John Loy v. Gregg Scott

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 22, 2024*
Decided March 26, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1278
JOHN LOY,
Plaintiff-Appellant,
v.
GREGG SCOTT, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 19-4226
James E. Shadid,
Judge.
O R D E R
John Loy, a civilly detained resident at the Rushville Treatment and Detention
Facility in Illinois, fell while climbing out of his top bunk bed. He later sued several staff
members, claiming that they violated his rights under the Fourteenth Amendment
when they failed to issue him a low bunk permit before and after his fall. See 42 U.S.C.
* 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NONPRECEDENTIAL DISPOSITION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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§ 1983. The district court entered summary judgment for the defendants. Because the
evidence would not permit a reasonable jury to conclude that the defendants’ actions
toward Loy were objectively unreasonable, we affirm.
We recite the facts in the light most favorable to Loy, the nonmoving party.
See Kemp v. Fulton Cnty., 27 F.4th 491, 492 (7th Cir. 2022). Loy, who is elderly, has been
civilly detained at Rushville since 2001. He has a 50-year-old arm fracture that was
repaired with implants. In January 2017, Loy wrote to Rushville’s Rooming Committee
and asked for a low bunk permit. Loy did not realize that only the medical department
was authorized to issue permits; the Rooming Committee was responsible only for
placing residents in rooms that accommodated any documented medical restriction.
Loy did not hear back from the Rooming Committee after sending his request.
In June 2018, Loy visited Dr. David Marcowitz because his left elbow appeared
brown and swollen. As Loy recalls, he told the doctor about “increasing problems” with
his left arm and asked for a bottom bunk permit. Dr. Marcowitz “implied” that a permit
would be forthcoming. (Dr. Marcowitz denies that Loy expressed the need for a low
bunk permit.) The doctor ordered an X-ray of Loy’s arm to confirm that Loy had not re-
injured it. The X-ray revealed that Loy had a non-united fracture and osteoarthritis in
his elbow but showed no acute fracture or dislocation. After the visit, Dr. Marcowitz
also prescribed Tylenol.
When Loy did not receive word about a low bunk permit, he again wrote to the
Rooming Committee, explaining that he was having problems with his arm, that an X-
ray had been taken, and that he needed a bottom bunk. The committee did not respond.
For the next few months, Loy continued to see Dr. Marcowitz for other routine
medical care: twice in July for knee pain, once in August for a renewed prescription,
and once in September for Loy’s annual physical. Loy did not raise the issue of a permit
with Dr. Marcowitz at these appointments.
One year after Loy’s only appointment with Dr. Marcowitz about his arm, when
Loy was 70 years old, he fell while descending from the top bunk. He was treated at a
nearby hospital for injuries to his knee, hip, elbow, and head. Before he left, he told the
nurse on duty at Rushville that he thought his foot slipped on a metal stool he used to
climb down; the nurse wrote in the incident report that Loy fell because he stepped on a
stool that swivels. (He later denied that any stool in the facility swivels but does not
deny that he used other furniture to climb down from his bunk.)

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No. 23-1278 Page 3
Two days later, Loy visited Dr. Marcowitz, who authorized a bottom bunk
permit the same day. But weeks passed without any change to Loy’s sleeping
arrangement. Over the next three weeks, Loy filed two grievances about the need to
improve the safety of Rushville’s bunks. In one, he described his fall and requested that
Rushville make “climbing in and out of the top bunk safe.” A grievance examiner
reviewed the nurse’s incident report about Loy’s fall and responded that Loy should
use the bunk’s ladder instead of a swivel stool to climb out of the bunks. Weeks later,
Loy repeated his request in a second grievance. This time, a grievance examiner
investigated and learned that the Rooming Committee had recently moved him to a
bottom bunk (approximately three weeks after his fall). She thus recommended
dismissing the grievance, and the administrators who reviewed his appeal agreed.
Believing that he should have received a bottom bunk permit much sooner, Loy
brought constitutional claims against Dr. Marcowitz, the grievance examiners and the
reviewing administrators, and members of the Rooming Committee. The district court
screened his complaint under 28 U.S.C. § 1915(e)(2), and allowed him to proceed on two
claims under the Fourteenth Amendment: (1) that Dr. Marcowitz and the committee
failed to provide him a low bunk permit prior to his fall, even though they knew that he
was elderly and had an injured arm; and (2) that Dr. Marcowitz and the defendants
who reviewed his grievances unreasonably failed to give him a low bunk permit
immediately after learning of his accident.
The defendants moved for summary judgment, and the district court granted
their motions. First, the district court found that Loy had not shown that the Rooming
Committee members and the grievance officials were personally involved in the
incidents. He had some evidence that he met the criteria for a bunk permit—for
example, he was older than 65—but he did not establish that the members knew the
criteria, were aware he had requested a permit, or had the authority to issue one.
Additionally, Loy lacked evidence that any of the officials who reviewed his grievances
were responsible for the delay in his transfer to a bottom bunk after the doctor
authorized it. Loy’s grievances focused on the safety of the bunks and did not mention
his need for a bottom bunk or refer to his permit.
The district court also concluded that no reasonable jury could find that
Dr. Marcowitz provided objectively unreasonable medical care. The court credited
Loy’s assertion that Dr. Marcowitz had implied that he would grant a lower bunk
permit. Looking at the doctor’s treatment of Loy over time, however, the court observed

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that Loy never again asked for a permit or voiced concern about his arm or difficulty
using his bunk, though he had multiple subsequent visits with Dr. Marcowitz. Thus, the
district court determined that Loy had not presented evidence that a reasonable person
would have appreciated a serious risk of injury. After the court entered summary
judgment for the defendants, Loy filed a motion for reconsideration, which the court
denied.
On appeal, Loy generally challenges the summary judgment decision. We take a
fresh look at this ruling, giving the benefit of conflicting evidence and reasonable
inferences to Loy. See Jackson v. Sheriff of Winnebago Cnty., 74 F.4th 496, 500 (7th Cir.
2023); Palmer v. Franz, 928 F.3d 560, 563 (7th Cir. 2019). Because Loy is a civil detainee,
we analyze his claim under the Fourteenth Amendment. See Miranda v. Cnty. of Lake,
900 F.3d 335, 352 (7th Cir. 2018); Jackson, 74 F.4th at 502. To prevail, Loy must
demonstrate that the defendants’ conduct was “objectively unreasonable.” Jackson,
74 F.4th at 502. But Loy did not submit evidence sufficient to raise a genuine issue of
material fact on this point.
First, no reasonable jury could find that Dr. Marcowitz’s treatment was
objectively unreasonable. Loy argues that a reasonable person would have realized in
June 2018 that he needed a lower bunk permit based on his age and his painful, swollen
arm with an incorrectly healed fracture. But our analysis requires us to consider “the
totality of facts and circumstances faced by the individual alleged to have provided
inadequate medical care.” McCann v. Ogle Cnty., 909 F.3d 881, 886 (7th Cir. 2018). In
response to Loy’s complaints Dr. Marcowitz ordered an X-ray, which showed arthritis
but no new fracture to treat, leading the doctor to prescribe Tylenol. Dr. Marcowitz then
saw Loy and treated various ailments four more times in the next three months, and
Loy did not mention arm pain or the need for a bottom bunk again. Nor did Loy voice
any concern in the next nine months before he fell. Loy explains that his childhood and
previous incarceration had “conditioned” him not to complain, but the focus here is on
what the doctor knew or should reasonably have known. With Loy’s lack of complaints
and Dr. Marcowitz’s otherwise diligent treatment of Loy’s medical needs, there is no
genuine issue of material fact about whether the doctor acted unreasonably before Loy’s
accident. See id. at 887. The same is true with respect to the doctor’s post-accident
conduct because Dr. Marcowitz immediately authorized a bottom bunk.
To the extent Loy contests the summary judgment ruling on the ground that the
district court impermissibly found that Loy fell because he stepped on a rotating stool,
as the first grievance examiner initially believed, the argument is off-target. Although

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the incident report contains that statement, the defendants did not promote that theory
in their motions, nor did the court credit that theory in its rationale. Regardless, our
review is plenary, and even if we accept that Loy’s age and arm injury (and not a
swiveling stool) caused him to fall, our conclusion does not change: A reasonable jury
could not find that it was objectively unreasonable for Dr. Marcowitz not to authorize a
low bunk permit during Loy’s single appointment about his arm injury.
Summary judgment was also appropriate for the Rooming Committee members.
Although Loy contends that the committee can issue permits and should do so
whenever a resident fits the criteria, the undisputed record shows otherwise. The
committee members submitted evidence that issuing permits was not a part of their job
duties, and Loy produced no admissible evidence to the contrary, so he cannot establish
that they unreasonably failed to act. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir.
2009). Prison officials are not required to do other employees’ jobs to avoid liability
under § 1983. Id. Similarly, the officials who reviewed Loy’s grievances and internal
appeals cannot be liable for the conduct underlying the grievances. See Owens v. Evans,
878 F.3d 559, 563 (7th Cir. 2017). Loy maintains that these officials ignored the safety
hazard instead of investigating his complaints about the bunks, but the record shows
that they investigated Loy’s accident. They cannot be liable for the general safety of the
bunks. See Hunter v. Mueske, 73 F.4th 561, 566 (7th Cir. 2023) (quoting Burks, 555 F.3d at
595).
Finally, Loy insists that the district court overlooked his assertions that the top
bunks at Rushville are dangerous. But, as the court reminded Loy, he was permitted at
screening to proceed on a claim for damages based on the non-issuance or delay in
receiving a bottom bunk permit, not a broader claim about facility-wide conditions.
And on appeal, Loy does not challenge the screening order.
AFFIRMED

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