Johnson v. Pfister et al

Filing 80

ORDER AND OPINION entered by Chief Judge James E. Shadid on 7/17/2017. Defendants ANDREW TILDEN, M.D., DIANA POUK, WEXFORD HEALTH SOURCES, INC., and JOE NEMERGUT's Motion 66 for Summary Judgment is GRANTED. This matter is now terminated. SEE FULL WRITTEN ORDER. (SL, ilcd)

E-FILED

Monday, 17 July, 2017 02:39:46 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ISAIAH JOHNSON,
Plaintiff,
v.
RANDY PFISTER, et al.,
Defendants.

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Case No. 14-cv-1106-JES

ORDER AND OPINION
The matter now before the Court on the Defendants, ANDEREW TILDEN, M.D.,
DIANE POUK, and WEXFORD HEALTH SOURCES, INC.’s Motion [66] for Summary
Judgment. Co-Defendant Joe Nemergut has joined this Motion. Plaintiff has filed a Response
[69] and Defendants have filed a Reply [72]. For the reasons set forth below, Defendants’
Motion [66] is GRANTED.
Background
Plaintiff Isaiah Johnson is an inmate incarcerated at Pontiac Correctional Center. On
March 25, 2014, Plaintiff filed a pro se Complaint alleging that his constitutional rights had been
violated by Defendants Andrew Tilden, Diane Pouk, and Wexford Health Sources, Inc.
(“Wexford”). In a merit review, this Court issued an Order [9] finding that Plaintiff’s Complaint
sufficiently stated one cause of action against the Defendants for deliberate indifference to
serious medical needs.

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Plaintiff alleges that the Defendants were deliberately indifferent in the treatment of his
inguinal hernia. 1 Plaintiff first noted the hernia on May 7, 2013. He complained to health care
personnel on June 12, 2013, and was seen by Dr. Ojelade the following day. Dr. Ojelade found
no signs of a hernia and did not prescribe any medication or treatment. Plaintiff next complained
of a hernia in September of 2013. On September 15, 2013, he was seen by Dr. Tilden who
performed an examination and found no signs of a hernia. He advised Plaintiff to return to the
clinic as needed when the hernia was present.
Plaintiff saw Dr. Tilden again on February 14, 2014. At that time, Dr. Tilden was not able
to discern a hernia but prescribed Fiberlax to help with constipation. On October 30, Plaintiff
was seen by Physician’s Assistant James Caruso for complaints of an inguinal hernia on
Plaintiff’s left side. Caruso noted that that the left-sided hernia was easily reduced. 2 Caruso
determined that no further treatment was needed, and Plaintiff did not need to return to the clinic.
Dr. Tilden states that “[t]hroughout [his] examinations of Mr. Johnson, [he] never saw any
indication that Plaintiff was suffering from an inguinal hernia.” Doc. 66, at 6.
Plaintiff alleges that “Diane Pouk was deliberately indifferent to Plaintiff [sic] serious
medical needs because she was aware of Plaintiff’s consistent complaining of pain.” Doc. 69, at
2. Plaintiff states that he wrote Defendant Diane Pouk letters about his pain which she ignored.
Defendant Pouk never physically examined Plaintiff or provided him with medical care.
Plaintiff alleges that he was injured due to a written Wexford policy to undertreat hernias.
Private corporations such as Wexford may have liability under § 1983 when performing

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An inguinal hernia occurs when tissue, such as part of the intestine, protrudes through a weak spot in the
abdominal muscles. The resulting bulge can be painful, especially when coughing, bending over or lifting a heavy
object. See http://www.mayoclinic.org/diseases-conditions/inguinal-hernia/home/ovc-20206354
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Reducible hernias can be gently pushed back into the abdomen. If the hernia cannot be pushed in, the contents of
the hernia can be trapped (incarcerated) in the abdominal wall. An incarcerated hernia can become strangulated,
which cuts off the blood flow to the tissue that is trapped. A strangulated hernia can be life-threatening if not treated.
See http://www.mayoclinic.org/diseases-conditions/inguinal-hernia/home/ovc-20206354

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governmental functions. Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982).
Plaintiff cites the Wexford policy which provides, “[r]educible hernias, in which the herniated
contents may be returned to the abdominal cavity either spontaneously or manually, generally
pose no medical risk to the patient.” Doc. 69, at 13. Wexford’s Medical Policies and Procedures
also state, “[p]atients with stable abdominal wall hernias are not, in general, candidates for
herniorrhaphy and will be monitored and treated with appropriate non-surgical therapy.” Doc.
69, at 14. Plaintiff asserts that Wexford has adopted this policy as a cost savings measure.
Legal Standard
I. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Ruiz-Rivera v.
Moyer, 70 F.3d 498, 500-01 (7th Cir. 1995). The moving party has the burden of providing
proper documentary evidence to show the absence of a genuine issue of material fact. Celotext
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the moving party has met its burden, the
opposing party must come forward with specific evidence, not mere allegations or denials of the
pleadings, which demonstrates that there is a genuine issue for trial. Garcia v. Volvo Europa
Truck, N.V., 112 F.3d 291, 294 (7th Cir. 1997). “[A] party moving for summary judgment can
prevail just by showing that the other party has no evidence on an issue on which that party has
the burden of proof.” Brazinski v. Amoco Petroleum Additivies Co., 6 F.3d 1176, 1183 (7th Cir.
1993).
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

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that there is a genuine triable issue; he “must do more than simply show that there is some
metaphysical doubt as to the material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25657 (1986) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 818 (7th Cir. 1999). 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, 477 U.S. at 250.
II. Deliberate Indifference to Serious Medical Needs
Title 42, Section 1983 of the United States Code provides a federal cause of action for the
deprivation, under color of state law, of the rights, privileges, or immunities secured by the
Constitution and laws of the United States. 42 U.S.C. § 1983. To establish an Eighth Amendment
violation by a prison official for failure to provide adequate medical care, a prisoner “must allege
acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs.” Estelle v. Gamble, 429 U.S. 97, 105-106 (1976). Plaintiff must show that he suffered
from a serious medical need and that the Defendants were deliberately indifferent to that need.
Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000); Hayes v. Snyder, 546 F.3d 516, 522 (7th
Cir. 2008).
Deliberate indifference is a high standard requiring the Plaintiff to prove both that a
Defendant was aware of facts from which a substantial risk of serious harm could be inferred and
that Defendant actually drew the inference. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Hayes, 546 F.3d at 522. “[I]t is important to emphasize that medical malpractice, negligence, or
even gross negligence does not equate to deliberate indifference.” Johnson v. Doughty, 433 F.3d
1001, 1013 (7th Cir. 2006).

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Analysis
In their Motion for Summary Judgment, Defendants argue that they are entitled to
judgment as a matter of law because Plaintiff’s hernia is not a serious medical need, Defendants
were not deliberately indifferent to Plaintiff’s medical needs, Defendant Pouk was not personally
involved in the alleged constitutional violation, Wexford has no unconstitutional policy that
could form a basis for liability under Monell, and the Defendants are entitled to qualified
immunity.
To prevail on his claim, Plaintiff must establish the existence of an objectively serious
medical condition and deliberate indifference by prison officials to that condition. Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011). The Eighth Amendment does not mandate that
prisoners be provided with the best treatment available, or the treatment of their choosing.
Anderson v. Romero, 72 F.3d 518, 524 (7th Cir. 1995). “[A] mere disagreement with the course
of the inmate’s medical treatment does not constitute an Eighth Amendment claim of deliberate
indifference.” Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996).
The Seventh Circuit has held that a hernia can be considered a serious medical condition
under certain circumstances. Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011); Johnson
v. Doughty, 433 F.3d 1001, 1010, 1012–14 (7th Cir. 2006); Heard v. Sheahan, 253 F.3d 316,
317–18 (7th Cir. 2001). In Gonzalez, the prisoner “had been suffering from his hernia for almost
seven years, and during the last two of those years his hernia continued to worsen, was
constantly protruding, and was causing extreme pain.” Gonzalez, 663 F.3d at 314. In Heard, the
prisoner’s hernia was very prominent and caused constant pain as well as numbness in his thigh.
Heard, 253 F.3d at 317. A doctor diagnosed the prisoner with a ruptured hernia and
recommended surgery which the prison refused to allow. In Johnson, the court found that some

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hernias can be serious medical needs which require surgery and others are not depending on
whether the hernia is reducible or strangulated, as well as the level of pain the hernia causes.
This Court finds that Plaintiff’s reducible hernia is not an objectively serious medical
need. Multiple medical professionals examined Plaintiff and did not find any signs of a hernia.
Physician’s Assistant James Caruso was the only medical professional who actually observed the
hernia. Mr. Caruso’s notes, however, reveal that the hernia was easily reducible and did not
require surgery. Plaintiff, himself, has provided Defendant Caruso’s note in which Plaintiff is
recorded as complaining that the hernia never presented at the times he was seen by medical
staff. Doc. 69, at 37.
Plaintiff admits that he does not believe his hernia is strangulated. Plaintiff states multiple
times in his Response that his hernia causes him severe pain. However, he refused to sign his
money voucher forms to go to sick call on several occasions. Ex. D, 60:5-61:11. Medical records
show that Plaintiff saw a psychiatrist multiple times and had been to sick call before, so clearly
he knows how to be seen by a medical professional when he wants to. Plaintiff refused visits
with the psychiatrist multiple times, and when he did attend psychiatric meetings, the
psychiatrist’s notes do not indicate that Plaintiff complained about pain from a hernia. Although
some hernias do present an objectively serious medical need, this Court finds that Plaintiff’s
hernia was not objectively serious.
Even if Plaintiff’s hernia was considered to be an objectively serious medical need, the
Defendants were not deliberately indifferent to it. Defendant Dr. Tilden examined Plaintiff
multiple times and found no signs of a hernia. Because he did not detect a hernia, he did not
prescribe any treatment for a hernia. Dr. Tilden did attempt to treat Plaintiff’s constipation by
prescribing Fiberlax. He also told Plaintiff to avoid certain exercises and to return to the clinic as

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needed when his hernia was present. The one medical professional who did detect a hernia did
not find that any treatment was necessary. Though Plaintiff disagreed with Dr. Tilden’s diagnosis
and treatment plan, he has failed to state a valid cause of action for deliberate indifference to a
serious medical need. Even if Plaintiff was correct, and Defendant Dr. Tilden made some error in
judgment, “medical malpractice in the form of an incorrect diagnosis or improper treatment does
not state an Eighth Amendment claim.” Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997)
(prison physician was not deliberately indifferent despite delays in treatment of an infected cyst).
The required showing for deliberate indifference is “something approaching a total unconcern for
[the prisoner’s] welfare in the face of serious risks.” Collins v. Seeman, 462 F.3d 757, 762 (7th
Cir. 2006), quoting Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992). Defendant Tilden
examined Plaintiff multiple times, told him to avoid certain exercises, gave him Fiberlax, and
told him to return to the clinic as needed. These actions show a concern for Plaintiff’s welfare.
Defendant Pouk was not deliberately indifferent to Plaintiff’s medical needs as she never
examined or treated Plaintiff in any way and did not participate in the alleged constitutional
violation. See Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (“[T]o be liable
under § 1983, the individual defendant must have ‘caused or participated in a constitutional
deprivation.’”). “Simply receiving correspondence from a prisoner about a medical problem
doesn't make a prison official liable for the failure to provide medical care under the Eighth
Amendment.” Norington v. Daniels, No. 11- 282, 2011 WL 5101943, at *2–3 (N.D. Ind. Oct. 25,
2011).
Plaintiff also fails to establish as a triable issue of fact that Wexford had an
unconstitutional policy which caused him injury. To state a Monell claim, Plaintiff must plead
factual content that, if true, would allow the Court to draw a reasonable inference that (1)

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Plaintiff suffered a constitutional deprivation, and (2) an official custom, policy, or practice of
Wexford caused the deprivation. See McCauley v. City of Chicago, 271 F.3d 611, 616 (7th Cir.
2011). Plaintiff cites a written Wexford policy which provides, “[p]atients with stable abdominal
wall hernias are not, in general, candidates for herniorrhaphy and will be monitored and treated
with appropriate non-surgical therapy.” Doc. 69, at 14. This Court finds that this policy does not
deprive Plaintiff of any constitutional right. Although Plaintiff disagrees with the policy, he has
no constitutional right to a surgery that multiple medical professionals deemed unnecessary for
his injury. Plaintiff also claims that “Defendant Wexford Health Sources has an unwritten policy
where it directs its staff and employees to give the prisoners the least amount of available health
care as possible.” Doc. 69, at 9. Plaintiff states that Wexford has this policy in order to save costs.
Doc. 69, at 11. Even if the court accepts these allegations as true, Plaintiff still could not state a
Monell claim since he suffered no constitutional deprivation.
Conclusion
For the reasons stated above, Defendants ANDREW TILDEN, M.D., DIANA POUK,
WEXFORD HEALTH SOURCES, INC., and JOE NEMERGUT’s Motion [66] for Summary
Judgment is GRANTED.

This matter is now terminated.
Signed on this 17th day of July, 2017.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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