Joseph Conley v. Kimberly Birch

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3173
J OSEPH C ONLEY,
Plaintiff-Appellant,
v.
KIMBERLY B IRCH,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:11-cv-13 — Stephen C. Williams, Magistrate Judge.
____________________
A RGUED MAY 28, 2015 — D ECIDED A UGUST 6, 2015
____________________
Before FLAUM, KANNE , and SYKES , Circuit Judges.
FLAUM, Circuit Judge. Joseph Conley appeals a district
court’s grant of summary judgment to prison physician Dr.
Kimberly Birch on Conley’s claim that Dr. Birch displayed
deliberate indifference to his serious medical needs by de-
clining to promptly order an x-ray of his injured hand. On
December 24, 2009, Conley’s hand was examined by a prison
nurse, who described Conley’s symptoms to Dr. Birch over
the phone. Those symptoms included throbbing pain, severe

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2 No. 14-3173
swelling, discoloration, and loss of function throughout the
entire hand; the nurse concluded in his treatment notes that
Conley suffered from a “possible/probable fracture.” Dr.
Birch ordered a regimen of ibuprofen and ice but did not or-
der an x-ray until almost five days later. The x-ray revealed
that Conley’s hand was indeed fractured, and years later, he
continues to suffer from chronic pain and limited mobility.
Based on the information in the record, and drawing all in-
ferences in the light most favorable to Conley, we conclude
that a reasonable jury might find that Dr. Birch strongly sus-
pected that Conley’s hand had been fractured, yet refused to
take reasonable measures to evaluate or treat his injury. We
therefore reverse the district court’s grant of summary judg-
ment in favor of Dr. Birch and remand the case for trial.
I. Background
On December 22, 2009, Joseph Conley, then an inmate at
the Vienna Correctional Center, was involved in a physical
altercation with a fellow inmate, who swung a combination
lock at Conley’s head. Conley blocked the hit with his right
palm but on impact, he “heard a pop” and felt excruciating
pain in his hand. Over the course of the next two days, Con-
ley’s hand swelled and his range of motion became severely
limited. Conley made repeated requests for medical atten-
tion, which were largely ignored by various Vienna employ-
ees, but which are not relevant to this appeal. 1
1 These employees—June Daymon, Tracie Stanford, and Carol Fauless—
were joined as defendants in the instant suit, and the district court de-
nied their motions for summary judgment on Conley’s claims of deliber-
ate indifference. Daymon, Stanford, and Fauless did not participate in
this appeal.

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No. 14-3173 3
On the evening of December 24, Conley showed his in-
jured hand to yet another Vienna employee, Lieutenant Bri-
an Felton. By this point, Conley’s hand had “swollen up like
a boxing glove real big.” Felton escorted Conley to the health
care unit. There, Conley was examined by nurse Tracy Potts.
During the examination, Potts filled out two medical forms,
an “Offender Injury Report” and an “Offender Outpatient
Progress Note.” In the “Objective Findings” section of the
Injury Report, Potts observed: “right hand swollen, discol-
ored, all fingers and thumb involved with palm bruising al-
so. Mild pain.” In the “Evaluation of Injury” section, Potts
wrote “possible/probable fracture.” On the Progress Note,
Potts recorded additional observations: he indicated that
Conley suffered from “throbbing” and “severe pain or swell-
ing, discoloration, [and] limited motion.” He specified that
Conley was experiencing “limited movement of all four fin-
gers and thumb,” and that Conley’s pain was a “2–3” on a 1–
10 scale. Finally, Potts circled the word “Fracture,” but
placed a question mark next to that diagnosis. Potts’s notes
do not indicate any gross deformity or signs of a vascular or
neurological deficit.
After examining Conley, Potts placed a call to defendant
Kimberly Birch, the sole physician assigned to the Vienna
facility, who was at her home celebrating the Christmas hol-
iday. Neither Potts nor Dr. Birch has any independent recol-
lection of the contents of this phone call, and Conley did not
overhear the conversation. The parties agree, however, that
it was standard protocol for Potts to share his full assess-
ment with Dr. Birch during a telephone referral. After speak-
ing with Dr. Birch, Potts gave Conley an ice pack and ibu-
profen. According to Conley, Potts explained that “there was
nothing he could do [for Conley] because of the holidays,”

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4 No. 14-3173
and that “all he could do” was recommend ice and ibu-
profen. (Potts had independent authority to provide patients
with painkillers and ice but only Dr. Birch had the authority
to order x-rays, which she could do over the phone.) Dr.
Birch did not report to work on Christmas Day and, alt-
hough she does not recall, she concedes that she may not
have returned to work until December 29, 2009. She exam-
ined Conley in person the morning of December 29—some
four-and-a-half days after Potts’s initial evaluation of Con-
ley’s injury—and upon examination, ordered an x-ray.
Conley does not challenge any of Dr. Birch’s subsequent
actions or omissions, but a brief recital of successive events is
informative nonetheless. X-rays for Vienna inmates are per-
formed offsite at the Shawnee Correctional Center and are
provided by Wexford Health Sources, Inc. Inmates in need
of x-rays are transported to Shawnee by van, typically twice
per week, although Wexford has conceded that the availabil-
ity of x-ray technicians may have been limited over the holi-
days. Conley’s x-ray was scheduled for January 6, 2010.
However, it appears that on the morning of January 6, he
signed a refusal of treatment form in which he specifically
declined the scheduled x-ray. Conley claims that Nurse Jef-
fery Brown presented the form to him without explanation
and that Conley signed the form without reading it. When
Dr. Birch saw Conley later that same morning, Conley was
confused as to why he had not received his x-ray. He was
informed that he had signed a refusal form and that the van
transporting inmates to Shawnee had already left. Dr. Birch
then re-ordered the x-ray and refilled Conley’s pain medica-
tion. Conley did not see Dr. Birch again. He was transferred
to Big Muddy Correctional Center on January 13, 2010 and
eventual x-rays confirmed that his hand was broken. Conley

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No. 14-3173 5
suffered permanent damage from the injury: he continues to
experience chronic pain and frequent swelling, and further
suffers from a weakened grip and permanent extension lag
(the inability to fully straighten his finger).
On January 7, 2011, Conley brought suit under 42 U.S.C.
§ 1983, alleging that various defendants violated his Eighth
Amendment rights by demonstrating deliberate indifference
to his serious medical needs in the days following his injury.
Defendants included Dr. Birch, Wexford, and Illinois De-
partment of Corrections employees Brown, Daymon, Stan-
ford, Fauless, Penny George, Michael Randle, and John Cox.
The district court dismissed Conley’s claims against Randle
and Cox, and all remaining defendants moved for summary
judgment. The court entered summary judgment in favor of
Brown, George, and Wexford, and denied summary judg-
ment with respect to Daymon, Stanford, and Fauless.
With regard to his claim against Dr. Birch, Conley argued
that, based on her conversation with Potts on the evening of
December 24, 2009, Dr. Birch strongly suspected that Con-
ley’s hand was fractured. And, in declining to either seek
prompt confirmation of Conley’s condition (by ordering an
x-ray) or provide precautionary treatment (immobilization
with a splint), she displayed deliberate indifference to his
medical needs. Conley deposed Dr. Birch, who opined that,
if a hand is described as discolored with all fingers swollen,
that injury may be a mere contusion rather than a fracture.
She further explained that it was her custom to defer to the
professional judgment of the reporting nurse in determining
whether an x-ray was necessary. Finally, Dr. Birch acknowl-
edged that, in the case of a broken hand, callus formation
(the process by which the bone starts to fuse and repair it-

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6 No. 14-3173
self) begins “very quickly”—that is, within a matter of days.
Conley’s medical expert, Dr. Bruce Schlafly, was also de-
posed. He explained that, given a “diagnosis from the nurse
of possible or probable fracture of the hand,” “the appropri-
ate treatment then would have been to apply a splint and
order X-rays.” He also stated that “it would have been rea-
sonable to obtain the X-rays of the right hand within three to
five days” of Conley’s December 24 examination. 2
After reviewing the record, the district court determined
in a one-paragraph analysis that no reasonable jury could
conclude that Dr. Birch had acted with deliberate indiffer-
ence. The court concluded that while providing only ice and
ibuprofen to Conley on December 24 was “a conservative
course of treatment,” it was nonetheless appropriate for
someone “complaining of pain and swelling.” Conley v.
Birch, No. 11-cv-13, 2013 WL 6229960, at *8 (S.D. Ill. Dec. 2,
2013). While the district court admitted that the situation
was “certainly unfortunate,” it determined that, because
Conley’s symptoms could just as easily have indicated a con-
tusion, his fracture “was not so obvious to Birch … that the
failure to immediately [order an x-ray] rises to the level of
deliberate indifference.” Id. Conley appeals.3
2 Recall that while Dr. Birch ordered an x-ray within five days of Decem-
ber 24, that x-ray was not scheduled to be performed until January 6,
2010.
3 We recruited pro bono counsel to represent Conley on appeal and now
thank John M. Robinson of Jones Day for his very capable assistance to
his client and the court.

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No. 14-3173 7
II. Discussion
We review the district court’s grant of summary judg-
ment to Dr. Birch de novo. Johnson v. Koppers, Inc., 726 F.3d
910, 914 (7th Cir. 2013). In doing so, we must examine the
record in the light most favorable to Conley as the nonmov-
ing party, resolving all evidentiary conflicts and drawing all
reasonable inferences in his favor. Id. Summary judgment is
appropriate only if Dr. Birch has demonstrated that “there is
no genuine dispute as to any material fact” and that she “is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A prison official may be found in violation of an inmate’s
Eighth Amendment right to be free from cruel and unusual
punishment if she acts (or fails to act) with “deliberate indif-
ference to [his] serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 104 (1976). The Supreme Court has interpreted the
“deliberate indifference” standard to require a “reckless[]
disregard[]” of a substantial risk to inmate health. Farmer v.
Brennan, 511 U.S. 825, 836 (1994). “Deliberate indifference”
demands more than a showing of mere negligence: “an offi-
cial’s failure to alleviate a significant risk that [s]he should
have perceived but did not, while no cause for commenda-
tion, cannot … be condemned as the infliction of punish-
ment.” Id. at 838.
To survive summary judgment on his claim of deliberate
indifference, Conley must produce evidence suggesting that
his injury amounted to an “objectively serious medical con-
dition,” and that Dr. Birch was “aware of the condition and
knowingly disregarded it.” Ortiz v. Webster, 655 F.3d 731, 734
(7th Cir. 2011). That said, Conley’s fracture need not yet have
been diagnosed as such to have demanded action on the part
of Dr. Birch. An official may not escape liability by “re-

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8 No. 14-3173
fus[ing] to verify underlying facts that [s]he strongly sus-
pect[s] to be true.” Farmer, 511 U.S. at 843 n.8. If Conley has
put forth sufficient evidence to permit a reasonable jury to
conclude that Dr. Birch’s “inaction substantially and unrea-
sonably delayed necessary treatment,” then he has done
enough to withstand summary judgment. Ortiz, 655 F.3d at
735.
Applying this standard to the facts of the instant case, we
believe a reasonable jury could find that, based on the in-
formation conveyed to her in her December 24 telephone
conversation with Nurse Potts, Dr. Birch strongly suspected
that Conley’s hand was fractured. Because neither Potts nor
Dr. Birch has any independent recollection of their Decem-
ber 24 conversation, Potts’s treatment notes are the most
probative evidence of the information that Potts transmitted
to Dr. Birch regarding Conley’s injury. (We assume that Potts
relayed the full extent of his observations to Dr. Birch during
their call, as all parties concur that this was standard practice
for telephone referrals at Vienna.) These treatment notes
suggest a serious injury: Conley suffered from “severe”
swelling despite the fact that his injury occurred two days
prior; he experienced loss of function and mobility extend-
ing to all four of his fingers and his thumb, even though the
blow was to his palm only; his hand was discolored; and,
most importantly, Potts described the injury as a “possi-
ble/probable fracture.” Further, while Dr. Birch insisted in
her deposition that Conley’s symptoms could have indicated
a contusion rather than a fracture, we think it highly implau-
sible that Potts would have telephoned Dr. Birch at her
home, after working hours, on Christmas Eve, if he suspect-
ed that Conley’s hand was merely bruised.

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No. 14-3173 9
Considering this evidence in the light most favorable to
Conley, a jury might reasonably find that Dr. Birch conclud-
ed that Conley’s hand was probably fractured. Of course, we
cannot be certain of the conclusion that Dr. Birch actually
drew. But state of mind is an “inquiry that ordinarily cannot
be concluded on summary judgment,” Mkt. St. Assocs. Ltd.
P’ship v. Frey, 941 F.2d 588, 597–98 (7th Cir. 1991), and the
record suggests that Potts communicated information suffi-
cient to lead Dr. Birch to strongly suspect that Conley had
suffered a fracture. Whether she in fact made that inference
is a question for trial.
Our inquiry does not end there, however. Now that we
have determined that Dr. Birch may well have been aware of
Conley’s “objectively serious medical condition,” we must
also determine whether a reasonable jury might conclude
that she “knowingly disregarded” that condition. Ortiz, 655
F.3d at 734. Dr. Birch did not direct Potts to entirely withhold
treatment from Conley: after all, Conley was provided ice
and ibuprofen, and was informed that Dr. Birch would ex-
amine him when she returned to work. The relevant inquiry,
then, is whether the provision of only painkillers and ice to
an inmate suffering from a suspected fracture constitutes de-
liberate indifference. On this issue too, Conley has intro-
duced enough evidence to create a dispute of material fact.
We have explained that while the “deliberate indiffer-
ence” standard “does not permit claims for mere negligence
or claims alleging that a reasonable medical judgment unfor-
tunately led to a bad result, a prisoner is not required to
show that he was literally ignored.” Sherrod v. Lingle, 223
F.3d 605, 611 (7th Cir. 2000) (citations omitted). Therefore,
Conley may demonstrate that Dr. Birch was deliberately in-

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10 No. 14-3173
different even though she provided some minimal treat-
ment. See id. (“If knowing that a patient faces a serious risk
of appendicitis, the prison official gives the patient an aspi-
rin and an enema and sends him back to his cell, a jury could
find deliberate indifference … .”). In the opinion of Conley’s
medical expert, the “appropriate” treatment for a probable
fracture would have been to immobilize Conley’s hand using
a splint and to promptly order x-rays, to be taken within
three to five days. Dr. Birch, of course, did not recommend
immediate immobilization and, although she ordered an x-
ray approximately five days after learning of Conley’s injury,
his x-ray was not slated to be performed for an additional
eight days (January 6, 2010). Although there is no suggestion
that Dr. Birch herself scheduled the x-ray, it is reasonable to
infer—based on Vienna’s standard practice of releasing in-
mates for x-rays only twice per week (and less frequently
over the holidays)—that Dr. Birch knew that it would be
some time before Conley received his x-ray.
Additional support for the contention that the treatment
Conley received was insufficient can be found in Conley’s
deposition testimony. Conley stated that when Potts re-
turned from speaking with Dr. Birch on December 24, he la-
mented that “there was nothing he could do [for Conley] be-
cause of the holidays,” and that “all he could do” was rec-
ommend ice and ibuprofen. This statement suggests that
Potts believed that the severity of Conley’s condition necessi-
tated more drastic treatment, but that Potts’s hands were tied
as he had independent authority only to provide painkillers
and ice. Based on this evidence, we believe that a reasonable
jury could conclude that, in refusing either to promptly
evaluate Conley’s condition (by ordering an x-ray or per-
forming an in-person exam) or to provide appropriate pre-

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No. 14-3173 11
cautionary treatment (by immobilizing his hand), Dr. Birch
acted with deliberate indifference to Conley’s serious medi-
cal needs.
Our conclusion that Conley’s claim of deliberate indiffer-
ence survives summary judgment does not necessarily indi-
cate that Conley is likely to win at trial. There is evidence
pointing in both directions, and while a jury might draw in-
ferences favorable to Conley, the record also permits the op-
posite inferences. After all, Potts’s treatment notes convey
some uncertainty as to Conley’s diagnosis, as Potts described
Conley’s injury as a “possible/probable fracture” and a “?
Fracture.” Also, though his hand was severely swollen, Con-
ley was experiencing only mild pain (a “2–3” on a 1–10 scale)
at the time of his visit with Potts. Because Potts customarily
shared his full assessment during a telephone referral, we
can assume that these observations were communicated to
Dr. Birch, along with a report of Conley’s more serious
symptoms. Further, because Dr. Birch stated in her deposi-
tion that she generally deferred to the professional judgment
of the reporting nurse in determining whether to order an x-
ray, a jury might conclude that Potts did not feel that an x-
ray was necessary. Finally, considering that Dr. Birch would
have been able to order an x-ray over the phone in a matter
of minutes, doing so likely would not have interfered with
her holiday plans; as a result, Conley’s proffered motive for
Dr. Birch’s decision not to order an x-ray—that is, so that she
would not be forced to interrupt her Christmas vacation—
appears dubious.
However, these are factual questions that should be left
to the judgment of a jury. Here, rather than viewing all facts
in the light most favorable to Conley, the district court “im-

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12 No. 14-3173
permissibly resolved questions of material fact in favor of
the defendant[] and relied on those to determine that the
prison medical staff did not show deliberate indifference.”
Sherrod, 223 F.3d at 611. While “deliberate indifference” is
indeed a high bar, Conley has introduced evidence sufficient
to permit a jury to conclude that Dr. Birch acted with reck-
less disregard for his medical needs.
On a final note, Dr. Birch also contends that Conley can-
not demonstrate that her delay in ordering an x-ray caused
his injury. We have held that, “[i]n cases where prison offi-
cials delayed rather than denied medical assistance to an
inmate,” the plaintiff must “offer verifying medical evidence
that the delay (rather than the inmate’s underlying condi-
tion) caused some degree of harm.” Jackson v. Pollion, 733
F.3d 786, 790 (7th Cir. 2013) (citation and internal quotation
marks omitted). Here, thirty-five days passed between the
date on which Conley fractured his hand (December 22,
2009), and the date on which that fracture was diagnosed
(January 26, 2010); however, Conley blames Dr. Birch for
fewer than five days of this lengthy delay. Thus, while Dr.
Birch appears to concede that the overall delay may have
contributed to the severity of Conley’s injury, she argues
that Conley has made no showing of what harm, if any, can
be specifically attributed to her relatively minor role in de-
laying his diagnosis.
As an initial matter, we have determined that “causation
is normally a matter for the jury.” Collins v. Am. Optometric
Ass’n, 693 F.2d 636, 640 (7th Cir. 1982). But more importantly,
Dr. Birch acknowledged in her deposition that, following a
fracture, callus formation begins to take place “very quick-
ly”; presumably, if bones fuse together improperly, perma-

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No. 14-3173 13
nent injury may result. We therefore find Dr. Birch’s uncon-
troverted testimony sufficient to permit a jury to conclude
that, by declining to order an x-ray of Conley’s hand at such
a crucial point in the healing process, she exacerbated his
lasting injuries.
III. Conclusion
For the foregoing reasons, we R EVERSE the district court’s
grant of summary judgment to Dr. Birch and R EMAND the
case for further proceedings consistent with this opinion.

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