Boone v. Witherspoon et al

Filing 115

OPINION: Plaintiff's "motion for order pursuant to Rule 56" is denied. (d/e 105.) Plaintiff challenges to Defendants' exhibits were considered. Plaintiff's motion to exceed page and type limitations is granted. (d/e 108.) P laintiff's renewed motion for counsel is denied (d/e 113) for the reasons stated in the prior orders denying counsel. Plaintiff's motion for partial summary judgment is denied. (d/e 91.) Defendants' motion for summary judgment is denied. (d/e 101.) This case is referred to the Magistrate Judge for a settlement conference. Final pretrial and trial dates will be set if no settlement is reached. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 9/5/2017. (GL, ilcd)

E-FILED

Tuesday, 05 September, 2017 12:16:04 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MICHAEL BOONE,
Plaintiff,
v.
FABIENNE WITHERSPOON and
PAUL TALBOT,
Defendants.

)
)
)
)
)
)
)
)
)
)

14-CV-2296

OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
Plaintiff proceeds pro se from his incarceration in Shawnee
Correctional Center on claims for deliberate indifference to his type
2 diabetes and neuropathy during the last part of his incarceration
in Danville Correctional Center before his transfer to Shawnee.
The parties have filed cross summary judgment motions.
While Plaintiff appears to have received good care for most of his
stay at Danville and a jury certainly could find for Defendants, the
Court cannot rule out an inference of deliberate indifference
regarding Plaintiff’s neuropathy or the unexplained halving of one of

Page 1 of 9 

Plaintiff’s diabetes medicines for about four months. Summary
judgment is denied.
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
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).
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.
Page 2 of 9 

Facts
Plaintiff was diagnosed with type 2 diabetes some time before
2005. Defendant Dr. Talbot, a doctor working at Danville
Correctional Center, treated Plaintiff starting in 2010 until Plaintiff
transferred from Danville to Shawnee Correctional Center in August
2013. Over these years, Dr. Talbot prescribed diabetes
medications, lifestyle instruction, lab tests, daily checks of
Plaintiff’s blood sugar levels, and a diabetic meal tray. Dr. Talbot
also offered to prescribe insulin to Plaintiff, but Plaintiff preferred to
control his diabetes through oral medication and lifestyle changes.
Plaintiff’s A1C level, a blood test that tracks average blood sugar
levels, varied from 6.3 to 8.1 from 2005 to 2009. An A1C of 7 or
less is generally considered to indicate well controlled diabetes,
though many factors are taken into account in determining whether
a particular patient’s diabetes is well controlled.
Plaintiff was prescribed two diabetes medicines during his
incarceration in Danville—Glipizide and Metformin. The dosages of
these medicines were revised from time to time based upon Dr.
Talbot’s determination of how well Plaintiff’s diabetes was
controlled. The medical treatment Plaintiff challenges began in the
Page 3 of 9 

Fall of 2012 through August 22, 2013, when Plaintiff was
transferred from Danville to Shawnee.
In August 2012, Plaintiff was taking 15 mg of Glipizide, twice
per day, and 1000 mg Metformin, twice per day. Plaintiff’s A1C that
month was 7.6. By November Plaintiff’s A1C had increased to 7.8.
On December 4, 2012, Dr. Talbot talked to Plaintiff about trying
insulin, but Plaintiff preferred to stay with the oral
medicine/lifestyle modification approach. Dr. Talbot reduced the
Metformin to 850 mg and planned to follow up with Plaintiff in six
weeks.
On December 13, 2012, Plaintiff saw Defendant Nurse
Practitioner Witherspoon in the diabetes clinic. Defendant
Witherspoon continued Dr. Talbot’s Metformin prescription but
reduced Plaintiff’s Glipizide to 15 mg once a day rather than twice a
day. Defendant Witherspoon does not recall why she halved the
Glipizide prescription. She avers that “[i]t is possible that I was
under the impression that [Plaintiff] was only receiving Glipizide 15
mg once a day, and simply did not realize that he was receiving
Glipizide twice a day. It is also possible that I decreased the

Page 4 of 9 

Plaintiff’s Glipizide. (Witherspoon Aff. ¶ 7.) Dr. Talbot did not catch
the decrease in his review of the records.
By April 2013, Plaintiff’s A1C had increased to 11.1. Dr.
Talbot does not believe that the 15 mg daily decrease in Glipizide
would account for the A1C raise, noting that Plaintiff had gained
weight and had purchased food from the commissary that is
contraindicated for diabetes. Dr. Talbot restored Plaintiff’s Glipizide
prescription to 15 mg, twice per day, and continued Plaintiff’s other
prescriptions. By August 14, 2013, Plaintiff A1C had dropped to 8.
In November of 2012, Plaintiff began complaining of symptoms
consistent with foot neuropathy—a sharp and tingling foot pain.
According to Plaintiff, he continued to complain to both Defendants
about these increasing symptoms to no avail until, on July 10,
2013, Defendant Witherspoon diagnosed neuropathy and
prescribed 300 mg of Neurontin, twice daily. Plaintiff believed the
dosage needed to be increased because he felt no relief and his
hand had started tingling. About a month later, on August 9, 2013,
Defendant Witherspoon changed her diagnosis from neuropathy to
plantar fasciitis and discontinued the Neurontin. Plaintiff
transferred to Shawnee on August 22, 2013.
Page 5 of 9 

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). No one disputes that type 2 diabetes,
neuropathy, or plantar fasciitis are serious medical needs, so the
focus is 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 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). A mistake is not
deliberate indifference. Whiting v. Wexford Health Sources, Inc.,

Page 6 of 9 

839 F.3d 658, 662 (7th Cir. 2016)([W]ithout more, a mistake in
professional judgment cannot be deliberate indifference.” ).
Defendants dispute that Plaintiff complained of his foot pain
as often as he says, but at this stage Plaintiff’s version is accepted.
Defendants do not adequately explain why no action was taken on
Plaintiff’s complaints for eight months nor why the Neurontin
prescription was abruptly terminated in favor of a diagnosis of
plantar fasciitis. Defendants have not met their burden of
demonstrating the absence of a disputed fact on this issue.
The reduction in Glipizide is a more difficult question. The
reduction appears to be no more than a mistake on this record,
corrected quickly when discovered four months later. Additionally,
Plaintiff bears some of the responsibility because he gained weight
during this time, which affects glucose control, and Plaintiff’s
choices during this time regarding diet and exercise would have
also affected his glucose control. Whether Plaintiff can show that
the four month decrease of 15 mg in Glipizide per day caused him
harm is questionable. However, whether Defendants were
deliberately indifferent on this claim requires determining their

Page 7 of 9 

subjective knowledge and intent, a decision that the Court
concludes belongs to the jury on this record.
IT IS THEREFORE ORDERED:
1.
Plaintiff’s “motion for order pursuant to Rule 56” is
denied. (d/e 105.) Plaintiff challenges to Defendants’ exhibits
were considered.
2.
Plaintiff’s motion to exceed page and type limitations is
granted. (d/e 108.)
3.
Plaintiff’s renewed motion for counsel is denied (d/e 113)
for the reasons stated in the prior orders denying counsel.
Additionally, the record demonstrates that Plaintiff’s pleadings
are quite thorough and well written, demonstrating a solid
knowledge of applicable law and civil procedure. Further,
before prison Plaintiff completed his first year of college and
successfully completed trade school to become a technician.
(Pl.’s Dep. 14.)
4.
Plaintiff’s motion for partial summary judgment is denied.
(d/e 91.)
5.
Defendants’ motion for summary judgment is denied. (d/e
101.)
6.
This case is referred to the Magistrate Judge for a
settlement conference. Final pretrial and trial dates will be set
if no settlement is reached.
ENTERED: September 5, 2017
FOR THE COURT:
Page 8 of 9 

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 9 of 9