Thomas J. Riley v. Chad Kolitwenzew

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 18, 2016 *
Decided March 18, 2016
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15-1137
THOMAS J. RILEY,
Plaintiff-Appellant,
v.
CHAD KOLITWENZEW,
Defendant-Appellee.
Appeal from the United States District
Court for the Central District of Illinois.
No. 11-2196
Colin S. Bruce,
Judge.
O R D E R
Thomas Riley, a federal prisoner, was detained in the custody of the Marshals
Service during his criminal case. He was housed under contract at the Jerome Combs
Detention Facility in Kankakee, Illinois, and while at that jail he developed a painful
inguinal hernia. Riley eventually sued several employees, see 42 U.S.C. § 1983, claiming
that his hernia was being ignored, but the district court declared the matter “resolved”
and dismissed the action sua sponte after learning that Riley had received successful
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. A PP. P.
34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 15-1137 Page 2
surgery. We vacated that decision, but only as to one of the named defendants,
Chad Kolitwenzew. It was clear that the other defendants were not personally involved
in Riley’s medical care, but Riley had plausibly alleged that Kolitwenzew, the assistant
chief of corrections at the jail, knew about his situation but “did nothing to hasten
surgery or minimize his pain.” Riley v. Kolitwenzew, 526 F. App’x 653, 657 (7th Cir. 2013).
On remand the district court granted summary judgment for Kolitwenzew, reasoning
that a jury could not find from the evidence that he ignored Riley’s medical needs. We
agree with that view of the evidence and affirm the judgment.
We construe the evidence in favor of Riley, the opponent of summary judgment.
See Burton v. Downey, 805 F.3d 776, 783 (7th Cir. 2015). Riley awoke with severe
abdominal pain on March 12, 2011. A staff member promised that medical personnel
soon would evaluate him, but after waiting in vain for more than a day, Riley submitted
a grievance addressed to “Chief Chad.” Kolitwenzew, as assistant chief of corrections,
oversaw daily operations at the jail, including supervising employees and handling
inmate grievances. Two days after submitting his grievance, Riley went to the infirmary
for a routine blood draw. By then his pain had subsided, and he did not mention his
previous discomfort to the nurse.
A week later the abdominal pain recurred. At a medical appointment on
March 21, Riley told physician’s assistant Tiniki White that he was experiencing
intermittent pain in his lower left abdomen extending into his left testicle. White ordered
an ultrasound to check for an inguinal hernia and prescribed tramadol, an opioid pain
reliever. Three days later Riley submitted a grievance addressed to “Medical,”
explaining that his prescribed medication still had not been dispensed. The medication
finally was made available after another four days, and on March 30 the ultrasound was
performed and showed a small cyst in his left testicle.
Riley saw White again for a follow-up appointment in mid-April. He said he was
regularly taking the pain medication, which provided some relief. White referred him to
a urologist, but Riley, as a federal prisoner, needed approval from the Marshals Service
for the outside appointment.
On April 20, Riley directed a second grievance to assistant chief Kolitwenzew.
Riley asserted that his tramadol had been cancelled, despite worsening pain.
Kolitwenzew contacted the medical department that same day and was briefed about
Riley’s testicle cyst and pending referral to the urologist. He also was told that Riley’s
pain medication had not been cancelled. Kolitwenzew relayed this information to Riley

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No. 15-1137 Page 3
and told him that physician’s assistant White would visit him to discuss the grievance.
White contacted Riley the next day. Riley said the pain was affecting his left leg, and that
for “a week or so” he had not received his tramadol, which offered “some relief.” White
ordered a refill, and a day later Riley’s medication was resumed.
On May 3, 2011, the urologist examined Riley and diagnosed a left inguinal
hernia. He referred Riley to a surgeon, and a month later, after the Marshals Service had
given its approval, Riley consulted that specialist. The surgeon confirmed the hernia
diagnosis but characterized surgery as optional since, he thought, surgery might not
relieve Riley’s symptoms. Still, the medical staff sought authorization from the
Marshals Service to arrange for surgery. Riley was still waiting for an answer when,
nearly two months later, he sent Kolitwenzew a request for medical care emphasizing
his desire for surgery because he did not like taking the tramadol.
Two days after submitting that request, on August 2, Riley had another follow-up
with physician’s assistant White. He was developing numbness around his left testicle,
Riley said, and because of the pain was having “problems” with his left leg. White
explained that the Marshals Service had not yet authorized surgery. White refilled the
tramadol prescription and sent the Marshals Service a second request to authorize
surgery. On August 11, Riley sent Kolitwenzew another request for medical care seeking
confirmation of White’s assertion that approval from the Marshals Service was needed
for his hernia surgery. Kolitwenzew contacted the medical department and was told that
a request for surgery was pending, that Riley’s condition was not an emergency, that he
was receiving medical care from White, and that he was getting pain medication.
Kolitwenzew responded to Riley the next day, confirming that the Marshals Service, not
jail administrators, had to authorize hernia surgery. That authorization came on
September 21, and Riley had surgery on October 14.
During this period—March through October 2011—Riley had directed
6 additional grievances and 11 other requests for medical care to Kolitwenzew, all
complaining about not having pain medication. (Riley also submitted many requests for
care to the medical department, but there is no evidence that they were sent to
Kolitwenzew or that he knew about them.) Riley’s medication was held at the
dispensary and doled out one pill at a time, though it was still his responsibility to
monitor the supply and notify the nursing staff when it was getting low. Riley is critical
of this system, but almost always when he complained about running out, his pain
medication was resupplied the same day or the next; only twice did he wait two days.

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Other than lapses immediately preceding his requests for refills, Riley received pain
medication nearly every day, often multiple times per day.
In an affidavit Kolitwenzew denied seeing any grievances about Riley’s hernia,
other than those from April 20 and August 11, which he answered personally.
Kolitwenzew explained that, under the procedure at that time, grievances first went to
supervising officers who forwarded them to Kolitwenzew only when they were unable
to respond adequately. Kolitwenzew passed along to the medical department any
grievance about healthcare, and sometimes he contacted the department to discuss the
issue. Kolitwenzew added that, although he had “some authority regarding how the
medical department is run,” he had “no authority” over medical decisions.
On appeal Riley argues that a jury could find from the evidence that Kolitwenzew
ignored “continuous grievances” about his pain, the medication lapses, and his need for
hernia surgery. Riley was a pretrial detainee, but we evaluate this claimed denial of due
process using the same deliberate-indifference standard governing Eighth Amendment
claims from convicted prisoners. See Smith v. Knox Cty. Jail, 666 F.3d 1037, 1039
(7th Cir. 2012). We note that Riley never amended his June 2011 complaint to include
events after it was filed, but the parties litigated the entire course of Riley’s hernia
treatment through early January 2012. Thus, we, too, will consider all of Riley’s
treatment. See Torry v. Northrop Grumman Corp., 399 F.3d 876, 878–79 (7th Cir. 2005).
Kolitwenzew doesn’t dispute that Riley’s hernia and related pain were objectively
serious medical conditions, see Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011), so
the only issue is whether a jury reasonably could find that Kolitwenzew was deliberately
indifferent to those impairments, see Johnson v. Doughty, 433 F.3d 1001, 1009–10
(7th Cir. 2006). Establishing this subjective element requires proof that a defendant knew
about, but consciously disregarded, a serious risk of harm. See Holloway v. Del. Cnty.
Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012); Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
2011). Prison employees who, like Kolitwenzew, don’t provide medical care are shielded
from liability if they “responded reasonably” to complaints, e.g., by investigating and
relying on the medical staff’s assessment that adequate treatment is being provided.
See Johnson, 433 F.3d at 1010–11; Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005).
As to Riley’s hernia there is no evidence that Kolitwenzew knew of a risk from the
delay in receiving surgery. None of Riley’s complaints related to the delay, and, in fact,
the surgeon deemed surgery to be optional. As to Riley’s pain, the parties disagree about
whether Kolitwenzew knew about Riley’s many grievances and medical requests.

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Kolitwenzew maintains that he saw only two grievances. Riley counters that, given the
sheer number of his complaints, Kolitwenzew must have known about his continuing
pain. But this dispute is not material—even assuming that Kolitwenzew saw all of
Riley’s grievances and medical requests, those submissions asked for more pain
medication, which Riley promptly received. See Burton, 805 F.3d at 785. There is no
evidence that Kolitwenzew—or anyone else—deliberately disregarded these problems.
Kolitwenzew personally investigated and responded to two of Riley’s grievances.
After receiving Riley’s April 20 grievance complaining that his pain was worse and his
medication had been cancelled, Kolitwenzew promptly contacted the medical
department, received assurances that Riley was being treated and his medication had
not been cancelled, relayed the information to Riley, and arranged for physician’s
assistant White to visit Riley to discuss the grievance. And after Riley filed a medical
request on August 11 asking about the need for approval from the Marshals Service for
his surgery, Kolitwenzew again promptly contacted the medical department and
received confirmation that a request had been sent to the Marshals Service and that Riley
was receiving treatment and medication. No jury could find that Kolitwenzew’s
response to Riley’s complaints and his reliance on the medical staff’s advice constituted
deliberate indifference.
Riley also argues that the jail’s policy for dispensing medication is “designed to
create enormous gaps” in treatment. Because prisoners receive individual doses from
the dispensary, Riley asserts, they are unable to know when their medication is running
low and thus cannot timely notify nursing staff when a refill is needed. But Riley
presented no evidence that Kolitwenzew was involved in this process or that he knew
about Riley’s dissatisfaction with it.
AFFIRMED.

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