid in breathing, and more epinephrine. These treatments continued throughout the early morning hours. At 5:20 a.m. McDonald was still having difficulty breathing, so Dr. Reyes inserted a breathing tube. The initial attempt to insert the tube failed, but by 5:44 a.m. intubation was achieved. It was too late. A Code Blue was called at 5:53 a.m. McDonald died at 6:09 a.m.

Chatham, the administrator of McDonald’s estate, filed this § 1983 suit alleging that various prison officials and Wexford were deliberately indifferent to McDonald’s serious medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. In addition to Wexford, the named defendants included Randy Davis, the Pinckney-ville warden; Dr. Larson and Nurse Reu-ter; and the guards who were responsible for monitoring McDonald on the date in question. The claims against the warden and Wexford focused on the lack of a permanent medical director in the healthcare unit and the lack of emergency call buttons in the segregation-unit cells. The complaint also alleged that Wexford failed to adequately train Nurse Reuter in 911 protocols specific to asthma-related emergencies like McDonald’s. A magistrate judge entered summary judgment for Warden Davis and Wexford on these claims.

The claims against the remaining defendants—Dr. Larson, Nurse Reuter, and the prison guards—were allowed to proceed. Before trial but after the expiration of the court’s deadline to amend the pleadings, Chatham sought leave to file a third amended complaint to add state-law claims against Nurse Reuter and Dr. Larson. The magistrate judge denied the motion. Chat-ham also moved for discovery sanctions against Wexford for dragging its feet in disclosing its treatment protocols relating to asthma. That motion, too, was denied. The remaining claims were tried to a jury, which returned a defense verdict. After an unsuccessful motion for a new trial, Chat-ham appealed.

II. Analysis

Chatham seeks review of four separate orders: (1) the magistrate judge’s order granting summary judgment for Warden Davis and Wexford; (2) the denial of leave to file a third amended complaint; (3) the denial of discovery sanctions; and (4) the denial of her motion for a new trial.

A. Summary Judgment

We review the magistrate judge’s summary-judgment order de novo, viewing the record in the light most favorable to Chat-ham and drawing all reasonable inferences in her favor. Burton v. Downey, 805 F.3d 776, 783 (7th Cir. 2015). Summary judgment is appropriate if “there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. R. 56(a).

Chatham alleged that Warden Davis and Wexford violated McDonald’s rights under the Eighth Amendment by deliberately failing to mitigate , risks to the health and safety of inmates in the Pinck-neyville prison in several respects. “[D]e-liberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S, 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). A prison official may be liable for deliberate, indifference only if he .“knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A medical deliberate-indifference claim requires proof that the prisoner suffered from “(1) an objectively serious medical condition to which (2) a state official was deliberately, that is subjectively, indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).

McDonald’s asthma attack, which ultimately proved fatal, plainly qualifies as an objectively serious medical condition. The question here is whether Chatham produced sufficient evidence on the state-of-mind element of the claim. The inquiry is a subjective one: “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970; see also Betties v. Carter, No. 14-2674, 836 F.3d 722, 728, 2016 WL 4631679, at *3 (7th Cir. Aug. 25, 2016) (en banc) (“[T]he Supreme Court has instructed us that a plaintiff must provide evidence that an official actually knew of and disregarded a substantial risk of harm.”). “The requirement of subjective awareness tethers the deliberate-indifference cause of action to the Eighth Amendment’s prohibition of cruel and unusual punishment....” Whiting v. Wexford Health Sources, Inc., No. 15-1647, 839 F.3d 658, 662, 2016 WL 5934768 (7th Cir. Oct. 12, 2016),

Chatham argues that Warden Davis was deliberately indifferent in two respects: (1) He failed to install emergency call buttons in the segregation unit and (2) he failed to ensure that the position of permanent medical director was filled in a timely fashion. The evidence doesn’t support either contention.

Nothing in the record suggests that Warden Davis had actual knowledge of specific facts that would support an inference that the absence of emergency call buttons created a substantial risk of harm. There’s no evidence, for example, that he ignored recommendations to install such a system or that he was aware of previous emergencies in the segregation unit that the presence of call buttons would have averted. Cf. Petties, 836 F.3d at 729-30, 2016 WL 4631679, at *4 (discussing the types of evidence that can show a prison doctor’s deliberate indifference to an inmate’s serious medical need).

The closest thing Chatham has offered is the fact that certain other units in the prison are equipped with emergency call buttons. But the presence of call buttons in other parts of the prison does not establish that Warden Davis actually, knew that the failure to have such a system in the segregation unit created a substantial risk of harm. It might be considered weakly probative of negligence, but that’s not the standard; it’s well established that “showing mere negligence is not enough” for a deliberate-indifference claim. Id. at 728, 2016 WL 4631679 at *3; see also Steidl v. Gramley, 151 F.3d 739, 740 (7th Cir. 1998) (A warden does not violate “the Eighth Amendment when he might have known of a risk of harm, or in any event should have known.”).

Nor does Chatham have any evidence to show that Davis knew that the failure to have a permanent medical director in place would put inmates at substantial risk of harm. Indeed, no evidence suggests that the lack of a permanent medical director had any effect on inmate health and safety at all. Drs. Larson and Wahl were covering these duties until a permanent medical director could be hired. Although the position remained unfilled for a long time, Chatham has offered- no evidence to show that this situation caused an increased risk to inmate health and safety. Summary judgment for Warden Davis was appropriate.

The claim, against Wexford proceeds under the theory of municipal liability announced in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which we’ve held applies in § 1983 claims brought against private companies acting under color of state law. Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 795-96 (7th Cir. 2014). To prevail, Chatham needed to present evidence that a Wexford policy, practice, or custom caused a constitutional violation. Whiting, 839 F.3d at 664; Thomas v. Cook Cty. Sheriffs Dep’t, 604 F.3d 293, 303 (7th Cir. 2009) (discussing municipal liability for Eighth Amendment violations). She did not do. so.

Chatham focuses on Wexford’s failure to fill the permanent medical-director position and its failure to train Nurse Reuter in 911 protocols specific to emergencies like McDonald’s. As we’ve already noted, however, no evidence suggests that the failure to promptly fill the permanent medical-director position created a substantial risk of harm. Nor is there evidence showing that Wexford was aware of such a risk, assuming it existed. Monell claims based on allegations of an unconstitutional municipal practice or custom—as distinct from an official policy—normally require evidence that the identified practice or custom caused multiple injuries. Id. (“[T]here is no clear consensus as to how frequently [an injury] must occur to impose Monell liability, except that it must be more than one ... or even three [times].”) (citation and quotation marks omitted); Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (stating that a custom or practice claim “requires more evidence than a single incident to establish liability”). No such evidence exists here.

Chatham insists, that she didn’t need this kind of evidence because the possibility of harm was obvious. It’s true that in a “narrow range of circumstances,” the possibility of harm from a custom or practice may be so obvious that evidence of a series of prior injuries is not needed to support an inference of deliberate indifference. Calhoun, 408 F.3d at 381 (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)); Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 929 (7th Cir. 2004). This isn’t one of those rare cases. Chat-ham’s sole evidentiary support for this claim is that Dr. Larson was on call for about a dozen facilities the night of McDonald’s asthma attack. (Recall, however, that he was the backup on-call doctor for most of those facilities.) Chatham suggests that a permanent medical director wouldn’t have slept through Nurse Reu-ter’s emergency call as Dr. Larson did. But the record doesn’t tell us why Larson slept through the call or what nightly on-call duties a permanent medical director would be required to carry. Chatham’s argument rests entirely on speculation and was rightly rejected.

Chatham also argues that Wex-ford failed to train Nurse Reuter in 911 protocols specific to emergencies like McDonald’s, and this amounts to a “practice” or “custom” sufficient to support Monell liability. Here too she offers no evidence that the lack of asthma-specific 911 training created a substantial risk of harm, that Wexford knew of such a risk (if it existed), or that this “practice” or “custom” caused McDonald’s injury. To the contrary, the only evidence on this point comes from Cheri Laurant, Wexford’s Rule 30(b)(6) designee. See Fed. R. Civ. P. 30(b)(6). She testified that Wexford’s nurses are trained—indeed, they already know, based on their professional education—to call 911 in a life-threatening emergency; they need not wait for a physician referral. This argument too was rightly rejected. Summary judgment for Wexford was entirely appropriate.

B. Chatham’s Three Other Motions

With the challenge to the summary-judgment order out of the way, we proceed to the other orders Chatham asks us to review.

1. Motion to Amend the Complaint

Two months after the deadline for amending the pleadings expired, Chatham moved for leave to file a third amended complaint to add nursing-negligence and wrongful-death claims against Nurse Reu-ter and Dr. Larson. The magistrate judge denied the motion because Chatham didn’t provide a reasonable explanation for her delay and the late-stage amendment would have caused undue prejudice to Reuter and Larson.

We review the denial of a motion to amend a complaint for abuse of discretion. Pugh v. Tribune Co., 521 F.3d 686, 698 (7th Cir. 2008). A plaintiff may amend his complaint once as a matter of course, but subsequent amendments require either the consent of an opposing party or the court’s leave. See Fed. R. Crv. P. 15(a). While a judge should “freely give leave [to amend] when justice so requires,” RULE 15(a)(2), refusal to allow an amendment is appropriate where, as here, a plaintiff has unjustifiably delayed or when an opposing party would suffer undue prejudice, Barry Aviation Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004).

Chatham asserts that the magistrate judge abused his discretion but she does not explain how. She argues only that her proposed new state-law claims were factually related to the § 1983 claims, so little additional discovery would be required. The magistrate judge reasonably rejected that argument and found the delay both unexcused and prejudicial. Chatham has given us no good reason to disturb that ruling, and we see none ourselves.

2. Motion for Discovery Sanction

During discovery, Wexford was late in disclosing its nursing treatment protocols relating to asthma. Chatham moved to sanction Wexford for this error, but the magistrate judge denied the motion after determining that the tardy disclosure was not made for tactical advantage and was not prejudicial.

We review this decision too for abuse of discretion. Park v. City of Chicago, 297 F.3d 606, 614 (7th Cir. 2002) (“A trial court has broad discretion concerning the imposition of discovery sanctions.”). Little discussion is needed. Chatham hasn’t pointed to any evidence of bad faith and doesn’t explain how the delayed disclosure could possibly have prejudiced her. We find no abuse of discretion.

3. Motion for a New Trial

After the jury returned its verdict in favor of Dr. Larson, Nurse Reuter, and the prison guards, Chatham moved for a new trial. The magistrate judge denied the motion, and again our review is for abuse of discretion. See Kapelanski v. Johnson, 390 F.3d 526, 530 (7th Cir. 2004).

Chatham argues that a new trial is warranted because the magistrate judge improperly limited the testimony of her expert witness. She claims that her experts were required to closely hew to their expert reports during their testimony, while the defendants’ experts were allowed to “deviate substantially from their reports” and to “opine at will on the standard of care.”

This claim of unequal treatment is simply not borne out by the record. The judge’s pretrial order equally—and explicitly—limited both sides’ expert testimony to matters covered in the experts’ reports. Chatham hasn’t identified any particular testimony from the defense experts that should have been excluded, nor has she sufficiently explained what her experts were unfairly precluded from saying. There’s no basis in the record to conclude that the limits on expert testimony were unevenly enforced.

Chatham also argues that the magistrate judge improperly admitted evidence of McDonald’s arrest history in violation of Rule 403 of the Federal Rules of Evidence. Character evidence of this sort is usually inadmissible. See Fed. R. Evid. 404(a)(1). But part of Chatham’s claim for damages relied on the lost relationship between McDonald and his son. Attaching a value to this loss required proving “the quality of advice and support that [McDonald] could have supplied” to his child, thus putting McDonald’s character squarely at issue. Cobige v. City of Chicago, 651 F.3d 780, 785 (7th Cir. 2011).

Of course relevant evidence may still be excluded “if its probative value is substantially outweighed by ... unfair prejudice.” Fed. R. Evid. 403. Chatham argues that this evidence flunks the Rule 403 balancing test because McDonald’s arrests occurred before his son was born. The magistrate judge was entitled to see things differently and strike the balance accordingly. But even if we agreed that an evidentiary error occurred, the judge was well within his discretion to refuse to grant a new trial in the face of this claim of error. See Shick v. Ill. Dep’t of Human Servs., 307 F.3d 605, 611 (7th Cir. 2002) (“A new trial may be granted in the event of an error in the admission of evidence in extraordinary situations.”). McDonald’s arrest history was admitted on the question of damages, but the jury returned a no-liability verdict and never reached that question. Chatham’s motion for a new trial was properly denied.

AFFIRMED.