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Tuesday, January 31, 2017

Ind. Decisions - 7th Circuit decided two additional Indiana cases yesterday

In John Casey v. Nancy A. Berryhill (ND Ind., Lozano), a 16-page opinion, Judge Hamilton writes:

In 2009, the Social Security Ad‐ ministration notified Plaintiff John Casey that he needed to repay about $334,000 in disability benefits he should not have received. Casey sought a waiver, but an administrative law judge denied his request. Six months later, Casey submitted an untimely request to the Appeals Council seeking review of the ALJ’s decision. Casey argued that he had good cause for his delay. The Appeals Council seemed to agree. On April 12, 2012, the Council extended Casey’s deadline to submit evi‐ dence or a statement in support of his waiver claim. But on July 17, 2013, the Appeals Council reversed course, informing Casey that it had dismissed his request for review because there was “no good cause to extend the time for filing.” Casey then sued the Acting Commissioner of Social Security in dis‐ trict court. The Commissioner moved to dismiss, and a mag‐ istrate judge recommended granting the Commissioner’s mo‐ tion. The district judge adopted the magistrate’s recommen‐ dation and dismissed the case.

The district court erred. The action by the Appeals Council in first granting and then retroactively denying Casey’s good cause request was arbitrary, having the effect of an unfair bu‐ reaucratic bait‐and‐switch. To be sure, the Council had discre‐ tion to determine initially whether Casey offered good cause for his late administrative appeal. See 20 C.F.R. §§ 404.968(b), 404.911. But having granted Casey’s request, the Council could not simply change its mind and dismiss Casey’s appeal on the theory that he had not adequately justified his delay, after leading him on for over a year without suggesting he needed to provide more information, an affidavit, or anything else by way of support. We reverse the judgment of the district court and remand with instructions to remand this matter to the agency for administrative proceedings consistent with this opinion.

In Estate of William A. Miller v. Helen Marberry (SD Ind., Magnus-Stinson), a 16-page, 2-1 opinion, Judge Easterbrook writes:
While confined at the federal prison in Terre Haute, Indiana, William Miller fell out of an upper bunk and broke his back. Contending that he should have been in a lower bunk, Miller seeks compensation in this Bivens action. Miller died in June 2016; the record does not show why. His estate has been substituted as the plaintiff, but we use his name to make the exposition easier to follow. * * *

Miller’s allegation ... is that Rogers and Marberry brushed off his complaints, leaving them to be handled through the chain of command. That brings Miller’s claim within the scope of Iqbal, Vance, and Burks rather than Haywood. AFFIRMED

[p. 8] POSNER, Circuit Judge, dissenting. In November 2006 Wil‐ liam Miller was convicted of bank robbery and sentenced to 120 months in prison. Between then and his imprisonment, which began thirteen months later in the Federal Correction‐ al Complex in Terre Haute, Indiana (“FCC Terre Haute” as the prison is more commonly known), he was diagnosed with a thalamic brain tumor (more commonly referred to in the medical profession as a thalamic glioma) that impaired the feeling in the left side of his body—a typical symptom of the disease.

A month after entering prison, Miller was given a “low‐ er‐bunk restriction”: his doctor ordered that he be assigned to a lower bunk because of his medical condition, and a no‐ tation to that effect was added (or should have been added) to his profile in the prison’s electronic record‐keeping sys‐ tem. A year later, for unknown reasons (but there is no indi‐ cation that the reasons were disciplinary), he was assigned to a more restrictive housing unit in the prison than he’d originally been in, called the Special Housing Unit. He was initially given a lower bunk, but within hours was moved to an upper one. He complained to Gary Rogers, the number one guard in the unit, that because of his brain tumor he had a lower‐bunk restriction, but Rogers told him he wouldn’t be switched to a lower bunk and if he refused the upper bunk he would “receive a disciplinary report for refusing a direct order.”

Yet just five days after this contretemps, climbing down the ladder from his upper bunk Miller became dizzy, slipped, and fell to the concrete floor, hitting his head and losing consciousness. * * *

Judge Easterbrook’s opinion cites Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009), for its rejection of a theory of “supervi‐ sory liability” that would make supervisors liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” * * *

I have no quarrel with that. But knowledge and duty can be entwined. “A prison official’s knowledge of prison condi‐ tions learned from an inmate’s communications can, under some circumstances, constitute sufficient knowledge of the conditions to require the officer to exercise his or her author‐ ity and to take the needed action to investigate and, if neces‐ sary, to rectify the offending condition.” Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996). Both Rogers and Marberry were responsible for the safety of prison inmates and were on no‐ tice that Miller’s safety was jeopardized as a consequence of confining him to an upper bunk. They were complicit in his suffering and may have hastened his death.

A dog would have deserved better treatment.

We should reverse.

Posted by Marcia Oddi on January 31, 2017 09:39 AM
Posted to Ind. (7th Cir.) Decisions