Robert Brandon v. Kim Hobson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 23, 2024*
Decided January 24, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1642
ROBERT BRANDON,
Plaintiff-Appellant,
v.
KIM HOBSON,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:20-cv-00549-JRS-MJD
James R. Sweeney II,
Judge.
O R D E R
Robert Brandon, an Indiana prisoner, was assigned to a top bunk after being
moved to a new housing unit, although he previously had a lower bunk pass for
medical reasons. He inquired about getting a lower bunk, but before any action was
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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taken, he fell from his top bunk in his sleep and incurred serious injuries. Brandon sued
the prison’s Health Services Administrator, claiming that she violated his Eighth
Amendment rights when she “revoked” his bottom-bunk pass and ignored or denied
his requests for its reissuance. The district court granted summary judgment for the
administrator, and we affirm.
In an appeal of rulings on cross-motions for summary judgment, we construe all
facts and inferences in favor of the party against whom the motion under consideration
was filed—here, Brandon. See Tripp v. Scholz, 872 F.3d 857, 862 (7th Cir. 2017). Doctors at
Wabash Valley Correctional Facility issued a bottom-bunk pass to Brandon sometime in
2013 because of his history of spinal conditions, including a spinal fusion surgery in
1999. At the end of May 2020, Brandon was moved to a different part of the prison,
where he was assigned an upper bunk. He believed he still had a bottom-bunk pass, so
he set out to learn what went wrong: First, he appealed his classification assignment
and requested reassignment to a bottom bunk, but the classification department
“confirmed with medical” that he did not have an active bottom-bunk pass. Next,
Brandon submitted a Health Care Request Form asking about the status of his pass, and
medical staff responded that he did not have an active order for a bottom bunk. In a
second request form, he asked why his pass had been revoked and was told that he did
“not meet qualifications for a bottom-bunk pass per MD.”
Last, Brandon filed a grievance requesting the restoration of his pass, explaining
that he had had a lower bunk pass since 2013 because his spinal injuries caused him
difficulty when climbing down from the top bunk. The grievance specialist asked for a
response from Kim Hobson, a licensed registered nurse and the Health Services
Administrator for the prison. In that role, Hobson did not provide treatment to inmates;
she oversaw the provision of medical services, served as a liaison between medical and
prison staff, and responded on behalf of the medical team to prisoner grievances and
requests for information. To Brandon’s grievance, she responded: “I have reviewed
your chart and see no diagnosis that would qualify you for a lower bunk.”
In July 2020, Brandon, who alleges that his spinal condition and nerve pain can
cause him to jerk and roll in his sleep, fell from the upper bunk and injured his cervical
spine. In September, Brandon saw a doctor who noted that x-rays from 2008 showed
spinal problems and records from 1999 showed that Brandon underwent a spinal fusion
surgery. Brandon believes that Hobson had access to these same records when she
answered his grievance. Brandon’s pass was later restored.

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No. 23-1642 Page 3
This suit came next. The district court reviewed Brandon’s amended complaint,
see 28 U.S.C. § 1915A, and allowed Brandon to proceed on a claim that Hobson was
deliberately indifferent to his medical condition in violation of the Eighth Amendment.
See 42 U.S.C. § 1983. Both parties moved for summary judgment after discovery. The
court entered judgment in favor of Hobson upon concluding that no reasonable jury
could find that Hobson was deliberately indifferent to Brandon’s serious medical needs.
The court explained that Hobson could not instruct that Brandon be given a lower bunk
because his records did not reflect an active bunk pass, and she lacked the authority to
issue one herself. Further, Brandon pointed to no evidence showing she was aware that
he had an unmet medical need for a bottom-bunk pass.
On appeal, Brandon argues that there is a genuine issue of material fact about
whether Hobson was deliberately indifferent because it is undisputed that she did not
relay his request for a bottom-bunk pass to a doctor. He argues that, even if Hobson
could not issue a pass, her job requires her to contact doctors to arrange care for
inmates, and she failed to do so. He points to two pieces of circumstantial evidence of
her deliberate indifference: his submission of multiple forms about his need for a lower
bunk pass (including documentation of a prior pass) and Hobson’s access to his full
medical record, which he argues should have put her on notice of his need for a pass.
Because Hobson does not dispute the seriousness of Brandon’s medical
condition, Brandon must point to evidence that Hobson was deliberately indifferent to
his condition. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Brown v. Osmundson, 38 F.4th
545, 550 (7th Cir. 2022). Deliberate indifference is more than negligence or even
recklessness. Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 763 (7th Cir. 2021).
Instead, there must be evidence that Hobson actually knew of and disregarded a
substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 839 (1994).
Brandon points to no evidence that would allow a rational jury to conclude that
Hobson was deliberately indifferent to the risk that he would incur an injury without a
bottom-bunk pass. Although she is a nurse, Hobson acted in an administrative capacity
by serving as a liaison between medical staff and the Indiana Department of
Corrections, responding to prisoner grievances and requests for information on behalf
of the medical team, and as a result, she lacked the authority to diagnose patients or
order treatment. And it is undisputed that she had no role in examining Brandon or
providing treatment. Therefore, she had no independent knowledge of whether
Brandon needed a bottom-bunk pass, even if she were authorized to issue it. And, to the
extent Brandon argues that Hobson blocked any review of his request by a doctor, the

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evidence in the record shows otherwise. The response to his second Health Care
Request Form states that an “MD” (which he agrees that he understood to mean a
doctor) determined he did not qualify for the pass. Hobson might not have consulted a
doctor after receiving Brandon’s grievance, but she did not prevent any consultation.
This leaves Brandon’s argument that a jury could infer that Hobson was aware of
the risk of a fall from a top bunk because she had access to his full medical records and
yet did not speak to a doctor about his need for the pass. But nothing in the record
suggests that Hobson knew that Brandon’s spinal issues created a substantial risk of
serious harm, which she consciously disregarded. Acting in her capacity as a non-
treating administrator, Hobson was entitled to reasonably rely on the judgment of
medical personnel. See Eagan v. Dempsey, 987 F.3d 667, 694 (7th Cir. 2021). Brandon cites
no reason why Hobson, when responding to the grievance, could not rely on what she
saw in his file. See Stewart, 14 F.4th at 767–68. Brandon’s most recent medical records
indicated that at his last appointment, his doctor did not prescribe any treatment for
spinal issues or reissue the bottom-bunk pass. And even if Hobson had been obliged to
review the entirety of Brandon’s medical history to look for a qualifying diagnosis—
though Brandon cites no support for such a duty—she would have seen only decades-
old records of spinal problems for which Brandon was not receiving chronic care or
active treatment. If that should have signaled the need for a bottom-bunk pass, the
mistake would be, at most, negligence—which is not the same as deliberate
indifference. See Johnson v. Doughty, 433 F.3d 1001, 1012–13 (7th Cir. 2006).
AFFIRMED

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