Skyler Tackett v. Kristen Dauss

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2246
SKYLER T ACKETT ,
Plaintiff-Appellant,
v.
KRISTEN D AUSS ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:21-cv-02809 — James R. Sweeney, II, Judge.
____________________
A RGUED A PRIL 16, 2024 — D ECIDED MARCH 31, 2025
____________________
Before ST . EVE , J ACKSON-A KIWUMI, and P RYOR , Circuit
Judges.
J ACKSON-A KIWUMI, Circuit Judge. This tragic case arises out
of an Indiana inmate’s untimely death from a lack of appro-
priate medical care. Raymond Tackett suffered from Hepatitis
C for years without ever receiving direct-acting antivirals—a
form of treatment that cures Hepatitis C in a matter of weeks.
On November 29, 2019, he died from Hepatitis C complica-
tions.

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Mr. Tackett’s daughter Skyler Tackett is the personal rep-
resentative of his estate. Ms. Tackett brought an Eighth
Amendment deliberate indifference claim, plus a state law
medical malpractice claim, against the medical professionals
who treated Mr. Tackett; the Indiana Department of Correc-
tions’ medical contractor, Wexford Health Services; and the
Chief Medical Officer of the Indiana Department of Correc-
tions, Dr. Kristen Dauss. Ms. Tackett subsequently dismissed
all claims and defendants except for the deliberate indiffer-
ence claim against Dr. Dauss. Ms. Tackett and Dr. Dauss both
moved for summary judgment, and the district court granted
summary judgment in Dr. Dauss’s favor. Ms. Tackett now ap-
peals. Because we find that Ms. Tackett presented insufficient
evidence for a reasonable jury to find Dr. Dauss liable in her
individual capacity, we affirm the district court’s judgment.
I
Raymond Tackett was an inmate with the Indiana Depart-
ment of Corrections (“IDOC”) who had been diagnosed with
Hepatitis C (“HCV”) around 2008. HCV is a viral illness trans-
mitted through blood and blood products. About 15–25% of
people infected with HCV resolve their infection within the
first six months, but for the other 75–85% of people infected,
HCV can become a chronic, disabling infection. Chronic HCV
can lead to a variety of debilitating health outcomes, includ-
ing liver damage, liver failure, liver cancer, cirrhosis, kidney
failure, diabetes, and death.
Before the advent of reliable therapies, medical profes-
sionals treated HCV infections with a combination of often-
ineffective drugs that caused significant side effects. But the
HCV treatment protocol changed after pharmaceutical com-
panies developed a new form of direct-acting antivirals

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No. 23-2246 3
(“DAAs”) that completely cure HCV infections in as little as
eight to twelve weeks. According to the complaint, the Food
and Drug Administration approved these DAAs in 2013. By
2017, a panel of experts convened by the Infectious Diseases
Society of America and the American Association for the
Study of Liver Diseases explicitly recommended that all pa-
tients with chronic HCV infections (except those with short
life expectancies that cannot be remedied) receive DAAs. This
has been the national standard of care since that time, accord-
ing to an expert Ms. Tackett retained.
Despite the efficacy of DAAs, the IDOC failed to consist-
ently provide them to inmates with chronic HCV infections.
As of January 2018, the IDOC’s operative policy provided that
all inmates with HCV were “eligible for consideration of treat-
ment,” but it prioritized those who suffered from an ad-
vanced infection. This policy incorporated the Federal Bureau
of Prisons’ HCV treatment guidelines. The IDOC also re-
quired its medical contractor, Wexford Health Services, to
place $1.5 million in escrow annually for HCV treatment. But
in practice, very few inmates received DAAs. As of January
2018, for example, only 1.2% of inmates who suffered from
HCV in the last nine months had received DAAs. See Stafford
v. Carter, No. 1:17-cv-00289-JMS-MJD, 2018 WL 4361639, at
*15 (S.D. Ind. Sept. 13, 2018).
Given that lifesaving DAAs had been around for several
years, a class of Indiana inmates with HCV infections filed a
class action lawsuit in the Southern District of Indiana, Staf-
ford v. Carter, in late January 2017. See Complaint, Stafford,
2018 WL 4361639. The inmates alleged that the IDOC acted
with deliberate indifference in violation of the Eighth Amend-
ment by failing to provide class members with DAAs. See

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4 No. 23-2246
Stafford, 2018 WL 4361639, at *1. This Stafford litigation forms
the backdrop of Ms. Tackett’s claim, so we review it briefly
below.
In September 2018, then-Chief Judge Magnus-Stinson is-
sued a summary judgment order in favor of the Stafford plain-
tiffs. She concluded that there was “no medical reason to di-
vide individuals by ‘priority’ or to ration the use of DAAs.”
Id. at *20. The case proceeded to the remedies phase, with a
remedy hearing scheduled for late April 2019. In March 2019,
a month before the remedy hearing, the Stafford plaintiffs
sought a permanent injunction. In their motion, they asked
the court to require the IDOC to enact a policy that ensured
“all plaintiffs and class members who seek treatment with
DAAs are provided such treatment immediately; or … pursu-
ant to a timeline ordered by this Court.” One month later, the
plaintiffs agreed to defer judgment on their request for a per-
manent injunction and filed a joint motion for a continuance
of the remedy hearing planned for late April 2019. The parties
reported that “discussions ha[d] progress[ed] to the point
where there [was] a reasonable chance of a negotiated resolu-
tion of the remaining issues,” and a settlement conference was
therefore “in the best interests of the parties.” Dr. Dauss, who
had assumed the position of Chief Medical Officer of the
IDOC on March 4, 2019, participated in these settlement ne-
gotiations.
The settlement negotiations were successful, and in Octo-
ber 2019, the parties filed a stipulation to enter a settlement
agreement. The stipulation explained that the settlement
agreement would require the IDOC to provide DAAs to in-
mates with the most severe HCV symptoms immediately,
those with intermediate symptoms by July 1, 2020, those with

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No. 23-2246 5
less severe symptoms by July 1, 2022, and those with the least
severe symptoms by July 1, 2023. On January 2, 2020, the dis-
trict court approved the settlement agreement.
Unfortunately, the Stafford settlement did not save Mr.
Tackett. As the Stafford litigation was taking place, Mr. Tackett
was suffering from the effects of chronic HCV. Mr. Tackett
started to seek treatment for HCV-related effects in May 2018
and continued to do so until his death in November 2019. On
May 3, 2018, Mr. Tackett saw Kimberly Myers, a nurse at
Wexford. Nurse Myers reported that Mr. Tackett’s symptoms
made him “near criteria” to receive DAAs. But she refused to
submit him for treatment until his APRI (a test to assess he-
patic fibrosis and cirrhosis) had a score of 2.0. At the time, the
IDOC’s HCV-management policy prioritized treatment for
individuals with an APRI of at least 2.0, a liver biopsy that
showed evidence of cirrhosis, or known or suspected cirrho-
sis. Two months later, on July 19, 2018, Mr. Tackett saw Dr.
Carl Kuenzli. Dr. Kuenzli recorded Mr. Tackett’s APRI score
at 1.54. Three weeks later, on August 8, 2018, Mr. Tackett saw
Nurse Myers again. He appeared gray in color and had an
APRI of 1.5.
By 2019, Mr. Tackett still had not received DAAs, and his
disease was progressing. On June 16, 2019, he saw a nurse at
the prison and reported on June 29, 2019, that “[h]is legs were
sore and swollen, his stomach hurt, and he was short of
breath.” At this point, the IDOC was still operating under a
policy that prioritized the sickest patients for DAAs, rather
than affording them to all HCV-positive inmates.
We pause to note that it is unclear from the record which
policy governed Mr. Tackett’s treatment during the summer
of 2019. On March 1, 2019, just days before Dr. Dauss began

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as Chief Medical Officer, the IDOC implemented a policy
identical to the January 2018 policy that prioritized those with
an advanced infection. In April 2019, one month after Dr.
Dauss became Chief Medical Officer, she created a “working
policy” that, as she described it, “provided additional clarity
to the regional office[s] and their providers.” We cannot de-
termine from her description to what extent the April 2019
“working policy,” as opposed to the March 2019 policy (that
was identical to the January 2018 policy), informed Mr. Tack-
ett’s treatment. But that question does not impact our analysis
because all policies established the same threshold for priority
access as the Federal Bureau of Prison guidelines on which
the policies were modeled. In other words, whether under the
old or new, and official or “working” policies, the IDOC still
only gave DAAs on a priority basis to the sickest patients.
A month later, on July 17, 2019, Mr. Tackett saw Nurse
Myers again. She ordered an ultrasound of his liver and pan-
creas to assess for signs of cirrhosis. Shortly after that, on July
30, 2019, Nurse Myers observed that Mr. Tackett had indica-
tors of cirrhosis, which made him eligible for priority treat-
ment under IDOC policy (whichever version was in place).
She requested that Mr. Tackett be considered for DAAs, but
nothing came of that request. On July 31, 2019, Mr. Tackett
submitted another request for healthcare in which he asked
about starting DAAs. But he never received DAA treatment.
He died on November 26, 2019, from burst esophageal vari-
ces, which is a complication of HCV cirrhosis.
In November 2021, Mr. Tackett’s daughter Skyler, who is
the representative of his estate, sued Wexford, Nurse Myers,
Dr. Kuenzli, and Dr. Dauss (the latter three in their individual
capacities). Ms. Tackett alleged that the defendants violated

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No. 23-2246 7
the Eighth Amendment to the Constitution by acting with de-
liberate indifference to Mr. Tackett’s serious medical needs.
She also alleged a state medical malpractice claim against
Wexford, Dr. Kuenzli, and Nurse Myers.
Ms. Tackett settled with Wexford, Dr. Kuenzli, and Nurse
Myers, but continued to pursue her Eighth Amendment de-
liberate indifference claim against Dr. Dauss in her individual
capacity. The parties filed cross motions for summary judg-
ment, and the district court granted Dr. Dauss’s motion. It de-
termined that Dr. Dauss took “reasonable steps to expand ac-
cess to DAAs to treat all prisoners with HCV” and Dr. Dauss
was “not responsible for the medical providers’ treatment de-
cisions” that resulted in Mr. Tackett’s death.
Ms. Tackett now appeals.
II
We review a district court’s grant of summary judgment
de novo, viewing the facts in the light most favorable to the
non-moving party. See Trahanas v. Northwestern Univ., 64 F.4th
842, 852 (7th Cir. 2023). “Summary judgment is appropriate
when there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” See id.
(internal quotations omitted). Whether someone acted with
deliberate indifference is a “question of fact subject to demon-
stration in the usual ways, including inference from circum-
stantial evidence.” Rasho v. Jeffreys, 22 F.4th 703, 709 (7th Cir.
2022) (internal citations omitted).
The Eighth Amendment’s ban on cruel and unusual pun-
ishment makes a prison official liable for acting with deliber-
ate indifference to an inmate’s serious medical need. See Es-
telle v. Gamble, 429 U.S. 97, 104 (1976). To determine if a prison

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8 No. 23-2246
official was deliberately indifferent, we evaluate “whether a
plaintiff suffered from an objectively serious medical condi-
tion” and “whether the individual defendant was deliberately
indifferent to that condition.” Petties v. Carter, 836 F.3d 722,
728 (7th Cir. 2016). “[M]edical malpractice, negligence, or
even gross negligence does not equate to deliberate indiffer-
ence.” Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006).
Rather, “the official must have actually known of and con-
sciously disregarded a substantial risk of harm.” Rasho, 22
F.4th at 710.
The parties agree that Mr. Tackett suffered from an objec-
tively serious medical condition, so the only question before
us is whether Dr. Dauss was deliberately indifferent to that
medical condition.
Ms. Tackett sues Dr. Dauss in her individual capacity, so
only her actions, not the actions of her predecessor, are at is-
sue. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (“[O]fficers sued
in their personal capacity come to court as individuals.”).
Looking at Dr. Dauss’s individual actions, we conclude that
there is insufficient evidence for a jury to hold her liable for
an Eighth Amendment violation.
Ms. Tackett argues that Dr. Dauss is liable because the pol-
icy under her watch of rationing DAAs based on the severity
of an individual’s HCV infection improperly deprived Mr.
Tackett of lifesaving medication. But Mr. Tackett received
preferential consideration for DAAs under this policy. It is
undisputed that Mr. Tackett was in a treatment priority group
as of July 2019, when Nurse Myers found evidence of cirrho-
sis. And it is further undisputed that Nurse Myers requested
DAAs for Mr. Tackett pursuant to that policy. Ms. Tackett has

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No. 23-2246 9
not provided any evidence demonstrating that the policy pre-
vented Mr. Tackett from receiving the DAAs.
Mr. Tackett obviously should have been treated. It is a
tragedy that he was not. But this case comes to us on summary
judgment, “when a party must show what evidence it has that
would convince a trier of fact to accept its version of events.”
Schacht v. Wis. Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999).
And at this late stage, Ms. Tackett has produced no evidence
that Dr. Dauss’s actions led to Mr. Tackett’s death. All Ms.
Tackett has shown is that Dr. Dauss maintained a policy that
prioritized DAAs for the sickest patients, of whom Mr. Tack-
ett was one. She has not shown that any other action by Dr.
Dauss impacted his care—Dr. Dauss was not personally in-
volved in Mr. Tackett’s treatment and the record did not show
that Dr. Dauss was aware that he was not getting DAAs. An
inmate with HCV who was not prioritized under the policy
may have had a successful claim in this situation. But Ms.
Tackett, on behalf of Mr. Tackett’s estate, sues as an individ-
ual, and an individual plaintiff “generally must assert his own
legal rights and interests, and cannot rest his claim to relief on
the legal rights or interests of third parties.” In re Jepson, 816
F.3d 942, 946 (7th Cir. 2016) (quoting Warth v. Seldin, 422 U.S.
490, 499 (1975)).
Ms. Tackett asks us to reach a different conclusion be-
cause, she contends, any IDOC policy that did not provide all
inmates with HCV immediate access to DAAs is unconstitu-
tional. We are unpersuaded for two reasons. First, it is unclear
that the policy regulating the provision of DAAs caused Mr.
Tackett’s death. No evidence in the record suggests that what-
ever went wrong after Nurse Myers requested DAAs for Mr.
Tackett in July 2019 (when he ostensibly was eligible for the

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10 No. 23-2246
treatment based on the finding of cirrhosis) would have gone
right under a different policy (under which he ostensibly
would have been eligible for the treatment simply because all
inmates were eligible). Second, the actions of the Stafford
plaintiffs and Ms. Tackett’s own counsel suggest that this po-
sition is not, and never was, realistic. Ms. Tackett’s counsel
also served as plaintiffs’ counsel in Stafford. As previously
noted, in March 2019, the Stafford plaintiffs, through plaintiffs’
counsel, asked the district court to issue a permanent injunc-
tion requiring the IDOC to provide “all plaintiffs and class
members” with DAAs “immediately; or … pursuant to a
timeline ordered by this Court.” But the Stafford plaintiffs,
again through plaintiffs’ counsel, subsequently delayed a rul-
ing on that request and, in October 2019, approved a settle-
ment that allowed the IDOC to roll out DAAs on a graduated
timeline. This all occurred as Mr. Tackett was getting sicker
and sicker. The Stafford plaintiffs’ initial demand for an imme-
diate or court-ordered timeline and later abandonment of that
request in favor of a graduated timeline suggests that a policy
ordering the immediate provision of DAAs when Dr. Dauss
assumed her position in March 2019 was unreasonable.
Therefore, we cannot accept the argument that failure to pro-
vide everyone DAAs immediately amounted to deliberate in-
difference.
Perhaps Dr. Dauss could have implemented a policy that
would have resulted in Mr. Tackett receiving DAAs. She may
have acted negligently or even committed malpractice by not
doing so. But we have no evidence to conclude that she com-
mitted a constitutional violation as to Mr. Tackett specifically.
We regret Ms. Tackett’s loss. Her father’s death was pre-
ventable and senseless. We hope that the IDOC will honor its

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No. 23-2246 11
commitment under Stafford to provide all HCV-positive indi-
viduals with DAAs so that this kind of tragedy will not hap-
pen again.
AFFIRMED.

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