Pledger v. Wexford Health Sources Inc et al
Filing
67
SUMMARY JUDGMENT OPINION: 1) Defendants' Motions for Summary Judgment 55 61 are GRANTED. The clerk of the court is directed to enter judgment in favor of Defendants and against Plaintiff. All pending motions not addressed below are denied as moot, and this case is terminated, with the parties to bear their own costs. Plaintiff remains responsible for the $350.00 filing fee. 2) If Plaintiff wishes to appeal this judgment, he must file a notice of appeal with this Court within 30 days of the entry of judgment. FED. R. APP. P. 4(a)(4). A motion for leave to appeal in forma pauperis MUST identify the issues the Plaintiff will present on appeal to assist the court in determining whether the appeal is taken in good faith. See F ED. R. APP. P. 24(a)(1)(c); see also Celske v Edwards, 164 F.3d 396, 398 (7th Cir. 1999)(an appellant should be given an opportunity to submit a statement of his grounds for appealing so that the district judge "can make a reasonable assessment of the issue of good faith."); Walker v. OBrien, 216 F.3d 626, 632 (7th Cir. 2000)(providing that a good faith appeal is an appeal that "a reasonable person could supposehas some merit" from a legal perspective). If Plaintiff does ch oose to appeal, he will be liable for the $505.00 appellate filing fee regardless of the outcome of the appeal. SEE WRITTEN SUMMARY JUDGMENT OPINION. Entered by Judge Sue E. Myerscough on 06/26/2017. (SKN, ilcd) (Main Document 67 replaced on 6/26/2017) (SKN, ilcd).
E-FILED
Monday, 26 June, 2017 03:52:48 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
)
)
)
Plaintiff,
)
)
v.
)
WEXFORD HEALTH SOURCES, )
)
INC., et al.
)
Defendants. )
MAURICE PLEDGER,
15-1251
SUMMARY JUDGMENT OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and presently incarcerated at Hill
Correctional Center brought the present lawsuit pursuant to 42
U.S.C. § 1983 alleging deliberate indifference to a serious medical
need. The matter comes before this Court for ruling on the
Defendants’ Motions for Summary Judgment. (Docs. 55, 61). The
motions are granted.
LEGAL STANDARD
Summary judgment should be granted “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.
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56(a). All facts must be construed in the light most favorable to the
non-moving party, and all reasonable inferences must be drawn in
his favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
The party moving for summary judgment must show the lack of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). In order to be a “genuine” issue, there must be
more than “some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry
of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
FACTS1
Plaintiff was incarcerated at Pontiac Correctional Center
(“Pontiac”) from February 23, 2011 through March 16, 2013.
Defendants were employed at the facility in the following capacities:
Defendant Tilden was a physician; Defendant Ojelade was a
Plaintiff did not file a response to the Defendants’ motions for summary
judgment despite being given additional time to do so and being warned of the
consequences should he not respond. See (Doc. 63); Text Order entered May 1,
2017. Therefore, the Court will consider Defendants’ assertions of fact as
undisputed for purposes of this ruling. See Fed. R. Civ. P. 56(e)(2).
1
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physician’s assistant; Defendant Pierce was the Warden; and,
Defendant Birkel was a medical technician.
Defendant Tilden first examined Plaintiff on March 1, 2011 for
complaints of hearing loss and loss of balance with occasional
vertigo. Based upon the symptoms Plaintiff reported, Defendant
Tilden ordered a cranial x-ray, noted the possibility that more tests
would be required should these symptoms persist, and scheduled a
follow-up appointment in 30 days. The cranial x-ray disclosed
nothing significant.
Nonetheless, when Plaintiff reported similar symptoms at his
March 30, 2011 follow-up appointment, Defendant Tilden ordered
additional x-rays, lab work, and sought approval for an MRI and
consultation with a specialist. Defendant Tilden received approval
the next day. Plaintiff underwent the MRI, and he was examined by
specialists at the neurology clinic at the University of Illinois at
Chicago (UIC) within the next several weeks.
In between Defendant Tilden’s first and second examinations,
Plaintiff filed a grievance dated March 24, 2011 seeking a referral to
an ear, nose, and throat doctor and the results of his x-rays. After
Defendant Pierce declined to expedite the grievance as an
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emergency, Plaintiff submitted the grievance via the normal
channels. The grievance officer ultimately recommended denial of
the grievance in late April 2011 after medical staff reported that
Plaintiff was receiving treatment. Defendant Pierce concurred with
this recommendation.
Defendant Tilden reviewed Plaintiff’s MRI results the day they
were received at the prison. Two days later, on May 15, 2011,
Defendant Tilden discussed the results with Plaintiff. The
diagnosis: an “enhancing mass approximately 4 cm in diameter at
the left pontine angle that extended into the left internal auditory
canal most consistent with a vestibular schwannoma.” In layman’s
terms, Plaintiff had a non-cancerous tumor in his ear canal.
Plaintiff was thereafter scheduled and taken to examinations
with a neurologist and neurosurgeon at UIC, the latter of whom
recommended surgery to remove the tumor. Four days later, on
June 20, 2011, Plaintiff underwent a successful surgery. He
remained at UIC for the next month.
Upon Plaintiff’s discharge, the UIC doctors recommended
prescriptions for Tylenol 3, Dexamethasone, Pepcid, ocular solution
every two hours, and ocular lubricant every four hours. Plaintiff
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was admitted to the infirmary when he returned to Pontiac, and
Defendant Tilden prescribed the recommended medications.
Plaintiff remained in the infirmary for approximately one month
before he was released back into general population.
On August 26, 2011, Plaintiff returned to UIC. UIC doctors
ruled out a potential complication arising from the surgery and
recommended that Plaintiff return for a follow-up examination in
one year. In August 2012, the UIC specialist noted that the tumor
had not returned and that Plaintiff’s recovery was going well.
Plaintiff admitted in his deposition that he has received regular
checkups at UIC since the surgery. Pl.’s Dep. 55:8-12.
In October 2011, Defendant Ojelade extended Plaintiff’s thenexisting prescription for Motrin for an additional three months. In
May 2012, Defendant Ojelade noted that Plaintiff had normal
muscle tone and strength in his extremities. Defendant Ojelade
again prescribed Motrin.
Plaintiff testified that he requested medical treatment from
Defendant Birkel on February 4, 2013 for migraine headaches to no
avail. Pl.’s Dep. 70:13-72:6. According to the medical records,
Plaintiff was examined on February 1, 2013 for the same condition
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and the notes indicate that the physician’s assistant referred
Plaintiff to the medical director and prescribed Motrin. (Doc. 62-2
at 22).
Plaintiff was transferred to Menard Correctional Center on
March 16, 2013.
ANALYSIS
Statute of Limitations
Defendants Tilden and Pierce assert a statute of limitations
defense. The limitations period for Section 1983 claims is the same
as the limitations period for personal injury claims arising under
state law. Cesal v. Moats, 851 F.3d 714, 721-22 (7th Cir. 2017).
The applicable statute of limitations in Illinois is two years. 735
ILCS 5/13-202. The limitations period is tolled while a prisoner
pursues relief through the administrative grievance process.
Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001). Plaintiff filed
this lawsuit on June 18, 2015.
The Court must first determine when Plaintiff’s claims
accrued. Section 1983 claims alleging deliberate indifference to a
serious medical need accrue “when the plaintiff knows of his
physical injury and its cause even if the full extent or severity of the
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injury is not yet known.” Devbrow v. Kalu, 705 F.3d 765, 768 (7th
Cir. 2013). Plaintiff’s claims against Defendant Tilden accrued on
May 15, 2011 when Plaintiff learned of his diagnosis. The
limitations period was tolled until July 6, 2011, when Plaintiff
completed the final step of the grievance process. Thus, Plaintiff
had until July 6, 2013 to file a lawsuit against Defendant Tilden for
claims of failure to diagnose and failure to provide adequate followup case. Plaintiff failed to do so.
As to Defendant Pierce, the sole action about which Plaintiff
complains occurred in late April 2011 when Defendant Pierce
concurred with the grievance officer’s recommendation to deny
Plaintiff’s March 24, 2011 grievance. The Court is not aware of any
separate grievances Plaintiff filed with respect to this issue, and the
only evidence in the record shows that the grievance process
concluded on July 6, 2011. Similar to the claims against Defendant
Tilden, the limitations period to bring these claims expired prior to
Plaintiff’s initiation of this lawsuit.
Accordingly, the Court finds that Plaintiff’s claims against
Defendants Tilden and Pierce are time-barred under the applicable
statute of limitations.
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Medical Treatment
Inmates are entitled to adequate medical care under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
To prevail, a plaintiff must show that the prison official acted with
deliberate indifference to a serious medical need. Id. at 105.
Claims of negligence, medical malpractice, or disagreement with a
prescribed course of treatment are not sufficient. McDonald v.
Hardy, 821 F.3d 882, 888 (7th Cir. 2016) (citing Pyles v. Fahim, 771
F.3d 403, 408 (7th Cir. 2014), and Duckworth v. Ahmad, 532 F.3d
675, 679 (7th Cir. 2008)).
Liability attaches when “the official knows of and disregards
an excessive risk to inmate health or safety; the official 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 v. Brennan, 511 U.S. 825, 837 (1994). A prison
official’s subjective awareness of a risk “is a question of fact subject
to demonstration in the usual ways, including inference from
circumstantial evidence, and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the
risk was obvious.” Id. at 842.
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In the medical context, treating physicians are entitled to
deference. Zaya v. Sood, 836 F.3d 800, 805 (7th Cir. 2016). To
constitute deliberate indifference, a treatment decision must be
“such a substantial departure from accepted professional judgment,
practice, or standards, as to demonstrate that the person
responsible actually did not base the decision on such a judgment.”
Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (internal
quotations omitted). In other words, a medical professional is
deliberately indifferent only if “‘no minimally competent professional
would have so responded under those circumstances.’” Sain v.
Wood, 512 F.3d 886, 894-95 (7th Cir. 2008) (quoting Collignon v.
Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir. 1998)).
Several circumstances could lead to an inference that a
medical professional failed to exercise the appropriate judgment so
as to avoid liability under the Eighth Amendment. These include:
persisting in a course of treatment known to be ineffective; failure to
follow an existing protocol; inexplicable delays in treatment without
penological justification; and, refusal to follow a specialist’s
recommendations. Petties, 836 F.3d at 729-30.
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When Plaintiff symptoms did not subside following Defendant
Tilden’s first round of diagnostic testing and treatment, Defendant
Tilden ordered additional testing and sought approval for a
consultation with an outside specialist. Plaintiff was taken to each
appointment with the specialist, underwent surgery, and remained
at UIC for a month following the procedure. Once discharged from
UIC, Defendant Tilden prescribed all the recommended medications
and monitored Plaintiff’s condition in the infirmary for the next
month or so. When a potential complication arose, Plaintiff was
taken back to UIC and medically cleared.
With respect to Defendant Ojelade and Defendant Birkel,
Plaintiff was already under the care of the treating physician at the
relevant times. Nothing in the record suggests that Plaintiff
required additional treatment following Defendant Ojelade’s
examinations, other than an extension of the then-current
medications, or that Plaintiff presented symptoms to Defendant
Birkel more serious than the headaches for which he was already
prescribed Motrin.
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Accordingly, the Court finds that no reasonable juror could
conclude that Defendants Tilden, Ojelade, and Birkel acted with
deliberate indifference.
Defendant Pierce
Plaintiff alleged that Defendant Pierce failed to investigate his
grievances about medical treatment. At the time Plaintiff filed his
March 24, 2011 grievance, Plaintiff had already been examined by
Defendant Tilden and he was scheduled for a follow-up
appointment approximately a week later.
The prevailing case law in the Seventh Circuit absolves
nonmedical prison officials of constitutional liability in cases where
the official deferred to the judgment of the medical staff. See Berry
v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (nonmedical prison
officials “are entitled to defer to the judgment of jail health
professionals” so long as the inmate’s complaints are not ignored
(citations omitted)); Hayes v. Snyder, 546 F.3d 516, 527 (7th Cir.
2008) (no deliberate indifference where nonmedical prison official
investigated inmate’s complaints and referred then to medical
providers who could be expected to address the concerns); Greeno
v. Daley, 414 F.3d 645, 656 (7th Cir. 2005) (no deliberate
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indifference where nonmedical prison official referred inmate
complaints to medical providers). In other words, “the law
encourages non-medical security and administrative personnel at
jails and prisons to defer to the professional medical judgments of
the physicians and nurses treating the prisoners in their care
without fear of liability for doing so.” Berry, 604 F.3d at 440.
Here, the grievance officer’s recommendation stated that, per
the medical director response dated April 25, 2011, Plaintiff was
currently receiving treatment. At the time Defendant Pierce would
have reviewed this grievance recommendation, Plaintiff would have
already received approval for an MRI and consultation with an
outside specialist. With this information in hand, Defendant Pierce
would have been entitled to defer to the judgment of the medical
staff.
Defendant Pierce’s actions were consistent with those of the
prison officials in the cases cited above. See id. (nonmedical prison
official “consulted with the medical staff, forwarded [the inmate’s]
concerns to DOC, and timely responded….”); Hayes, 546 F.3d at
520 (Assistant Warden consulted with medical staff on several
occasions and referred concerns to medical providers); Greeno, 414
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F.3d at 655-56 (official reviewed complaints and verified with
medical officials that inmate was receiving treatment). Therefore,
the Court finds that no reasonable juror could find that Defendant
Pierce was deliberately indifferent.
Wexford Health Sources
Plaintiff also asserted a claim against Wexford Health Sources
(“Wexford”), the private corporation contracted to provide medical
services to Illinois prisons. Because Plaintiff did not suffer an
underlying constitutional deprivation, Wexford cannot be held liable
for damages. Pyles v. Fahim, 771 F.3d 403, 412 (7th Cir. 2014)
(citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).
Conclusion
Plaintiff’s claims against Defendant Tilden and Defendant
Pierce are barred by the statute of limitations. Even if they were
not, no reasonable juror could conclude that they, or the other
defendants, acted with deliberate indifference. Accordingly, the
Court finds that the Defendants are entitled to judgment as a
matter of law.
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IT IS THEREFORE ORDERED:
1) Defendants’ Motions for Summary Judgment [55][61] are
GRANTED. The clerk of the court is directed to enter
judgment in favor of Defendants and against Plaintiff. All
pending motions not addressed below are denied as moot,
and this case is terminated, with the parties to bear their
own costs. Plaintiff remains responsible for the $350.00
filing fee.
2) If Plaintiff wishes to appeal this judgment, he must file a
notice of appeal with this Court within 30 days of the
entry of judgment. FED. R. APP. P. 4(a)(4). A motion for
leave to appeal in forma pauperis MUST identify the issues
the Plaintiff will present on appeal to assist the court in
determining whether the appeal is taken in good faith. See
FED. R. APP. P. 24(a)(1)(c); see also Celske v Edwards, 164
F.3d 396, 398 (7th Cir. 1999)(an appellant should be given
an opportunity to submit a statement of his grounds for
appealing so that the district judge “can make a
reasonable assessment of the issue of good faith.”); Walker
v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000)(providing that
a good faith appeal is an appeal that “a reasonable person
could suppose…has some merit” from a legal perspective).
If Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee regardless of the outcome of
the appeal.
ENTERED:
June 26, 2017.
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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