### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18

- 2660

S COTT H ILDRETH , Plaintiff

- Appellant
,

v.

K IM B UTLER , L ORI O AKLEY , and
W EXFORD H EALTH S OURCES , I NC ., Defendants

- Appell ees

.

____________________ 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

.

____________________ On Petition for Rehearing and Rehearing En Banc

____________________
A UGUST 19
, 2020

____________________

Before S Y KES , Chief Judge
, F LAUM , E ASTERBROOK , K ANNE , R OVNER , W OOD , H AMILTON , B ARRETT , B RENNAN , S CUDDER , and S T

. E VE , C ircuit Judges

. P ER C URIAM

. On consideration of plaintiff

- appellant’s petition for rehearing and rehearing en banc, filed on June 16,2 No. 18

- 2660

2020, a majority of the panel voted to deny rehearing. A judge in regular active service requested a vote on the petition for rehearing en ban c. A majority of judges in regular active service voted to deny the petition for rehearing en banc. Judge s Rovner
, Wood, Hamilton
, and Scudder voted to grant the petition for rehearing en banc. Accordingly, the petition for rehearing and rehearing en banc is DENIED.

H AMILTON , Circuit Judge , joined by R OVNER , W OOD , and S CUDDER , Circuit Judges , dissenting from denial of rehearing en banc. This case poses important questions about Monell liabilit yin the context of prison healthcare. We may assume that convicted prisoners deserve their punishment in prison, but the Eighth Amendment imposes limits on that punishment. In important ways, prisoners are dependent and vulnerable. Their custodians may no t act with deliberate indifference toward serious dangers to their prisoners or to their serious health needs. Estelle v. Gamble , 429 U.S. 97, 103 (1976). Custodians who learn of such dangers or needs must respond reasonably to them, whether the threat com es from violence at the hands of other prisoners, Farmer v. Brennan , 511 U.S. 825,
844

– 45 (1994), hazards in the prison environment, Helling v. McKinney , 509 U.S. 25, 33 (1993), suicide, Wo odward v. Correctional Medical Services , 368 F.3d 917, 929 (7th Cir . 2004), or injury, illness, or pain. Estelle , 429 U.S. at 104

– 05. See also Ortiz v. Jordan , 562 U.S. 180, 190 (2011) ( Farmer ’s requirement of a reasonable response was clearly established law).No. 18

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The question worth deciding en banc in this case is whether plaintiff Hildreth has come forward with evidencesufficient to find that defendant Wexford acted with deliberate indifference to his and other prisoners’ serious medical needs by establishing unreasonable systems (“policies” in the language of Monell ) for refilling and renewing prescriptions for needed medicines. See Monell v. Dep’t of Social Services , 436 U.S. 658, 691 (1978). As the health care contractor for the prison, Wexford of course knew of the need for timely and reliable prescription refills and renewals. As explained in the panel dissent, a reasonable jury could also find that Wexford failed to take reasonable steps to meet that need. Hildreth v. Butler , 960 F.3d 420, 435 (7th Cir. 2020) (Hamilton, J., dissenting). Wexford designed and implemented systems that left plenty of room for human error or even malice, but withoutalerts or safeguards to learn of and correct inevitable problems with prescription refills and renewals. As a result, plaintiff Hildreth repeatedly suffered easily avo idable pain and debilitation, for days or more than a week at a time, while waiting for the medicine he needed for his Parkinson’s disease. The broader legal question posed here is whether the panel majority decision is consistent with our recent en banc d ecisions on Monell liability in Glisson v. Indiana Dep’t of Corrections , 849 F.3d 372, 382 (7th Cir. 2017) (“There is no magicnumber of injuries that must occur before [defendant’s] failure to act can be considered deliberately indifferent.”), and J.K.J. v. Polk County , 960 F.3d 367, 380 (7th Cir. 2020) (“‘in a narrow range of circumstances,’ deliberate indifference could be found when the violation of rights is a ‘highly predictable consequence’ of a failure to provide officers what they need to confront ‘recurring’ situations”), quoting Board of Comm’rs of Bryan County v. Brown , 520 U.S. 397, 409 (1997), as well as4 No. 18

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whether it is consistent with Woodward v. Correctional Medical Services , 368 F.3d 917, 929 (7th Cir. 2004) (“CMS does not get a ‘one free sui cide’ pass.”).

In both Glisson and J.K.J ., we held that plaintiffs were entitled to a jury trial or verdict on their Monell claims without requiring proof of a minimum number of previous failings. In both cases, the Monell defendant was on notice of a seri ous risk of harm to certain prisoners. In Glisson it was the risk to patients with complex disease combinations if there were no effort to coordinate care. In J.K.J ., it was notice of the risk of sexual abuse by guards. Both Glisson and J.K.J. applied two key lessons from Farmer v. Brennan . First, knowledge of a danger or serious health need may be inferred from circumstantial evidence, including the obviousness of the risk or need. 511 U.S. at 842. Second, a state actor with actual knowledge of such a dang er or need is expected to take reasonable, though not perfect, steps to address the danger or need. Id . at 843

– 45. More generally still, this case poses the question whether courts need to channel Monell claims into separate and distinct categories depend ing on how the plaintiff characterizes his claim, whether as one based on a “pattern” of violations showing an unconstitutional custom or as one based on amore direct challenge to an explicit policy of the governmental or corporate defendant. The panel ma jority erred by adhering too rigidly to these categories as separate channels and failing to engage with the policy problem and holding of Glisson . As a result, the panel majority allowed Wexford to treat the case as only a “pattern” case, which in turn al lowed Wexford to defend itself by saying that it had not known

— and had no way to know

— of the repeated acts of individual oversight or malice that delayed Hildreth’s medicine. That defense wasNo. 18

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actually an unintentional admission that Wexford’s systems (i.e. , its policies) for prescription refills and renewals were themselves unreasonable. They were unreasonable in the faceof inevitable human error precisely because they did not include means for monitoring whether or not urgent medical needs were being met. The categories for Monell cases can be helpful, but weshould not let them distract us from the central issue. Regardless of how the claim is categorized, “The central question is always whether an official policy, however expressed (and we have no reaso n to think that the list in Monell is exclusive), caused the constitutional deprivation.” Glisson , 849 F.3d at
379. I respectfully dissent from the denial of rehearing en banc.