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Anthony RODESKY, Plaintiff, v. WEXFORD HEALTH SOURCE, INC., et al., Defendants.
Plaintiff, represented by counsel, has filed a four-count complaint alleging in Count I, that Medical Defendants Dr. Andrew Tilden, Dr. Marvin Powers and Wexford Health Source, Inc.; as well as institutional Defendants Salvador Godinez and Louis Shicker, were deliberately indifferent to his serious medical needs. In Count II, Plaintiff asserted a respondeat superior claim against Wexford. In Count III, he pled a claim under the Americans with Disabilities Act (“ADA”); and in Count IV, a claim under the Rehabilitation Act (“RA”) against Defendant Godinez. At the time the complaint was filed, Mr. Godinez was the Director of the Illinois Department of Corrections (“IDOC”) and Dr. Schicker was the IDOC Medical Director. These individuals had been succeeded by Rob Jeffreys and Steven Meeks, respectively. The clerk is instructed to amend the caption, pursuant to Fed. R. Civ. P. 25(d), to substitute Mr. Jeffreys in place of Mr. Godinez and Dr. Meeks, in place of Dr. Schicker. Although the institutional Defendants’ motion is styled as asserted on behalf of Defendants Godinez and Shicker, the Court reviews the motion as asserted on behalf of Defendants Jeffreys and Meeks.
Defendants Jeffreys and Meeks have filed a motion for summary judgment [ECF 87] and a redundant motion at [ECF 88]. Defendants’ [ECF 87], is stricken as superseded by the later filing. Plaintiff has responded to Defendants’ motion, Defendants have replied, and with leave of Court, Plaintiff has filed a surreply. The Medical Defendants, too, have filed a motion for summary judgment [ECF 90] to which Plaintiff has responded and Defendants have replied. The remaining Defendant, Warden Pfister, is not a party to these motions. After due consideration, and for the reasons indicated herein, the Court DENIES the motion for summary judgment asserted by Defendants Jeffreys and Meeks [ECF 87]. The Court DENIES in part and GRANTS in part the motion for summary judgment asserted by Defendants Powers, Tilden and Wexford.
Plaintiff had a known, pre-existing history of diabetes when transferred from the Tamms Correctional Center (“Tamms”) to the Pontiac Correctional Center (“Pontiac”) on December 23, 2012. Plaintiff has provided at testimony attesting that, prior to leaving Tamms, he had spent 11 months in the infirmary for treatment of a diabetic foot ulcer. During this time, Plaintiff did not leave his cell other than for medical appointments to which he was transported by wheelchair. In the weeks before leaving Tamms, Plaintiff was allowed to put light weight-bearing pressure on the affected right foot. Plaintiff characterizes the diabetic foot ulcer as “almost healed” when he left Tamms. This is corroborated by the transfer medical records which, too, document the wound as almost healed. This record further substantiates that Plaintiff was on light weight-bearing restrictions at the time of transfer.
When Plaintiff arrived at Pontiac, he was placed in the North Cell House (“NCH”) on 6 Gallery. The NCH is set up so that Galleries 1 and 2 are on the first floor. Galleries 3 and 4 are on the second floor, with Galleries 5 and 6 on the third floor, and Galleries 7 and 8 on the fourth floor. As a result of this placement, Plaintiff had to walk up three flights of stairs to get to 6 Gallery and another 50 to 75 yards to get to his cell. Plaintiff had to repeat this excursion twice daily, so that he could get his insulin shots at the Nurses’ station. Plaintiff testified at his deposition that he had to walk unaided, while shackled and accompanied by two officers. Plaintiff also attests that after walking the first time to the Nurses’ station, his incision reopened and there was blood in his sock.
Plaintiff has provided affidavit testimony to establish that this arrangement continued until June 4, 2013, when he was transferred to 2 Gallery on the ground floor. Plaintiff attests that Defendants’ failure to earlier move him and failure to provide him diabetic shoes caused ulcers to open on the top of his foot and caused the heel wound to reopen. Over the next two years, Plaintiff underwent treatment by outside treating podiatrists, Drs. Dickinson and Brown, as well as surgeons Drs. Pontillas, Altman, Dressen and Mejia, and hospitalizations at Herrin Hospital and the University of Illinois Hospitals (“UIC”). The wounds at the top of Plaintiff's foot and at the heel initially resolved, but the heel wound recurred on two subsequent occasions. Plaintiff subsequently developed osteomyelitis, an infection of the bone in his right heel. The osteomyelitis cleared up but later recurred, with Plaintiff developing a systemic sepsis. On July 15, 2015, he underwent an amputation of his right leg, below the knee.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant if entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323-24, 106 S.Ct. 2548. Once a properly supported motion for summary judgment is filed, the burden shifts to the non-moving party to demonstrate with specific evidence that a triable issue of fact remains for trial. Gracia v. Volvo Europa Truck, N.V., 112 F.3d 291, 294 (7th Cir. 1997). The party opposing summary judgment “must present definite, competent evidence in rebuttal.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). Accordingly, the non-movant cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue; he “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Finally, a scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Motion for Summary Judgment of Defendants Jeffreys and Meeks [ECF 88]
Plaintiff has named Defendants Jeffreys and Meeks in their official capacities in the Count I deliberate indifference claim. Defendants assert, however, that Plaintiff pled no facts to establish that Defendant Jeffreys was deliberately indifferent to him, and that the facts pled against Defendant Meeks did not assert that he personally participated in the deprivation. Plaintiff appears to concede this point as he asserts in his response to summary judgment that he “does not seek to establish personal liability for damages on Count I against (Jeffreys) and (Meeks), so Defendants’ arguments about [their] lack of personal involvement in Mr. Rodesky's care, are all beside the point.” Plaintiff explains that he named these Defendants in their official capacities merely to implement any injunctive relief which he might seek at trial. As Plaintiff is admittedly not pursuing an individual capacity claim against Defendants Jeffreys or Meeks, any allegations construed against them in their individual capacities are DISMISSED. Defendants will remain as to Count I for purposes of prospective injunctive relief only.
In Counts III and IV, Plaintiff has asserted ADA and RA claims against Defendant Jeffreys in his official capacity. Claims under the ADA and RA may be asserted against either the relevant state department or agency, or in an official capacity claim against the director of the relevant department or agency. Hogle v. Baldwin, No. 17-01059, 2017 WL 4125258, at *4 (C.D. Ill. Sept. 18, 2017), citing Jaros v. Ill. Dep't of Corr., 684 F.3d 667, 670 (7th Cir. 2012) (internal citations omitted). See also, McNish v. Kayira, No.16-00430, 2016 WL 2851122, at *3 (S.D. Ill. May 16, 2016) (ADA and RA claims to proceed against IDOC Director). As a result, Defendant Jeffreys is appropriately named as a Defendant although the Court will often refer to IDOC when discussing institutional liability under the ADA and RA.
The ADA was enacted “ ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’ The Act ‘forbids discrimination against persons with disabilities in ․ public services, programs and activities, which are the subjects of Title II ․’ ” Phipps v. Sheriff of Cook County, 681 F. Supp. 2d 899, 913 (N.D. Ill. 2009) (internal citations omitted). “It is now well-settled that prisons and correctional facilities are covered by Title II.” Id. To allege a violation of Title II, Plaintiff must plead: “ that he is a ‘qualified individual with a disability,’  that he was denied ‘the benefits of the services, programs, or activities of a public entity’ or otherwise subjected to discrimination by such an entity, and  that the denial or discrimination was ‘by reason of’ his disability.” Id. at 913–914.
A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 USCA § 12102(1)(A). Under Title II, a public entity must make reasonable modifications to prevent discrimination against qualified individuals unless the requested modifications would “fundamentally alter the nature of the services, program, or activity.” Phipps, 681 F. Supp. 2d at 920 citing Tennessee v. Lane, 541 U.S. 509, 531–32, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004).
A Rehabilitation Act claim is functionally identical to an ADA claim, as there, too, Plaintiff must allege “that (1) he is a qualified person (2) with a disability and (3) the Department of Corrections denied him access to a program or activity because of his disability.” Jaros, 684 F.3d at 672. The remedial scheme of the Rehabilitation Act is incorporated into the ADA. 42 U.S.C. § 12133; Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 111 (2d Cir. 2001). Discrimination under both statutes includes the failure to accommodate a disability. Wagoner v. Lemmon, 778 F.3d 586 (7th Cir. 2015). “In a prison setting, access to meals and certain housing facilities, including showers, toilets and sinks, are among the programs and activities protected by the ADA and the Rehabilitation Act.” Peters v. United States, 2017 WL 2533652, at *4 (S.D. Ill. June 12, 2017). So, too, are medical services. Estate of Crandall v. Godinez, No. 14-1401, 2015 WL 1539017, at *6 (C.D. Ill. Mar. 31, 2015).
Defendant Jeffreys does not dispute that Plaintiff has a recognized ADA disability, but denies that IDOC failed to accommodate that disability. Defendant claims that Plaintiff cannot establish that his placement on the higher floors at Pontiac violated either Act as this did not result in a denial of services, it was done in furtherance of legitimate security concerns, and it was of necessity as there was no other reasonable accommodation available.
In support of the identified safety and security concerns, Defendant cites the deposition testimony of Defendant Warden Pfister, not a party to this motion. Warden Pfister testified that all prisoners transferred to Pontiac from Tamms were placed in the North Cell House (“NCH”) in either Administrative Detention (“AD”) or segregation which were on 6 and 8 Galleries. When Plaintiff initially arrived at Pontiac, he was placed in disciplinary segregation on 6 Gallery. On January 15, 2013, he was placed on AD Level 1 status on 6 Gallery. Warden Pfister testified that inmates on AD Level 1 status were housed on either 6 or 8 Gallery. On April 15, 2013, Plaintiff was placed on AD Level 2 status on 8 Gallery and remained there until June 4, 2013 when he was placed on 2 Gallery on the first floor.
Plaintiff asserts that Defendants’ failure to earlier place him on a lower floor was discriminatory as it did not allow Plaintiff, a prisoner with disabilities, the same access to medical care as other inmates. See Jaros, 684 F.3d at 672. In response, Defendant asserts that Plaintiff was not denied a medical service as he was able to get his twice daily insulin shots, though he was “inconvenienced” by having to walk a distance to get them. Defendant claims, further, that Plaintiff was aided as there were always two officers escorting him to the Nurses’ Station.
Plaintiff disagrees with this characterization, asserting that he was more than inconvenienced. He points to the Tamms transfer record which identified his weight bearing restrictions. He cites the deposition testimony of Defendants’ surgery expert, Dr. Charles Sheaff, to support that a patient with a foot injury and on light weight-bearing status, should refrain from putting his full weight on the injured foot. Dr. Sheaff testified that in such a case, a patient may use a mobility assistive device such as a cane or walker. Dr. Sheaff also testified that an open foot ulcer is of particular concern for diabetics as, if they fail to heal, the patient faces a significant risk for amputation.
Plaintiff asserts that the mere fact that he was able to walk to get his insulin does not mean that he had the same access to medical care as did other non-disabled prisoners. See Allah v. Goord, 405 F. Supp. 2d 265, 280–81 (S.D.N.Y. 2005). “The plain language of the ADA demonstrate that the statute was designed to ensure that disabled persons are neither denied access to, nor the benefits of services based on their disability.” (Emphasis in original). “Although plaintiff is not wholly precluded from participating in this service, if he is at risk of incurring serious injuries each time he attempts to take advantage of outside medical attention, surely he is being denied the benefits of this service.” See id. (emphasis in original). See also, Miller v. Wisconsin Dep't of Corr., No. 08-62, 2008 WL 2563154, at *5 (W.D. Wis. Apr. 22, 2008) (plaintiff stated ADA claim where he alleged that he was denied a cane and “had to walk long distances in severe pain to seek out prescribed medications.”)
Plaintiff also disputes that he was aided by escorting officers. He has provided affidavit testimony that the officers were there for security purposes only, rarely aiding him, and often forcing him to hurry along. This testimony is uncontroverted as Defendants have not provided counter-affidavits from the escorting officers.
Defendants further argues that placing Plaintiff on 6 and 8 Galleries was not done in discrimination of his disabilities but in furtherance of safety and security concerns. Defendants assert that at the time Plaintiff was transferred to Pontiac, he had a month of segregation time to serve and, accordingly was assigned to the 6 Gallery segregation unit. The cells on the lower 2 and 4 galleries had open bars, as opposed to steel doors, and were not appropriate for inmates in disciplinary segregation. Defendant asserts that, notwithstanding an inmate's disability, prisons are tasked with making appropriate placement decisions where valid security and safety concerns are at issue.
Plaintiff urges the Court not to “blindly accept” Defendant's security-related arguments. They point out that, while Defendant has offered testimony that Plaintiff could not been moved to a lower-level gallery until he reached a certain AD level, he was moved on June 4, 2013, prior to reaching this level. Plaintiff also cites the deposition testimony of Warden Pfister and Health Administrator Arroyo to establish that in those cases where physicians issue low gallery medical permits, IDOC generally accommodates them, notwithstanding the prisoner's disciplinary status.
The Court notes that, while Defendant summarily claims that there would be safety and security concerns in moving Plaintiff to a lower gallery, he offers little support. Defendant does not, for instance, reveal why Plaintiff had been sentenced to disciplinary segregation and does not claim that Plaintiff was particularly violent. As a result, Defendant does not establish that Plaintiff represented such a risk to safety and security that he could not be accommodated on a lower, less secure floor.
In determining the reasonableness of an accommodation, the Court is to balance the cost to the defendant against the benefit to the plaintiff. Dadian v. Vill. of Wilmette, 269 F.3d 831, 838 (7th Cir. 2001). If a plaintiff establishes that the accommodation is reasonable, the burden shifts to defendant to demonstrate unreasonableness or undue hardship in the accommodation. Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 784-85 (7th Cir. 2002). To meet this burden, the defendant must show that the accommodation would cause undue financial or administrative burdens or require a fundamental alteration to the program. Id. Plaintiff notes that in this case, IDOC has failed to engage in the cost benefit analysis and fails to establish that the accommodation would have presented an undue hardship to the facility.
Applying the cost/benefit analysis cited in Oconomowoc, the Court finds that there remains a material issue of fact as to whether accommodating Plaintiff by housing him on a lower floor, or providing him an ambulatory aid, would have amounted to an unreasonable or undue hardship on the facility. As a result, Defendant's motion for summary judgment is DENIED as to this issue.
Defendant also claims that the requested injunctive relief, placement on a lower gallery, is moot. Defendant asserts there is not dispute that Plaintiff is currently housed on a lower gallery and has been held there even prior to filing the complaint. Plaintiff has not responded to this argument, but the Court finds that Defendant's voluntary assignment of lower level housing could be revoked so the alleged harm is “capable of repetition yet evading review.” Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 170, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“a defendant's voluntary cessation of a challenged practice” does not necessarily render a controversy moot.) Id. at 189, 120 S.Ct. 693. If otherwise, a defendant would be “free to return to his old ways.” See id., quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1983).
Defendant has also asserted that parts of Plaintiff's sworn declaration filed in response to summary judgment are a “sham,” contain impermissible hearsay and contradict portions of his deposition testimony. Defendant does not, however, cite to the record to identify that portion of the deposition testimony which is allegedly inconsistent with the affidavit. It is not the Court's duty “to review the record for facts that the party could have easily identified with greater particularity.” Correa v. Illinois Dept. of Corr., No. 05-3791, 2007 WL 3052947, at *1 (N.D. Ill. Oct. 17, 2007). See also, Martin v. Indiana, No.12-69, 2015 WL 4899008, at *1 (N.D. Ind. Aug. 17, 2015) (court is to strike evidence at summary judgment only if it “blatantly contradict[s] prior sworn testimony in an attempt to create sham issues of genuine dispute.” (Internal citations omitted). Defendant fails to establish such a case here.
Defendant also claims that Plaintiff offers hearsay statements in his affidavit, most notably attesting as to one statement made to him by Defendant Dr. Tilden and another made to him by Healthcare Administrator Arroyo. Statements made by Defendant Tilden, a named party, are not hearsay. McGee v. Macon County Sheriff's Dep't, 473 F.Supp.3d 818, 837-38 (C.D. Ill. 2020), citing Fed. R. Evid. 801(d)(2). Defendant fails to assert that the statements made by Healthcare Administrator Arroyo, “cannot be presented in a form that would be admissible in evidence.” See McGee, 473 F.Supp.3d at 838 (C.D. Ill. 2020), citing Fed. R. Civ. P. 56(c)(2). The Court will not strike these portions of the affidavit, finding their inclusion harmless as Plaintiff could likely introduce this evidence by his own testimony under the pain or bodily health exception to the hearsay rule. Fed. R. Evid. 803(3).
Accordingly, the Court DENIES the motion for summary judgment of Defendants Jeffreys and Meeks. Defendants Jeffreys and Meeks will remain as to Count I for prospective injunctive relief only. Defendant Jeffreys shall remain as to the Count III and IV ADA and RA claims.
Motion for Summary Judgment of Defendants Powers, Tilden and Wexford [ECF 90]
In Count I of his complaint, Plaintiff alleged deliberate indifference by Dr. Powers who treated him at Tamms, Dr. Tilden, who treated him at Pontiac, and Wexford Health Sources, Inc., which employed both physicians. In Count II, Plaintiff alleged a respondeat superior claim against Wexford. Defendants deny that they were deliberately indifferent, asserting that Plaintiff underwent comprehensive medical treatment, diagnostic testing, multiple surgeries and referrals to specialists.
DELIBERATE INDIFFERENCE STANDARD
“Prison officials violate the Eighth Amendment's proscription against cruel and unusual punishment when their conduct demonstrates ‘deliberate indifference to serious medical needs of prisoners.’ ” Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). To succeed on a claim of deliberate indifference to a serious medical need, a plaintiff must satisfy a test that contains both an objective and subjective component. Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). Under the objective component, a plaintiff must demonstrate that his medical condition is sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Under the subjective component, the prison official must have acted with a “sufficiently culpable state of mind.” Id. In the medical care context, a “deliberate indifference” standard is used. Estelle, 429 U.S. at 104, 97 S.Ct. 285.
A plaintiff may establish deliberate indifference by showing that a defendant “knew of a substantial risk of harm to the inmate and disregarded the risk.” Greeno v. Daley, 414 F.3d 645, 653. A defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. To succeed on a claim of deliberate indifference, however, a plaintiff “must do more than show negligence, medical malpractice, or disagreement with a prescribed course of treatment.” McDonald v. Hardy, 821 F.3d 882, 888 (7th Cir. 2016).
On August 17, 2011, while at Tamms, Plaintiff's sneakers were confiscated as he had used them to hide contraband. This left Plaintiff with one pair of state-issued shoes and one pair of opened-toed shower shoes. Plaintiff asserts that the state-issued shoes were ill-fitting, and he developed blisters on his right foot. Plaintiff was aware that blistered feet can be particularly dangerous for diabetics who may have poor circulation in their extremities. He submitted medical slips on August 19, 21, and 22, 2011, requesting to be seen. On August 22, 2011, Plaintiff was seen by a nurse and believes it “likely” the nurse brought the matter to Defendant Powers's attention.
Plaintiff submitted another medical slip on August 24, 2011 and was seen by a different nurse on August 26, 2011. This nurse communicated with Defendant Powers and received orders to apply Bacitracin ointment to the foot. Subsequent nurses’ notes reveal an open blister on the ball of Plaintiff's foot and a swollen, possibly infected toe. On September 8, 2011, Defendant Powers saw Plaintiff for the first time in relation to these symptoms. In the next few weeks, it was noted that Plaintiff had developed several lesions on the top of his foot. Defendant saw Plaintiff regularly and continued to medically manage the ulcers until referring Plaintiff to an outside surgeon, Dr. Pontillas, in December 2011.
Dr. Pontillas saw Plaintiff on December 21, 2011, at which time he undertook a surgical debridement of the ulcers on the top of Plaintiff's foot. Shortly thereafter, on January 5, 2012, Defendant Powers noted that Plaintiff had an infected sebaceous cyst on the metatarsal area (top) of the right foot. On January 26, 2012, Defendant Powers referred Plaintiff back to Dr. Pontillas. Dr. Pontillas did not, however, excise the cyst as planned, opting instead for dressing changes. Defendant Powers appeared critical of this decision, requesting that Plaintiff be referred to a different surgeon, due to Dr. Pontillas's “inactivity” and lack of clean technique. [ECF 90-7 at 13]. Plaintiff was subsequently seen by Dr. Dressen, a surgeon in Carbondale, Illinois, who undertook a debridement of the metatarsal lesion.
The Right Heel Ulcer
The Court has found the Tamms medical records often unclear as to which care was rendered for the ulcer at the top of Plaintiff's foot and which for the heel ulcer. The records often referred to the “ulcer” or “wound” without identifying the location of the particular lesion. As result, it is difficult to determine to which area of the foot the records refer at the end of 2011 and beginning of 2012. It appears, however, that the ulcer on the right heel first manifested in December 2011.
On February 24, 2012, Defendant Powers referred Plaintiff to general surgeon, Dr. Dressen, who surgically debrided the heel wound. At the time of the procedure, Dr. Dressen inserted a wound vac to aspirate and remove any drainage from the operated site. He also placed Plaintiff on a course of IV antibiotics.
Defendant Powers continued to manage Plaintiff, and on March 8, 2012, requested authorization for a bone scan to rule osteomyelitis, infection of the bone in the right heel. The scan was done on March 13, 2012 and was negative for infection. The records subsequently document that Dr. Dressen saw Plaintiff in the UIC wound clinic on multiple occasions. On May 3, 2012, Dr. Powers documented that Plaintiff's right foot continued to heal slowly, without evidence of infection. A May 16, 2012, a Herrin Hospital pathology report noted there was evidence of a foreign body in a specimen taken from Plaintiff's heel. Dr. Dressen questioned whether the slowed healing process was due to self-contamination by Plaintiff. Over the next few months, Plaintiff received antibiotic and analgesic medications as well as wound irrigations and dressing changes. He was also approved to receive diabetic shoes.
On July 2, 2012, Defendant Powers noted an increase depth to the heel wound. Still concerned with the possibility of osteomyelitis, he recommended an MRI of the heel and sent a wound culture to the lab. The MRI was negative for osteomyelitis while the wound cultures were positive for gram-positive organisms, including Staphylococcus aureus. The wound showed some improvement thereafter, until August 7, 2012, when Defendant Powers noted that it was slightly larger.
On August 8, 2012, Plaintiff was seen by podiatrist Dr. Daniel Brown, who recommended that Plaintiff undergo an irrigation and drainage of the infected wound. Plaintiff was thereafter seen by podiatrist, Dr. David Dickinson, who recommended that Plaintiff be admitted to the hospital for 3-4 days for a staged incision and drainage and surgical debridement of the wound. Dr. Dickinson also ordered a consultation with an infectious disease specialist. The procedure was done as recommended and Plaintiff was hospitalized from August 24 through August 28, 2012. Plaintiff was seen multiple times in follow-up by Defendant Powers and Dr. Dickinson.
On November 21, 2012, Dr. Dickinson undertook another right heel wound debridement. He noted that there was no sign in of infection and that the ulcer was almost healed. He discharged Plaintiff from his care on that date. Dr. Dickinson testified at his deposition that he believed it likely that Plaintiff's wound would have been completely healed in another three weeks. Defendant Powers continued to medically manage Plaintiff, keeping him in the Tamms infirmary. This continued until Plaintiff was transferred to Pontiac on December 23, 2012. Dr. Powers testified that at the time of transfer, he believed Plaintiff's wound to be 99% healed.
Plaintiff asserts that Defendant Powers should have seen him in mid-August 2011 when he presented with the blisters, rather than waiting until September 8, 2011. He also claims that Defendant should have ordered him oral antibiotics at the onset, rather than prescribing Bacitracin topical antibiotic ointment. Plaintiff also asserts that Defendant Powers should have ordered him diabetic shoes in August 2011, something which was not done until June 2012. Plaintiff complains, further, that Plaintiff did not order him any pain medication in 2011.
Defendant responds that, while his first examination of Plaintiff was “a little tardy,” it did not constitute deliberate indifference. He asserts, further, that he saw Plaintiff regularly and monitored his condition, prescribing topical treatment and, later, oral antibiotics. When, on December 20, 2011, Plaintiff presented with a very red and edematous foot, he immediately referred Plaintiff to general surgeon Dr. Pontillas. He, in fact, referred Plaintiff elsewhere when he did not believe that Dr. Pontillas was providing appropriate treatment. Defendant asserts that these modalities proved effective as the lesions on the top of the foot healed without incident by February 2012.
Plaintiff's expert, Dr. Evan Kahn, gave a deposition in which the he was not particularly critical of Dr. Powers. He did not testify as to whether Dr. Powers's “tardiness” in initially seeing Plaintiff amounted to deliberate indifference or caused Plaintiff harm. While Dr. Kahn testified that Defendant Powers should have ordered oral antibiotics earlier, by late August 2011, there too, he did not assert that the failure caused Plaintiff harm. See Williams v. Liefer, 491 F.3d 710, 714-15 (7th Cir. 2007) (plaintiff alleging delay in medical treatment is to provide verifying medical evidence that the delay caused him harm). Dr. Kahn testified, in fact, that his criticisms were more particularly leveled as to the care provided after Plaintiff left Tamms. [ECF 90-27, at 65-67]. While the expert was critical of the Tamms nurses’ record-keeping, he was not critical of Dr. Powers's record-keeping. [ECF 90-27 at 72].
As noted, though Plaintiff claims injury due to Defendant Powers not seeing him until September 8, 2011 and not initially ordering oral antibiotics, he does not cite to any part of Dr. Kahn's June 26, 2019 deposition in support. Rather, he cites to Dr. Kahn's February 13, 2020 attestation provided in response to summary judgment. Dr. Kahn attached his March 19, 2019 expert report to the attestation, to establish that Defendant Powers's alleged failures caused Plaintiff injury. [ECF 94-1]. Dr. Kahn's report and attestation, however, were not subject to cross examination as was his deposition testimony. Here, Plaintiff offers the attestation in an apparent attempt to supplement the deposition testimony, without establishing that he complied with the procedural requirements of Fed. R. Civ. P. 26(e)(2). The Court will not allow this late-disclosed supplement and finds that Plaintiff has failed to provide verifiable medical evidence that the alleged delay in his being seen and provided oral antibiotics caused injury. See Liefer, 491 F.3d at 714-15. Defendants’ motion for summary judgment is GRANTED as to these claims.
To the extent that Plaintiff newly alleges that Defendant Powers was deliberately indifferent for not earlier referring him to Dr. Pontillas, this claim is DISMISSED as not identified in the complaint. Hancock v. Potter, 531 F.3d 474, 480 (7th Cir. 2008).
As noted, Plaintiff has also asserted that Defendant Powers did not provide him any pain medication in 2011. Defendant has responded, claiming that Plaintiff did not identify this issue in discovery and so waived it. The Court notes that Plaintiff also failed to allege this is the complaint as there, he claimed only that Defendant Powers failed to provide him pain medication after the February 2012 surgery. As Plaintiff did not plead any claims regarding the lack of pain medication in 2011, they are not considered here. Defendants’ motion for summary judgment is GRANTED as to this claim.
As to the diabetic shoes, Defendant testified at his deposition that these were not needed as Plaintiff was not to weight-bear or to do much walking. Plaintiff responded, however, that he had to walk to get his medication, take showers and go to the yard. While the record indicates that Plaintiff was eventually placed in the Tamms infirmary and not allowed to weight-bear, this did not occur until January 2012. As it appears that Plaintiff was forced to walk to engage in daily activities from late August 2011 through January 2012, there remains a contested issue of fact as to whether he should have been given diabetic shoes in late 2011. Defendants’ motion for summary judgment is DENIED as to this claim.
Plaintiff has alleged that Defendant Powers was deliberately indifferent for failing to order him physical therapy. Plaintiff alleges that he was in the infirmary for 10 months and unable to weight-bear until several weeks prior to his transfer to Pontiac. Plaintiff claims that he had to re-learn to walk and offers the unsupported opinion that he suffered nerve damage and pain due to having to teach himself to walk. Plaintiff does not claim, however, that any of his outside providers specifically recommended physical therapy. He apparently bases his belief that he should have received physical therapy on the statement of one of his treating podiatrists who “said I needed to be able to ambulate, and he wouldn't let me to go yard.” [ECF 90-1 p. 55]. Plaintiff's expert, Dr. Kahn, did not offer an opinion as to this issue.
For his part, Defendant Powers testified that when Plaintiff graduated to light weight-bearing he instructed him to “[w]alk gently on it and give it time to continue healing and advance as indicated.” [ECF 90-22 at 27]. Plaintiff fails to identify testimony to support that this instruction was inadequate, caused him harm or constituted deliberate indifference. As a result, Defendants’ motion for summary judgment is GRANTED as to this claim.
Plaintiff was first seen by Pontiac physician Defendant Tilden, on January 11, 2013, after having been transferred on December 23, 2012. Plaintiff attests that he told Defendant Tilden that his diabetic foot ulcer was getting worse as he was required to walk a considerable distance to get his insulin shots. The exam of that date revealed that Plaintiff had a healing 2 cm. open linear scar on the right heel with no signs of infection. Dr. Tilden prescribed Bacitracin ointment Band-Aids, Motrin and a hot pack. He instructed Plaintiff to return to the clinic in three weeks. Plaintiff believed that Dr. Tilden would issue him a low gallery permit or other accommodation on that date, but this did not occur until June 4, 2013, almost five months later.
On February 10, 2013, Defendant Tilden recorded that Plaintiff complained of pain when having to walk stairs for his insulin injections. Defendant examined the wound, which he described as healing and exhibiting minor tenderness with no sign of infection. Defendant wrote an order, asking for nursing staff to determine whether Plaintiff could be given his insulin at his cell door. The record does not reveal that any action was taken as to this request.
Defendant saw Plaintiff again on February 17, 2013 and March 21, 2013. At the time of the latter visit, Defendant recorded that the right foot ulcer was 3 cm x 0.5 cm, an increase from the 2 cm. linear scar noted on January 11, 2013. Defendant requested a surgical consult at the University of Illinois at Chicago Hospital (“UIC”). This was approved in collegial review on April 5, 2013. The consult, which eventually took place with Dr. Altman, was not done until September 12, 2013. Defendant attributes the delay to needing approval from the New Jersey Department of Corrections as Plaintiff had been placed in IDOC custody pursuant to the Interstate Corrections Compact.
In the meantime, Defendant Tilden continued to see Plaintiff on a regular basis. He noted drainage from the heel wound, prescribed antibiotics, ordered wound cultures and requested a wound care consult. On May 9, 2013, Defendant Tilden documented a large chronic ulcer on Plaintiff's right foot which caused gait difficulty and bleeding during walking. He prescribed a low bunk and low gallery permit, authorizing Plaintiff to be taken by wheelchair when he needed to go to the healthcare unit or outside the facility on court writs. On May 24, 2013, Defendant documented Plaintiff's foot ulcer as 4 cm. x 1 cm, a further increase in size. On July 7, 2013, Plaintiff was seen by another Pontiac physician who described the heel wound as “deep to bone.”
As noted, on September 12, 2013, Plaintiff was seen at the UIC wound clinic and underwent a surgical consult by Dr. Igor Altman. On that date, Dr. Altman performed a surgical debridement of the wound and ordered a follow-up MRI which was negative for osteomyelitis. Dr. Altman saw Plaintiff again on January 16, 2014 and instructed Plaintiff to return in four weeks. Notwithstanding, Plaintiff was not taken back to Dr. Altman until April 10, 2014.
When Dr. Altman saw Plaintiff on April 10, 2014, he recommended that he be seen by an orthopedic specialist. Another MRI was done around May 5, 2014, leading to a diagnosis of osteomyelitis of the heel with chronic ulceration of the right foot. Plaintiff was referred and seen by orthopedic surgeon Dr. Mejia, on May 8, 2014. Dr. Mejia diagnosed Plaintiff with “new osteomyelitis” of the heel bone, noting purulence and odor at the site. He noted that Plaintiff had also experienced symptoms suggestive of systemic infection. Dr. Mejia admitted Plaintiff to the UIC hospital where he stayed for several days. When Plaintiff returned to Pontiac, he was housed in the infirmary where he remained until September 2014.
Plaintiff thereafter received continued care from both Dr. Tilden and the UIC wound clinic. On June 13, 2014, Dr. Mejia inserted antibiotic beads into the right heel, apparently in response to infection. On June 19, 2014, Plaintiff was seen again, and Dr. Mejia ordered that he be given diabetic shoes and compression hose, and that he return to clinic in one week. Dr. Mejia noted no evidence of infection on that date.
Dr. Mejia saw Plaintiff again on June 26, 2014 and July 24, 2014. On the latter visit, Dr. Mejia found the wound was “almost fully healed” and scheduled Plaintiff to be seen in four weeks in follow-up. Plaintiff was not taken back to Dr. Mejia for this appointment. In the interim, he was seen by Defendant Tilden who, on July 24, 2014, noted that the ulcer had healed. On September 12, 2014, Defendant Tilden discharged Plaintiff from the infirmary with orders to ambulate with a walker.
Plaintiff alleges that in early October 2014, Dr. Tilden discontinued his pain medication without notice. Plaintiff claims that he was in pain as he went without medication for approximately 11 days before they were recorded. When he was seen, Dr. Tilden renewed the order for Ultram, a narcotic opioid medication and prescribed Flexeril. On October 30, 2014, another Pontiac health care provider discontinued the Ultram and Flexeril, starting Plaintiff on Indocin.
On December 24, 2014, Plaintiff saw a Pontiac physician's assistant, complaining of “cracks” and dry tissue at the surgical site. Plaintiff claims that this actually began November 2, 2014, that he made “every effort” to get Dr. Tilden's attention, but that Dr. Tilden never arranged to see him. Plaintiff also indicates that he was to be seen several times in urgent care, but these appointments were canceled as the facility was on lockdown.
On January 14, 2015, Plaintiff returned to Dr. Mejia at UIC. Dr. Mejia observed open cracks in of the heel and in the space between Plaintiff's toes. He ordered special dressings and a return to clinic in one week. Despite this, Plaintiff was not taken back to Dr. Mejia until March 12, 2015. On that date, Dr. Mejia ordered another MRI and, when it was positive again for osteomyelitis, referred Plaintiff to an infectious disease specialist. Dr. Mejia undertook surgical procedures to Plaintiff's foot on April 17, 2015 and May 8, 2015. On May 8, 2015, Dr. Mejia admitted Plaintiff to the UIC hospital where he remained until May 13, 2015.
On June 10, 2015, Plaintiff became ill with fever and was taken to a local emergency room. The following day, he was transferred to the UIC hospital. There, he underwent a partial removal of the bone at the heel. Plaintiff was discharged back to Pontiac on June 26, 2015. On July 2, 2015, Plaintiff experienced nausea, vomiting and additional foot sores. On July 10, 2015, he returned to Dr. Mejia, who, again, admitted him to the hospital as suffering from systemic infection or sepsis. On July 15, 2015, Plaintiff voluntarily underwent a below-knee amputation so as to be rid of the infection.
In his response to summary judgment, Plaintiff asserts that Defendant Tilden was deliberately indifferent in that he: did not timely see Plaintiff after his arrival at Pontiac; failed to issue a low gallery permit in January 2013; waited until April 5, 2013 to refer Plaintiff for a surgical consult; took no action when it took five months for the surgical consult and wound clinic referrals to be accomplished; did not timely see Plaintiff when the wound began to reopen in November 2014; and he did not adequately treat Plaintiff's pain in the summer of 2013 and later, in October 2014.
Plaintiff has provided the deposition testimony of Pontiac Healthcare Administrator Arroyo to support that Dr. Tilden should have seen him within 72 hours of his arrival at Pontiac. Defendant responds that Ms. Arroyo testified only that staff “try” to have an inmate seen within 72 hours of arrival. Defendants assert that there is no evidence that Dr. Tilden was aware of any serious medical need of Plaintiff prior to the time he was examined on January 11, 2013. The Court notes that, while Plaintiff introduced the testimony of his emergency expert, Dr. Kahn, Dr. Kahn did not testify that Dr. Tilden's failure to see him within 72 hours violated the standard of care or caused Plaintiff verifiable injury. Liefer, 491 F.3d at 714-15. Defendants’ motion for summary judgment is GRANTED as to this claim.
As to the low gallery permit, Defendant cites Plaintiff's deposition testimony wherein he claimed that Defendant ordered a low bunk permit in January 2013, but that IDOC refused to honor it. Plaintiff testified that he grieved the matter without success. He told Defendant Tilden of the matter on an undisclosed date and, in March 2013, Defendant issued a second permit. [ECF 90-1, at 62-63]. Defendant Tilden asserts that Plaintiff may not, in a response to summary judgment, contradict sworn deposition testimony. The Court agrees. As Plaintiff's sworn testimony supports that Defendant ordered a low bunk permit in January 2013, Plaintiff cannot establish that Defendant was deliberately indifferent in this regard. This, particularly, as Plaintiff offers no evidence to support that Defendant Tilden had the authority to overrule the administration's decision to deny issuance of the permit. See McGill v. Duckworth, 944 F.2d 344, 348–49 (7th Cir. 1991) (plaintiff may not “tax employees of the prison system with the effects of circumstances beyond their control.”) Defendants motion for summary judgment is GRANTED as to this issue.
Plaintiff asserts that Defendant Tilden impermissibly delayed the “specialty referral” to the surgeon and wound care clinic referral as recommended in the Tamms transfer records. He asserts that, even though these recommendations were made on December 23, 2012, Defendant did not request referral to the UIC wound clinic and surgeon, Dr. Altman, until April 5, 2013. In response, Defendants assert that Plaintiff has not offered verifying medical evidence that he was harmed by this delay. The Court notes that Plaintiff has not identified any expert opinion in the voluminous record to support that that he was harmed by Defendant Tilden waiting until April 5, 2013 to refer him. See deposition of Dr. Sheaff who offers no criticism of Dr. Tilden's decision to refer Plaintiff prior to April 2013 when it was noted that the ulcer had progressed from 2 cm. to 3 cm. since the March 2013 visit. [ECF 90-24 at 76].
Plaintiff also asserts that Defendant Tilden was deliberately indifferent as he took no action when the consult did not take place until September 13, 2013, more than five months after it was ordered. Plaintiff claims that, in the interim, he experienced severe pain and developed infection which eventually spread to the bone. Defendant had alleged that the delay was unavoidable as required authorization by the New Jersey Dept. of Corrections (“NJDOC”). Plaintiff refutes this, claiming that the referral request was not sent from Pontiac until May 2, 2013, and approved by the NJDOC within days. Plaintiff asserts that Defendant Tilden had a responsibility to follow-up the referral so that Plaintiff did not languish from April to September waiting to be seen. Plaintiff cites the deposition testimony of Defendant's expert, Dr. Sheaff, who testified that if a physician refers a patient for specialty care and becomes aware of a potential six-month delay in in the referral, he should intervene. [ECF 90-24 at 81].
The Court notes that in the time between the time the referral was ordered on April 5, 2013 and the time it occurred on September 12, 2013, Plaintiff was noted to have gait difficulty with bleeding upon walking. In addition, the ulcer increased in size again, to 4 cm x 1 cm. Another Pontiac physician who saw Plaintiff during this time characterized the wound as bone deep. The Court finds that Plaintiff has identified material issues of fact to support that Defendant Tilden was deliberately indifferent in not expediting the surgery and wound clinic referrals. Defendants’ motion for summary judgment is DENIED as to this issue.
Plaintiff further alleges that Dr. Tilden did not timely respond when the wound began to reopen in November 2014. Plaintiff complains that Defendant did not see him until December 11, 2014 and did not refer him back to Dr. Mejia until January 14, 2015. In support, Plaintiff cites the testimony of his expert, Dr. Kahn, who testified, that, while the ulcer had healed in September 2014, Plaintiff needed close surveillance to make sure that it did not recur or that another ulcer did not develop. The expert testified that Dr. Tilden did not take timely and aggressive action when, on December 11, 2014, Plaintiff presented with pain and bleeding in his foot. It was Dr. Kahn's opinion that this failure was a causative factor in Plaintiff's subsequent need for an amputation. Defendant Tilden's motion for summary judgment as to the care rendered in response to the November 2014 - December 2014 recurrence of the heel ulcer is DENIED. This claim will proceed.
While Plaintiff claims he received no pain medication in the summer of 2013, on May 24, 2013, Defendant Tilden prescribed him a three-month course of Ultram, a synthetic narcotic pain killer. [ECF 90-18 at 5]. On July 22, 2013, Defendant doubled the Ultram dose to 100 mg. for a 50-day period and, on August 28, 2013, wrote orders to continue all present medications. [ECF 90-18 at 9-10]. Here, the medical record is fatal to Plaintiff's claim, as he did not allege that he was provided insufficient or ineffective pain medication, but that he was provided none whatsoever in the summer of 2013. Defendants’ motion for summary judgment is GRANTED as to this issue.
Plaintiff also testified that he went without pain medication in for an 11-day period in October 2014. Plaintiff claims that, in early October 2014, Defendant Tilden discontinued his pain medication without notice. Plaintiff claims that in the 11 days before the medication was reordered, he experienced terrible pain. In his deposition, Defendant Tilden testified that, by October 2014, Plaintiff's foot had “totally healed.” As the foot had healed and as Plaintiff had been on narcotic pain medication for some time, Defendant determined that he would wean him off of the Ultram. In the interim, however, Plaintiff had developed a new issue of back pain and hip discomfort. [ECF 90-21 at 2]. Defendant testified that, although the Ultram prescription had been set to expire, he renewed it for an additional two weeks in response to the back and hip pain. [ECF 90-4 at 216].
On October 3, 2014 a medical technician recorded Plaintiff's request for a refill of the Ultram. Defendant responded that there was no need for a refill as Plaintiff's hip and back pain did not warrant a narcotic medication. Defendant testified that the facility had had issues with inmates who wanted to “stay on narcotics forever ․” [ECF 90-4 at 215-221]. When Plaintiff was told the Ultram would not be renewed, he requested Motrin for the back pain. Defendant approved this request as appropriate. [ECF 90-4 at 219]. Here, it does not appear that Plaintiff's need for pain medication in October 2014 was related to the foot wound at issue. As it concerned an unrelated claim not pled in the complaint, it is DISMISSED.
Defendant Wexford asserts that it may not be held liable under Monell v. New York City Department of Social Services, 436 U.S. 658, 691-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), as Plaintiff has not alleged that he was injured due to is policy or practice. Wexford asserts, rather, that Plaintiff impermissibly attempts to assert a respondeat superior claim against it based on the actions of its employed physicians, Drs. Powers and Tilden.
In response, Plaintiff agrees that he has not successfully alleged a Monell claim against Wexford, and claims that it was not his intent to do so. It is Plaintiff's position that, while the doctrine of respondeat superior has not, thus far, been applied to a private corporation such as Wexford, the Seventh Circuit left open this possibility in Shields v. Ill. Dep't of Corr., 746 F.3d 782, 796 (7th Cir. 2014). There, without deciding the issue, the Appellate Court entertained discussion on whether private corporations acting under color of law should be shielded for liability for the actions of their employees and agents. Wexford requests that the Count II respondeat superior claim be dismissed over its objection, so the issue might be appealed. Defendants’ motion for summary judgment as to Defendant Wexford is GRANTED over Plaintiff's objection. Defendant Wexford is DISMISSED.
IT IS THEREFORE ORDERED:
1. The clerk is instructed to amend the caption to substitute Rob Jeffreys, IDOC Director, in place of Salvador Godinez, the former IDOC Director; and IDOC Medical Director Steven Meeks, in place of Louis Shicker, the former IDOC Medical Director.
2. Defendants Jeffreys and Meeks have filed a motion for summary judgment [ECF 87] and a redundant motion at [ECF 88]. Defendants’ [ECF 87], is stricken as superseded by the later filing. The Court hereby DENIES the motion for summary judgment of Defendants Jeffreys and Meeks. Defendants Jeffreys and Meeks will remain as to Count I for prospective injunctive relief only. Defendant Jeffreys shall remain as to the ADA and RA claims in Counts III and IV.
3. The motion for summary judgment of Defendants Powers, Tilden and Wexford [ECF 90], is GRANTED as to the claim that Defendant Powers was deliberately indifferent for failing to see Plaintiff prior to September 8, 2011. It is GRANTED as to the claim that Defendant Powers was deliberately indifferent for failing to provide Plaintiff pain medication in 2011. It is GRANTED as to the claim that Defendant Powers was deliberately indifferent for failing to order physical therapy. It is GRANTED as to the claim that Defendant Powers was deliberately indifferent for not ordering antibiotics in late-August 2011. There remain material issues of fact as to whether Defendant Powers should have ordered Plaintiff diabetic shoes in late 2011. This claim will proceed.
4. Defendants’ motion for summary judgment [ECF 90], is GRANTED as to the claim that Defendant Tilden was deliberately indifferent for failing to see Plaintiff within 72 hours of his arrival at Pontiac. It is GRANTED as to the claim that Defendant Tilden failed to order a low bunk permit in January 2013. It is GRANTED as to the claims that Defendant Tilden's April 5, 2013 referrals to a specialist and to the wound clinic represented an impermissible delay. Defendants’ motion for summary judgment is GRANTED as to the claim that Defendant Tilden provided Plaintiff no pain medication in the summer of 2013 or in October 2014. Defendants’ motion for summary judgment is DENIED to the extent that there remains a material issue of fact as to whether Defendant Tilden was deliberately indifferent when his April 5, 2013 surgery and wound clinic referrals were not accomplished until September 13, 2013. Defendants’ motion for summary judgment is DENIED to the extent that there remains a material issue of fact as to whether Defendant Tilden was deliberately indifferent in response to the November 2014 - December 2014 recurrence of the heel ulcer.
5. Defendants’ motion for summary judgment [ECF 90] is GRANTED as to the Count II respondeat superior claim asserted against Wexford. Wexford is DISMISSED.
JONATHAN E. HAWLEY, UNITED STATES MAGISTRATE JUDGE
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Docket No: No.: 15-100 2-JEH
Decided: August 19, 2020
Court: United States District Court, C.D. Illinois.
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