Perez v. Talbot
Filing
52
OPINION entered by Judge Colin Stirling Bruce on 1/23/14. Defendant's Motion to Strike Plaintiff's Reply to Defendant Talbot's Response to the Plaintiff's First Reply for Summary Judgment 50 is DENIED; Defendant's Motion fo r Summary Judgment 42 is GRANTED. Judgment is entered in favor of Defendant and against Plaintiff. This case is terminated. See written Opinion. (Copy mailed to Francisco Perez #B78905, Danville CC, 3820 E Main St, Danville, IL 61834.) (KM, ilcd)
E-FILED
Thursday, 23 January, 2014 04:59:52 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
FRANCISCO PEREZ, ID#B-78905,
Plaintiff,
v.
PAUL TALBOT, M.D.,
Defendant.
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Case No. 12-CV-2102
OPINION
Pro Se Plaintiff Francisco Perez, an inmate at Danville Correctional Center in Danville,
Vermilion County, Illinois, filed a Complaint (#1) on March 27, 2012, alleging, pursuant to 42
U.S.C. § 1983, that Defendant Paul Talbot, M.D., was deliberately indifferent to Plaintiff’s
serious medical needs. Defendant filed a Motion for Summary Judgment (#42) on August 9,
2013. Plaintiff filed his Response (#45) on September 4, 2013, and Defendant filed his Reply
(#48) on October 7, 2013. On November 14, 2013, Plaintiff filed a Sur-Reply (#49) to
Defendant’s Reply (#48). Defendant filed a Motion to Strike (#50) the Sur-Reply on December
2, 2013. Plaintiff filed a Response to the Motion to Strike (#51). For the following reasons,
Defendant’s Motion to Strike (#50) is DENIED, but Defendant’s Motion for Summary Judgment
(#42) is GRANTED.
BACKGROUND1
1
These facts are taken from Defendant’s statement of undisputed facts and documents
submitted by the parties. This court has only included facts which are adequately supported by
evidence in the record.
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Plaintiff is an inmate of the Illinois Department of Corrections at the Danville
Correctional Center (DCC). Defendant is a physician licensed to practice medicine in the State
of Illinois and was employed by Wexford Health Sources, Inc. (Wexford) as the medical director
at the DCC at all times relevant to Plaintiff’s Complaint. On July 14, 2011, Plaintiff was playing
basketball and injured his left knee. Plaintiff went to the health care unit and was seen by
Registered Nurse Steve White. Nurse White’s note on the Offender Injury Report indicated that
there was no swelling in Plaintiff’s left knee, no indication of discoloration, and the knee had full
range of motion. Nurse White advised Plaintiff to ice the joint and provided Plaintiff Motrin.
Nurse White told Plaintiff to return if there was an increase in pain or swelling. On July 15,
2011, Defendant reviewed Nurse White’s note and concluded that Plaintiff should return as
needed.
Plaintiff saw Nurse Miles on July 20, 2011, and Miles’ progress note indicates that
Plaintiff’s left knee was swollen. No bony abnormalities or deformities were noted and Plaintiff
had full range of motion. Plaintiff was able to bear his own weight. He was given Advil, warm
compresses, and scheduled for an x-ray on his left knee. X-rays were taken on July 22, 2011.
According to the radiology report, the two views of the left knee revealed normal bony
alignment. There was no acute regional bony fracture or discoloration. Minor early
degenerative changes were seen. On July 23, 2011, Plaintiff was seen by a nurse practitioner
regarding acid reflux disease. No mention was made in the nurse’s notes of Plaintiff discussing
his knee. On July 29, 2011, a nurse advised Plaintiff that x-ray results were negative and
allowed him to return to work. Plaintiff was instructed to return as needed for medical attention.
Plaintiff saw nurses twice in August 2011 for issues other than his knee. On September 1, 2011,
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he saw Nurse Daily for nasal congestion, but Daily’s report noted that Plaintiff’s knee x-rays
showed minor degenerative changes and that Plaintiff refused an Ace bandage and analgesic
balm.
Plaintiff first saw Defendant for complaints regarding his left knee on September 2, 2011.
Defendant reviewed the x-rays of Plaintiff’s knee which showed, at best, early minor
osteoarthritis. After a physical exam, Defendant noted, among other things, that Plaintiff’s left
quadriceps, hamstring, and calf showed no signs of atrophy, a mild limp, very minimal knee
effusion, no tenderness in the peripatellar, no patellar tracking problems, and mild mid-popliteal
tenderness. Plaintiff had a full range of motion. Plaintiff responded to the Valgus stress test on
his left knee with complaints of medial pain. The test was performed only at full extension.
After conducting a series of other tests, Defendant concluded that Plaintiff’s knee pain was
suggestive, at most, of an MCL ligament strain. Defendant identified no sign of a full or partial
tear of the MCL. Defendant prescribed Naproxen, a left knee sleeve, and ordered that Plaintiff
be scheduled for follow-up at the doctor’s sick call in thirty days. Defendant noted that the
Valgus stress test was to be repeated at both full extension and twenty-five degree flexion.
Plaintiff was also provided education and counseling and advised to avoid stress to the knee such
as physical contact sports.
Defendant saw Plaintiff for a follow up visit on October 3, 2011, for Plaintiff’s
complaints relating to his left knee. During this examination, Plaintiff was stable, in no apparent
distress, able to ambulate satisfactorily (though with an antalgic gait), and had good activities of
daily living. Defendant noted that Plaintiff stated the Naproxen had helped. Defendant noted no
obvious deformities and concluded that Plaintiff had full range of motion in his knees. Plaintiff
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tested positive on the Valgus stress test at full extension and at thirty degrees flexion of the left
knee. After concluding a series of other tests and assessments, Defendant concluded that
Plaintiff had a left MCL injury. He renewed Plaintiff’s prescription for Naproxen and provided
Plaintiff with MCL exercises. He also ordered that Plaintiff be scheduled for a follow up visit in
thirty days. Plaintiff testified at his deposition that he was still in pain during the October visit
and requested Defendant order him to receive a magnetic resonance imaging (MRI) scan for his
left knee.
On November 3, 2011, Defendant saw Plaintiff for his follow up visit. Defendant noted
that Plaintiff walked with a normal gait, had full flexion extension and active movement of the
left knee, which had no swelling. He also noted that Plaintiff had no new complaints regarding
his left knee. Defendant concluded that Plaintiff’s left knee strain had improved. Plaintiff was
provided education and counseling and continued to have the left knee sleeve. Otherwise, as his
condition had improved, no new orders were entered by Defendant regarding Plaintiff’s prior
complaints of left knee pain. Plaintiff stated, during his deposition, that on this last visit his knee
was still somewhat swollen and he continued to request an MRI.
Defendant discussed the MCL in his declaration, which was attached as part of Exhibit 2
to Defendant’s Motion for Summary Judgment (#42). The MCL is located on the inner side of
the knee and provides stability to the knee joint. The initial treatment for most MCL injuries
focuses on reducing the pain and inflammation in the knee while immobilizing the knee to keep
it stabilized. The decision to recommend a specific test, such as an MRI, is determined by
whether or not the patient’s symptoms and presentation suggest a medical need for such test to
determine whether a specific course of treatment might be beneficial for the patient. An MRI is
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not a treatment modaility. Typically, an MRI is utilized only if surgical intervention is being
considered. It is one of a number of tests that can be ordered to obtain more information about a
person’s condition, and may provide guidance or assistance when determining one treatment
plan versus another.
In Plaintiff’s case, in Defendant’s personal opinion, based on his education, training, and
experience, an MRI was not required to confirm or reject the severity of Plaintiff’s injury, or
whether his knee sprain had improved. Defendant claims an MRI would be an unnecessary test,
based upon his clinical assessment of Plaintiff’s condition, and Defendant would not have
recommended surgical intervention or any course of treatment different from what he did
provide. Based upon Defendant’s clinical assessment of Plaintiff and in his professional
opinion, again based on his education, training, and experience, Plaintiff was not, and is not, a
surgical candidate for his non-specific knee sprain.
Defendant stated, in his declaration, that all of the care and treatment he provided to
Plaintiff was based on Defendant’s medical judgment, education, experience, and training.
Defendant declared that, while under Defendant’s care at DCC, Plaintiff received all care that
was medically necessary.
From November 3, 2011 (his last visit with Defendant) through December 12, 2012 (the
date of his deposition), Plaintiff had not made any further requests to see Defendant regarding
his left knee. Plaintiff is familiar with the sick call request procedure at the DCC, and medical
staff would have seen Plaintiff for further complaints regarding his left knee after November 3,
2011, had Plaintiff made a sick call request. According to Plaintiff’s medical records, on May
31, 2013, Plaintiff was seen by Nurse White for reported swelling on his knee. According to the
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note, Nurse White concluded that the swelling was minor and that there was no need for a
referral to the doctor. Thus, Defendant did not see or treat Plaintiff at that time. Plaintiff was
provided education and pain medication.
Procedural History
Plaintiff filed his Complaint (#1) on March 27, 2012. Count I of Plaintiff’s Complaint
was captioned: “Defendant Paul Talbot Has Denied the Plaintiff Medical Treatment for a Injured
Knee Wheres His Action Are With Deliberate Indifference.” Plaintiff alleges he injured his knee
on July 7, 2011, and it was not until August 5, 2011 that he was able to see Defendant. Plaintiff
alleges that at that time “Defendant was not trying to hear anything Plaintiff was saying and this
is a problem throughout [DCC].” Plaintiff also alleges there is a problem with the x-ray machine
at DCC and that Defendant knows about the problem, but still allows Plaintiff to walk around
with pain and suffering. Plaintiff alleges that Defendant told him to leave his office despite
Plaintiff trying to make Defendant aware of the extent of his injury. Plaintiff claims he has
requested an MRI, which would reveal injuries to his knee, but that Defendant continues to deny
his request. Plaintiff claims he has filed grievances with the DCC on this issue. Plaintiff
concludes that: “[t]he improper screening and examination and denial of any treatment and
diagnose which were inconsistent, and a great disregard to protect the plaintiff’s health and
safety while having the full knowledge of the injury and deliberately standing by and allowing
the plaintiff to remain in pain and suffering.” Count II of the Complaint concerned Plaintiff’s
demand for a soy-free diet.
On April 26, 2012, a merit review hearing was held before District Judge Michael P.
McCuskey. Judge McCuskey dismissed Count II (soy-free diet) of the Complaint with leave to
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reinstate. All other defendants except Defendant Talbot were dismissed from the case. Plaintiff
was allowed to proceed on Count I (knee injury count). On August 9, 2013, Defendant filed this
current Motion for Summary Judgment (#42). Plaintiff filed his Response (#45) on September 4,
2013. Defendant filed his Reply (#48) on October 7, 2013. On November 14, 2013, Plaintiff
filed a Sur-Reply (#49) to Defendant’s Reply (#48), leading Defendant to file a Motion to Strike
(#50) the Sur-Reply on December 2, 2013. Plaintiff filed a Response (#51) to the Motion to
Strike on January 7, 2014. The case is now fully briefed and ready for judgment.
MOTION TO STRIKE
The court will first address Defendant’s Motion to Strike Plaintiff’s Reply to Defendant
Talbot’s Response to the Plaintiff’s First Reply for Summary Judgment (#50). In Plaintiff’s SurReply (#49), he states it took until September 2, 2011 for Defendant to state that there was an
MCL injury and it took until February 22, 2013 for Plaintiff to receive a knee brace for the MCL
injury and that the delay of treatment for three years was proof of deliberate indifference.
Plaintiff attached to the Sur-Reply medical records from his visits with medical staff at DCC as
well as documents of the medical procedures and policies, marked “confidential,” employed by
Wexford Health Sources Incorporated, the provider of medical services to the DCC. Defendant
argues that the Sur-Reply should be stricken because the local rules of the Central District of
Illinois do not permit sur-replies and because the Wexford medical procedures documents
attached to the Sur-Reply are subject to a Protective Order (#39) entered by this court. Under
the Protective Order (#39), documents marked “confidential” should be referred to only by
description and exhibit number without filing the document itself. Plaintiff responds that he “did
not violate the protective order due to the court has a copy of the Wexford Inc. policies and
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procedures and this is between the judge himself and the court nobody else has these policies and
procedures.”
Motions to strike are generally disfavored because they have the potential to delay
proceedings, however where motions to strike remove unnecessary clutter from a case they serve
to expedite, rather than delay. Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d
1286, 1294 (7th Cir. 1989). Defendant correctly points out that sur-replies are not permitted
under Local Rule 7.1(D) of the Local Rules of the Central District of Illinois. However, a Note
attached to Rule 7.1(D) states that the rule does not apply to pro se litigants, of whom Plaintiff is
one. Therefore, the court will not strike the Sur-Reply under the local rule. The court does agree
that Plaintiff’s attachment of the “confidential” material does violate section IV of the Protective
Order (#39). The court will not consider material filed in the Sur-Reply in violation of the
Protective Order.2 Because motions to strike are generally disfavored, and because Plaintiff is a
pro se litigant not subject to Local Rule 7.1(D), Defendant’s Motion to Strike Plaintiff’s Reply to
Defendant Talbot’s Response to the Plaintiff’s First Reply for Summary Judgment (#50) is
DENIED.
SUMMARY JUDGMENT
Defendant argues that he was not deliberately indifferent to Plaintiff’s serious medical
need and was entitled to qualified immunity. Defendant argues Plaintiff repeatedly received
2
However, even were the court to consider the Wexford policies, it agrees with
Defendant’s assertion that, by themselves, “violations of internal policies and procedures do not
give rise to a constitutional violation.” See Whitman v. Nesic, 368 F.3d 931, 935 n.1 (7th Cir.
2004) (the mere fact that state rules or laws are violated does not in and of itself amount to a
constitutional violation giving rise to a § 1983 claim). Even were to consider the Wexford
policies, Plaintiff’s argument would fail due to the reasons discussed below.
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attention and treatment for his left knee and the care was effective. Further, Defendant’s
decision not to order an MRI for Plaintiff was based on his own reasoned medical opinion.
Defendant concluded an MRI was not necessary based on his clinical assessment of Plaintiff’s
condition and he would not have recommended surgical intervention or any course of treatment
different from what he provided Plaintiff. Defendant argues that this does not rise to the level of
cruel and unusual punishment. Plaintiff responds that there is a genuine issue of material fact.
Plaintiff states that he saw Defendant on September 2, 2011 and was told merely to “drink more
water” for a severe, swollen, and painful two-month old knee injury. Plaintiff argues that
Defendants “makes the statement that there wasn’t a MCL injury and then turns around and
states that there is a MCL injury how can the defendant make the decision of not providing a
MRI wheres his own judgment has been wrong!” Plaintiff argues that prison officials “must
respond to all of your serious medical needs, and the fact that you are properly treated on some
occasions does not excuse deliberate indifference on others.” Plaintiff states “the fact that
plaintiff Perez had to go to the warden in order to get the defendant to see him clearly states a
deliberate indifferent claim wheres there remains the serious needs of a MRI to reveal that there
is a real injury to this 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 is 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 (1986). In ruling on a motion for
summary judgment, a district court “has one task and one task only: to decide, based on the
evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge
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v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the court
must construe the evidence in the light most favorable to the nonmoving party and draw all
reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). However, a court’s favor
toward the nonmoving party does not extend to drawing inferences which are only supported by
speculation or conjecture. See Singer, 593 F.3d at 533. In addition, this court “need not accept
as true a plaintiff’s characterization of the facts or a plaintiff’s legal conclusion.” Nuzzi v. St.
George Cmty. Consol. Sch. Dist. No. 258, 688 F. Supp. 2d 815, 835 (C.D. 2010) (emphasis in
original).
The party opposing summary judgment may not rely on the allegations contained in the
pleadings. Waldridge, 24 F.3d at 920. “[I]nstead, the nonmovant must present definite,
competent evidence in rebuttal.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir.
2004). Summary judgment “is the ‘put up or shut up’ moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact to accept its version of events.”
Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004), quoting Johnson
v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Specifically, to survive summary
judgment, the nonmoving party “must make a sufficient showing of evidence for each essential
element of its case on which it bears the burden at trial.” Kampmier v. Emeritus Corp., 472 F.3d
930, 936 (7th Cir. 2007), citing Celotex Corp., 477 U.S. at 322-23.
Analysis
Plaintiff argues that Defendant has been deliberately indifferent to his serious medical
need, in violation of the prohibition against cruel and unusual punishment contained in the
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Eighth Amendment to the Constitution of the United States. In 1976, the United States Supreme
Court held that “deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain,’” proscribed by the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976), quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976). The
Court stated that this was true “whether the indifference is manifested by prison doctors in their
response to the prisoner’s needs or by prison guards in intentionally denying or delaying access
to medical care.” Estelle, 429 U.S. at 104-05. The Court further stated that “[t]his conclusion
does not mean, however, that every claim by a prisoner that he has not received adequate
medical treatment states a violation of the Eighth Amendment.” See Estelle, 429 U.S. at 105.
“To succeed on a deliberate indifference claim, a plaintiff must (1) demonstrate that his medical
condition is ‘objectively, sufficiently serious,’ and (2) demonstrate that the defendant acted with
a ‘sufficiently culpable state of mind.’” Holloway v Delaware County Sheriff, 700 F.3d 1063,
1072 (7th Cir. 2012), quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994).
“To demonstrate that a defendant acted with a ‘sufficiently culpable state of mind,’ a
plaintiff must put forth evidence that the defendant knew of a serious risk to the plaintiff’s health
and consciously disregarded that risk.” Holloway, 700 F.3d at 1073, quoting Johnson v.
Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006). “This subjective standard requires more than
negligence and it approaches intentional wrongdoing.” Holloway, 700 F.3d at 1073, citing
Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir. 1998). Indeed, the Seventh Circuit has
consistently held that deliberate indifference “requires a showing of more than mere or gross
negligence.” Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012), quoting Collins v. Seeman,
462 F.3d 757, 762 (7th Cir. 2006). The Supreme Court has compared the deliberate indifference
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standard to that of criminal recklessness. Holloway, 700 F.3d at 1073, citing Farmer, 511 U.S.
at 837. The Seventh Circuit has “characterized the standard as imposing a high hurdle on
plaintiffs because it requires a ‘showing as something approaching a total unconcern for the
prisoner’s welfare in the face of serious risks.” Rosario, 670 F.3d 816, 821 (7th Cir. 2012),
quoting Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006). Even if officials are aware of a
substantial risk of serious harm, they are not liable if they “responded reasonably to the risk,
even if the harm ultimately was not averted.” Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 765
(7th Cir. 2002), quoting Farmer, 511 U.S. at 843; see also Rosario, 670 F.3d at 822.
Therefore, the Seventh Circuit has recognized that the Constitution is not a medical code
that mandates specific medical treatment. See Jackson v. Kotter, 541 F.3d 688, 697-98 (7th Cir.
2008), citing Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). A prisoner is not entitled to
receive “unqualified access to healthcare.” Holloway, 700 F.3d at 1073, quoting Hudson v.
McMillian, 503 U.S. 1, 9 (1992). “Instead, prisoners are entitled only to ‘adequate medical
care.’” Holloway, 700 F.3d at 1073, quoting Johnson, 433 F.3d at 1013. “There is not one
‘proper’ way to practice medicine in prison, but rather a range of acceptable courses based on
prevailing standards in the field.” Jackson, 541 F.3d at 697, citing Snipes, 95 F.3d at 592. “For
a medical professional to be held liable under the deliberate indifference standard, he must make
a decision that is ‘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.’” Holloway, 700 F.3d at 1073, quoting Jackson, 541 F.3d at 697.
In this case, Plaintiff injured his knee playing basketball on July 14, 2011, and did not see
Defendant until September 2, 2011. In the meantime, Plaintiff saw a nurse or nurse practitioner
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on at least seven separate occasions, and on three of these occasions never mentioned a
complaint involving his left knee. When he did visit the medical staff to complain about his
knee, he was examined and provided aid and advice. The day after Plaintiff’s injury, Defendant
reviewed the nurse’s notes and concluded that Plaintiff should return as needed. On July 20,
2011, when he saw Nurse Miles, the nurse noted that the left knee was swollen, but that Plaintiff
still had full range of motion and was able to bear his own weight. Still, the nurse provided
Plaintiff Advil and a warm compress and scheduled Plaintiff for a left knee x-ray. On September
1, 2011, Plaintiff saw a nurse for nasal congestion, but the nurse noted that Plaintiff refused an
Ace bandage and analgesic balm for the knee.
Plaintiff’s first actual interaction with Defendant regarding his knee occurred during the
September 2, 2011 visit. During this visit Defendant reviewed Plaintiff’s x-rays, conducted a
physical exam and Valgus stress test, and other tests. Plaintiff did complain of medial pain, but
Defendant noted Plaintiff had full range of motion. Defendant identified no sign of a full or
partial MCL tear, and concluded that Plaintiff’s knee pain was suggestive, at most, of an MCL
ligament strain. Defendant prescribed Naproxen, a left knee sleeve, and ordered Plaintiff to visit
for a follow up in thirty days time. He also provided Plaintiff with counseling and advised him
to avoid stress to the knee. Defendant saw Plaintiff for his follow up on October 3, 2011, where
he noted that Plaintiff appeared stable, was in no apparent distress, and had good activities of
daily living. Plaintiff told Defendant the Naproxen had helped. Defendant noted no obvious
deformities and concluded that Plaintiff had full range of motion in his knees. However, after
conducting a series of tests and assessments, Defendant concluded Plaintiff had a left MCL
injury and renewed Plaintiff’s prescription for Naproxen. Defendant also provided Plaintiff with
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MCL exercises and scheduled him for another follow up in thirty days. On the third visit, which
took place November 3, 2011, Defendant noted that Plaintiff walked normally, had active
movement, and no swelling or new complaints about the left knee. Defendant concluded that the
knee sprain had improved and so he provided Plaintiff education and continued to have the left
knee in a sleeve. From November 3, 2011 until December 12, 2012, Plaintiff made no further
requests to see Defendant regarding his left knee, despite being familiar with the sick call request
procedure at DCC. He did see Nurse White on May 31, 2013, for left knee swelling, but the
nurse concluded the swelling was minor and there was no need for a referral to the doctor.
The above recited facts, based on the record in this case, reveal that Defendant was not
deliberately indifferent to Plaintiff’s serious medical needs.3 While the medical treatment
received by Plaintiff may not have been perfect or matched the level of treatment received at the
Mayo Clinic, Plaintiff is not entitled to “unqualified access to healthcare,” but rather only
medical care that is adequate. See Holloway, 700 F.3d at 1073. The record shows that medical
staff at DCC responded to Plaintiff’s complaints and evaluated his knee injury, providing
Plaintiff medication, education, and advice. Defendant himself reviewed the nurse’s note about
Plaintiff’s knee the day after his injury and advised that Plaintiff should return as needed.
Defendant saw Plaintiff three times at monthly intervals in late 2011, ordering Plaintiff to return
for follow up visits on two occasions. During these visits Defendant reviewed x-rays and
conducted numerous tests on Plaintiff to evaluate the extent of Plaintiff’s left knee injury. Based
3
Defendants have also argued that they are entitled to qualified immunity. Because of
this court’s conclusion that there is no dispute of material fact regarding whether Defendants
were deliberately indifferent to Plaintiff’s serious medical needs, this court does not need to
reach this issue.
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on his years of medical training and experience, it was Defendant’s professional medical opinion
had an MCL injury, such as a strain and that by the last visit, the injury had improved. To this
end Defendant prescribed Plaintiff Naproxen, a left knee sleeve, and education and advice on
how to help the injury heal. The evidence of record shows that Defendant was attentive to
Plaintiff’s complaints and needs and diligent in diagnosing Plaintiff’s problem. Defendant,
based on his training and experience, formed conclusions about Plaintiff’s injury and took what
he considered to be the most reasonable actions to treat said injury.
Setting aside whether Plaintiff has sufficiently demonstrated the objectively seriously
nature of his injury, Plaintiff has not shown that Defendant acted with a “sufficiently culpable
state of mind.” See Farmer, 511 U.S. at 834. There is no evidence that Defendant was “aware
of a substantial risk of serious harm,” but, even if he were, Defendant responded reasonably to
the risk. See Jackson, 300 F.3d at 765. The facts simply do not demonstrate that Defendant was
in any way grossly negligent, or even merely negligent, in his treatment of Plaintiff, let alone
that Defendant was guilty of the criminal recklessness necessary to meet the deliberately
indifferent standard. Rosario, 670 F.3d at 821; Holloway, 700 F.3d at 1073. The evidence does
not show that Defendant’s decisions were such a substantial departure from accepted
professional judgment, practice, or standards, as to demonstrate that Defendant actually did not
base his decisions on such a professional judgment. See Holloway, 700 F.3d at 1073. Plaintiff
has not met his “high hurdle” of showing that Defendant evinced a total unconcern for his
welfare in the face of serious risks. See Rosario, 670 F.3d at 821. To the contrary, the record
reveals that Defendant conscientiously treated Plaintiff and met Plaintiff’s medical needs. Thus,
there is no genuine issue of material fact as to whether Defendant was indifferent to Plaintiff’s
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serious medical needs.
Plaintiff makes a number of arguments that he believes demonstrate a genuine issue of
material fact concerning Defendant’s deliberate indifference. First, Plaintiff argues that
Defendant intentionally delayed seeing him and ignored his injury for two months. That
assertion, however, is contradicted by Defendant’s declaration that he reviewed Nurse White’s
notes on Plaintiff’s initial visits and concluded that Plaintiff should continue to be seen as
needed. Any claim by Plaintiff that he was deliberately ignored or that Defendant intentionally
delayed seeing him, as some sort of act of deliberate indifference, is an inference based on mere
speculation or conjecture on Plaintiff’s part, and such inferences cannot defeat summary
judgment. See McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004).
Next, Plaintiff claims that a genuine of material fact exists because, in his declaration,
“defendant made the statement of there wasn’t a MCL injury and turn’s around an estate’s that
there was an MCL injury.” However, Plaintiff’s interpretation of the declaration is in error. In
paragraph 24 of the declaration, describing the September 2, 2011 visit, Defendant states “[a]fter
conducting a series of other tests I concluded that Mr. Perez’s knee pain was suggestive, at most,
of a medial collateral ligament (“MCL”) strain. I identified no sign of a full or partial tear of the
MCL.” In paragraph 29 of the declaration, describing the follow up October 3, 2011 visit,
Defendant declares “[a]fter concluding a series of other tests and assessments, I concluded that
Mr. Perez had a left MCL injury. I renewed plaintiff’s prescription for Naproxen and Mr. Perez
was given exercises for his MCL.” These statements are not contradictory and do not create a
genuine issue of material fact. The term “injury” is broad, and it is perfectly reasonable to
interpret the suggested MCL strain of September 2, 2011 as the “injury” of October 3, 2011.
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However, even if the court indulged in Plaintiff’s interpretation, Defendant’s change of diagnosis
and how he preferred to treat that diagnosis would be a matter of medical judgment. Even if that
diagnosis or treatment were initially improper, absent intentional wrongdoing or criminal
recklessness on Defendant’s part in treating Plaintiff, it does not rise to the level of deliberate
indifference. See Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1994) (“medical malpractice
in the form of an incorrect diagnosis or improper treatment does not state an Eighth Amendment
claim.”).
Plaintiff also mentions the fact that, in 2013, he received a knee brace, to show that his
condition has gotten worse due to “delay” in treatment. Plaintiff did not receive this brace until
well after the initiation of the lawsuit, but, even if Plaintiff could make a connection between
treatment received from Defendant in 2011, and need for the brace in 2013, the court finds
Defendant responded reasonably to the risk of harm at the time, even if the harm ultimately was
not averted. See Jackson, 300 F.3d at 765, quoting Farmer, 511 U.S. at 843; see also Rosario,
670 F.3d at 822.
In his deposition, Plaintiff testified that his claim against Defendant is that Defendant did
not give him the course of medical treatment Plaintiff requested to resolve his medical problem,
namely the MRI. As stated above, however, the United States Constitution is not a “medical
code” that mandates specific medical treatment. Jackson, 541 F.3d at 697-98. Defendant made
a diagnosis and treatment decision based on his training and experience as a doctor. Defendant
stated in his declaration that an MRI is not a treatment modality, but rather is utilized only if
surgical intervention is being considered. In Plaintiff’s case, Defendant determined, based on his
medical judgment, that an MRI was not required to confirm or reject the severity of Plaintiff’s
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injury, or whether his knee strain had improved. Because Defendant would not have
recommended surgical intervention or any course different from what he did provide Plaintiff, an
MRI would have been unnecessary. Plaintiff’s request for an MRI is Plaintiff’s preferred course
of medical treatment. Plaintiff, however, is not a medical professional, and he is not entitled to
unqualified access to healthcare. See Holloway, 700 F.3d at 1073. Rather, Plaintiff is entitled to
adequate healthcare under the Constitution, which is what was provided by Defendant. See
Holloway, 700 F.3d at 1073. Defendant’s decision not to order an MRI for Plaintiff was, under
the circumstances, a reasonable decision based on Defendant’s sound medical judgment.
Though Plaintiff may have disagreed with Defendant’s decision, Defendant did not ignore
Plaintiff and Defendant’s treatment decisions certainly did not constitute intentional wrongdoing
or criminal recklessness so as to rise to the level required to demonstrate deliberate indifference
under the Eighth Amendment. See Holloway, 700 F.3d at 1073; Rosario, 670 F.3d at 821.
This court concludes that the record shows that Defendant attentively treated Plaintiff
for Plaintiff’s knee injury at DCC. Although Plaintiff has many complaints about Defendant’s
medical decisions, he is entitled to adequate medical care, not the specific medical treatment he
desires. This court concludes that the Defendant has met his burden to show that there is no
genuine dispute of material fact regarding whether Defendant was deliberately indifferent to
Plaintiff’s serious medical needs. Defendant’s Motion for Summary Judgment (#42) is
GRANTED.
IT IS THEREFORE ORDERED THAT:
(1) Defendant’s Motion to Strike Plaintiff’s Reply to Defendant Talbot’s Response to the
Plaintiff’s First Reply for Summary Judgment (#50) is DENIED.
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(2) Defendant’s Motion for Summary Judgment (#42) is GRANTED. Judgment is
entered in favor of Defendant and against Plaintiff.
(3) This case is terminated.
ENTERED this 23rd day of January, 2014.
s/ COLIN S. BRUCE
U.S. DISTRICT JUDGE
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