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.

____________________

On Petition for Rehearing and Rehearing En Banc

____________________

AUGUST 19, 2020

____________________

Before SYKES, Chief Judge, FLAUM, EASTERBROOK, KANNE,

ROVNER, WOOD, HAMILTON, BARRETT, BRENNAN, SCUDDER,

and ST. EVE, Circuit Judges.

PER CURIAM. 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 banc. A majority of judges in regular active service voted to deny the petition for rehearing en banc. Judges

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. 

HAMILTON, Circuit Judge, joined by ROVNER, WOOD, and 

SCUDDER, Circuit Judges, dissenting from denial of rehearing 

en banc. 

This case poses important questions about Monell liability 

in 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 not 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 comes 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, Woodward 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. 18-2660 3

The question worth deciding en banc in this case is 

whether plaintiff Hildreth has come forward with evidence 

sufficient 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 without 

alerts or safeguards to learn of and correct inevitable problems with prescription refills and renewals. As a result, plaintiff Hildreth repeatedly suffered easily avoidable 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 

decisions on Monell liability in Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372, 382 (7th Cir. 2017) (“There is no magic 

number 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 as 
4 No. 18-2660

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 suicide’ 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 serious 

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 danger 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 depending 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 a 

more direct challenge to an explicit policy of the governmental or corporate defendant. The panel majority 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 allowed 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 was 
No. 18-2660 5

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 face 

of 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 we 

should 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 reason 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.