Michael Grady v. Anita Aragona, as Special Representative for Eugene Aragona, deceased

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 20, 2023*
Decided August 21, 2024
Before
DIANE S. SYKES, Chief Judge
CANDACE JACKSON‐AKIWUMI, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22‐1679
MICHAEL GRADY,
Plaintiff-Appellant,
v.
ANITA ARAGONA, as Special
Representative for Eugene Aragona,
deceased, and JOHN J. FRANKE,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 20‐1206‐JPG
J. Phil Gilbert,
Judge.
* 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NONPRECEDENTIAL DISPOSITION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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No. 22‐1679 Page 2
O R D E R
Michael Grady sued the jail administrator and the doctor who treated him while
he was detained before trial. He contends that they unreasonably exposed him to the
risk of contracting COVID‐19 and inadequately provided medical care. Because the
district judge properly ruled that the undisputed facts defeat both claims and correctly
entered summary judgment for the defendants, we affirm.
We recount the facts in the light most favorable to Grady, the nonmovant. Kemp
v. Fulton County, 27 F.4th 491, 492 (7th Cir. 2022). Grady was detained at Alton City Jail
from 2017 to 2021 while awaiting his federal criminal trial. (The jail houses both federal
and state detainees.) When the COVID‐19 pandemic began, John Franke, the jail
administrator, set up protocols to curb the spread of COVID.
First, the jail stopped allowing regular, in‐person visitors, including the jail’s
doctor, Eugene Aragona, who treated federal detainees. Eventually, the jail set up
weekly telephonic visits with Dr. Aragona, and if a detainee needed to be seen in
person, the detainee could be brought to Dr. Aragona’s office. (At times, though, some
detainees were unable to talk with him.)
Second, the jail screened new (but not current) detainees for COVID symptoms,
distributed masks to detainees, and ordered the jail to be cleaned with aerosolized
disinfectants. The masks that Franke gave to the jail’s staff, however, were more
protective than those he gave to the detainees, and Franke did not order detainees to
wear masks during recreation. Grady was concerned about his exposure to COVID
because of his age (over 60) and his health conditions (such as hypertension, tooth pain,
vision problems, blood in his stool, and breathing difficulties). Some detainees and staff
contracted COVID, and Grady may have been exposed to them, but he was never tested
for COVID, nor is there evidence that he was diagnosed with COVID.
From 2017 to March 2020, Dr. Aragona saw Grady about once weekly when
visiting the jail. At the beginning of the pandemic, Dr. Aragona responded to Grady’s
complaints about shortness of breath. First, he ordered a chest x‐ray. The report found
that pulmonary emphysema was present but “no evidence of an active pulmonary
disease.” These results convinced him that Grady’s symptoms did not require
treatment. Further, he did not think that Grady had the COVID symptom of shortness
of breath given Grady’s ability to talk “a mile a minute” during telehealth sessions.
Dr. Aragona also addressed Grady’s dental complaints while Grady was housed at the
jail. When Grady told him about a lost filling, Dr. Aragona recommended that he see a

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No. 22‐1679 Page 3
dentist, and after the passage of time Grady saw one. When Grady complained of a
potential dental infection, Dr. Aragona prescribed antibiotics for Grady.
Grady sued Dr. Aragona and Franke, asserting that they provided inadequate
medical care and safety measures regarding COVID. The district judge screened the
complaint, see 28 U.S.C. § 1915A, and permitted Grady to proceed on these claims. After
discovery, the defendants moved for summary judgment. Through court‐recruited
counsel, Grady opposed their motions, focusing on the treatment of Grady’s breathing
issues and his risk of exposure to COVID. The district judge granted the defendants’
motions. Because Grady was a pretrial detainee, the judge applied the objective
unreasonableness standard described in Kingsley v. Hendrickson, 576 U.S. 389 (2015). He
concluded that on this record a jury could not find that Dr. Aragona unreasonably
treated Grady’s breathing or dental problems. In addition, the judge continued,
although Grady preferred that Franke use enhanced COVID precautions, his claim
against Franke was meritless because Grady did not provide evidence that he was
harmed by Franke’s measures.
On appeal, Grady (now pro se) challenges these rulings, which we review
de novo. McCann v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018). We begin with three
observations. The first concerns the source of potential relief. Grady invoked Bivens v.
Six Unknown Named Federal Agents, 403 U.S. 388 (1971), but the district judge treated this
suit as authorized by 42 U.S.C. § 1983 because the defendants here are state or local
employees. As the judge noted, however, if the defendants acted as federal officials
based on their role in overseeing a federal detainee, then Bivens could be the correct
source of potential relief. See Belbachir v. County of McHenry, 726 F.3d 975, 978 (7th Cir.
2013). We need not decide this issue because it is not jurisdictional and neither appellee
argues that suit under § 1983 was improper, that Grady could not invoke Bivens, or that
the substantive standard differs.
Second, the district judge correctly ruled that, because Grady was a pretrial
detainee, his claims are governed by due process as interpreted in Kingsley. Under that
standard, to survive summary judgment Grady had to produce evidence from which a
jury could find that the defendants’ conduct—regarding medical treatment or exposure
to COVID—was objectively unreasonable. Miranda v. County of Lake, 900 F.3d 335, 352
(7th Cir. 2018) (medical care); Kemp, 27 F.4th at 495 (conditions of confinement).
Third, Grady told us that he did not receive a copy of Dr. Aragona’s response
brief, the certificate of service of which contained the wrong address for Grady. This
court sent Grady a copy of Dr. Aragona’s brief and gave him time to reply to it. The
court has since received and reviewed Grady’s reply brief.

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On the merits, Grady first argues that no “medical evidence” justifies
Dr. Aragona’s course of treatment. We disagree; the undisputed evidence shows that
the doctor acted reasonably. When Grady complained of breathing problems,
Dr. Aragona reasonably ordered an x‐ray. Grady responds that evidence of emphysema
in the x‐ray report, as well as evidence of emphysema in his medical records, means
that the doctor unreasonably neglected to treat him. But Dr. Aragona reasonably
determined that the x‐ray results did not show a need for further treatment, given that
they also showed no “active” pulmonary problems. Dr. Aragona also reasonably opined
that Grady’s lack of shortness of breath during telehealth sessions meant he did not
have trouble breathing (or comparable symptoms of COVID). Moreover, Grady has not
offered medical evidence suggesting that these observations necessitated a different
approach or diagnosis. Under these circumstances, his desire for different treatment is
not a basis for a trial. See Williams v. Ortiz, 937 F.3d 936, 944 (7th Cir. 2019).
The rest of Grady’s appeal briefs focus on his perceived risk of exposure to
COVID at the jail. Grady insists that the defendants inadequately responded to the risk
of the spread of COVID, and he speculates that it would have been easy for them to
transfer him to a better protected and prepared facility. But speculation cannot justify a
trial. See Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). In addition, during the
relevant time—the first year of the pandemic—the defendants took precautions that
appear reasonable, such as halting visits by outsiders, screening new detainees for
COVID symptoms, and distributing masks. Grady responds that the defendants could
have tested current detainees for COVID, protected vulnerable detainees like him who
had preexisting conditions, ensured in‐person medical care, and offered other
protections for detainees. But even if we accept Grady’s assertion that the jail should
have taken additional steps, his claim fails “on the basic proposition that he has sued for
damages … without then developing evidence of a recoverable injury.” Lord v. Beahm,
952 F.3d 902, 905 (7th Cir. 2020). He did not furnish evidence that he contracted COVID
or that he was otherwise harmed by these protocols. Without that evidence of injury, his
claim necessarily fails. See id.
For completeness, we note that on appeal Grady does not focus on his dental
care. Regardless, at summary judgment Grady identified no evidence to contradict that
Dr. Aragona reasonably referred Grady to the dentist, that he provided antibiotics for
Grady’s infection, and that Franke reasonably deferred to these decisions. See McCann,
909 F.3d at 887–88.
We close by addressing Grady’s statement that he did not have access to his own
deposition transcript or the transcripts of the defendants’ depositions when preparing

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his opening brief. If he wanted the transcripts for his opening brief, he should have
asked either the court or his former attorney for them, and asked us for more time to file
his brief if he needed time to get these materials, before he submitted his brief. See F ED.
R. A PP . P. 26(b). But he did not, and his failure to do so does not warrant further relief.
AFFIRMED

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