Jeffrey Orr v. Louis Shicker

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 24-1171 & 24-1197
JEFFREY O RR , et al.,
Plaintiffs-Appellants,
v.
LOUIS S HICKER , et al.,
Defendants-Appellees.
____________________
JAMES TERNAPROVICH , et al.,
Plaintiffs-Appellants,
v.
LOUIS S HICKER , et al.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
Nos. 2:08-cv-02232-SLD & 1:20-cv-01258-SLD
Sara Darrow, Chief Judge.
____________________
A RGUED J ANUARY 15, 2025 — DECIDED A UGUST 6, 2025
____________________

-- 1 of 11 --

2 Nos. 24-1171 & 24-1197
Before R OVNER , JACKSON -A KIWUMI , and M ALDONADO, Cir-
cuit Judges.
M ALDONADO, Circuit Judge. These consolidated cases in-
volve roughly two thousand current and former Illinois pris-
oners diagnosed with hepatitis C. The plaintiffs allege that
various Illinois Department of Corrections medical officials
were deliberately indifferent to their medical needs in adopt-
ing and enforcing hepatitis C treatment policies over the past
two decades. In 2024, the district court dismissed both opera-
tive complaints with prejudice after giving the plaintiffs re-
peated opportunities to amend. It offered two grounds for
dismissal. First, it held that the plaintiffs brought official-ca-
pacity claims for damages under 42 U.S.C. § 1983, which is
barred by the Eleventh Amendment. Alternatively, it found
that the complaints failed to state a plausible claim for relief.
We affirm on the district court’s alternative ground—that the
plaintiffs failed to state a plausible claim for relief under Fed-
eral Rule of Civil Procedure 12(b)(6).
BACKGROUND
The Court assumes familiarity with the factual and proce-
dural background, which we described in detail in Orr v.
Shicker (Orr I), 953 F.3d 490 (7th Cir. 2020). Below we provide
a brief recap.
I. The Orr Litigation
In 2008, a putative class of prisoners diagnosed with hep-
atitis C sued Wexford Health Sources, Inc. (a private
healthcare provider for IDOC) and various medical directors
at IDOC under 42 U.S.C. § 1983, alleging that they were delib-
erately indifferent to the prisoners’ medical condition when
they refused to provide treatment. Over the next five years,

-- 2 of 11 --

Nos. 24-1171 & 24-1197 3
the district court consolidated numerous related cases and de-
nied plaintiffs’ motions for class certification and injunctive
relief.
The parties then plodded through years of discovery until
January 2016, when the Orr plaintiffs moved for reconsidera-
tion of the denial of class certification. The court again denied
the motion but permitted a renewed request, citing major ad-
vances in hepatitis C treatment since 2008. Once risky and ex-
pensive, by 2016, treatment had become safer, more effective,
and more affordable. So in November 2016 the Orr plaintiffs
filed an updated complaint and renewed their bids for class
certification and injunctive relief.
After more than two years of motion practice, the district
court held an evidentiary hearing on the motions for class cer-
tification and injunctive relief, and in February 2019, it par-
tially granted both motions. Specifically, the district court cer-
tified two classes of inmates: one with more advanced hepa-
titis C and another with less advanced disease progression,
and it granted injunctive relief to the former class. The de-
fendants sought an interlocutory appeal under Federal Rule
of Civil Procedure 23(f), which our Court accepted.
We reversed and vacated both rulings in 2020. As to class
certification, we held that the district court abused its discre-
tion in certifying the proposed classes because the Orr plain-
tiffs failed to establish typicality and adequacy of representa-
tion. As to preliminary injunctive relief for the thousands of
prisoners in the now decertified classes, we concluded that
they had not shown a likelihood of irreparable harm absent
injunctive relief. That conclusion rested heavily on two devel-
opments that expanded hepatitis C treatment for IDOC pris-
oners: first, the 2019 Protocol—a new hepatitis C treatment

-- 3 of 11 --

4 Nos. 24-1171 & 24-1197
program developed by IDOC and the University of Illi-
nois – Chicago (UIC)—and second, the federal consent decree
approved in Lippert v. Ghosh, No. 10-cv-4603 (N.D. Ill.), in May
2019. The 2019 Protocol outlined a telemedicine-based system
through which IDOC screens, prioritizes, and refers prisoners
with chronic hepatitis C to UIC for treatment, based on a
multi-stage evaluation process that assesses medical eligibil-
ity, urgency, and disease severity. The Lippert decree, which
remains in effect, is broader in scope than the 2019 Protocol
but covers hepatitis C care and mandates systemic reforms by
IDOC, including increased staffing, timely treatment, and on-
going oversight.
On remand after decertification, the Orr plaintiffs filed a
second amended complaint seeking to bring claims for nearly
two thousand individual prisoners. In a seven-page com-
plaint, the Orr plaintiffs alleged generally that the defendants,
in their capacity as medical directors at IDOC, denied each
plaintiff effective treatment for hepatitis C in violation of the
Eighth Amendment. They sought only money damages. The
defendants moved to dismiss under Rule 12(b)(6), and the
district court dismissed the case without prejudice. The court
held that the complaint did not contain enough factual allega-
tions to give each defendant fair notice of the claims, empha-
sizing that it failed to “make any factual allegations against
[the] Defendants ….”
A month later, the Orr plaintiffs filed a third amended
complaint. The new complaint added another IDOC medical
director as a defendant, but otherwise closely resembled the
previous cryptic version. It alleged, again without specificity,
that each defendant had served as IDOC’s medical director at
some point and had “adopted or continued to follow a policy

-- 4 of 11 --

Nos. 24-1171 & 24-1197 5
which was deliberately indifferent to the Plaintiffs’ serious
medical condition, the presence of the Hep C virus, prevented
Plaintiffs from getting timely treatment or caused Plaintiffs
not to receive treatment.” The defendants again moved to dis-
miss, contending that the third amended complaint suffered
from the same deficiencies as the second.
In January 2024, the district court dismissed the third
amended complaint with prejudice. This time, the court held
that the Orr plaintiffs’ § 1983 claims were asserted against the
defendants in their official capacities rather than their indi-
vidual capacities, and therefore concluded that the defend-
ants were immune from damages under the Eleventh Amend-
ment. Alternatively, the court reiterated that the complaint
failed to state a claim for individual liability because it lacked
specific allegations of any defendant’s personal involvement
relating to the care of each plaintiff.
II. The Ternaprovich Litigation
While the Orr litigation was pending after remand, a
group of more than one hundred prisoners with hepatitis C
(the Ternaprovich plaintiffs) filed a similar lawsuit in the same
district court. Represented by the same counsel as the Orr
plaintiffs, the Ternaprovich plaintiffs alleged nearly identical
general allegations and named two additional IDOC doctors
as defendants. Like the Orr plaintiffs, they sought only money
damages.
As in Orr, the Ternaprovich plaintiffs did not advance past
the pleading stage. After twice dismissing their earlier com-
plaints without prejudice for failing to provide sufficient no-
tice to the defendants, the district court dismissed the Ter-
naprovich plaintiffs’ second amended complaint with

-- 5 of 11 --

6 Nos. 24-1171 & 24-1197
prejudice in January 2024 (on the same day it dismissed the
Orr case). Again, the court dismissed the complaint on the
dual grounds of sovereign immunity and Rule 12(b)(6).
* * *
Both sets of plaintiffs timely appealed their respective dis-
missal orders, and the two cases have been consolidated on
appeal. We now review the district court’s dismissals de
novo. Dernis v. United States, 136 F.4th 714, 716 (7th Cir. 2025)
(dismissals under Rule 12(b)(6) and Rule 12(b)(1) are subject
to de novo review).
DISCUSSION
I. The complaints assert individual-capacity claims
Section 1983 imposes liability on any “person” who, acting
under color of state law, violates the Constitution or federal
law. Knowlton v. City of Wauwatosa, 119 F.4th 507, 519 (7th Cir.
2024) (quoting 42 U.S.C. § 1983). Plaintiffs can sue state offi-
cials in either their individual or official capacities. In an offi-
cial-capacity suit, “the plaintiff alleges that the defendant was
party to the execution or implementation of official policy or
conduct by a government because the real party in interest is
the entity.” Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir.
1991). By contrast, “an individual capacity suit focuses on the
constitutional torts of an individual official.” Id. (citation
modified).
This distinction carries important consequences. In indi-
vidual-capacity suits, plaintiffs can seek monetary damages.
In official-capacity suits, however, the relief is limited to in-
junctive or declaratory remedies. Knowlton, 119 F.4th at 519.
Crucially, the Eleventh Amendment bars damages claims
against state officials sued in their official capacities,

-- 6 of 11 --

Nos. 24-1171 & 24-1197 7
depriving federal courts of jurisdiction over such claims. See
McHugh v. Ill. Dep’t of Transp., 55 F.4th 529, 532–33 (7th Cir.
2022).
The Orr and Ternaprovich complaints do not state whether
the defendants are being sued in their individual or official
capacities. That omission alone does not render the pleadings
deficient. We have declined to adopt a “rigid rule” that pre-
sumes a § 1983 plaintiff is suing a defendant in her official ca-
pacity simply because the complaint is silent. Miller v. Smith,
220 F.3d 491, 494 (7th Cir. 2000) (citing Hill, 924 F.2d at 1373).
Instead, courts must evaluate the complaint “in its entirety”
and look to the “conduct alleged” to determine whether the
plaintiff intends to sue the defendant in an official or individ-
ual capacity. Hill, 924 F.2d at 1374.
Here the district court engaged in that analysis and con-
cluded that the plaintiffs sued the defendants in their official
capacity. That conclusion was not unreasonable. The com-
plaints allege no facts connecting any defendant personally to
the plaintiffs’ alleged harm or to a particular policy. Rather,
they broadly criticize IDOC’s hepatitis C policies. But they
never explain what role each defendant played in adopting or
implementing those policies—an omission common in offi-
cial-capacity suits. Hill, 924 F.2d at 1372; see also Budd v. Mot-
ley, 711 F.3d 840, 843 (7th Cir. 2013) (treating a complaint as
an official-capacity suit where it “describ[ed] a municipal
practice or custom in running the jail, rather than the Sheriff’s
personal conduct”).
That said, the district court relied too heavily on the com-
plaints’ reference to defendants’ policymaking. References to
policymaking alone do not transform an individual-capacity
suit into an official-capacity one; policymakers can still be

-- 7 of 11 --

8 Nos. 24-1171 & 24-1197
held personally liable when they devise or implement a delib-
erately indifferent policy. See Armstrong v. Squadrito, 152 F.3d
564, 581 (7th Cir. 1998). The Fourth Circuit recently said as
much in a similar case, holding that a prison’s chief physician
could be held personally liable for the harms caused by creat-
ing and implementing the prison’s hepatitis C policy. Gordon
v. Schilling, 937 F.3d 348, 362 (4th Cir. 2019) (collecting circuit
cases recognizing individual liability for creating or imple-
menting unconstitutional policies). At most then, the capacity
in which the defendants here were sued is ambiguous.
That ambiguity dissolves, though, when we consider that
the complaints seek only damages—a telling choice. As we
put it in Miller, “Why in the world would [they] have both-
ered to sue the [defendants] for damages in their official ca-
pacities when such a suit would run headlong into the 11th
Amendment?” 220 F.3d at 494. Even the defendants treated
the claims as individual-capacity suits in the district court;
they moved to dismiss under Rule 12(b)(6) instead of invok-
ing sovereign immunity, which the court raised sua sponte.*
Therefore, we depart from the district court’s approach
and interpret the complaints as asserting individual-capacity
claims under § 1983. The combination of the explicit request
for money damages and the context surrounding this long-
running litigation is enough to support that inference. That,
however, does not end the inquiry. We now turn to whether
the allegations survive Rule 12(b)(6).
* On appeal, the defendants now assert Eleventh Amendment immun-
ity as a defense.

-- 8 of 11 --

Nos. 24-1171 & 24-1197 9
II. The complaints fail to state plausible claims for relief
Our notice-pleading standard is deliberately “undemand-
ing.” Brockett v. Effingham Cnty., 116 F.4th 680, 684 (7th Cir.
2024). A plaintiff “need not plead legal theories,” Alioto v.
Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011), nor “allege
each element that the plaintiff eventually will need to prove,”
Thomas v. JBS Green Bay, Inc., 120 F.4th 1335, 1337 (7th Cir.
2024). Rather, to defeat a motion to dismiss, a plaintiff must
allege “only enough facts to state a claim to relief that is plau-
sible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). This means that the complaint must offer “factual con-
tent that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,” Ash-
croft v. Iqbal, 556 U.S. 662, 678 (2009), or, as our Court has put
it, “present a story that holds together,” Swanson v. Citibank,
N.A., 614 F.3d 400, 404 (7th Cir. 2010). Underpinning this
framework is a basic rule: a defendant must be given “fair no-
tice of what the claim is and the grounds upon which it rests.”
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (citation modi-
fied).
The plaintiffs’ operative complaints fall far short of this
standard. The two complaints purport to bring medical delib-
erate indifference claims for roughly two thousand individual
prisoners with hepatitis C yet say nothing about those prison-
ers’ specific diagnoses, treatment histories, or periods of in-
carceration. Nor do they say when each defendant served as
medical director or what role each played in shaping or en-
forcing IDOC’s hepatitis C policies in relation to each plain-
tiff. These omissions compound each other. Without facts
about each prisoner’s medical needs or what each defendant
knew or did at the relevant time, the plaintiffs cannot

-- 9 of 11 --

10 Nos. 24-1171 & 24-1197
plausibly allege that anyone acted with deliberate indiffer-
ence toward any individual prisoner. See Peterson v. Wexford
Health Sources, Inc., 986 F.3d 746, 752 (7th Cir. 2021). That fail-
ure is especially glaring given the plaintiffs’ concession that
IDOC’s hepatitis C treatment has evolved over time. And be-
cause the complaints do not tie any defendant to a specific
policy at a specific time—or link that policy to any individual
prisoner—they fail to give the individual defendants fair no-
tice of the claims against them. See Airborne Beepers & Video,
Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007)
(“[A]t some point the factual detail in a complaint may be so
sketchy that the complaint does not provide the type of notice
of the claim to which the defendant is entitled under Rule 8.”).
Plaintiffs argue that requiring more detail at the pleading
stage demands too much. In their view, it was enough to al-
lege generally that the defendants “adopted a policy which
excluded necessary medical treatment for hepatitis C solely to
save money.” Reply Br. at 4. But they are mistaken. As we
have reiterated many times, “threadbare recitals of the ele-
ments of a cause of action, supported by mere conclusory
statements, do not suffice.” Peterson, 986 F.3d at 751 (citation
modified). Instead, plaintiffs must “adequately connect spe-
cific defendants to illegal acts.” Brooks, 578 F.3d at 580 (citation
omitted).
That requirement holds especially true in a case like this
one. Treatment for hepatitis C varies with each patient’s prog-
nosis, making each plaintiff’s deliberate indifference claim es-
pecially complex. See Orr I, 953 F.3d at 493 (describing the nu-
ance in hepatitis C treatment); see also Roe v. Elyea, 631 F.3d
843, 848 (7th Cir. 2011) (noting that hepatitis C treatment var-
ies “depend[ing] on the extent of the disease”). That

-- 10 of 11 --

Nos. 24-1171 & 24-1197 11
complexity demands more detail, not less. See Swanson, 614
F.3d at 405 (“[M]ore complex case[s] … will require more de-
tail, both to give the opposing party notice of what the case is
all about and to show how, in the plaintiff’s mind at least, the
dots should be connected.”).
* * *
The plaintiffs have not alleged enough facts to give each
defendant notice of the individual claims brought by each
prisoner, making their complaints insufficient under Rule 8
and subject to dismissal under Rule 12(b)(6). Additionally, the
district court did not abuse its discretion by denying the Orr
plaintiffs leave to file a fourth amended complaint or the Ter-
naprovich plaintiffs leave to file a third. The court gave the
plaintiffs multiple opportunities and direction to cure their
pleading deficiencies; even so, they persistently ignored that
direction. More importantly, neither in the district court nor
on appeal have they explained how they would have
amended their pleadings to fix the defects. See Law Offs. of Da-
vid Freydin, P.C. v. Chamara, 24 F.4th 1122, 1134 (7th Cir. 2022).
We therefore AFFIRM the judgments of the district court
dismissing the Orr and Ternaprovich cases with prejudice.

-- 11 of 11 --