Merritt v. Ojelade et al
Filing
93
ORDER & OPINION entered by Chief Judge James E. Shadid on 9/5/2017. IT IS ORDERED: 1. The motion for summary judgment by Defendants Arroyo, et al., is granted in part and denied in part. (d/e 63 .) Summary judgment is denied to Defendants Arroyo, Ch icke, and Eshleman on Plaintiff's claim arising from the purported delay in providing medical attention for Plaintiff's fracturedhand. Summary judgment is otherwise granted. 2. The motion for summary judgment by Defendants Ojelade, et al., is granted in part and denied in part. (d/e 82 .) Summary judgment is denied to Defendant Ojelade on Plaintiff's claim arising from the purported delay in providing medical attention for Plaintiff's fractured hand. Summary judgment is deni ed to Defendants Tilden, Shearing, and Nwaobasi on Plaintiff's claim arising from the alleged refusal to provide a thermoplastic splint, occupational therapy, and a follow up visit with an orthopedist. Summary judgment is otherwise granted. 3. T he claims remaining for trial are: (1) Defendants Ojelade, Arroyo, Chicke, and Eshleman were deliberately indifferent by delaying or denying Plaintiff medical attention for his fractured hand; and (2) Defendants Tilden, Shearing, and Nwaobasi weredel iberately indifferent by refusing to provide a thermoplastic splint, occupational therapy, and a follow up visit with an orthopedist. 4. Defendants Hamby, Modneauer, Wexford, Crane, Stefani, and Walter are terminated. 5. This case is referred to the Magistrate Judge for a settlement conference. A final pretrial and jury trial will be scheduled if no settlement is reached. (SEE FULL WRITTEN OPINION.)(JRK, ilcd)
E-FILED
Tuesday, 05 September, 2017 09:10:23 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
KELVIN MERRITT,
Plaintiff,
v.
DR. OJELADE, et al.,
Defendants.
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15-CV-1159
OPINION
JAMES E. SHADID, U.S. District Judge.
Plaintiff proceeds pro se from his incarceration in Menard
Correctional Center on an Eighth Amendment claim for deliberate
indifference to the treatment of a hand fracture he suffered in the
Pontiac Correctional center in April 2013. Summary judgment
motions are before the Court, which are granted in part and denied
in part for the reasons below.
Summary Judgment Standard
"The 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). A movant may demonstrate the absence of a material
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dispute through specific cites to admissible evidence, or by showing
that the nonmovant “cannot produce admissible evidence to
support the [material] fact.” Fed. R. Civ. P. 56(c)(B). If the movant
clears this hurdle, the nonmovant may not simply rest on his or her
allegations in the complaint, but instead must point to admissible
evidence in the record to show that a genuine dispute exists. Id.;
Harvey v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011).
“In a § 1983 case, the plaintiff bears the burden of proof on the
constitutional deprivation that underlies the claim, and thus must
come forward with sufficient evidence to create genuine issues of
material fact to avoid summary judgment.” McAllister v. Price, 615
F.3d 877, 881 (7th Cir. 2010).
At the summary judgment stage, the evidence is viewed in the
light most favorable to the nonmovant, with material factual
disputes resolved in the nonmovant's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of
material fact exists when a reasonable juror could find for the
nonmovant. Id. However, only admissible evidence may be
considered. Baines v. Walgreen Co., 863 F.3d 656 (7th Cir.
2017)(“Evidence offered at summary judgment must be admissible
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to the same extent as at trial, . . .”). The portions of Plaintiff’s
declarations that rely on inadmissible hearsay have not been
considered.
Facts
On April 13, 2017, Plaintiff injured his right hand while
exercising in his cell at Pontiac Correctional Center. He was doing
triceps dips on a table and he slipped off the table, hitting his hand
hard on the floor. (Pl.’s Dep. 6.) Plaintiff was already scheduled to
see Physician Assistant Ojelade that day for complaints of body
aches. Plaintiff asserts that he told P.A. Ojelade that day of his
hand injury and need for x-rays. According to Plaintiff, P.A. Ojelade
said that the hand was just swollen without adequately examining
the hand, which was handcuffed behind Plaintiff’s back. A practice
drill code then sounded and the visit was abruptly terminated.
(Pl.’s Dep. 12-13.) According to Plaintiff, P.A. Ojelade told Plaintiff
he would be rescheduled but he was not. (Pl.’s Dep.) Dr. Ojelade
does not address whether Plaintiff mentioned his hand at this visit,
and the medical records do not reflect a complaint about Plaintiff’s
hand.
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Over the next three weeks, Plaintiff asserts repeatedly tried to
obtain medical attention for his hand by writing notes to Certified
Medical Technician (CMT) Chicke and speaking with the Health
Care Unit Administrator Teresa Arroyo. According to Plaintiff,
Defendant Arroyo told Plaintiff that she would put him in to see Dr.
Tilden and that Plaintiff did not need to put in a sick call request.
(Pl.’s Dep. 44-45.) Plaintiff’s understanding, which appears
undisputed, is that the sick call procedure, which can take days,
may be bypassed if an inmate needs urgent care.
On or about April 15, 2013, Plaintiff submitted a sick call
request to be seen for chronic body aches. According to the medical
records, P.A. Ojelade saw Plaintiff on April 17, 2017, for this
complaint. No complaint about Plaintiff’s hand is documented in
the medical record on this date. Plaintiff asserts that this is false.
Plaintiff seems to assert that he did tell P.A. Ojelade about his
hand, but Plaintiff appears to be referring to the April 13 visit, not
the April 17 visit. (Pl.’s Resp. ¶ 15.) P.A. Ojelade’s affidavit does
not mention the April 17 visit. Defendants also assert that Plaintiff
made no complaints about his hand when a transfer summary was
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completed on April 25, 2013, but Plaintiff counters, without
dispute, that he was not present for the filling out of that form.
By May 8, 2013, Plaintiff realized he was not going to be called
back to the doctor for his hand. That day he told CMT Eshleman
that his hand was broken. Eshleman told Plaintiff to put in a
money voucher for sick call, which Plaintiff did. (Pl.’s Dep. 41.)
Plaintiff describes his hand at this point as “something out of the
cartoons, you know. It’s big and discolorated.” (Pl.’s Dep. 43.)
Five days, later, on May 13, 2013, P.A. Ojelade saw Plaintiff
and ordered an x-ray. The x-ray, taken the next day (May 14),
showed a “comminuted, intra-articular fracture at the base of the
5th metacarpal . . . [and] displacement of the radial fracture
fragment.” (5/20/13 x-ray report, d/e 92-3, p. 62.) Dr. Tilden
obtained approval from his employer, Wexford Health Sources, Inc.,
to send Plaintiff for an orthopedic consult. Dr. Lowe from OSF
Pontiac Orthopedics decided to treat Plaintiff “conservatively in a
ulnar gutter type cast.” Dr. Lowe also recommended that Plaintiff
take Tylenol for pain, not ibuprofren or anti-inflammatories.
(5/15/13 progress note, d/e 92-3, p. 14, 21.)
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Pursuant to Dr. Lowe’s recommendation, Dr. Tilden arranged
for Plaintiff to be taken back to the orthopedic clinic for a follow-up
on or about May 30, 2013, and also changed Plaintiff’s pain
medicine from Motrin to Tylenol. Certified Physician Assistant
Chang saw Plaintiff at the clinic and wrote that he believed Plaintiff
was healing appropriately. CPA Chang recommended a follow-up in
two weeks to transition Plaintiff out of immobilization and begin
range of motion exercises. Chang reiterated that Plaintiff should
receive Tylenol because ibuprofen could potentially deter bone
healing. (6/7/13 progress note, d/e 92-3, pp. 22-24.) Dr. Tilden
followed this recommendation, continuing Plaintiff’s Tylenol
prescription for 14 days and arranging the follow-up visit.
Plaintiff was taken for his next follow-up appointment on June
13, 2013. Plaintiff’s cast was removed and replaced with a splint
that Plaintiff could remove while performing range of motion
exercises. Defendants maintain that no further referrals were
recommended by the orthopedic group. However, Defendants do
not mention that CPA Chang recommended “splint until seen by
OT. May remove splint for range of motion exercises as needed. OT
for strengthening, range of motion, & thermoplastic splint.” (d/e
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92-3, p. 26.) There is no indication that Plaintiff ever saw an
occupational therapist or received a thermoplastic splint.
Additionally, as Plaintiff points out, there arguably should be a
more detailed progress note in the record from this visit as was
provided with the other orthopedic visits.
Around June 18, 2013, Plaintiff was transferred to Menard
Correctional Center. Before the transfer, Dr. Tilden approved a twoday Motrin prescription for Plaintiff but he scheduled no follow up
with the orthopedist. In Dr. Tilden’s opinion, based on Dr. Tilden’s
evaluation of Plaintiff’s hand, the purported lack of recommendation
for further orthopedic follow-up, and Dr. Tilden’s instructions to
Plaintiff regarding range of motion exercises, Plaintiff could be
managed in the prison and did not need a further orthopedic
consult. Dr. Tilden does not address CPA Chang’s occupational
therapist and thermoplastic splint recommendations.
Once at Menard, according to Plaintiff, he repeatedly asked the
doctors at Menard (Dr. Shearing and Dr. Nwaobasi) to be taken
back to the orthopedist for the thermoplastic splint and a follow-up
visit. Like Dr. Tilden, these doctors do not address CPA Chang’s
recommendations. Dr. Shearing did, however, prescribe Tylenol
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and order an x-ray on June 28, 2013, which showed that the
fracture was healing. (7/2/13 x-ray, d/e 92-3.) Another x-ray
report on July 31, 2013, showed further healing. (8/1/13 x-ray
report, d/e 92-3, p. 70.) That day, Dr. Nwaobasi applied a “short
arm slab” to stabilize the fracture. Why is not explained. Plaintiff
maintains that his request for replacement of a worn ACE bandage,
which held his temporary splint in place, were denied by Dr.
Nwaobaisi.
Dr. Nwaobasi maintains that Plaintiff was noncompliant
because he kept removing the plaster slab, but Plaintiff counters
that removal of the slab was impossible. An x-ray on September 18,
2013, showed continued healing, though the cast obscured a
detailed look. (9/19/13 x-ray report, d/e 92-3, p. 72.)
On or about October 16, 2013, Dr. Nwaobasi removed the cast
with a medical saw. According to Plaintiff, Plaintiff told Dr.
Nwaobasi that Plaintiff’s arm and hand were being cut or about to
be cut with the saw, but Dr. Nwaobasi persisted. After removing
the cast, Dr. Nwaobasi apologized because he realized he had
indeed cut Plaintiff’s skin, according to Plaintiff. (Pl.’s Dep. 28-31.)
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Dr. Fuentes, who is not a Defendant, saw Plaintiff on
November 6, 2013. According to Dr. Fuentes, Plaintiff had no
swelling and good range of motion. Plaintiff disputes this, accusing
Dr. Fuentes, Defendants, and others of falsifying many of the
medical records in order to cover-up the lack of care or to retaliate
against Plaintiff. Dr. Fuentes also reviewed an x-ray from October
2013 that showed that the fracture had healed. (10/18/13 x-ray
report, d/e 92-3, p. 74.)
Plaintiff continued to complain about hand pain and
continued to ask to see a specialist. On or about December 4,
2013, Nurse Practitioner saw Plaintiff, noting no swelling, no
deformity, and good range of motion (another falsification of the
records, according to Plaintiff). Dr. Trost, who is not a Defendant,
saw Plaintiff on January 8, 2014, also noted full range of motion
(yet another falsification of the record, according to Plaintiff).
On January 31, 2014, reinjured his right hand in an
altercation. (2/19/14 progress note, d/e 92-2, p. 49.) The
treatment of this injury and any further injuries is not a part of this
case. Plaintiff’s complaint in this case covers only the period from
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the date of his injury in April 2013 to the end the year 2013.
(Compl., d/e 1.)
Analysis
Deliberate indifference to an inmate’s serious medical needs
violates the Eighth Amendment. Townsend v. Cooper, 759 F.3d
678, 689 (7th Cir. 2014). A medical need is considered serious
under the Eighth Amendment if a physician has diagnosed the need
as requiring treatment, or if the need is so obvious that even a
layperson would recognize that treatment was needed. Chapman v.
Keltner, 241 F.3d 842, 845 (7th Cir. 2001).
Defendants focus on deliberate indifference. Deliberate
indifference is the conscious disregard of a known and substantial
risk of serious harm to an inmate’s health. Townsend, 759 F.3d at
689; Rice ex rel. Rice v. Correctional Medical Serv., 675 F.3d 650,
665 (7th Cir. 2012)("An official is deliberately indifferent when he is
subjectively aware of the condition or danger complained of, but
consciously disregards it."). An inference of deliberate indifference
arises “‘if the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or
standards, as to demonstrate that the person responsible actually
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did not base the decision on such a judgment.’” Roe v. Elyea, 631
F.3d 843, 857 (7th Cir. 2011)(quoting Sain v. Wood, 512 F.3d 886,
894-95 (7th Cir. 2009). However, “[a] medical professional is
entitled to deference in treatment decisions unless no minimally
competent professional would have so responded under those
circumstances.” Sain, 512 F.3d at 894-95. Malpractice is not
deliberate indifference, nor are professional differences of opinion.
Petties, 836 F.3d at 729 (“evidence that some medical professionals
would have chosen a different course of treatment is insufficient to
make out a constitutional claim.”).
Credibility determinations are not appropriate at the summary
judgment stage. Accepting Plaintiff’s version as true, an inference
of deliberate indifference arises against Defendants Ojelade, Arroyo,
Chicke, and Eshleman for the delay in providing medical attention
for Plaintiff’s broken hand after he injured it. Four weeks passed
from the date of the injury to the x-ray and orthopedic consultation.
If Plaintiff is believed, he told Defendant Ojelade about the injury
the day it occurred, and Ojelade discounted the severity of the
injury but said he would reschedule Plaintiff’s appointment. In the
following weeks, Defendants Arroyo and Chicke purportedly
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continued to assure Plaintiff that he would be seen without putting
in a sick call pass, and then later Defendant Chicke required
Plaintiff to put in for sick call despite an obviously injured hand,
delaying for five more days the medical attention Plaintiff needed.
Plaintiff’s fracture did heal, which reduces his damages, but the
delay in medical attention for a serious injury gives rise to an
inference of deliberate indifference if the delay exacerbates an
inmate’s pain and suffering for no reason. Perez v. Fenoglio, 792
F.3d 768, 778 (7th Cir. 2015)(reversing dismissal of claim where
prisoner alleged delay in meaningful treatment for his hand injury,
even though inmate did receive some medical attention); Grieveson
v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008)(summary judgment
reversed on one and one-half day delay in obtaining medical care
for the prisoner’s broken nose).
The Court also cannot rule out a deliberate indifference claim
against the doctors who purportedly refused to send Plaintiff for a
thermoplastic splint, occupational therapy, and, possibly, a follow
up with an orthopedist. Refusing to follow a specialist’s
recommendation may allow an inference of deliberate indifference if
that decision is not based on accepted professional judgment. Perez
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v. Fenoglio, 792 F.3d at 778. The prison doctors have the burden
at this stage to demonstrate that no disputed fact exists for trial,
but they do not address or even acknowledge CNP Chang’s
recommendations for occupational therapy and a thermoplastic
splint. The damages from the refusal to follow these
recommendations may be small, since Plaintiff’s injury healed and,
if Defendants are believed, Plaintiff’s full range of motion was
restored, but what a claim is worth does not determine whether a
claim exists. Plaintiff’s claim that Defendants Tilden, Nwaobasi,
and Shearing were deliberately indifferent by refusing to provide
Plaintiff with a thermoplastic splint, occupational therapy, and
follow up with an orthopedist survives summary judgment.
Additionally, the Court cannot rule out an inference of deliberate
indifference on Plaintiff’s claim that Dr. Nwaobasi cut Plaintiff’s arm
and hand when he sawed through Plaintiff’s cast, despite Plaintiff’s
purported pleas, and refused to prescribe a new ace bandage to
hold Plaintiff’s temporary splint in place.
No inference of deliberate indifference to Plaintiff’s hand injury
arises against the other Defendants—Walter, Hamby, Crane,
Moldenhauer, Stefani, or Wexford Health Sources, Inc. Plaintiff
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alleges various sarcastic attitudes, “toying” with Plaintiff, some
delays in responding to his complaints of pain, and charging copays for medical care, but Plaintiff offers no evidence against these
individual Defendants that they were aware of much less
disregarded any substantial risk of harm to Plaintiff. Plaintiff’s
allegation that all the individual Defendants conspired to falsify the
entries in Plaintiff’s medical records remains supported only by
speculation. Similarly, Plaintiff’s allegations that a practice or
policy of Wexford played a part in any adverse action taken by
Defendants remains unsupported by admissible evidence.
IT IS THEREFORE ORDERED:
1.
The motion for summary judgment by Defendants Arroyo,
et al., is granted in part and denied in part. (d/e 63.)
Summary judgment is denied to Defendants Arroyo, Chicke,
and Eshleman on Plaintiff’s claim arising from the purported
delay in providing medical attention for Plaintiff’s fractured
hand. Summary judgment is otherwise granted.
2.
The motion for summary judgment by Defendants Ojelade,
et al., is granted in part and denied in part. (d/e 82.)
Summary judgment is denied to Defendant Ojelade on
Plaintiff’s claim arising from the purported delay in providing
medical attention for Plaintiff’s fractured hand. Summary
judgment is denied to Defendants Tilden, Shearing, and
Nwaobasi on Plaintiff’s claim arising from the alleged refusal to
provide a thermoplastic splint, occupational therapy, and a
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follow up visit with an orthopedist. Summary judgment is
otherwise granted.
3. The claims remaining for trial are: (1) Defendants Ojelade,
Arroyo, Chicke, and Eshleman were deliberately indifferent by
delaying or denying Plaintiff medical attention for his fractured
hand; and (2) Defendants Tilden, Shearing, and Nwaobasi were
deliberately indifferent by refusing to provide a thermoplastic
splint, occupational therapy, and a follow up visit with an
orthopedist.
4. Defendants Hamby, Modneauer, Wexford, Crane, Stefani,
and Walter are terminated.
5. This case is referred to the Magistrate Judge for a
settlement conference. A final pretrial and jury trial will be
scheduled if no settlement is reached.
ENTERED: 9/5/2017
FOR THE COURT:
s/James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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