In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-2660 

SCOTT HILDRETH, 

Plaintiff-Appellant, 

v.

KIM BUTLER, LORI OAKLEY, and 

WEXFORD HEALTH SOURCES, INC., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Illinois. 

No. 3:15-cv-00831-NJR-DGW — Nancy J. Rosenstengel, Chief Judge. 

____________________ 

ARGUED SEPTEMBER 19, 2019 — DECIDED MAY 19, 2020 

____________________ 

Before SYKES, HAMILTON, and BRENNAN, Circuit Judges. 

BRENNAN, Circuit Judge. Scott Hildreth, an inmate at an Illinois maximum-security prison, suffers from Parkinson’s 

disease. He takes a prescription medication distributed by the 

prison three times a day to manage his symptoms. On three 

occasions Hildreth received his medication refill a few days 

late, causing him to experience withdrawal symptoms. His 

symptoms also render his handwriting illegible, so Hildreth 
2 No. 18-2660 

 

uses a typewriter to draft documents. He requested to keep 

that typewriter in his cell, which the prison denied because it 

was considered contraband. Instead, the prison provided Hildreth with an assistant to help him draft documents and increased access to the library where he can use a typewriter. 

Feeling his treatment was lacking, Hildreth sued Wexford 

Health Sources, Inc. and two jail administrators under 42 

U.S.C. § 1983 and the Americans with Disabilities Act 

(“ADA”), 42 U.S.C. §§ 12101 et seq., alleging they violated his 

constitutional and statutory rights. The district court granted 

summary judgment to the defendants. Because Hildreth has 

not shown medication delays were a widespread practice or 

custom at the prison, and he received reasonable accommodations for his Parkinson’s disease, we affirm the district 

court’s decision. 

I. Background 

A. Delays in Hildreth’s Medication 

Hildreth’s Parkinson’s disease causes him to lose his balance, move uncontrollably, and occasionally fall. To alleviate 

these symptoms, a prison doctor prescribed Mirapex, which 

Hildreth contends made a “day and night” difference. As a 

specialty prescription, Mirapex was not kept in stock at the 

prison; instead, it was filled by an outside pharmacy. The 

prison allows Hildreth to keep a monthly supply of 90 

Mirapex pills in his cell. 

To refill his prescription, Hildreth must submit a refill 

sticker within seven days of the end of the prescription to a 

nurse, who takes it to an outside pharmacy. Hildreth usually 

receives his refill when he has three to five days of medication 

left. 
No. 18-2660 3

According to Hildreth, his prescription refill was delayed 

“at least three times,” causing him to experience withdrawal 

symptoms within a day or two. In each instance, he informed 

his gallery officer, who instructed him to tell the nurse. The 

nurse often told him to wait and see if the prescription would 

arrive on time. When his medication was late, Hildreth would 

file a grievance. For two of the three grievances, Hildreth received his medication within a few days of his prescription 

lapsing. Wexford’s medical director, Dr. Roderick Matticks, 

testified the third lapse occurred in part because Hildreth 

failed to attend the chronic clinic, where a Wexford physician 

evaluates chronically ill inmates to assess their condition and 

whether prescriptions should be continued. Dr. Matticks was 

aware of these two or three instances in which Hildreth “had 

some perceived delays in obtaining refills on his medications.” 

B. Hildreth’s Request for a Typewriter

Hildreth used a typewriter instead of handwriting documents because his Parkinson’s symptoms rendered them illegible. But the prison, a maximum-security facility, banned 

the typewriter from his cell as contraband. Hildreth also 

claimed the prison discriminated against him based on his 

Parkinson’s disease by failing to reasonably accommodate 

him for his inability to write legibly. 

To accommodate Hildreth’s request to draft documents, 

he was placed on the automatic call line to the law library 

when he was 90 days away from a court deadline. A counselor 

was available to help him draft documents, and he could contact an officer for emergencies. Hildreth also could use a typewriter whenever he had access to the law library. Kim Butler, 

the former assistant warden and ADA coordinator, granted 
4 No. 18-2660 

 

Hildreth access to the law library three days per week from 

8:00 a.m. to 2:00 p.m. to use the typewriter. 

In the summer of 2012, Hildreth filed a grievance requesting a permit allowing him to possess the typewriter in his cell. 

Over two years later, on October 30, 2014, Hildreth filed a 

grievance stating he needed staff assistance to file grievances. 

Defendant Lori Oakley, a grievance officer, reviewed the complaint and found it moot because Butler had provided Hildreth with increased law library access and assistance to draft 

grievances. Hildreth’s extra library access was later rescinded 

after he was provided an ADA attendant to help write grievances and pleadings. According to Hildreth, the ADA attendant did not have a high school degree, could not spell, 

and had sloppy handwriting. Hildreth concluded it was “not 

even worth it” to use the attendant. The current ADA coordinator, Angela Crain, noted if Hildreth did not want the attendant, “he can simply request extra library time again in 

lieu of the attendant and the ADA attendant will then be assigned to another inmate.” 

Hildreth has not missed any court deadlines due to the 

prison’s actions. Still, he testified he can do only a portion of 

what he used to, which was to spend at least six hours a day 

working on court filings with a typewriter in his cell. While 

other inmates can draft handwritten court filings at any time 

in their cells, Hildreth is limited to his time with the typewriter in the library. 

C. District Court Proceedings 

Hildreth sued under 42 U.S.C. § 1983 alleging Wexford violated his Eighth Amendment right by intentionally not refilling his Parkinson’s medication on time, and under the ADA 
No. 18-2660 5

that defendants Butler and Oakley discriminated against him 

by denying him access to a typewriter in his cell. Hildreth 

sought damages for past harm as well as prospective injunctive relief. While Hildreth initially sued pro se, the district 

court appointed counsel for him. Through that counsel Hildreth filed an amended complaint and engaged in discovery, 

including deposing Wexford’s Rule 30(b)(6) designee.1 

Wexford moved for summary judgment on Hildreth’s 

§ 1983 claim. According to Wexford, Hildreth’s medication 

was late only three times over a period of nineteen months, 

too infrequent from which to infer a widespread practice or 

custom of deliberate indifference. The district court agreed 

and found only three documented instances when Hildreth 

experienced medication delays over a period of nineteen 

months: 

 On April 8, 2014, Hildreth submitted a grievance 

noting he was out of medication. The Warden determined this was an emergency. A doctor saw Hildreth the next day and renewed his medication for 

1 Our dissenting colleague in Section I of his opinion sends out a warning “of obvious implications for discovery in the district courts” in future 

cases. That section of the dissent references reports and other materials 

which, the dissenting opinion admits, are outside of this case’s record. 

Neither the result of this case nor this majority opinion’s reasoning opens 

any doors to future similar litigation or expands the discovery in which 

parties may engage. The scope of discovery is defined by the claims pursued and the defenses raised. For the plaintiff’s part, he set those parameters with the help of counsel. This majority opinion does not address discovery because it was not an issue in this appeal. 
6 No. 18-2660 

 

one year, but Hildreth did not receive his medication until a later date. The record does not indicate 

when he received this prescription. 

 On October 25, 2014, Hildreth submitted another 

grievance stating he was about to run out of his prescription and had a couple days’ worth left. The 

warden expedited this as an emergency. The grievance officer then contacted the healthcare unit, 

which stated Hildreth received the medication on 

October 30, 2014. 

 On November 16, 2015, Hildreth submitted a grievance stating he had been out of his medication since 

November 13. The Warden expedited this grievance. The healthcare unit administrator advised the 

grievance officer that Hildreth’s prescription had 

expired and the request to continue using Mirapex 

was sent to the pharmacy. The grievance officer responded on November 23, 2015, finding this grievance moot. The record does not indicate when he 

received this prescription. 

Hildreth did not present evidence that any other inmates 

experienced medication delays.2 The district court found that 

three delays over the period of a year and a half involving 

only Hildreth did not support an inference of a widespread 

2 Hildreth’s other grievances did not relate to medication refill delays 

or were inadmissible hearsay. For example, Hildreth’s October 30, 2014 

grievance complained about the need for assistance in writing grievances, 

not about refill delays. And Hildreth’s January 15, 2016 grievance referred 

to the return of his November 16, 2015 grievance—again, not about refill 

delays. 
No. 18-2660 7

practice or custom, so summary judgment was granted to 

Wexford. 

Defendants Butler and Oakley also moved for summary 

judgment on Hildreth’s ADA claim, arguing they reasonably 

accommodated his disability. The district court considered 

whether Hildreth, given his disability, was able to participate 

in the activities in question with or without reasonable accommodations. The district court found he was able to use the law 

library and access a typewriter three times per week for six 

hours a day from August 2013 to July 2015. He also could contact an officer in emergency situations, and a counselor was 

available to assist. The increased library access was rescinded 

only after Hildreth was assigned a personal ADA attendant. 

Nevertheless, Hildreth could have requested extra library 

time in lieu of using the attendant. Although Hildreth complained the attendant was inadequate, Hildreth did not miss 

any court deadlines. 

Considering the prison’s security concerns and the fact 

that Hildreth was able to successfully draft documents, the 

district court found the prison’s accommodations reasonable 

as a matter of law and granted summary judgment to Butler 

and Oakley on this claim. Hildreth appealed. 

II. Discussion 

Summary judgment is proper when the admissible evidence shows no genuine dispute as to any material fact and 

the moving party is entitled to judgment as a matter of law. 

See FED. R. CIV. P. 56; Barnes v. City of Centralia, 943 F.3d 826, 

830 (7th Cir. 2019). We review de novo the district court’s 
8 No. 18-2660 

 

grant of summary judgment and construe all facts and reasonable inferences in Hildreth’s favor. See Barnes, 943 F.3d at 

828. 

A. Section 1983 Claim 

We start with Hildreth’s Eighth Amendment claim against 

Wexford, which he brought under § 1983’s policy-or-custom 

framework of Monell v. NYC Soc. Serv., 436 U.S. 658 (1978).3

Deliberate indifference to a prisoner’s serious medical needs 

may constitute cruel and unusual punishment under the 

Eighth Amendment. Campbell v. Kallas, 936 F.3d 536, 544–45 

(7th Cir. 2019) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). 

To prevail on such a claim, a plaintiff must show his condition 

was objectively, sufficiently serious and that the prison officials manifested deliberate indifference to his serious medical 

needs. Id. at 545. To be sure, negligence, gross negligence, or 

even recklessness as the term is used in tort cases is not 

enough—the prison officials’ state of mind must rise to the 

level of deliberate indifference. Burton v. Downey, 805 F.3d 

776, 785 (7th Cir. 2015) (holding alleged two-day delay 

3 In the alternative, Hildreth asks this court to apply a respondeat superior theory of liability to private corporations, like Wexford. This argument 

is new on appeal and thus forfeited. See Hahn v. Walsh, 762 F.3d 617, 639 

(7th Cir. 2014) (holding “plaintiffs have waived the issue of [a private company’s] respondeat superior liability [under § 1983] because they failed to 

raise it before the district court”). While courts, including ours, have at 

times used the terms waiver and forfeiture interchangeably, this court recently clarified that forfeiture occurs where, as here, a party inadvertently 

fails to raise an argument in the district court. United States v. Flores, 929 

F.3d 443, 447 (7th Cir. 2019) (“Waiver occurs when a party intentionally 

relinquishes a known right and forfeiture arises when a party inadvertently fails to raise an argument in the district court.”). 
No. 18-2660 9

providing medication to detainee was not deliberate indifference). 

Because Wexford is a “private corporation that has contracted to provide essential government services [it] is subject 

[under § 1983] to at least the same rules that apply to public 

entities.” Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 378–79 (7th 

Cir. 2017) (en banc). Hildreth does not point to an official unconstitutional policy; instead, he claims Wexford has a custom of delaying prescriptions.4 

To support a § 1983 claim on this theory, Hildreth must 

show: (1) defendants’ practice in refilling prescriptions violated his constitutional rights; and (2) that practice was “so 

pervasive that acquiescence on the part of policymakers was 

apparent and amounted to a policy decision.” Phelan v. Cook 

Cty., 463 F.3d 773, 789, 790 (7th Cir. 2006). This requires “more 

than a showing of one or two missteps.” Id. There must be 

“systemic and gross deficiencies.” Id. Even if such deficiencies 

exist, Hildreth must show policymakers knew of the deficiencies and failed to correct them, manifesting deliberate indifference. Id.

We put the first requirement to the side because Hildreth 

has not provided enough evidence on the second to show a 

practice of delaying prescriptions was widespread, which is 

4 Our dissenting colleague labels Hildreth’s allegations a “policy” 

claim, although the dissent admits Hildreth uses the term “custom” in his 

briefing, and Hildreth states “[a] corporate ’custom’ is at issue here.” Appellant’s Br. at 31. 
10 No. 18-2660 

 

the “pivotal requirement” of his § 1983 claim.5 Grieveson v. 

Anderson, 538 F.3d 763, 774 (7th Cir. 2008) (holding 4 incidents 

over about 11 months involving only plaintiff was insufficient 

to show a widespread practice or custom). 

Hildreth’s claim fails on two axes: first, his allegations of 

delays are insufficiently widespread, as they involve only 

him; and second, the alleged delays are insufficiently numerous, as he has substantiated only three. 

 1. Incidents involving only Hildreth 

Hildreth provides evidence of delays in only his personal 

prescriptions. While it is not “impossible” for a plaintiff to 

demonstrate a widespread practice or custom with evidence 

limited to personal experience, “it is necessarily more difficult 

... because ‘what is needed is evidence that there is a true municipal policy at issue, not a random event.’” Id. (quoting 

Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005)); see 

Winkler v. Madison Cty., 893 F.3d 877, 902 (6th Cir. 2018) (affirming summary judgment in county’s favor when plaintiff 

“discusses only [her son’s] treatment, and therefore cannot establish that the County had a custom of deliberate indifference to the serious healthcare needs of all the inmates”); 

Denham v. Corizon Health, Inc., 675 F. App’x 935, 944 (11th Cir. 

2017) (holding plaintiff failed to show a custom of providing 

inadequate medical care when plaintiff’s claims rest only on 

one inmate’s experiences); Payne v. Servier Cty., 681 F. App’x 

443, 446–47 (6th Cir. 2017) (holding “five instances of alleged 

5 Because there was not enough evidence of a custom, we also need 

not address whether Wexford acted with deliberate indifference. See 

Grieveson v. Anderson, 538 F.3d 763, 774 (7th Cir. 2008). 
No. 18-2660 11

misconduct, over three months, all involving the plaintiff 

himself is not enough to prove a custom”); Culbertson v. Lykos, 

790 F.3d 608, 629 (5th Cir. 2015) (holding allegations “limited 

to the events surrounding the plaintiffs” are insufficient to establish a widespread practice or custom). This is not a case 

where the incidents are so numerous to satisfy the “more difficult” task of proving a custom with only evidence of personal experience. Grieveson, 538 F.3d at 774. 

 2. Insufficient Number of Delays 

Hildreth alleges his prescription lapsed “at least three 

times.” And the district court found three grievances for 

Hildreth’s lapsed medication on April 8, 2014, October 25, 

2014, and November 16, 2015. Other than these three personal 

experiences, Hildreth has not provided evidence that any 

other inmates experienced prescription delays. 

Three instances of prescription delays over nineteen 

months involving solely one inmate fail to qualify as a widespread unconstitutional practice so well-settled that it constitutes a custom or usage with the force of law. Although this 

court has not adopted any “bright-line rules” defining a widespread practice or custom, we have acknowledged that the 

frequency of conduct necessary to impose Monell liability 

must be more than three. Thomas v. Cook Cty. Sheriff’s Dep’t, 

604 F.3d 293, 303 (7th Cir. 2010) (noting “there is no clear consensus as to how frequently such conduct must occur to 

impose Monell liability, ‘except that it must be more than one 

instance,’ or even three”) (citations omitted); see also, e.g., Doe 

v. Vigo Cty., 905 F.3d 1038, 1045 (7th Cir. 2018) (holding a 

“handful of incidents of misconduct,” including three incidents of sexual contact, two incidents of inappropriate comments, and two allegations of harassment over two decades 
12 No. 18-2660 

 

“is not enough to establish a custom or practice”); Estate of 

Moreland v. Dieter, 395 F.3d 747, 760 (7th Cir. 2005) (holding 

three incidents of improper pepper-spraying over a threeyear period did not amount to a widespread custom); Gable v. 

City of Chicago, 296 F.3d 531, 538 (7th Cir. 2002) (holding three 

incidents of erroneously denying to vehicle owners that their 

vehicles were in the impoundment lot over a four-year period 

did not amount to a persistent and widespread practice). 

We agree with the district court that this case is comparable to Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008). In 

Grieveson, on four occasions over a period of about eleven 

months, jail guards gave the plaintiff his entire prescription at 

once, exposing him to the risk of theft by other inmates. Those 

four instances were insufficient to establish a widespread 

practice or custom. 538 F.3d at 774. As Grieveson explained, 

“evidence of four incidents that [plaintiff] alone experienced” 

is “simply not enough to foster a genuine issue of material fact 

that the practice was widespread.” Id. at 774–75. Accordingly, 

granting summary judgment in Wexford’s favor was proper. 

Our dissenting colleague attempts to distinguish 

Grieveson. Grieveson complained once, while Hildreth complained three times, and Grieveson did not allege widespread 

non-compliance with official policy. But a single complaint of 

four incidents over eleven months is not materially different 

than three complaints, each of a single incident, over nineteen 

months. And like Grieveson, Hildreth did not allege a widespread failure. Hildreth’s allegations concern only himself. 

He sued on his own behalf and not for others. Indeed, the 

term “widespread” is absent from Hildreth’s amended complaint, which was filed with the assistance of counsel. 
No. 18-2660 13

Our reasoning and conclusion here agree with other 

circuits that have considered the frequency of instances to establish a widespread practice or custom. Those cases have 

concluded that four or more incidents over varying periods—

sometimes less than nineteen months—are insufficient to 

qualify as a widespread practice or custom.6 

6 Evidence of four incidents fell “far short” of proving a widespread 

practice or custom. See Jones v. Town of E. Haven, 691 F.3d 72, 85 (2d Cir. 

2012) (holding four incidents over approximately four years “fell far 

short” of showing a custom); Giaccio v. City of New York, 308 F. App’x 470, 

472 (2d Cir. 2009) (holding “only four examples” of misconduct fell “far 

short” of establishing a widespread practice). 

Evidence of five incidents involving only the plaintiff was not enough 

to prove a widespread practice or custom, even when those incidents occurred in a short three-month period. See Payne v. Servier Cty., 681 F. App’x 

443, 446–47 (6th Cir. 2017) (holding “five instances of alleged misconduct, 

over three months, all involving the plaintiff himself is not enough to 

prove a custom” and that “plaintiff cannot establish a custom solely by 

pointing to the facts of his own case”). 

Evidence of more than five incidents was insufficient to prove a widespread practice or custom over a variety of time frames. See, e.g., RuizBueno v. Scott, 639 F. App’x 354, 364 (6th Cir. 2016) (holding 10 incidents 

in the past 18 years did not demonstrate pattern of constitutional violations); Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th Cir. 2009) (holding 27 complaints of excessive force over 3 years were insufficient to 

establish a pattern); Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 

2002) (holding 11 incidents of warrantless entry did not support an unconstitutional pattern), 124 F. Supp. 2d 1057, 1070 (S.D. Tex. 2000) (illustrating 

a four-year period for the incidents of warrantless entry); Mettler v. 

Whitledge, 165 F.3d 1197, 1204–05 (8th Cir. 1999) (holding 16 incidents 

ranging between August 1982 and January 1994 were insufficient to prove 

a custom); Silva v. Worden, 130 F.3d 26, 32 (1st Cir. 1997) (finding insufficient evidence of a custom when witnesses “could only remember a few 

instances over the last twenty years”); Carter v. District of Columbia, 795 

F.2d 116, 123 (D.C. Cir. 1986) (holding six prior incidents of alleged 
14 No. 18-2660 

 

 3. Other Alleged Incidents 

Hildreth cites other incidents which he says qualify as part 

of a widespread practice or custom. But due to failures of 

proof and forfeiture, those incidents cannot be considered. 

Hildreth argues the district court erred in excluding evidence 

of two more delays in prescription refills discussed in another 

inmate’s affidavit. Michael McGowan attested he overheard 

conversations between Hildreth and people whom McGowan 

believed to be Wexford nurses. The affidavit describes an October 2015 incident, when a nurse refused to accept Hildreth’s 

medication refill slip because of Hildreth’s demeanor. The affidavit also describes an undated incident, when a nurse said 

she was not going to “check on the status” of Hildreth’s medication and that he needed to wait for it to arrive. 

Hildreth submitted McGowan’s affidavit in response to 

Wexford’s motion for summary judgment. The district court 

excluded the affidavit as inadmissible hearsay. We review a 

district court’s evidentiary decision for an abuse of discretion. 

See Bordelon v. Bd. of Educ. of the City of Chi., 811 F.3d 984, 991 

(7th Cir. 2016). Hildreth argues the district court abused its 

discretion by excluding this affidavit because the statements 

in McGowan’s affidavits were made by an agent of a party 

misconduct over approximately two years did not establish pattern of excessive force); cf. Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989) 

(finding a widespread practice or custom when doors were broken down 

by officers without a warrant with a sledge hammer provided by the city 

and the sergeant was present at “about 20 or 30” or “50, 60” instances over 

his 24-year tenure as a police officer). 
No. 18-2660 15

opponent under Federal Rule of Evidence 801(d)(2)(D) and 

are not hearsay. 

We conclude the district court did not abuse its discretion 

by not considering the McGowan affidavit because there was 

insufficient evidence to establish that Wexford employed the 

nurses referenced in the affidavit. Hildreth failed to show that 

the nurses who allegedly made these statements were employed by Wexford, and he failed to confirm that the statements were made within the scope of employment. Id. at 992. 

Even if a Wexford nurse did make these comments, “not everything that relates to one’s job falls within the scope of one’s 

agency or employment.” Williams v. Pharmacia, Inc., 137 F.3d 

944, 950 (7th Cir. 1998). While the “precise reach of Rule 

801(d)(2)(D) is sometimes difficult to discern,” the inquiry is 

easy where, as here, the affidavit does not establish an employment relationship and does not establish the statements 

were made within the scope of such relationship. Id.

Even if the district court had abused its discretion and improperly excluded these two other incidents, Hildreth’s claim 

still fails because the “practice” of medication delay was not 

widespread. Importantly, neither of these incidents describe 

a delay in the delivery of Hildreth’s prescription. The first relates to a nurse refusing to accept the medication refill slip due 

to Hildreth’s demeanor—not an allegation concerning a medication delay. The second undated incident refers to a nurse 

saying she would not “check on the status” of Hildreth’s medication—again, not a medication delay. Without knowing 

when the prescription was due to be delivered, a delay cannot 

be presumed. So neither of these incidents can support Hildreth’s claim that Wexford has an unconstitutional practice or 

custom of delaying prescriptions. 
16 No. 18-2660 

 

On appeal, Hildreth employs a kitchen-sink strategy by 

arguing there were three more delays (beyond the five discussed so far) for a total of eight delays that the district court 

failed to consider. These three further instances were not argued in the district court, so we cannot consider them. See, 

e.g., Scheidler v. Indiana, 914 F.3d 535, 540, 544 (7th Cir. 2019) 

(holding plaintiff forfeited her argument by not developing it 

in the district court); Flournoy v. Schomig, 418 F. App’x 528, 531 

(7th Cir. 2011) (refusing to consider new evidence of deliberate indifference under § 1983 when plaintiff did not raise the 

issue before the district court); see also United States v. Flores, 

929 F.3d 443, 447 (7th Cir. 2019) (explaining forfeiture arises 

when a party inadvertently fails to raise an argument in the 

district court). 

Even if we were to review these three additional allegations on appeal, they are vague, they lack sufficient connection to Wexford, and at least two occurred sporadically several years before the other alleged incidents. Specifically, two 

incidents are dated November 3, 2009 and January 28, 2011 

and were included in the “cumulative counseling summary” 

to Hildreth’s summary judgment response on the issue of exhaustion of administrative remedies. Hildreth failed to discuss any of these incidents in his summary judgment 

response on the issue of inadequate care, the issue under consideration. The third incident is an undated occurrence when 

his medication lapsed because it was not renewed, which was 

also not discussed in his summary judgment response on the 

issue of inadequate care. The district court did not err in not 

considering them, as it is not the court’s job to “scour the record in search of evidence to defeat a motion for summary 

judgment.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 

1099, 1104 (7th Cir. 2008). 
No. 18-2660 17

Even if the hearsay, forfeiture, and relevance rules were 

put to the side, and we considered all eight incidents which 

occurred over a period of six years, courts have concluded 

that more than eight incidents over a shorter time period does 

not constitute a “widespread” practice or custom. See, e.g., 

Pittman ex rel Hamilton v. Cty. of Madison, 746 F.3d 766, 780 (7th 

Cir. 2014) (holding 36 suicide attempts and 3 suicides in a 

5-year period was not enough evidence of a widespread inadequate suicide policy); Peterson v. City of Fort Worth, 588 F.3d 

838, 851 (5th Cir. 2009) (holding 27 complaints of excessive 

force over 3 years were insufficient to establish a pattern);

Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002) 

(holding 11 incidents of warrantless entry over a 4-year period did not support an unconstitutional pattern). 

The dissent states we adopt a “bright-line rule” as to the 

number of incidents to establish an unconstitutional custom 

under Monell.

7 But rather than set a number, we have considered and applied the precedents of this and other courts to 

7 The dissent asserts this opinion “is at odds with our approach to 

Monell, which focuses broadly on indicia of municipal or corporate responsibility rather than just the number of incidents.” For this proposition 

the dissent cites Dixon v. County of Cook, 819 F.3d 343 (7th Cir. 2016), and 

Daniel v. Cook County, 833 F.3d 728 (7th Cir. 2016), but neither case is availing here. Dixon included an institutional claim—the implementation of a 

medical records policy—from which the dissent’s quote emanates. 819 

F.3d at 348–49. In contrast, Hildreth brought an individual claim. And the 

claim in Daniel concerned whether Cook County Jail’s scheduling and record keeping resulted in medical care falling below constitutional standards as a matter of official policy, custom, or practice. 833 F.3d at 734. As 

Daniel stated, “[t]o prove an official policy, custom, or practice within the 

meaning of Monell, Daniel must show more than the deficiencies specific 

to his own experience, of course.” 833 F.3d at 734. Again, Hildreth’s claim 

is limited to his own experience.
18 No. 18-2660 

 

these facts, nothing less and nothing more. Hildreth has not 

shown five incidents of prescription refill delay, much less 

eight. And under that law three delays over nineteen months 

for a single individual does not establish a widespread custom or practice of delaying medication. So we affirm the district court’s grant of summary judgment to Wexford on 

Hildreth’s § 1983 claim. 

B. ADA Claim

We turn next to Hildreth’s statutory claim under the 

ADA.8 Under the Act, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, 

programs, or activities of a public entity, or be subjected to 

discrimination by any such entity.” 42 U.S.C. § 12132. To establish a violation, a plaintiff must show “he is a qualified individual with a disability, that he was denied the benefits of 

the services, programs, or activities of a public entity or otherwise subjected to discrimination by such an entity, and that 

the denial or discrimination was by reason of his disability.” 

Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (internal 

quotations omitted). The ADA imposes a duty to provide reasonable accommodations to disabled persons. 42 U.S.C. 

§ 12182(b)(2)(A)(ii) (“[D]iscrimination includes ... a failure to 

8 This claim raises a “thorny question of sovereign immunity.” Jaros v. 

Ill. Dep’t of Corr., 684 F.3d 667, 671–72 (7th Cir. 2012); see also Morris v. 

Kingston, 368 F. App’x 686, 689 (7th Cir. 2010) (observing the Supreme 

Court “left open the question whether the ADA could validly abrogate 

sovereign immunity for non-constitutional violations”). We need not address this question, though, because we conclude the defendants’ accommodations were reasonable as a matter of law. 
No. 18-2660 19

make reasonable modifications in policies, practices, or procedures.”); see A.H. by Holzmueller v. Ill. High Sch. Ass’n, 881 

F.3d 587, 594 (7th Cir. 2018). To receive compensatory 

damages, Hildreth must show deliberate indifference, which 

occurs when defendants “knew that harm to a federally protected right was substantially likely and ... failed to act on that 

likelihood.” Lacy v. Cook Cty., 897 F.3d 847, 862 (7th Cir. 2018) 

(quoting Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 344 

(7th Cir. 2012)).

The key question here is whether Hildreth, given his disability, was able to draft his legal documents, with or without 

reasonable accommodations from the prison. See Love v. 

Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996). As a result 

of the Parkinson’s disease and its effect on his handwriting, 

Hildreth requested a typewriter in his cell to draft court documents and correspondence. Because a typewriter is prohibited in a cell, the prison officials instead provided him with an 

assistant to help him draft documents. They also increased his 

access to the library to eighteen hours per week where he 

could use a typewriter. Hildreth’s extra library access was 

withdrawn only when he received an assistant. While not the 

around-the-clock, easy access Hildreth wants to word processing, or the well-trained writer whom he might like, Hildreth successfully drafted legal documents and never missed 

a court deadline. Further, he could have asked for more library time, but the record shows no such request. 

The question is not whether other modifications could 

have been made, such as those Hildreth seeks, but whether 

the accommodations made were reasonable. We conclude 

they were. The defendants’ accommodations allowed 

Hildreth sufficient time and access to a typewriter to draft and 
20 No. 18-2660 

 

file documents while taking into account the prison’s reasonable security concerns with contraband. Love, 103 F.3d at 561 

(noting the ADA’s “reasonableness requirement must be 

judged in light of the overall institutional requirements. Security concerns, safety concerns, and administrative exigencies 

would all be important considerations to take into account” 

(citation omitted)).

Even if Butler and Oakley failed to make these reasonable 

accommodations, Hildreth would still not be entitled to damages because he has not shown deliberate indifference. 

Hildreth admits he has been moved to a different area of the 

prison where he may now possess a typewriter in his cell. This 

renders moot his claim for prospective injunctive relief. See 

Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (noting 

for a plaintiff to have standing for prospective injunctive 

relief, he “must face a ‘real and immediate’ threat of future 

injury as opposed to a threat that is merely ‘conjectural or hypothetical’” (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 

102 (1983)). So Hildreth can now seek only compensatory 

damages, provided he shows deliberate indifference. See Lacy, 

897 F.3d at 862 (7th Cir. 2018) (agreeing with the majority of 

circuits that “deliberate indifference [is] the proper standard 

for obtaining compensatory damages” under the ADA). But 

Hildreth never argued Butler or Oakley were deliberately indifferent and thus cannot recover compensatory damages. 

Accordingly, we affirm the summary judgment in defendants’ favor on the ADA claim. 

III. Conclusion 

The district court concluded correctly that Hildreth did 

not show a widespread practice or custom of the defendant 
No. 18-2660 21

delaying medication, and that prison officials reasonably accommodated his Parkinson’s disease. So we AFFIRM the district court’s grant of summary judgment in defendants’ favor.9 

9 Hildreth moved to supplement the record on appeal with an October 

10, 2018 letter from the Illinois Supreme Court, which stated the Illinois 

Supreme Court was returning his petition for leave to appeal because it 

was “mostly illegible” and requested that Hildreth type or rewrite his petition. Because this letter was not submitted (or in existence) during the 

district court proceedings, it is not permitted under Federal Rule of Appellate Procedure 10, so we deny this motion. 
22 No. 18-2660

 

HAMILTON, Circuit Judge, dissenting. Plaintiff Hildreth has 

offered sufficient evidence that Wexford knew of his serious 

health needs—which required reliable, timely refills of his 

Parkinson’s medication—and acted unreasonably in response 

to those needs. Wexford established prescription refill and renewal systems, i.e., policies, that did not include warnings 

and back-ups to correct inevitable and serious mistakes. 

That’s enough to show deliberate indifference under Farmer 

v. Brennan, 511 U.S. 825, 843–44 (1994), and Glisson v. Indiana 

Dep’t of Corrections, 849 F.3d 372, 382 (7th Cir. 2017) (en banc). 

I respectfully dissent. 

I. Discovery in Future Cases

Before explaining where the majority opinion errs, however, I must highlight the opinion’s obvious implications for 

discovery in the district courts. Wexford should be careful 

what it asks for. Its lawyers have won this case, but on theories and arguments that invite—indeed, virtually require—

much broader, more intrusive, and more expensive discovery 

in similar cases. Plaintiffs like Hildreth will need to pursue 

discovery into the medical care of other prisoners and even 

into Wexford’s personnel records. The need for district courts 

to recruit counsel in such cases will be even more compelling. 

Consider the grounds for Wexford’s victory. The first is 

the simplest. Important evidence is deemed inadmissible 

hearsay because plaintiff does not have evidence that the 

speakers, prison nurses whose employment shifted back and 

forth between Wexford and the Illinois Department of Corrections, were employees of Wexford on the days they made 

the disputed statements. That’s incorrect as a matter of evidence law in two ways: these were not “statements” offered 

for their truth, and even if they had been, a person can be an 
No. 18-2660 23

agent of a party under Federal Rule of Evidence 801(d)(2)(D) 

without being an employee. Nevertheless, other plaintiffs will 

need to prepare to meet such arguments in other cases. The 

only fair way to let them meet them, if Wexford or similar 

prison health-care companies will not stipulate, is to let plaintiffs have access to personnel records. Given Wexford’s arguments and the majority opinion’s reasoning here, it would be 

an abuse of discretion to deny such discovery in a similar case. 

Second, Wexford argues and the majority opinion agrees 

that plaintiff does not offer evidence of sufficiently widespread problems with timely refills of critical, life-changing 

prescriptions at Menard or other prisons where Wexford has 

contracts. I explain below why I disagree. But if a similar 

plaintiff must prove that the system in fact fails more frequently, and not just for him, his demands for broad discovery into other inmates’ experiences with Wexford and its refill 

system should be undeniable. 

Moreover, a good deal of such evidence appears to be discoverable. Other federal lawsuits provide sources of such evidence and describe prescription refill problems at Menard 

during times relevant here. See, e.g., First Annual Report of 

Monitor Pablo Stewart, MD, at 47, Rasho v. Walker, No. 07-cv1298 (C.D. Ill. May 22, 2017) (“Medication orders often expired and the offender may or may not continue receiving his 

or her medication ... . At Menard, psychotropic medication 

orders were allowed to expire, and often staff did not correct 

the problem until an inmate had already missed a week or 

two of medication.”); Final Report of the Court Appointed Expert, at 23, Lippert v. Godinez, No. 1:10-cv-4603 (N.D. Ill. Dec. 

2014) (“In the course of our reviews we noted multiple in-
24 No. 18-2660 

stances in which patients experienced medication discontinuity for a variety of reasons, yet this went unrecognized and 

therefore unaddressed by the treating clinicians. Part of the 

problem seems to be dysfunctional medical record keeping 

... .”); Barrow v. Wexford Health Sources, Inc., No. 3:14-cv-800, 

2017 WL 784562, at *4 (S.D. Ill. Mar. 1, 2017) (plaintiff claimed 

he did not receive medication prescribed by Wexford physician at Menard in 2014; summary judgment granted for Wexford but denied for physician). 

There is evidence that these conditions have persisted for 

years, with expert findings almost perfectly mirroring Hildreth’s experiences. See Report of the 2nd Court Appointed 

Expert, at 83, Lippert v. Godinez, No. 1:10-cv-4603 (N.D. Ill. Oct. 

2018) (“We found many examples of patients whose ordered 

medications were never provided, were delayed starting, and 

were stopped because the patient had not been seen by a provider to renew medication. Record reviews indicated that appointments for chronic care are not scheduled to take place 

prior to expiration of chronic disease medication orders.”). 

The expert reports from the Lippert litigation excoriate Wexford for its oversight of Illinois prison health care—including 

the delivery of medication—and the first report was published in December 2014, between plaintiff Hildreth’s second 

and third grievances. 

These reports are not in this record, were not raised in 

these briefs, and are not appropriate subjects for judicial notice. But they may be available in future cases. They would 

face hearsay objections if offered to prove the matters asserted. See Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 

522 (7th Cir. 2019) (holding district court did not abuse its discretion excluding the Lippert Report when offered as proof 
No. 18-2660 25

that Wexford provided substandard care). But these reports 

would be admissible to show corporate knowledge of Wexford’s policy failings and of the risks that inmates faced. Daniel v. Cook County, 833 F.3d 728, 743 (7th Cir. 2016) (holding 

documents from other jail-condition case were “inadmissible 

hearsay to the extent they are offered to prove the truth of the 

statements they contain” but “may be admissible to show that 

the defendants were on notice of their contents”). 

In addition, plaintiffs in similar cases should be able to 

find ways to put these reports (or testimony from their authors) into evidence for the truth of the matters asserted to 

establish a more extensive record of Wexford’s similar failures with other prisoners. And of course, evidence about 

Wexford’s contracts and the financial incentives it faces in delivering, or not delivering, health care to Illinois prisoners 

would also be relevant in evaluating the company’s policies 

and whether they amount to deliberate indifference to serious 

health risks. Given the majority opinion’s reasoning here, 

these additional paths of discovery should be available and 

would potentially be compensable by Wexford in the end. See 

42 U.S.C. § 1988. Given the majority opinion’s reasoning, it 

would be an abuse of discretion to deny similar plaintiffs access to these lines of discovery to satisfy the standard applied 

in this case. 

II. Wexford’s Prescription Policies and the Lapses in Hildreth’s 

Prescription 

Returning to this case and this record, plaintiff Hildreth 

has come forward with evidence that defendant Wexford’s 

policies for renewing and refilling prescriptions reflect deliberate indifference to the serious medical needs of Hildreth 

himself and other prisoners who depend on reliable refills of 
26 No. 18-2660 

prescriptions for medicines that are not kept on-site at the 

prison. In reviewing a grant of summary judgment, we view 

the facts in the light most reasonably favorable to plaintiff as 

the non-moving party. Dixon v. County of Cook, 819 F.3d 343, 

346 (7th Cir. 2016). 

Hildreth suffers from Parkinson’s disease, a neurological 

disease that causes reduced levels of dopamine in the brain, 

causing in turn tremors and problems in movement and balance, among other serious symptoms. Parkinson’s has no 

known cure, but medication can help control the symptoms 

by mimicking the effects of dopamine. 

Hildreth needs a drug called Mirapex to manage his 

symptoms. Without Mirapex, his Parkinson’s symptoms return within a day or two, and he suffers from poor balance, 

stiffness, shaking, fevers, memory problems, and freezing episodes. This leaves him “immobile” and “balled up in bed.” 

Any lapse in medication causes pain and puts him at risk of 

injury. During one such lapse, he lost his balance and fell in 

the shower. For Hildreth, the difference between having medication and not having it is “night and day.” 

As an inmate at the Menard Correctional Center, Hildreth 

must rely on Wexford—a private health-care contractor—and 

the Illinois Department of Corrections (IDOC) to provide him 

with health care, including his Parkinson’s medication.1 Both 

1 Since the late 1970s, states have increasingly contracted with private 

corporations to provide health-care services in prisons. The Pew Charitable Trusts, Prison Health Care: Cost and Quality 11 (2017). As of 2015, 

twenty-eight states either contracted out most health-care delivery services or split responsibility between state employees and contractors. 

Many states, including Illinois, have a capitated payment model, which 

means that they pay contractors a fixed per-patient rate for care. Id. at 98. 
No. 18-2660 27

Wexford and IDOC play a role in providing health care, and 

IDOC employs some health-care workers. Wexford, however, 

has primary responsibility for overseeing prisoner treatment, 

including prescribing medication and setting prescription 

policies. The site medical director at Menard, a Wexford employee, was supposed to provide oversight. During the events 

of this lawsuit, however, this key position was first vacant, 

then filled temporarily, occupied briefly by one doctor, and 

then by another doctor who soon left the position because he 

was not working the required 40 hours per week and “would 

leave early.” 

Wexford treats the Mirapex that Hildreth needs as a “nonformulary medication.” This means that the drug is not kept 

in stock at the prison but is shipped as needed from an outside 

provider, Boswell Pharmacy Services. Wexford’s nonformulary medication refill policy requires a sequence of actions to 

get the medicine to an inmate. Hildreth receives one month’s 

supply of Mirapex at a time. When he receives the pack of 

pills, he also receives a sticker that he must turn in to a nurse 

at most seven days before he runs out. After he returns the 

sticker to a nurse, Wexford is supposed to send the sticker to 

Boswell. Boswell is then supposed to ship a refill to Menard, 

and the nursing staff is supposed to deliver the refill to Hildreth. Nurses can be employed by either Wexford or IDOC. 

Illinois prisons have among the lowest per-inmate staffing and spending 

levels in the country. In 2015, Illinois had the second-lowest per-inmate 

staffing and the eighth-lowest per-inmate health-care spending. Its spending of $3,619 per year was 37 percent below the national median. Id. at 8, 

20. 
28 No. 18-2660 

In addition to the refill policy, Wexford has a prescription 

renewal policy for inmates like Hildreth with chronic illnesses. Such inmates are supposed to be signed up automatically for clinic visits at least every six months. These visits 

serve a key function in coordinating care for chronically ill patients and making sure their medical needs are met. At these 

clinics, patients are seen by a Wexford physician or nurse 

practitioner who will then write any necessary prescriptions, 

which will last between six months and one year. 

These policies look good on paper, but these are human 

systems and people make mistakes. Hildreth did not regularly receive passes for the chronic clinic and did not go every 

six months. Instead, he was seen by doctors at irregular intervals and was sometimes just told that his prescription was being renewed “automatically.” At least one time, Hildreth did 

not receive his medication on time because his prescription 

had lapsed. Another time, a Wexford nurse refused to accept 

Hildreth’s renewal sticker because “she did not like Scott Hildreth’s demeanor.”2 

In effect, Wexford policy relied on what a manufacturer 

would call “just-in-time” supply control. When a manufacturer relies on such a system, it knows it must monitor progress closely so that mistakes don’t shut down the assembly 

line. When the just-in-time system is used to provide critical 

medicine, the stakes are even higher. The need for a policy to 

catch and correct mistakes before they cause harm is greater. 

Without such elements in the Wexford policy, plaintiff was 

left without medication he needed to control his Parkinson’s 

2 The majority opinion treats this statement as inadmissible. Ante at 

15. I disagree for reasons explained below. 
No. 18-2660 29

symptoms for days and sometimes more than a week at a 

time. As applied, then, the formal policies did not reliably 

supply Hildreth with his Parkinson’s medication. The record 

contains evidence of at least three medication lapses over a 

period of nineteen months. In each instance, Hildreth did the 

only things he could to bring the lapse to the attention of those 

responsible for his care—speaking to the nurses on duty and 

filing grievances. 

On April 8, 2014, Hildreth filed his first grievance in the 

record about a medication lapse: “I am out of my Parkinsons 

meds (AGAIN) ... I have serious mobility problems ... I’ve 

been telling C/Os [correctional officers] and nurses for days I 

did not get refill[.] I turned in sticker on time[.] Been without for 

days.” (Emphasis added). The next day, Hildreth’s prescription was renewed, indicating that the lapse took place because 

his prescription had expired and had not been renewed on 

time. The record does not indicate when Hildreth received his 

refill, but he likely would have gone at least another couple of 

days because of the turnaround time from Boswell.

On October 25, 2014, he filed another grievance: “I have 

gone thru this before?! I don’t know why I bother with your 

griev[ance] syst[em]? I am about to run out of my [] Mirapex 

for Parkison’s ... I’ve told the nurses for a couple days now.” 

Hildreth received the medication on October 30, and Hildreth 

said that this meant he had a lapse of two or three days. Hildreth had become so accustomed to medication delays that he 

had started preemptively telling nurses about lapses. When 

he was told to “wait and see” if the medication came in, he 

would preemptively file a grievance to help ensure that he 

had only a minimal lapse. 
30 No. 18-2660 

On November 16, 2015, Hildreth filed yet another grievance regarding the same problem: “Been without Parkinsons 

meds again! Since Friday 13th. This is why I filed law suit.” 

He said that he had “told nurses” about the situation, but to 

“no avail as usual.” This grievance was not reviewed until a 

full week later, on November 23. Upon review, the Healthcare 

Unit Administrator—an IDOC employee—noted that the 

“non-formulary for his meds have expired. The request to 

continue use was sent into the pharmacy. We are waiting to 

hear back.” During this incident, Hildreth went without his 

medication for at least ten days. In reviewing the grant of 

summary judgment, we must assume that such a long lapse 

was exceptionally painful and dangerous for Hildreth. We 

must also assume that Hildreth did his part by complying 

with Wexford’s prescription refill and renewal policies. 

III. Analysis — The Eighth Amendment and Monell 

It’s worth remembering why modern federal courts devote so much attention to health care in prisons. “An inmate 

must rely on prison authorities to treat his medical needs; if 

the authorities fail to do so, those needs will not be met. In the 

worst cases, such a failure may actually produce physical ‘torture or a lingering death’ ... . In less serious cases, denial of 

medical care may result in pain and suffering which no one 

suggests would serve any penological purpose. The infliction 

of such unnecessary suffering is inconsistent with contemporary standards of decency ... .” Estelle v. Gamble, 429 U.S. 97, 

103 (1976) (citations omitted). That’s why deliberate indifference to inmates’ serious medical needs violates the Eighth 

Amendment’s prohibition on cruel and unusual punishment. 

Daniel v. Cook County, 833 F.3d 728, 733 (7th Cir. 2016), citing 
No. 18-2660 31

Estelle, 429 U.S. at 104. A plaintiff shows deliberate indifference by establishing that those responsible for inmate health 

know that an inmate faces a “substantial risk of serious harm” 

and disregard that risk by “failing to take reasonable 

measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 

(1994). 

For claims against municipal governments under 42 

U.S.C. § 1983, we apply the familiar Monell standard: respondeat superior liability does not apply, and the plaintiff 

must show instead that the constitutional violation was 

caused by a municipal policy or a custom or practice so pervasive as to reflect municipal policy. Monell v. Dep’t of Social 

Services, 436 U.S. 658, 691 (1978). The Supreme Court has not 

applied the Monell standard to private corporations that act 

under color of state law, like prison and jail health-care providers. Our precedents have applied Monell to such private 

corporations, though that doctrine has been questioned 

within the court and the academy. See Shields v. Illinois Dep’t 

of Corrections, 746 F.3d 782, 789–90 (7th Cir. 2014). 

In this case, the correct focus is on Wexford’s systems (i.e., 

its policies) for prescription refills and renewals. Monell liability may apply even in the absence of individual liability 

where the institutional policies themselves show deliberate 

indifference to inmates’ serious medical needs. Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372, 378 (7th Cir. 2017) (en 

banc) (contractor chose not to provide for coordinated care for 

prisoners with multiple, complex illnesses); see also Daniel, 

833 F.3d at 733–34 (“individual defendants can defend themselves by shifting blame to other individuals or to problems 

with the ‘system,’ particularly where no one individual seems 

to be responsible for an inmate’s overall care”). 
32 No. 18-2660 

This doctrinal niche is often relevant in prison health-care 

cases, particularly where health care is delivered by a combination of government employees and a private contractor like 

Wexford. The combination diffuses responsibility between 

government and contractor and among many individuals. Inmates can suffer because of health-care providers’ lack of policy, systematic failures to follow official policy, or obvious 

gaps in policy. E.g., Glisson, 849 F.3d at 378; Daniel, 833 F.3d at 

735; Thomas v. Cook County Sheriff’s Dep’t, 604 F.3d 293, 303 

(7th Cir. 2010). In such cases, it may be that no facially unconstitutional policy tells employees to take actions that violate 

someone’s constitutional rights. Instead, the government or 

its contractor adopts or tolerates practices that predictably 

lead to constitutional harms. 

A. Evidentiary Dispute 

I need to address briefly the erroneous exclusion of evidence that helps demonstrate why Wexford’s system needs to 

have warning systems and back-ups. In opposing summary 

judgment, Hildreth offered an affidavit from another inmate, 

Michael McGowan, who testified that he overheard two relevant conversations. In October 2015, Susan Kirk—a nurse 

who McGowan believed worked for Wexford—refused to accept Hildreth’s medication refill sticker, “indicating she did 

not like Scott Hildreth’s demeanor.” In a second encounter, 

Angie Walters—another nurse who McGowan believed 

worked for Wexford—refused to check on the status of Hildreth’s medication refill when he reported that he had run 

out. The district court excluded McGowan’s testimony about 

these statements as hearsay, and the majority opinion upholds those rulings. 
No. 18-2660 33

As a matter of elementary evidence law, this is just clearly 

wrong. Hildreth did not offer the affidavit to prove that what 

the nurses said was true. He offered the affidavit to prove 

their actions. One nurse refused to accept plaintiff’s refill 

sticker. The other refused to check on the status of his refill 

when he had already run out. The conversations were not 

hearsay at all but instead verbal acts—refusals—falling completely outside the definition of hearsay in Federal Rule of Evidence 801(c): an out-of-court “statement” offered “to prove 

the truth of the matter asserted in the statement.” See Carter 

v. Douma, 796 F.3d 726, 735 (7th Cir. 2015) (informant request 

for drugs was not hearsay because it was a verbal act); 

Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007) (verbal 

acts are not hearsay because they “are not offered for their 

truth”); see generally 30B Wright & Bellin, Federal Practice & 

Procedure, Evidence § 6722 at 66 (2017). The affidavit was offered as evidence that the system (read, policy) that Wexford 

had designed could fail and did fail plaintiff because of eminently human failings like impatience and perhaps spite. The 

affidavit offered admissible evidence to oppose summary 

judgment.3 

3 The parties have skipped the “statement” issue and debated whether 

Federal Rule of Evidence 801(d)(2)(D) should apply. It excludes from the 

definition of hearsay statements by an opposing “party’s agent or employee on a matter within the scope of that relationship and while it existed.” As noted above, the debate on this issue shows the need for broader 

discovery into Wexford’s or similar contractors’ personnel files to determine who employed the nurses at the relevant times. The only evidence is 

that the affiant said that he believed they were Wexford employees. Wexford obviously has records that could settle that issue, but it has not come 

forward with them. Future plaintiffs facing similar gamesmanship will 

have to obtain personnel records to prepare to meet such arguments. At a 

more fundamental level, however, employment is not the issue. Agency is 
34 No. 18-2660 

B. Unreasonable Response to Danger of Inevitable Mistakes 

Hildreth has presented sufficient evidence of a Monell policy or custom for his claim to survive. A jury could conclude 

that “the failure to establish adequate systems” for providing 

essential medication “was so pervasive that acquiescence on 

the part of policymakers was apparent and amounted to a 

policy decision.” Daniel, 833 F.3d at 734, citing Dixon v. County 

of Cook, 819 F.3d 343, 348 (7th Cir. 2016). Hildreth has identified a policy—or rather, a network of policies and key policy 

gaps—that can form the basis of Wexford’s Eighth Amendment liability. The issue is not exactly how often the policy 

failed Hildreth. The issue is whether the system established 

by Wexford policymakers reflected deliberate indifference to 

the inevitability of human mistakes. 

A prisoner asserting a deliberate-indifference claim must 

show that the defendant had actual knowledge of the danger 

or serious condition the prisoner faced, and that the defendant failed to take reasonable steps in the face of the risk. 

Farmer v. Brennan, 511 U.S. 825, 843–44 (1994); Ortiz v. Jordan, 

562 U.S. 180, 190 (2011) (reinforcing Farmer’s reasonableness 

requirement); LaBrec v. Walker, 948 F.3d 836, 841 (7th Cir. 

the issue. See, e.g., Mister v. Northeastern Illinois Commuter R.R. Corp., 571 

F.3d 696, 698 (7th Cir. 2009); United States v. Swan, 486 F.3d 260, 264–65 

(7th Cir. 2007); Young v. James Green Mgmt., Inc., 327 F.3d 616, 622 (7th Cir. 

2003). The majority opinion further speculates that the statements may not 

have been within the scope of the nurses’ employment (or agency). Ante 

at 15. Even Wexford didn’t try to make this argument, and it’s hard to 

imagine how these statements or actions by nurses responsible for refilling 

prescriptions and dispensing drugs could fall outside the scope of their 

agency or employment. See Thomas, 604 F.3d at 309–10 (prison nurse’s 

statement that an ill inmate was “just dope sick” was “not hearsay” under 

Rule 801(d)(2)(D)). 
No. 18-2660 35

2020); Glisson, 849 F.3d at 381. The Supreme Court explained 

in Farmer that a plaintiff can prove actual knowledge with circumstantial evidence, of course, and that the very obviousness of the danger can support an inference of actual 

knowledge. 511 U.S. at 842; see also LaBrec, 948 F.3d at 841 

(citing Farmer); Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 

2016) (en banc) (“If 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.”). 

Hildreth has offered evidence to satisfy this demanding 

standard. Ample evidence showed that Wexford had actual 

knowledge of Hildreth’s Parkinson’s disease, his prescription, and the need to ensure a steady supply of the medicine. 

Wexford surely had actual knowledge that some prisoners 

would have similarly urgent needs for critical prescriptions 

not available on-site at the prison. Given that actual 

knowledge of serious medical needs, Wexford had a constitutional duty to take reasonable steps to avoid or minimize the 

risk of lapses in medication. In other words, Wexford had a 

constitutional duty to put in place a reasonably reliable system for renewing and refilling such critical non-formulary 

drugs and to monitor the performance of that system. 

A jury could easily find that Wexford’s system was not 

reasonably calculated to be reliable because the system had 

no warning channel and back-up mechanisms by which it 

could fix mistakes without unnecessary suffering. Wexford’s 

system is not required to be perfect and fail-safe. But for a system so critical to health—and one with many possible points 

of failure—it lacked warnings to alert Wexford to inevitable 

mistakes or oversights. This not only prevented Wexford 
36 No. 18-2660 

from catching mistakes before patients suffered but apparently prevented Wexford from learning about even repeated 

failures. Such an unreasonable “conscious decision not to take 

action” in the face of a serious medical risk is akin to the decision of the defendant in Glisson to forgo a protocol for coordinated care to chronically ill inmates. 849 F.3d at 381. Where 

there is an obvious risk created by a health-care policy gap—

like coordinated care in Glisson or medication refill oversight 

here—a plaintiff need not show some minimum number of 

injuries to prevail. Id. at 382, citing Woodward v. Correctional 

Medical Services, 368 F.3d 917, 929 (7th Cir. 2004) (“CMS does 

not get a ‘one free suicide’ pass.”). 

Compare Hildreth’s situation to that of a hospital patient 

on a ventilator that is keeping the patient alive. The machine 

runs on electricity. Electrical power will be interrupted from 

time to time by storms and equipment failures. Machines like 

ventilators occasionally break down. Any reasonable hospital 

must anticipate the possibility of those interruptions and 

breakdowns, and it must have alerts and a back-up system in 

place. Similarly here, Wexford may be deemed to have actual 

knowledge of both the obvious possibility, even the inevitability, of mistakes or lapses in its renewal and refill systems 

and of the serious consequences for patients if those were not 

corrected. Wexford thus had a constitutional duty to take reasonable steps—warnings and back-up systems—to mitigate 

the effects of inevitable mistakes and oversights. 

In Hildreth’s case, Wexford’s system for providing medication led to a series of serious delays in providing him with 

his medication—at least three times in nineteen months. Each 

time this happened, we must assume, Hildreth did every-
No. 18-2660 37

thing he could to avoid the problem and then to make Wexford aware of it. He told the nurses and filed formal grievances. In these grievances, he said that this was an ongoing 

problem and that the nurses were not responsive to his needs. 

The longest lapse in medication—at least ten days—occurred 

after he had recently submitted two grievances related to 

other lapses. 

Wexford argues that Hildreth’s grievances cannot be used 

to infer that it knew about the systemic failure of its medication policies and that this precludes liability: 

Wexford is not involved in the grievance process, and would not know of the contents of a 

grievance unless an IDOC employee notifies 

Wexford about it. Even then, that individual 

would have been a member of the onsite 

healthcare staff, not necessarily a policymaker. 

As such, Wexford policymakers had no reason 

to know that any alleged issue existed. 

Brief for Appellee Wexford at 21. This argument has things 

exactly backwards: Wexford’s lack of involvement in the 

grievance process makes it more culpable and strengthens Hildreth’s claim. Humans make mistakes. In implementing systems known to be critical to life, health, and safety, a company 

like Wexford must allow for such mistakes and take reasonable steps to provide warnings and back-up systems. Federal 

courts do not and should not design the specifics. As noted, 

though, the Eighth Amendment requires reasonable responses to known risks where prisoners cannot protect their 

own health and safety. Wexford’s admission that it lacked any 

policy to learn about inmates’ complaints supports the conclusion that its prescription policies created an unacceptable 
38 No. 18-2660 

risk of harm resulting from this form of deliberate indifference to Hildreth’s serious medical needs. 

Daniel v. Cook County addressed this point: “If a grievance 

system is part of a jail’s or prison’s system for communicating 

and responding to health care requests, and if the system fails 

in a way that causes a deprivation of needed health care, then 

the problem with the grievance system may be an important 

part of the plaintiff’s case for deliberate indifference to his 

health care needs.” 833 F.3d at 737. We have also said, of 

course, that “the dangers of delayed responses to medical requests are readily apparent.” Thomas, 604 F.3d at 304. In the 

face of such danger, it is unreasonable for a medical policymaker to cut itself off from important feedback about failures 

or lapses in its policies. 

Dividing responsibility between private contractors and 

state agencies can increase these risks. In such cases, the law 

should and does provide incentives for actors to take reasonable steps to mitigate known dangers. The law should not do 

what the majority opinion’s reasoning does here: reward divided responsibility and deliberate ignorance by those who 

control prisoners’ only access to health care. Hildreth’s grievances give the impression of a person in pain, screaming into 

a void. Wexford ignored Hildreth’s grievances, seemingly by 

design. And when Hildreth used the only other avenue available—communication with nurses—he was told only to “wait 

and see” if the refill would come. On this record, we should 

reverse summary judgment for Wexford. 
No. 18-2660 39

C. The Majority Opinion’s Approach to Custom 

The majority opinion adopts a highly restricted approach 

to establishing a Monell custom that is at odds with our precedent. The majority looks only to the raw number of alleged 

failures and the time period over which they took place. Ante 

at 11–13. It views the broader policy decisions and context 

surrounding the violations as immaterial. This approach divorces the legal doctrine from its purpose of identifying those 

cases in which a government or corporate policy causes and 

fails to address predictable failures to provide needed medical care. After acknowledging that we have adopted no 

“bright-line rules” for establishing a Monell custom, the majority opinion adopts one by saying that the number of possibly unconstitutional incidents “must be more than three.” 

Ante at 11. 

There are at least two problems with the approach. First, 

Hildreth does not present the kind of pure custom case where 

institutional culpability is inferred solely from repeated employee misconduct and the question is whether the corporation can be held liable for tolerating them. While Hildreth 

uses the term “custom” in his briefing—presumably because 

he asks us to infer something from the repeated medication 

lapses he experienced—his theory of Monell liability implicates both official policies and unofficial customs. Hildreth 

specifically points to Wexford’s admission that it is “not involved in the grievance process” as evidence of its deliberate 

indifference. He asks us to infer from Wexford’s medication 

refill policy, its prescription renewal policy, a pattern of noncompliance with each of those policies, a pattern of medication lapses, and—importantly—the utter failure of Wexford 

to provide a functioning pathway to fix these problems, that 
40 No. 18-2660 

Wexford tolerated “systematic and gross deficiencies” in its 

process for providing inmates with medication. Dixon, 819 

F.3d at 348. And as described above, the lack of a policy for 

reporting and correcting failures—undoubtedly a failing attributable to Wexford itself rather than a rogue employee—

should be decisive.

Second, even when addressing what could be called pure 

custom cases, we have never held that some minimum number of incidents is needed to establish municipal liability. Rather, the question is one of corporate knowledge and responsibility, as is always the case under Monell. “[M]unicipal liability can ... be demonstrated indirectly ‘by showing a series 

of bad acts and inviting the court to infer from them that the 

policymaking level of government was bound to have noticed 

what was going on.’” Woodward, 368 F.3d at 927, quoting Estate of Novack v. County of Wood, 226 F.3d 525, 530 (7th Cir. 

2000). The majority opinion’s per se rule is at odds with our 

approach to Monell, which focuses broadly on indicia of municipal or corporate responsibility rather than just the number 

of incidents. E.g., Dixon, 819 F.3d at 348 (“[W]e look to see if a 

trier of fact could find systemic and gross deficiencies in staffing, facilities, equipment, or procedures in a detention center's medical care system.”) (internal quotation marks omitted); Daniel, 833 F.3d at 734 (“[A]n inmate can meet this burden by offering ‘competent evidence tending to show a general pattern of repeated behavior (i.e., something greater than 

a mere isolated event).’”), quoting Davis v. Carter, 452 F.3d 

686, 694 (7th Cir. 2006). As we said in Woodward, a prison 

health-care company “does not get a ‘one free suicide’ pass.” 

368 F.3d at 929. 
No. 18-2660 41

Grieveson v. Anderson, 538 F.3d 763 (7th Cir. 2008), which 

the majority opinion treats as controlling, is easily distinguishable. An inmate alleged that the jail maintained a customary practice of failing to distribute inmate prescriptions 

properly after four instances in which his entire prescription 

was distributed at once and then stolen by other inmates. Id.

at 774. We held that these four incidents were insufficient to 

establish a custom. Grieveson differs in two critical ways from 

this case: the inmate complained to the prison officials only 

once, and the inmate did not allege widespread noncompliance with official policy. Here, by contrast, Hildreth filed at 

least three grievances and made even more frequent complaints to nurses where Wexford’s system failed, and nothing 

happened. And he described frequent noncompliance with 

Wexford’s refill and renewal policies. Wexford’s just-in-time 

refill system left little room for mistakes, and such a system 

demands warnings and back-ups where health and safety are 

at stake. The repeated and foreseeable mistakes in refilling 

Hildreth’s prescription and the failure to respond to his complaints make for a much stronger case of systemic deficiencies 

here than in Grieveson. 

I would reverse and remand for trial, and I would add a 

strong suggestion that Hildreth be permitted to pursue additional discovery to expand the evidence of deliberate indifference.