                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 02-1390
WILLIAM G. PERKINS, JR.
and CONNIE PERKINS,
                                           Plaintiffs-Appellants,
                                v.

JOHN L. LAWSON,
                                             Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, Fort Wayne Division.
          No. 1:99-CV-0525—William C. Lee, Chief Judge.
                         ____________
  ARGUED OCTOBER 18, 2002—DECIDED DECEMBER 5, 2002
                    ____________


 Before POSNER, DIANE P. WOOD, and EVANS, Circuit
Judges.
  EVANS, Circuit Judge. William Perkins, Jr. was beaten by
another inmate while he was detained in the Grant Coun-
ty jail in Marion, Indiana. Ten days later he was suffer-
ing what turned out to be critical medical problems, which
ultimately landed him on life support in an intensive care
unit. He and his wife Connie filed the present lawsuit,
pursuant to 42 U.S.C. § 1983 and Indiana negligence law,
in the Grant County circuit court. They named a number
of people as defendants, only one of whom remains in the
case—former Sheriff John L. Lawson. The suit was re-
moved to federal court, where ultimately summary judg-
2                                             No. 02-1390

ment was granted for Sheriff Lawson. This appeal involves
a §1983 claim against the sheriff, in his official capacity
only, for deliberate indifference to Perkins’ serious med-
ical needs and a claim for state law negligence for the
failure to provide him with basic medical care.
   On January 12, 1998, Perkins and another inmate got
into a fight in the jail. The other inmate threw Perkins
against a wall and then to the floor and began beating him.
After the beating, Perkins was seen by Jerry Walters, a
licensed practical nurse, who worked full time in the jail.
Perkins appeared to her to be coherent. He was able to
walk and talk without problems, and his eyes reacted
equally to light. The next day, he was examined by Dr.
James Oliver, who was not a jail employee, but rather a
doctor on call to the jail. Also that day, Perkins was sent
to Marion General Hospital for X rays, and doctors con-
cluded that he was not seriously injured. Perkins was
told to take Tylenol and he was given an eye solution. He
was also placed in a cell by himself.
  Additionally, Nurse Walters saw Perkins on other days,
and in response to a request by Perkins, Dr. Oliver saw
him on the 20th and again on the 22nd. On January 23,
Perkins sent Walters a medical request, which read:
    I think that you think I’m joking well I’m not I need
    serious medical attention my body is slowly drying
    up from lack of fluids and food I can’t even swallow
    my own saliva that pretty bad if I lay here three
    more days without water or fluids because I can not
    swallow them what might happen I believe I need a
    I.V. I will not last three days I get choked on water.
Below his signature was the notation, “still vomiting
and cannot eat or drink anything.” Nurse Walters notified
Dr. Oliver, and the same day, Perkins was taken back
to the hospital. Nurse Walters told the deputy sheriff
transporting Perkins to the hospital how concerned she
No. 02-1390                                                 3

was about him. But, at the hospital, Dr. Doug Phillips
concluded that Perkins was not in a medical emergency
and that he was not dehydrated. In fact, Dr. Phillips found
nothing significantly wrong with him. The report Dr.
Phillips sent back to the jail said that Perkins should
continue to use Tylenol and that he should return to the
emergency room if his symptoms changed. Perkins was
taken back to the jail.
  Nurse Walters did not see Perkins when he returned,
but she called the jail to see what had happened to him
at the hospital. When she was told the hospital sent him
back to the jail, she said, “You’re kidding.” Perkins was
placed in an isolation cell through the weekend. During
that time, he did not eat nor drink anything.
  On the afternoon of January 26th he was released from
the hospital on his own recognizance, probably because
of his condition—though the record does not make this
clear. Connie Perkins took him straight to Marion General
Hospital, from which he was transported by ambulance
to Lutheran Hospital in Fort Wayne, where he was placed
on life support in the intensive care unit. He was in critical
condition with a neurological problem.
  For purposes of the § 1983 claim, the sheriff’s role in
all of this is what we must be concerned with. On the 21st
Connie Perkins called Sheriff Lawson, who was not avail-
able, but at 7:30 that evening he called her at her home.
She told him that Perkins was in great pain, could not
eat or drink, was vomiting, and could not walk or stand.
She said no one at the jail was doing anything about it.
The sheriff told her he would check on him. The next
day, the sheriff called Connie Perkins again to say that
the doctor “has seen Bill and he is okay.” The sheriff also
said he had sent someone to talk to Perkins and that he
had ordered him moved to a separate cell so they could
keep an eye on him. Connie Perkins also called four guards
4                                                No. 02-1390

to inform them about her husband’s condition. She was
told he was doing fine. Because it became clear that Per-
kins had not been doing fine, this lawsuit was filed.
  The district court granted summary judgment dismiss-
ing the case on the merits. We review de novo the grant
of summary judgment and construe the record and all
reasonable inferences drawn from it in the light most
favorable to the nonmoving party. Del Raso v. United
States, 244 F.3d 567 (7th Cir. 2001). Summary judgment
is appropriate when the moving party demonstrates the
absence of a genuine issue of material fact for trial and
that he is entitled to judgment as a matter of law.
  Perkins was in the jail because of a probation violation,
so this is an Eighth Amendment claim against Sheriff
Lawson, who is sued in his official capacity only. That
the sheriff is sued in his official capacity creates problems
for the plaintiffs. Under § 1983, there is no respondeat
superior liability. In order to prevail on an official capacity
suit against the sheriff, the plaintiffs must show that
an official policy or custom caused the injury. City of St.
Louis v. Praprotnik, 485 U.S. 112 (1988). They must point
to either an express policy which caused the injury, a
widespread practice that is so well-settled as to amount
to a policy, or that the sheriff had the final policymak-
ing authority for the decisions regarding the medical treat-
ment Perkins received. Abbott v. Village of Winthrop Har-
bor, 205 F.3d 976 (7th Cir. 2000). Although the jail had
written policies and procedures for dealing with the med-
ical needs of inmates, Perkins does not assert that any
of the policies or procedures caused the harm that he
suffered. He does not claim that as a policymaker the
sheriff made a decision regarding the sort of treatment
Perkins would receive.
  What he does claim is that various guards did not take
seriously enough the condition he was in. But those guards
No. 02-1390                                                5

are not defendants, and the sheriff cannot be held liable
under § 1983, on a respondeat superior theory, for their ac-
tions.
   More fundamentally, though, even without the re-
spondeat superior problem, there is no showing that any-
one at the jail was deliberately indifferent to Perkins’s
serious medical needs. See Estelle v. Gamble, 429 U.S. 97
(1976). To prevail on his claim, Perkins would need to
show that his medical needs were “objectively, sufficient-
ly serious” and that the prison official was deliberately
indifferent to those needs. Farmer v. Brennon, 511 U.S.
825 (1994). To show deliberate indifference, he must
establish that the jail official “was subjectively aware of
the prisoner’s serious medical needs and disregarded
an excessive risk that a lack of treatment posed” to his
health. Wynn v. Southward, 251 F.3d 588 (7th Cir. 2001).
Negligence or even gross negligence does not constitute
deliberate indifference. Washington v. LaPorte County Sher-
iff’s Dep’t, 306 F.3d 515 (7th Cir. 2002); Snipes v. DeTella,
95 F.3d 586 (7th Cir. 1996).
  The jail officials in this case took steps to obtain treat-
ment for Perkins. Nurse Walters sent him to the hospital,
where twice he was found not to be in serious distress,
a finding which seems to be in error. But the fact that
jail officials relied on the opinion of the doctors militates
against a finding of deliberate indifference on the part
of any jail personnel, and especially the sheriff, who was
not in actual contact with Perkins. Even if it could be that
the guards who saw Perkins during the weekend, when
his condition seemed to deteriorate, showed deliberate
indifference, as we said that is not relevant to the § 1983
suit against the sheriff. The § 1983 claim was properly
dismissed.
 The state law negligence claim presents different issues.
Respondeat superior liability exists in Indiana tort law. It
6                                              No. 02-1390

“creates liability for a principal where it would otherwise
not exist.” Interim Healthcare of Fort Wayne, Inc. v. Moyer,
746 N.E.2d 429, 431 (Ind. App. 2001). Given the availabil-
ity of respondeat superior liability, we are not convinced
that, as a matter of law, there can be no finding of negli-
gence in this case. Under Indiana law, to show negligence
Perkins must show a duty to conform one’s conduct to
a standard of care arising from the relationship with
Perkins, a failure to conform one’s conduct to the stan-
dard of care required, and an injury caused by the failure.
Trout v. Buie, 653 N.E.2d 1002 (Ind. App. 1995). This
is far less than Perkins must show to establish deliber-
ate indifference under § 1983. Furthermore, in Indiana,
summary judgment is generally seen to be inappropri-
ate in negligence actions. Barsz v. Max Shapiro, Inc., 600
N.E.2d 151 (Ind. App. 1992). For these reasons, we think
the better course of action regarding the state law claim
would be to remand the case to the state court. We there-
fore AFFIRM the dismissal of the § 1983 claim but VACATE
that part of the grant of summary judgment on the
state law negligence claim and REMAND this case to the
district court with instructions to REMAND the state law
claim to the circuit court for Grant County, Indiana. Each
side shall bear its own costs.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




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