Holmes v. Lochard et al
Filing
61
OPINION: Defendants' motion for summary judgment is granted. (d/e 53 .) The clerk of the court is directed to enter judgment in favor of Defendants and against Plaintiff. All pending motions are denied as moot, and this case is closed, with th e parties to bear their own costs. All deadlines and settings on the Court's calendar are vacated. 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). (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 11/6/2018. (GL, ilcd)
E-FILED
Tuesday, 06 November, 2018 02:25:55 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MONTRELL HOLMES,
Plaintiff,
v.
DR. HUGHES LOCHARD,
EDNA GREENHAGEN,
STACY BARTLETT,
KURT OSMUNDSON, and
WEXFORD HEALTH
SOURCES, Inc.,
)
)
)
)
)
)
)
)
)
)
)
)
17-CV-1160
Defendants.
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se from his incarceration in East
Moline Correctional Center, pursues a claim of deliberate
indifference to his shoulder injury and pain during Plaintiff’s
incarceration in Illinois River Correctional Center.
Defendants move for summary judgment, which is granted.
Plaintiff thought the time had come to send him to a specialist and
order an MRI or CT scan. That may have been one reasonable
approach, but Plaintiff has no evidence that the approach taken by
the doctors fell outside acceptable treatment norms.
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Facts
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.
Plaintiff asserts that he injured his shoulder in July 2014
when playing basketball in Pinckneyville Correctional Center.
According to Plaintiff, he did not receive adequate care for the injury
in Pinckneyville.1 An x-ray ordered in Pinckneyville showed no
fracture, no acute bony abnormality, and no evidence of an AC joint
separation. (d/e 53-6, p. 11.)
Plaintiff was transferred from Pinckneyville to Illinois River
Correctional Center in January 2015. Plaintiff saw Defendant
Bartlett, a nurse practitioner, on January 23, 2015, but Plaintiff
does not dispute that he refused to see Defendant Dr. Rankin that
day. (Defs.’ Undisp. Fact 52.) Why is not clear, but Plaintiff
Plaintiff pursued an action in the Southern District of Illinois challenging his care in
Pinckneyville for this shoulder injury. Holmes v. Shah, 15-cv-667 (S.D. Ill.) Summary
judgment was granted to the defendants, and the case is now on appeal.
1
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appears to have been frustrated by being required to pay $5.00 (the
co-pay that IDOC is required to charge when an inmate seeks
medical care) for a chronic problem that had been going on for
months. (Pl.’s Dep. 20.) Plaintiff does not dispute that Defendant
Bartlett did not have the ability to waive the co-pay. (Defs.’ Undisp.
Fact 66.)
Plaintiff saw a different nurse practitioner about 1 ½ weeks
later, on January 24, 2015, for his complaints of shoulder pain.
The medical entry from that date reflects that Plaintiff had pain and
a decreased range of motion, in that Plaintiff was able to perform
the “wall walk” 75% of the way. (d/e 53-5, pp. 5-6.) The wall walk,
or wall crawling maneuver, requires an individual to stand flat
against the wall and then move their fingers up the wall until their
arms are raised. The test is used to determine the possibility of a
rotator cuff tear. (Defs.’ Undisp. Fact. 12.) The nurse practitioner
advised Plaintiff to continue his exercises, apply cool and warm
compresses as needed, and follow up with health care if the
problem worsened. (d/e 53-5 p. 5.)
Plaintiff saw Defendant Nurse Practitioner Bartlett again on
January 30, 2015, this time for complaints of a headache. Plaintiff
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does not dispute that the medical entry from this visit reflects that
Plaintiff did not complain of shoulder pain at this visit. (Defs.’
Undisp. Fact 58.) Defendant Bartlett prescribed ibuprofren, a cool
compress, and “encouraged a quiet, dark room.” (d/e 53-5 p. 7.)
Plaintiff saw a nurse and a nurse practitioner (not Defendant
Bartlett) in March 2015 regarding Plaintiff’s continued shoulder
pain. Plaintiff received hot packs, range of motion exercises, pain
medicine, and a referral to Defendant Dr. Lochard. (d/e 53-5 p. 910.) Dr. Lochard is the Medical Director at the Rushville Treatment
and Detention Facility, but he also sees inmates at Illinois River
Correctional Center when needed.
Defendant Dr. Lochard first examined Plaintiff on March 28,
2015. Plaintiff described his pain as throbbing, burning, and
hurting constantly. Plaintiff does not dispute that he had no
difficulty completing the wall crawling maneuver at this visit. Dr.
Lochard avers that, “based on [Plaintiff’s] complaints of pain and
range of motion, I believed [Plaintiff’s] pain was most likely
attributed to a muscle strain with acute or chronic arthritis. I did
not believe there was any symptom consistent with a rotator cuff
injury or tear in his shoulder.” (Lochard Aff. 4.) Dr. Lochard
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prescribed Motrin, Robaxin (a muscle relaxant), analgesic cream,
and a Toradol shot (an anti-inflammatory). Dr. Lochard advised
Plaintiff not to play sports, lift with his shoulder, or sleep on his
shoulder or face down. A follow-up appointment was scheduled.
(Defs.’ Undisp. Facts 11-21.)
Plaintiff saw Dr. Rankin (not a Defendant) on April 21, 2015 to
follow up. According to the medical entry, Plaintiff said that the
Toradol was wearing off, and Plaintiff described his pain as a level
4. The entry also shows that Plaintiff had full range of motion and
mild tenderness at the AC joint. Plaintiff received a shot in his AC
joint, but what kind of shot is not stated. (Defs.’ Undisp. Facts 2224.)
About two months later, on June 13, 2015, Plaintiff saw Dr.
Lochard, reporting that the shot had helped but had not lasted. Dr.
Lochard avers:
Mr. Holmes informed me that the injection helped, but
did not last. Mr. Holmes had left shoulder tenderness in
his trapezius and his subacromial region was non tender.
As a result, I believed Mr. Holmes pain was attributed to
a muscle strain. Because his pain had continued after
using anti-inflammatory medications, I prescribed
Prednisone, a steroid, in tapering dosages starting at
60mg. I also informed Mr. Holmes to continue range of
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motion exercises and to discontinue his Motrin while
taking Prednisone. (Lochard Aff. ¶ 7.)
The next month, on July 11, 2015, Dr. Lochard saw Plaintiff
for a follow up. Plaintiff does not dispute that his shoulder was
better. He was able to move his arm above his head, and he had
good range of motion and mobility. (Defs.’ Undisp. Fact 8.) Dr.
Lochard told Plaintiff to continue his range of motion exercises.
However, ten days later, on July 21, 2015, Plaintiff saw a
nurse for left shoulder pain. The medical entry reflects that Plaintiff
described a constant stabbing and throbbing pain, rating his pain a
10 out of 10. (53-5 p. 17.) Plaintiff was given ibuprofen and had
already been scheduled to see Dr. Lochard on August 1, 2015.
When Plaintiff saw Dr. Lochard on August 1, Plaintiff reported that
the pain had returned during stretching, after the prednisone had
been tapered off. Dr. Lochard ordered a steroid injection for
Plaintiff. (Lochard Aff. ¶ 10.)
Plaintiff received his steroid injection on August 15, 2015. At
that point, before the shot, Plaintiff indicated that his left shoulder
“‘hurt a lot.’” (Defs.’ Undisp. Fact 12.) The shot appeared to help,
as Plaintiff reported about two weeks later, on August 31, 2015,
Page 6 of 16
that his “shoulder was much better and in less pain.” (Defs.’
Undisp. Fact 12.) Plaintiff did complain of some crepitis
(cracking/popping) at this visit. Dr. Lochard’s examination revealed
a good range of motion and nominal tenderness at Plaintiff’s AC
joint. (Defs.’ Undisp. Fact 12.) Dr. Lochard advised Plaintiff to
continue the range of motion exercises and avoid lifting with the
shoulder or sleeping on the shoulder. This was the last time Dr.
Lochard examined Plaintiff.
The relief from the steroid injection dissipated. On September
15, 2015, Plaintiff saw Defendant Nurse Practitioner Bartlett for
intermittent complaints of left shoulder pain. Defendant Bartlett
provided Plaintiff ibuprofen and noted that Plaintiff was already
scheduled to see Dr. Lochard on September 26, 2015. (Defs.’
Undisp. Fact 60-63; d/e 53-6 p. 4.) That appointment apparently
did not occur because Dr. Lochard avers that he last examined
Plaintiff on August 31, 2015.
On October 13, 2015, Plaintiff saw Defendant Dr. Osmundson
for complaints of left shoulder pain. Dr. Osmundson had recently
become the Medical Director at Illinois River Correctional Center.
According to the medical entry from this visit:
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Mr. Holmes indicated he had no numbness or tingling,
which means there was no nerve involvement. Mr.
Holmes was in no apparent distress and he had no
complaints of pain to palpation. I noted Mr. Holmes had
a decreased range of motion with flexion, rotation, and
extension. Mr. Holmes had position pain to palpation of
the left trapezius. My assessment based on my
examination was a left trapezoid strain. I educated Mr.
Holmes on a home exercise program to do three to four
times per day. I also prescribed Tylenol for pain for one
month. (Osmundson Aff. ¶ 4.)
According to Plaintiff, Dr. Osmundson did not give
Plaintiff a steroid injection, explaining that he did not
personally believe in steroid injections. (Pl.’s Dep. 30.)
Plaintiff does not dispute that the October 13, 2015 visit
with Dr. Osmundson was the last time Plaintiff complained of
shoulder pain or was seen by medical staff for shoulder pain.
Plaintiff asserts that this was not because his shoulder pain
resolved, but because he realized the futility of trying to obtain
a referral or imaging tests. Plaintiff filed this case in April 2017
seeking damages and also to be sent to an orthopedist and
have an MRI or CT scan. Plaintiff was transferred to East
Moline Correctional Center in or around August 2018.
At the time of his deposition in November 2017, Plaintiff
described his pain as always there, sometimes bad, sometimes not,
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with popping in his shoulder. (Pl.’s Dep. 54.)
Id. A hot shower
helped a bit. (Pl.’s Dep. p. 57.) Plaintiff asserts in his response to
the summary judgment motion that his pain interfered with his
ability to sleep, wash himself, and exercise. (d/e 55, p. 11.) When
asked in his deposition if the pain affected his ability to eat meals or
get dressed on his own, Plaintiff responded, “It just like—it’s—
sometimes it hurts, that’s all. Usually I have a pain, daily pain.”
(Pl.’s Dep. 63.) Plaintiff maintains that he was not allowed to take
an auto mechanics class because of Plaintiff’s shoulder issue. (Pl.’s
Dep. 63-64.)
Dr. Lochard avers that his treatment was appropriate
because:
I did not see any indication of any significant injury such
as a rotator cuff injury or any type of tear in [Plaintiff’s]
shoulder. Mr. Holmes responded well to the treatment
provided which included pain medication and steroid
injections. As such, I do not believe any additional
treatment or imaging was necessary based on his
indications that he had relief from the treatment that was
provided. (Lochard Aff. ¶ 13.)
Dr. Osmundson agrees with Dr. Lochard’s assessment:
It is my understanding that Mr. Holmes is alleging that I
was deliberately indifferent to his serious medical needs
for treatment regarding his left shoulder. I did not see
any indication of any significant injury such as a rotator
Page 9 of 16
cuff injury or any type of tear in his shoulder. Mr.
Holmes did not show any signs of nerve involvement or
AC2 joint injury and did not return to sick call with any
complaints after my examination. As such, I do not
believe any additional treatment or imaging was
necessary based on [Plaintiff’s] indications that he had
relief from the treatment that was provided. (Osmundson
Aff. ¶ 6.)
Analysis
Deliberate indifference to a serious medical need violates an
inmate’s Eighth Amendment right to be free from cruel and unusual
punishment. Townsend v. Cooper, 759 F.3d 678, 689 (7th Cir.
2014). Defendants argue that Plaintiff did not have a serious
medical need, but Plaintiff’s self-described pain and limited range of
motion allow an inference that he did. Further, the doctors thought
the condition significant enough to treat, which is enough to
conclude the need was serious in the constitutional sense. Wynn v.
Southward, 251 F.3d 588 (7th Cir. 2001).
The question is whether Defendants were deliberately
indifferent. Deliberate indifference is the conscious disregard of a
substantial risk of harm. Id. A doctor exercising his professional
judgment within accepted professional standards is not deliberately
2Acromioclavicular
joint.
Page 10 of 16
indifferent. Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2009)(“A
medical professional is entitled to deference in treatment decisions
unless no minimally competent professional would have so
responded under those circumstances.”) Deliberate indifference
occurs when a medical professional’s decision is such a substantial
departure from accepted professional standards that an inference
arises that the decision was in fact not based on professional
judgment at all. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).
Plaintiff’s primary argument is that a different treatment
approach was necessary after the other treatment approaches
failed. The continued pursuit of knowingly ineffective treatment
can amount to deliberate indifference. Greeno v. Daley, 414 F.3d
645, 655 (7th Cir. 2015). Plaintiff contends that the next step
should have been to refer him to a specialist and/or order a CT
scan or MRI.
Generally, the choice of diagnostic tests is entrusted to the
medical professional’s judgment, including whether to order a CT
scan or MRI. See, e.g. Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976) (“[T]he question whether an X-ray or
additional diagnostic techniques or forms of treatment is indicated
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is a classic example of a matter for medical judgment.”); Jackson v.
Kotter, 541 F.3d 688, 698 (7th Cir. 2008)(doctor’s decision not to
refer to orthopedist or for MRI was not deliberately indifferent where
doctor considered x-ray, prior orthopedist report and medical
history)(reversed on FTCA claim).
The decision whether to refer to a specialist is also one
entrusted to the medical professional. See, e.g., Pyles v. Fahim,
771 F.3d 403 (7th Cir. 2014)(“A prison physician is not required to
authorize a visit to a specialist in order to render constitutionally
acceptable medical care.”); Grund v. Murphy, 736 Fed.Appx. 601
(7th Cir. 2018)(not reported in Fed.Rptr.)(doctor’s decision not to
refer inmate to specialist or order MRI regarding breast implant
complications was an exercise of professional judgment).
No rational juror could conclude that Drs. Lochard and
Osmundson failed to exercise professional judgment. Both
concluded, based on their examinations of Plaintiff and Plaintiff’s
description of his pain, that Plaintiff’s problems were consistent
with a muscle strain, not a rotator cuff or other muscle tear or an
AC joint injury. They also determined that the muscle strain could
be treated in the prison and that a referral or imaging was not
Page 12 of 16
medically necessary. The fact that Plaintiff was not cured is not
evidence that professional judgment was not exercised within
acceptable bounds. See Pyles (no deliberate indifference to
inmate’s alleged continued excruciating back pain where doctors
ordered pain medicine and stretching exercises, refusing to order a
second MRI or referral); Ray v. Wexford health Sources, Inc., 706
F.3d 864 (7th Cir. 2013)(no deliberate indifference where doctor
decided no MRI necessary to diagnose cause of inmate’s continued
shoulder pain).
Plaintiff asserts that Defendant Wexford’s protocol required
Plaintiff to be referred to a specialist if treatment was not working,
but the protocol does not say that. For chronic shoulder pain, the
protocol leaves an orthopedic evaluation to the discretion of the
provider. The only condition requiring referral after six months
without healing is a clavicle fracture. (Wexford. Med. Pol. & Proc.,
Exhibit AA to Complaint.)
Further, no evidence allows an inference that the doctors chose
to doggedly pursue treatment they knew would not work. At Dr.
Lochard’s last visit with Plaintiff, Plaintiff reported that the steroid
shot had significantly helped, and Plaintiff had good range of
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motion. The shot’s impact apparently wore off shortly after that
visit, but nothing suggests that Dr. Lochard was aware of this.34
As to Dr. Osmundson, his interaction with Plaintiff was too limited
to allow an inference of deliberate indifference. Dr. Osmundson
saw Plaintiff only once, and Plaintiff did not again seek medical
attention for his shoulder after that visit. Plaintiff apparently
thought that doing so was futile, but that decision deprived Dr.
Osmundson of a chance to evaluate Plaintiff over time and
determine whether a change in treatment approach was necessary.
Having concluded that Drs. Lochard and Osmundson were not
deliberately indifferent to Plaintiff’s shoulder problem, the same
conclusion is compelled for Defendants Nurse Practitioner Bartlett,
Director of Nursing Greenhagen, and Wexford Health Sources, Inc.
With no underlying constitutional violation by the treating doctors,
Plaintiff contends in his response that the ibuprofen Dr. Lochard prescribed caused
Plaintiff to bleed from Plaintiff’s rectum. (d/e 55, pp. 4, 6.) This allegation was not part of
Plaintiff’s complaint nor mentioned in Plaintiff’s deposition. Plaintiff cannot add new claims in
response to a summary judgment. Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.
1996)(“A plaintiff may not amend his complaint through arguments in his brief in opposition to
a motion for summary judgment.”). Further, Plaintiff stated in his deposition that Dr. Lochard
prescribed ibuprofen only a “couple times,” instead favoring Naproxen because of Plaintiff’s
inability to tolerate ibuprofen. (Pl.’s Dep. 40.)
4 Plaintiff also asserts that when Dr. Lochard administered one of the shots, Plaintiff’s
“whole shoulder [turned] purple, black, red.” (Pl.’s Dep. 15.) According to Plaintiff, Dr. Lochard
said the reaction was normal. Id. A reaction to a shot is not evidence of deliberate
indifference. Nothing suggests that the shots were medically contraindicated.
3
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the other Defendants cannot be said to have turned a blind eye.
The other Defendants would be required to take action if they knew
that the doctors’ treatment decisions put Plaintiff at risk of harm,
but that situation is not present here. See Berry v. Peterman, 604
F.3d 435, 443 (7th Cir. 2010).
To the extent Plaintiff pursues a deliberate indifference claim
against the nurses that is separate from the doctors’ treatment
decisions, no evidence supports that claim. Plaintiff contends that
Nurse Bartlett made Plaintiff visit sick call three times, each time
paying a $5.00 co-pay, before referring Plaintiff to a doctor for
Plaintiff’s shoulder pain. That contention is not supported by the
record. Plaintiff does not dispute that the first time he saw
Defendant Bartlett, Plaintiff refused to see Dr. Rankin. There were
only two other interactions between Plaintiff and Defendant
Bartlett. The first involved complaints of a headache, and the
second regarded Plaintiff’s shoulder pain for which Plaintiff already
had a doctor’s appointment scheduled. As to Defendant
Greenhagen, Plaintiff argues that Greenhagen lied by saying she did
not recall having a conversation with Plaintiff in which she denied
his request to override the doctors’ decisions. Not remembering a
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conversation is not the same as denying the conversation occurred.
The Court has accepted as true that the conversation did occur, but
the fact remains that the doctors were not deliberately indifferent.
IT IS THEREFORE ORDERED:
1. Defendants’ motion for summary judgment is granted. (d/e
53.) The clerk of the court is directed to enter judgment in favor of
Defendants and against Plaintiff. All pending motions are denied as
moot, and this case is closed, with the parties to bear their own
costs. All deadlines and settings on the Court’s calendar are
vacated.
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 should identify the issues Plaintiff will present on
appeal. See Fed. R. App. P. 24(a)(1)(c). If Plaintiff does choose to
appeal, he will be liable for the $505.00 appellate filing fee
regardless of the outcome of the appeal.
ENTER: November 6, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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