                               In the

     United States Court of Appeals
                 For the Seventh Circuit
No. 13-2278

JOSEPH W. BUECHEL,
                                                  Plaintiff-Appellant,

                                  v.


UNITED STATES OF AMERICA,
                                                 Defendant-Appellee.

         Appeal from the United States District Court for the
                    Southern District of Illinois.
            No. 08-cv-132-JPG — J. Phil Gilbert, Judge.


   ARGUED NOVEMBER 13, 2013 — DECIDED MARCH 7, 2014


   Before MANION, KANNE, and HAMILTON, Circuit Judges.
    HAMILTON, Circuit Judge. In July 2006, plaintiff Joseph
Buechel was incarcerated at FCI-Greenville, a federal correc-
tional institution in Greenville, Illinois. Buechel contracted
Methicillin-Resistant Staphylococcus aureus, known as MRSA,
which is a type of staph infection resistant to certain antibiotics.
Buechel’s MRSA infection was so severe that it nearly killed
him. He survived, but he had to be hospitalized for more than
forty days and was left with serious and permanent damage to
2                                                  No. 13-2278

his heart and lungs. He brought suit against the United States
under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging
that his MRSA infection and resulting injuries were caused by
FCI-Greenville’s negligence.
    Though Buechel’s administrative claim and complaint
described his allegations of negligence in broader terms, the
district court issued a pretrial order that limited Buechel’s
negligence claim to a theory that he contracted MRSA from
contact with one fellow inmate, Joseph Hansen, in the prison
laundry in mid-July 2006, or more generally as a result of
sloppy procedures in handling infected laundry in the prison.
Viewing Buechel’s claim and the admissible evidence through
this narrow lens, the court found after a bench trial that
Buechel had not proved by a preponderance of the evidence
that he had contracted MRSA from either Hansen or the
laundry procedures. Accordingly, the district court entered
judgment in favor of the government.
    Buechel appeals. We find no error in the district court’s
finding that Buechel failed to prove that he contracted MRSA
from Hansen and/or as a result of inadequate laundry proce-
dures. However, the district court erred when it limited
Buechel’s negligence claim, without his consent, to just those
two theories. Buechel’s administrative claim and complaint
presented a broader theory that FCI-Greenville was negligent
more generally in its failure to adhere to its MRSA-contain-
ment policies in 2006, causing his MRSA infection. We affirm
in part but vacate the judgment in favor of the government and
remand for further proceedings on that broader theory.
No. 13-2278                                                        3

I. Negligence Claims Presented at Trial
    The district court found that Buechel failed to prove his
MRSA infection was caused by negligence in either permitting
Hansen to work with him in the prison laundry in mid-July
2006 or failing to use proper laundry procedures to prevent the
spread of MRSA. We review these findings of fact only for
clear error. Fed. R. Civ. P. 52(a)(6); Gaffney v. Riverboat Servs. of
Ind., Inc., 451 F.3d 424, 447 (7th Cir. 2006) (The district court’s
findings of fact “are entitled to great deference and shall not be
set aside unless they are clearly erroneous.”). Under this
standard, we will not reverse unless, after reviewing all the
evidence, we are left with “‘the definite and firm conviction
that a mistake has been committed.’” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985), quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948). As long as
the district court’s conclusions are “plausible in light of the
record viewed in its entirety,” we will not disturb them.
Fyrnetics (Hong Kong) Ltd. v. Quantum Grp., Inc., 293 F.3d 1023,
1028 (7th Cir. 2002), quoting Anderson, 470 U.S. at 573–74. On
the merits of Buechel’s negligence theories that were within the
scope of the court’s pretrial order and were presented at trial,
we affirm the district court.
   When Buechel first arrived in FCI-Greenville in June 2006,
he was healthy and had no symptoms of a MRSA or non-
MRSA staph infection. In mid-July 2006, Buechel and Hansen
worked together in the prison laundry to fix a washing
machine and dryer as part of their prison maintenance jobs.
Then, on July 20, 2006, Buechel was diagnosed with MRSA.
Buechel testified that during their work assignment, Hansen
had an open wound on his face that was oozing infected pus.
4                                                     No. 13-2278

Buechel’s expert, Dr. Robert Greifinger, testified that “the most
likely source” of Buechel’s MRSA infection “was discharge
from [the] persistent infection of Mr. Hansen” as they passed
tools back and forth while working together in the prison
laundry. Dr. Greifinger believed that the fact that Buechel and
Hansen had hand-to-hand contact while Hansen had a
draining wound and the timing of their respective diagnoses
of infection were consistent with the conclusion that Buechel
had become infected with MRSA as a result of working with
Hansen. The district court rejected this theory. It found that
Buechel was not credible, that Dr. Greifinger was not persua-
sive, and that the evidence did not show either that Hansen
had MRSA in mid-July 2006 or that he had a seeping wound on
his face during the work assignment with Buechel.
    Hansen had tested positive for a non-MRSA staph infection
in March 2006, again in May 2006, and again nearly a year
later, in April 2007. In each of these laboratory tests, the staph
bacteria infecting Hansen were found to be resistant to a
different set of antibiotics. None of the lab tests showed
Hansen to be MRSA-positive. Hansen’s infections also had
profiles of antibiotic resistance different from the profile of
Buechel’s MRSA infection. For example, Hansen’s May 2006
infection was resistant to Bactrim, while Buechel’s infection
was susceptible to Bactrim. Dr. Greifinger conceded in his
written report that there was no laboratory evidence that
Buechel’s infecting organism was the same as Hansen’s
infecting organism. He testified at trial that it was theoretically
possible for Hansen’s staph infection to have metamorphosed
into MRSA between May and July 2006, and then to have
metamorphosed back into non-MRSA staph by April 2007, but
No. 13-2278                                                     5

the district court understandably found this theoretical
possibility to be speculative. The district court’s findings that
Hansen did not have MRSA in mid-July 2006 and that Buechel
was not infected with the same organism as Hansen find
reasonable support in the record and are not clearly erroneous.
    The district court also rejected Buechel’s assertion that
Hansen had a seeping wound on his face when they worked
together in the prison laundry that would have enabled
transmission of an infection between them. The court ex-
plained why it did not find Buechel’s testimony about
Hansen’s wound credible. “[I]n light of his demeanor while
testifying, his interest in giving testimony favorable to himself,
and his testimony’s inconsistency with Hansen’s medical
records documenting no draining wounds and Hansen’s daily
supervisor’s testimony that he never saw any drainage from
Hansen’s face, Buechel’s testimony on this matter was incredi-
ble.” Hansen’s medical records reflect that on June 21 and 22,
2006, he had a wound on his forehead above his right eyebrow
with “very scanty exudate,” and prison staff restricted him
from working during that time. Hansen and Buechel did not
work together until a month later, in mid-July. The only
contemporaneous medical record, dated July 18, 2006, states
that Hansen had multiple lesions on his back, arm, and legs,
but none on his face and none that were draining. In other
words, Hansen’s medical records do not support Buechel’s
testimony that Hansen had a draining wound on his face in
mid-July 2006. Here, too, we have no grounds to disturb the
district court’s finding of fact based on conflicting evidence.
   We also find no clear error in the district court’s conclusion
that the evidence did not prove that Buechel contracted MRSA
6                                                     No. 13-2278

from FCI-Greenville’s laundry procedures. In 2006, the Bureau
of Prisons and FCI-Greenville had MRSA Guidelines in place
stating that MRSA-infected inmates whose wound drainage
could not be contained with dressing should have their
laundry “treat[ed] … as potentially infectious” and “bagged”
and washed at least every other day. Biohazard laundry was
supposed to be washed separately from other inmate laundry.
Buechel presented evidence that FCI-Greenville Health
Services did not give biohazard laundry bags to inmates
infected with either MRSA or non-MRSA staph. Additionally,
Buechel testified that Health Services did not instruct infected
inmates to wash their clothes separately and did not instruct
MRSA-infected inmates on how to wash their clothes if they
had draining wounds.
    The district court, however, was not persuaded that
Buechel contracted MRSA as a result of FCI-Greenville’s
laundry procedures. The court found that Buechel did not offer
evidence that the prison’s laundry temperature or laundry
disinfecting procedures were inadequate to prevent the
transmission of MRSA. Dkt. 161 at 7; see also Tr. 211 (Dr.
Greifinger did not know if housing unit laundry machines
heated water to a high enough temperature to kill MRSA
bacteria, or if clothes were laundered with or without bleach).
Without such evidence, the court found, there was nothing to
tether FCI-Greenville’s failure to provide biohazard bags and
instructions on proper laundry procedures to Buechel’s
infection. The district court did not clearly err in rejecting this
theory that Buechel contracted MRSA as a result of inadequate
laundry procedures. Accordingly, we affirm on the merits of
the negligence theories that were presented and heard at trial.
No. 13-2278                                                     7

II. Scope of Buechel’s Negligence Claim
    As noted, however, the theories that Buechel presented at
trial were limited over his objection. The district court ruled in
a September 13, 2012 pretrial order that Buechel’s negligence
claim would be “limited to the conditions leading to the
possible transmission of a staphylococcus infection in the
laundry facility but not necessarily limited to contamination
from Joseph [Hansen].” This ruling was based on the district
court’s interpretation of the scope of Buechel’s pro se adminis-
trative tort claim and pro se complaint. Buechel argues on
appeal that the district court erred by unduly limiting his
claims. He contends that his pro se documents also asserted a
broader theory that FCI-Greenville was negligent by failing to
follow its own 2006 MRSA-containment policies, resulting in
his infection. We conclude that the district court’s reading of
Buechel’s claim was too restrictive and ran contrary to the
imperative that courts construe pro se claims generously. In a
new trial after remand, Buechel should be permitted to present
evidence on his broader theory that the prison’s failure to
follow its own policies in 2006 amounted to negligence that
caused his MRSA infection and resulting injuries.
   A. The Federal Tort Claims Act and Its Exhaustion Require-
      ment
    The Federal Tort Claims Act permits a person to bring suit
in federal court against the United States:
     for injury or loss of property, or personal injury or
     death caused by the negligent or wrongful act or
     omission of any employee of the Government while
     acting within the scope of his office or employment,
8                                                    No. 13-2278

     under circumstances where the United States, if a
     private person, would be liable to the claimant in
     accordance with the law of the place where the act
     or omission occurred.
28 U.S.C. § 1346(b)(1). Pursuant to this provision, federal
inmates may bring suit for injuries they sustain in custody as
a consequence of the negligence of prison officials. United
States v. Muniz, 374 U.S. 150, 150 (1963). Like any other federal
tort claimant, however, an inmate may not bring such a suit
unless he has first presented his claim to the appropriate
federal agency and that agency has denied the claim. See
28 U.S.C. § 2675(a); 28 C.F.R. § 14.2(a) (requiring claimant to
execute a “Standard Form 95 or other written notification of an
incident, accompanied by a claim for money damages in a sum
certain for … personal injury … alleged to have occurred by
reason of the incident … .”). Once the agency denies or fails to
take action on an inmate’s claim, he has six months to file a
suit. 28 U.S.C. § 2401(b).
    B. Administrative and District Court Proceedings
    To comply with the administrative claim requirement,
Buechel completed a complaint form and submitted it to
FCI-Greenville for review on October 12, 2006. In support of
his claim, and without outside legal assistance, he wrote:
     Lack of Medical Treatment / Refuse to treat a highly
     contagious disease ie: Staff infection with this lack of
     treatment has indangered the lifes of myself and
     other inmates and also the inmate that I caught this
     highly contagious disease to continue to interact in
     general population.
No. 13-2278                                                       9

Dkt. 139, Ex. 1 (emphasis added). When his claim was not
resolved to his satisfaction, he filled out a Form 95, describing
his claim as follows:
     Caught Staph Infestion from an INMATE JOE
     HANSON who works in [maintenance services],
     wherein the institution failed to quarantine Hanson to
     prevent transmittal of disease.
Dkt. 139, Ex. 4 (emphasis added).
     Buechel next filed suit, setting forth his claim yet again, and
still without the assistance of counsel. His claim narrative
continues for more than two pages but begins:
     Defendant’s medical and Executive Departmental
     employees are intentionally disregarding basic
     manditory [sic] medical biohazard containment
     quarantine and decontamination procedures of
     infectious diseases … when Mr. “Joe Hanson” [sic]
     an inmate at federal correctional institution in
     Greenville, Illinois, was allowed to return to his job
     assignment in (“CMS”) after being diagnosed with the
     “staph infection virus” that ended up being transmit-
     ted to plaintiff during a machanical [sic] operation
     on a laundry unit which [“Hanson”] [sic] and the
     plaintiff were passing tools between each other … .
Dkt. 1 at 4 (emphasis added). It bears repeating that Buechel
was acting without the assistance of a lawyer both at the
administrative complaint stage and when he drafted and filed
his complaint in court.
10                                                         No. 13-2278

    Buechel’s complaint passed screening under 28 U.S.C.
§ 1915A and the district court appointed counsel to represent
him.1 After surviving two motions to dismiss, Buechel’s
negligence claim proceeded to discovery and the government
then moved for summary judgment.2 In its motion the govern-
ment argued that Buechel had failed to exhaust his administra-
tive remedies and that his negligence claim should be treated
as a medical malpractice claim (and thus subject to the district
court’s prior dismissal of that claim). The district court rejected
both of these arguments, though it put off a definitive ruling
on the government’s failure-to-exhaust argument until trial.
Regarding the scope of Buechel’s administrative complaint,
however, the court wrote:
      Despite the fact that this paragraph was not in-
      cluded in the section of the administrative complaint
      form designated for describing the “basis of claim,”
      this paragraph was sufficient to alert a legally
      sophisticated reader that Buechel was complaining
      about the inadequacy of measures to prevent
      Hansen from transmitting staph to him. A legally
      sophisticated reader would have known that such a claim
      encompassed the practice of allowing sick inmates like


1
  The district court appointed J. Kevin McCall of Jenner & Block, LLP, to
represent Buechel. Mr. McCall and the firm continued to represent Buechel
on appeal, and we are grateful to them and to Nicole A. Allen, Brij B.
Patnaik, and Chelsea L. Warren for their able assistance.

2
  The district court construed Buechel’s filings as including a medical
malpractice claim. This claim ultimately was dismissed with prejudice, and
Buechel does not appeal that ruling.
No. 13-2278                                                          11

     Hansen to come into contact with Buechel—which is
     explicit in the administrative claim form in the allegation
     of “failed to quara[n]tine”—as well as the failure to
     ensure those sick inmates do not transmit their diseases
     to those with whom they come in contact—which is
     implicit in the allegation of failure to “prevent
     tran[s]mittal.” Because Buechel’s administrative claim
     form sets forth enough facts to alert a legally sophisticated
     reader to the presence of both aspects of his claim, it
     satisfies the presentment requirement. Thus, the United
     States is not entitled to summary judgment on the
     grounds that Buechel failed to exhaust his adminis-
     trative remedies. The Court notes, however, that
     Buechel’s remaining claim in this case is limited to
     negligence that allowed Hansen to transmit pathogens to
     him and does not include a general claim about prison
     hygiene practices unconnected to Hansen.
Buechel v. United States, 2012 WL 948368, at *5 (S.D. Ill.
March 20, 2012) (emphasis added). We agree with the first
portion of this passage, which recognized that Buechel had
alleged a failure to ensure that MRSA-infected inmates did not
spread their infections. But the last sentence seems to conflict
with that appropriately generous reading of the pro se docu-
ments. While acknowledging that Buechel had claimed that the
prison had “failed to quara[n]tine” inmates “like Hansen” in
the operative documents, the court then, and without reference
to those documents, also restricted that claim to contact with
Hansen.
   Given this internal contradiction in the order, the issue
arose again at the pretrial conference. Aided by counsel,
12                                                  No. 13-2278

Buechel argued that his administrative complaint forms and
pro se complaint presented a claim that his MRSA infection was
caused by FCI-Greenville’s negligent and more general failure
to segregate MRSA-positive inmates, including but not limited
to Hansen, from the general inmate population. The govern-
ment’s position was that Buechel’s claim should be construed
as limited to infection only by Hansen. The court’s ruling was
terse:
      In light of the language in plaintiff’s complaint and
      the scope of his administrative tort claim, the Court
      finds that the issues in this case are limited to the
      conditions leading to the possible transmission of a
      staphylococcus infection in the laundry facility but
      not necessarily limited to contamination from Joseph
      Hansen.
Buechel argues this ruling was an error.
     C. Analysis
    At each stage of the federal tort claim process, pro se
administrative complaint forms are “entitled to a generous
construction.” Palay v. United States, 349 F.3d 418, 425–26 (7th
Cir. 2003) (“[I]f the claim would have been apparent to a
‘legally sophisticated’ reader of the form, then [the Court] will
charge the agency with notice of that claim and deem it to have
been exhausted.”), quoting Murrey v. United States, 73 F.3d
1448, 1452–53 (7th Cir. 1996) (“Clearly, the entire [Standard
Form 95] was intended to be read, and if it was read the
[plaintiff’s] claim would leap out at the legally sophisticated
reader.”). Though an inmate is required to plead sufficient
facts to put the agency on notice of the claim so that it may
No. 13-2278                                                    13

investigate, an inmate is not required to plead legal theories.
Palay, 349 F.3d at 425–26. Any claim “implicit in the facts”
should be deemed to have been presented to the agency. Id. at
426, quoting Murrey, 73 F.3d at 1452; see also Haines v. Kerner,
404 U.S. 519, 520–21 (1972) (pro se complaint entitled to
generous construction). We review de novo the district court’s
reading of Buechel’s administrative claim, giving Buechel the
benefit of every reasonable inference that may be drawn from
his allegations. Palay, 349 F.3d at 425 (using Rule 12(b)(6)
standard to decide whether pro se complainant had exhausted
administrative remedies).
    Here, though Buechel was clearly complaining about his
medical treatment—i.e. “Lack of Medical Treatment / Refuse to
treat a highly contagious disease”—he was also complaining
of the prison’s failure to quarantine infected inmates properly,
including Hansen but not necessarily limited to him. (“[A]lso
the inmate that I caught this highly contagious disease to
continue to interact in general population;” “the institution
failed to quarantine [Hansen] to prevent transmittal of dis-
ease;” “medical and executive departmental employees are
intentionally disregarding basic mandatory medical biohazard
containment quarantine and decontamination procedures of
infectious diseases;” “[Hansen] was allowed to return to his job
assignment … after being diagnosed with [a staph infection].”)
    Buechel’s claim set forth his observations and his lay beliefs
concerning how he contracted MRSA. As a pro se claimant
without legal or medical training, he was not required to do
more than that. It was up to the prison administration to fill in
the gaps, to the extent possible. Buechel provided enough
information from which a legally sophisticated reader could
14                                                         No. 13-2278

recognize that when he claimed he had contracted MRSA after
coming into contact with Hansen and that the prison was
disregarding biohazard and quarantine procedures, he was
making a more general claim that FCI-Greenville was not
adhering to sound MRSA-containment policies.
    As noted above, the district court’s summary judgment
ruling had seemed to recognize this. Buechel, 2012 WL 948368,
at *5 (noting that Buechel had explicitly alleged the govern-
ment “failed to quara[n]tine” and “prevent tran[s]mittal,”
based also on allegation that a sick inmate “like Hansen” had
come into contact with Buechel). But the summary judgment
ruling and the September 13, 2012 pretrial order then imposed
a hurdle for Buechel’s negligence claim that would be unrea-
sonably difficult for any complainant to meet at the stage of the
administrative claim or complaint, never mind that Buechel
had been acting without outside legal or medical advice. By
limiting Buechel’s pro se claim to contact with Hansen, Buechel,
2012 WL 948368, at *5, and/or the prison laundry, Dkt. 141, the
court effectively required Buechel to pinpoint when and how
he had contracted MRSA in order to state a viable negligence
claim. This imposed too heavy a burden for any claimant and
plaintiff, but especially for a prisoner acting pro se.
    To see why, set aside the challenges posed for prison
inmates for a moment, and consider a different person trying
to figure out how he contracted MRSA, perhaps after a routine
visit to a doctor’s office.3 The patient was called back into the

3
   Although it has evolved to include persons exposed to other communi-
ties, including inmate populations, MRSA is most often associated with
                                                            (continued...)
No. 13-2278                                                              15

exam room, put on a gown, and sat on an exam table. A nurse
entered and took vital signs. Then the doctor entered and
performed a routine physical examination. Perhaps some
blood was drawn for lab work. Even in that simple scenario,
how could a lay person possibly figure out how he contracted
MRSA? Did the doctor or nurse not wash her hands? Was the
exam table not decontaminated between patients? What about
the thermometer? Perhaps the syringe was unclean? MRSA is
exceptionally contagious and is easily transmitted by casual
contact. It would be difficult for any person, no matter his
education or background, to figure out exactly how he con-
tracted it. How was Buechel supposed to do it? Instead, he did
what he could, and put forth the facts that he had, including
his suspicions about Hansen. But the “legally sophisticated
reader” we attribute to the government agency is expected to
look more closely and to see that he was also complaining
more generally about the prison’s failure to follow appropriate
MRSA-containment guidelines, including taking reasonable
measures to keep healthy prisoners separated from the
contagion.
    The government argues that the district court’s pretrial
ruling limiting Buechel’s negligence claim did not limit
Buechel’s claims but expanded them. It also argues that
Buechel could have amended his complaint after counsel was


3
  (...continued)
health care environments. See Federal Bureau of Prisons Clinical Practice
Guidelines, Management of Methicillin-Resistant Staphylococcus aureus (MRSA)
Infections, 1 (April 2012), http://www.bop.gov/resources/pdfs/mrsa.pdf (last
visited March 6, 2014).
16                                                    No. 13-2278

appointed, but he failed to so. We reject both of these quasi-
waiver arguments. First, the court’s ruling was not an expan-
sion of Buechel’s claims, and it was not a “grant” of Buechel’s
request. Buechel asked the district court to recognize that the
negligence claim presented in his pro se administrative claim
and complaint encompassed the theory “that the United States
was negligent because FCI-Greenville employees failed to
adequately segregate MRSA-positive inmates, including but not
limited to inmate James Joseph Hansen, from the general inmate
population, and that this caused Plaintiff’s MRSA infection and
seriously injured him.” Buechel did not “request” that his
claims be limited to contact and conditions within and relating
to the prison laundry. The government’s insistence that
Buechel “prevailed” is groundless.
    The government’s contention that Buechel had the opportu-
nity to amend his complaint but failed to do so, even after
counsel was appointed, also is not a ground to hold him to the
court’s pretrial ruling. As discovery proceeded, but before the
summary judgment and pretrial rulings were issued, Buechel
questioned whether amending the complaint was necessary to
clarify that his claim was not limited to the Hansen theory.
Dkt. 70 at 5 (responding to government’s argument that
discovery relating to other inmates besides Hansen was
irrelevant) (“To the extent this Court believes it is necessary for
Plaintiff to amend his complaint on the sole issue of other
inmates who may have caused Plaintiff’s MRSA infection,
Plaintiff requests the Court grant him leave to do so.”); Dkt. 74
at 4 (“Causation is an element of negligence that Buechel must
prove, and there is ample authority that supports either
allowing Buechel to amend his complaint on the sole issue of
No. 13-2278                                                   17

causation, or to read the complaint so that it is not limited to
Hansen.”).
    Each of these motions was before the magistrate judge, who
did not explicitly respond to Buechel’s assertion that he should
be allowed to replead if necessary to expand his claim beyond
Hansen. Implicitly, however, the magistrate judge’s ruling
seemed to confirm that Buechel’s pro se documents were
sufficient for a broader negligence claim to go forward. See
Dkt. 75 at 1–2 (“[C]ounsel was appointed to ensure that this
action was properly litigated because plaintiff was found
incapable of adequately representing himself; therefore,
plaintiff’s appointed counsel will not now be strictly con-
strained by the original pleadings.”); Dkt. 76 at 2 (“[C]ounsel
was appointed to ensure that this action was properly litigated
because plaintiff was found incapable of adequately represent-
ing himself; therefore, plaintiff’s appointed counsel will not
now be strictly constrained by the original pleadings. With that
said, the fact that information may be discoverable does not
necessarily mean that it will ultimately be admissible, or that
the scope of the complaint is being broadened.”).
    Buechel raised the issue again in the brief he submitted to
the district court judge on the scope of the claim. Dkt. 139 at
8–9 (The “evidence warrants either a finding that Plaintiff’s
complaint has been constructively amended to include the
possibility that inmates other than Hansen caused his MRSA
infection, or warrants allowing Plaintiff to formally amend the
complaint prior to trial.”). Buechel raised the issue but did not
receive a clear answer from the court until just before trial,
when it was too late to cure the problem. A district court is not
obliged to give legal advice to a party, with counsel or pro se,
18                                                  No. 13-2278

but this was an issue that needed to be resolved when there
was time to fix it.
    More to the point, however, Buechel correctly believed that
he had properly pled a negligence claim that encompassed the
prison’s failure to adhere to BOP and internal policies regard-
ing MRSA, including its failure to quarantine infected inmates,
and that amendment was unnecessary. Buechel did not need
to replead a claim that was properly pled. Accordingly, we
reject the government’s contention that he should, on appeal,
be bound to the district court’s ruling.
    In sum, a prison administrator or other legally sophisticated
reader interpreting Buechel’s claim should not have under-
stood it as limited to contact with Hansen but should have
recognized the more general assertion that inmates with MRSA
were not being segregated from uninfected inmates, contrary
to the prison’s policies. Buechel was alleging that the prison
was negligent in failing to quarantine infected inmates,
including but not limited to Hansen, and certainly not limited
to the confines of the prison laundry or laundry procedures.
The district court’s ruling otherwise was an undue restriction
on Buechel’s claim and on the evidence it considered at trial.
Accordingly, we must vacate the judgment in favor of the
United States.
III. Merits of the Expanded Negligence Claim
    Because the district court construed Buechel’s claim too
narrowly, the court did not consider evidence related to
Buechel’s theory that in 2006, FCI-Greenville had policies in
place to control infections such as MRSA, that it failed to
follow those policies, and that its failures proximately caused
No. 13-2278                                                   19

him to contract MRSA. Buechel argues that this evidence,
properly considered, proves causation and that the district
court’s judgment should be reversed.
    Ordinarily we review factual findings claims for clear error.
See Fed. R. Civ. P. 52(a)(6). Here, however, neither side has had
a full opportunity to present its evidence on this theory and the
district court has not had the opportunity to address it. We
therefore remand to the district court to consider this evidence
in the first instance. See FMS, Inc. v. Volvo Constr. Equipment
N.A., 557 F.3d 758, 763 (7th Cir. 2009) (“When the parties brief
an issue that has not been addressed by the district court, it is
not unusual for this court to remand so that the district court
may consider the issue in the first instance.”).
    Illinois law governs Buechel’s broader claim. See 28 U.S.C.
§ 1346(b)(1) (predicating FTCA liability “in accordance with
the law of the place where the act or omission occurred”). To
establish a claim for negligence under Illinois law, a plaintiff
must prove the existence of a duty of care owed by the
defendant to the plaintiff, a breach of that duty, and an injury
proximately caused by that breach. Thompson v. Gordon,
948 N.E.2d 39, 45 (Ill. 2011). Under Illinois law, that means
Buechel must show that FCI-Greenville breached a duty to him
and that its breach was both a “cause in fact” and a “legal
cause” of his MRSA infection. Simmons v. Garces, 763 N.E.2d
720, 732 (Ill. 2002). “A defendant’s conduct is a ‘cause in fact’
of the plaintiff’s injuries only if that conduct is a material
element and a substantial factor in bringing about the injury.”
Abrams v. City of Chicago, 811 N.E.2d 670, 675 (Ill. 2004). A
defendant’s conduct is a material element and a substantial
factor in bringing about injury if, absent that conduct, the
20                                                   No. 13-2278

injury would not have occurred. First Springfield Bank &
Trust v. Galman, 720 N.E.2d 1068, 1072 (Ill. 1999). On the other
hand, legal cause is largely a question of foreseeability. Abrams,
811 N.E.2d at 675. The relevant inquiry is whether the injury is
of a type that a reasonable person would see as a likely result
of his or her conduct. Galman, 720 N.E.2d at 1072, citing Lee v.
Chicago Transit Auth., 605 N.E.2d 493, 503 (Ill. 1992).
    Buechel contends that FCI-Greenville had three primary
infection control policies in place in 2006: (1) the Bureau of
Prisons MRSA Guidelines; (2) a memorandum issued by FCI-
Greenville Warden Sara Revell on May 1, 2006; and (3) the BOP
program statement on Infectious Disease Management. Pl. Exs.
9, 10, 11. Among other things, these policies required that
infected inmates whose wound drainage could not be con-
trolled with dressings be housed in single cells, that inmates
with MRSA and non-MRSA staph infections be placed in
special housing if drainage from their wounds could not be
controlled with dressings, and that inmates with MRSA and
non-MRSA staph infections be evaluated by medical staff to
determine whether it was appropriate for them to work in the
prison. Buechel argues that he has proved that FCI-Greenville
breached its policies that required MRSA-positive inmates with
uncontrolled draining wounds to be segregated from the
general inmate population, and thus has proved that Buechel’s
MRSA infection was caused by this failure.
    Buechel is incorrect. First, the district court never found
that FCI-Greenville breached the policies at issue. Even if the
district court finds on remand that Buechel has satisfied that
burden, for FCI-Greenville to be liable, he must also prove that
FCI-Greenville’s breach of these policies caused his infection. In
No. 13-2278                                                      21

other words, if FCI-Greenville failed to adhere to its MRSA-
containment policies in 2006, then Buechel must show by a
preponderance of the evidence that its failure was a material
element and a substantial factor in his infection and that his
infection was a foreseeable result.
    Buechel’s reliance on Duvall v. Dallas County, 631 F.3d 203,
208–09 (5th Cir. 2011) and DeGidio v. Pung, 920 F.2d 525, 529–31
(8th Cir. 1990), is not persuasive at this stage of the case for the
simple reason that in each case, the court of appeals was
evaluating the sufficiency of the evidence supporting a verdict
for the plaintiff. Here, we have no findings of fact on Buechel’s
expanded negligence claim, much less findings in his favor. In
Duvall, the Fifth Circuit found that the evidence was sufficient
to uphold a jury’s verdict in favor of an inmate who had
contracted an infection in a county jail. The jury in that case
heard evidence that the MRSA infection rate in the jail was
close to twenty percent, while other jails had infection rates of
one or two percent. The jury also heard evidence that it was
possible to contain MRSA but that jail officials were not willing
to take the necessary steps to control the outbreak. Duvall,
631 F.3d at 208. But even the evidence in Duvall did not result
in a directed verdict for the plaintiff—which is essentially the
result Buechel requests on appeal without the theory having
even been tried. Instead, the evidence in Duvall went to the
jury, and the jury found causation. We remand for just such an
evaluation of the evidence in Buechel’s case.
   Likewise, in DeGidio, the district court held a bench trial on
whether the procedures for tuberculosis prevention and
control at the prison where the plaintiff was incarcerated
violated the Eighth Amendment. 920 F.2d at 527–31 (reciting
22                                                     No. 13-2278

district court’s findings regarding defendants’ failures to
respond quickly and effectively to tuberculosis outbreak,
exacerbating outbreak). Based on a series of factual findings,
the appellate court upheld the district court’s verdict that the
defendants’ reckless behavior amounted to deliberate indiffer-
ence to the serious needs of inmates. Id. at 533. Again, here we
have no such factual findings or legal conclusions in Buechel’s
favor on his broader claim. Buechel must prove to the district
court in the first instance that FCI-Greenville breached the
MRSA-containment policies that were in effect in the prison in
2006, and that any such breaches caused his MRSA infection.
    The government protests that Buechel’s theory that FCI-
Greenville was negligent in failing to follow its own policies,
possibly causing Buechel’s MRSA infection, amounts to a
never-before-argued theory of res ipsa loquitur. We disagree.
For the doctrine of res ipsa loquitur to apply, a plaintiff must
prove that he or she was injured (1) in an occurrence that
ordinarily does not happen in the absence of negligence, (2) by
an agency or instrumentality within the defendant’s exclusive
control. See Heastie v. Roberts, 877 N.E.2d 1064, 1076 (Ill. 2007),
citing Gatlin v. Ruder, 560 N.E.2d 586, 590 (Ill. 1990); Metz v.
Central Illinois Electric & Gas Co., 207 N.E.2d 305, 307 (Ill. 1965).
Buechel does not rely on res ipsa loquitur to fill a causation gap
in his negligence claim, however. He intends to offer evidence
at trial concerning the prison’s policies, its deviations from
those policies, and whether those deviations caused his MRSA
infection. In all likelihood that evidence will be largely circum-
stantial, but circumstantial evidence of causation is still
evidence.
No. 13-2278                                                    23

    The doctrine of res ipsa loquitur could not have applied to
Buechel’s claim in any case. Perhaps someday medicine will
eradicate staph infections like MRSA, but in the present day,
MRSA is prevalent enough that infections can and do occur in
spite of adherence to best practices and by inadvertent means
that cannot be attributed to institutional or individual negli-
gence. See Centers for Disease Control and Prevention,
Methicillin-resistant Staphylococcus aureus (MRSA) Infections,
General Information about MRSA in the Community,
http://www.cdc.gov/mrsa/community/index.html (last visited
March 6, 2014) (“Studies show that about one in three people
carry staph in their nose, usually without any illness. Two in
100 people carry MRSA.”). Also, though preventive measures
can and should be put in place where possible, no measure is
fail-safe even in the absence of negligence.
    Res ipsa loquitur is meant to bridge an evidentiary gap when
an injury could not have happened but for the defendant’s
negligence. That framework simply does not apply in a case
like this one. MRSA infections can and do happen in the
absence of institutional negligence. E.g., Centers for Disease
Control and Prevention, Methicillin-resistant Staphylococcus
aureus (MRSA) Infections, General Information about MRSA
in Healthcare Settings, http://www.cdc.gov/mrsa/healthcare/
(last visited March 6, 2014) (“MRSA is usually spread by direct
contact with an infected wound or from contaminated hands,
usually those of healthcare providers. Also, people who carry
MRSA but do not have signs of infection can spread the bacteria to
others and potentially cause an infection.”) (emphasis added).
Here, however, Buechel has circumstantial evidence of
causation. It remains to be seen on remand whether that
24                                                 No. 13-2278

evidence will be sufficient to prove causation and find that
FCI-Greenville was negligent.
                          Conclusion
    We affirm the district court’s verdict at trial. However, we
find that the district court erred when it limited Buechel’s
negligence claim to the Hansen/laundry theory. Accordingly,
we VACATE the judgment in favor of the United States and
REMAND for further proceedings consistent with this opinion.
In a new trial upon remand, the district court should allow
Buechel to present evidence that FCI-Greenville negligently
failed to adhere to MRSA-containment procedures that were in
place in the prison in 2006, and that such failure(s) caused
Buechel’s MRSA infection.
