Horton v. Logan Correctional Center et al
Filing
182
OPINION entered by Judge Sue E. Myerscough on 822/2012. Defendants' motion for summary judgment is granted, d/e 130 . The Clerk of the Court is directed to enter judgment in favor of the Defendants and against the Plaintiff. All pending moti ons are denied as moot, and this case is terminated, with the parties to bear their own costs. All deadlines and settings on the Court's calendar are vacated. If the 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). If the Plaintiff does choose to appeal, he will be liable for the $455.00 apellate filing fee regardless of the outcome of the appeal. (MAS, ilcd)
E-FILED
Wednesday, 22 August, 2012 03:22:35 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MATTHEW E. HORTON,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
DR. KIMBERLY BIRCH and
DR. OBAISI,
Defendants.
10-CV-3233
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se, alleges deliberate indifference to his
serious medical needs regarding his foot during his incarceration in the
Illinois Department of Corrections. Now before the Court is Defendants’
motion for summary judgment. Because Defendants’ motion
demonstrates that they were not deliberately indifferent to any of
Plaintiff’s medical needs, Defendants’ motion will be granted.
1
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). “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, evidence is viewed in the light
2
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.
FACTS
Plaintiff came to the IDOC on November 24, 2009, where he was
first taken to Stateville Correctional Center. His medical condition was
described as insulin-dependent, type II diabetes, high blood pressure, and
a gunshot wound from July of that year, with artery repair. (Defs.’
Undisp. Facts 2-3, d/e 130.) He was transferred to Vienna Correctional
Center on December 28, 2009, where his medical records noted that he
had blisters and corns on his feet. (Defs.’ Undisp. Fact 5, d/e 130.)
The next month Plaintiff told a nurse that foot surgery had been
recommended for him by a podiatrist, and he asked if he could wear
tennis shoes instead of the standard issue prison shoes. A medical record
from a podiatrist dated October 10, 2008, over one year before Plaintiff’s
incarceration, appears to reflect that Plaintiff presented complaining of a
3
callus on his right foot, gradually worsening over two years. The records
appear to reflect that an x-ray uncovered some kind of bone deformity in
Plaintiff’s right foot, and that the podiatrist discussed surgical options
with Plaintiff. (10/10/08 History & Physical form, p. 2, Plf.’s Exhibit, d/e
149).
Defendant Dr. Birch first saw Plaintiff on January 15, 2010, in
Vienna Correctional Center at the diabetes clinic. Plaintiff complained of
a callus on his right foot. Dr. Birch prescribed high blood pressure
medication, baby aspirin, insulin, and right foot soaks. Dr. Birch saw
Plaintiff ten days later, again for the callus on his right foot. She soaked
his foot, shaved down the callus, applied salicylic acid and a cover pad.
According to Dr. Birch, Plaintiff reported “feels much better,” but
Plaintiff denies saying this. (Pl.’s Dep. p. 34, d/e 130.) Dr. Birch saw
Plaintiff again about three weeks later, on February 8, 2010, to
reevaluate the callus. She repeated the treatment she had given at
Plaintiff’s prior visit. Plaintiff testified in his deposition that he told Dr.
Birch that her treatments would not fix the problem because he had a
4
deformity in his foot which required surgery to fix.
Plaintiff had several other visits to the medical unit at Vienna
Correctional Center during March and April, 2010, but those visits did
not deal with Plaintiff’s foot. (Defs.’ Undisp. Facts 22-26, d/e 130.) Dr.
Birch saw Plaintiff on May 4, 2010 in the diabetes clinic, where Dr. Birch
stressed to Plaintiff the importance of controlling his diabetes. A few
weeks later, on May 26, 2010, Dr. Birch again shaved Plaintiff’s right
foot callus. Plaintiff was paroled from Vienna Correctional Center two
days later, on May 28, 2010.
In Dr. Birch’s opinion, Plaintiff had good blow flow and pulses in
his feet, and he did not need a referral to a podiatrist, foot surgery, or
diabetic shoes at any time while the doctor was responsible for Plaintiff’s
care. (Birch Aff. ¶ 33, d/e 130-1.)
Plaintiff wound up back in the IDOC about two months after he
was paroled. This time he was sent to Logan Correctional Center, where
Defendant Dr. Obaisi worked. On August 17, 2010, Dr. Obaisi reviewed
Plaintiff’s records and prescribed high blood pressure medicine, a baby
5
aspirin, and daily blood sugar readings. He also directed Plaintiff to be
scheduled in the diabetes clinic. About one week later, Dr. Obaisi
personally examined Plaintiff, who was requesting a low bunk and
diabetic shoes. Dr. Obaisi prescribed a low bunk, a new insulin
prescription, a hemoglobin A1C test, and a puma bar for Plaintiff’s foot
calluses. Dr. Obaisi prefers not to use a knife to scrape calluses because
of the risk of infection. (Obaisi Aff. ¶ 42, d/e 130-3.)
Dr. Obaisi next saw Plaintiff on September 16, 2010, again noting
the Plaintiff had foot calluses. He again directed Plaintiff to use the
puma stone after showering. Five days later Dr. Obaisi saw Plaintiff in
the diabetes clinic and noted in the record that Plaintiff had “good pulses
and sensations in his foot.” (Defs.’ Undisp. Fact 48, d/e 130). He also
prescribed an additional diabetes medicine and another hemoglobin A1C
test.
Dr. Obaisi saw Plaintiff on October 1, 2010, in response to
Plaintiff’s complaints about his feet. Plaintiff contends that he told Dr.
Obaisi about his foot deformity and the need for surgery. However, in
6
Dr. Obaisi’s medical opinion, no objective medical evidence supported
the need for a referral to a podiatrist, surgery, or diabetic shoes.
According to Dr. Obaisi, Plaintiff had no diabetic neuropathy and had
good sensation in his feet. (Defs.’ Undisp. Facts 50-51, d/e 130.)
In November, 2010, Plaintiff had laser eye surgery, for a reason not
explained in Defendants’ motion. On November 5, 2010, Dr. Obaisi saw
Plaintiff for a follow up from that surgery, when Plaintiff asked for tennis
shoes. Dr. Obaisi issued him a permit to buy tennis shoes.
Plaintiff was released from Logan Correctional Center on or around
December 27, 2010. In April, 2011, Plaintiff visited podiatrist Dr.
Blyumin, who scheduled surgery for an osteotomy. (Pl.’s medical
progress notes dated 4/1/11, d/e 149, p. 3.) However, a few days later the
surgery was postponed to clear up an ulceration on Plaintiff’s foot. Id.
In June, 2011, Plaintiff had the surgery on his right foot, which Plaintiff
maintains fixed the problem. (Pl.’s medical progress notes dated 6/2/11,
d/e 149, p. 9.) However, his medical records after that surgery reflect
continued and significant problems with infection, swelling, failure to
7
show for post-operative appointments, and failure to follow postoperative instructions. (Pl.’s medical progress notes dated 6/10/11-10/1411, d/e 149, p. 3.)
ANALYSIS
Plaintiff’s claim falls under the Eighth Amendment to the
Constitution, which prohibits cruel and unusual punishment. In the
context of medical care for prisoners, cruel and unusual punishment
occurs when a Defendant is deliberately indifferent to a serious medical
need of a prisoner:
A prisoner's claim for deliberate indifference must establish
“(1) an objectively serious medical condition; and (2) an
official's deliberate indifference to that condition.” Arnett,
658 F.3d at 750. Deliberate indifference is proven by
demonstrating that a prison official knows of a substantial
risk of harm to an inmate and “either acts or fails to act in
disregard of that risk.” Id. at 751.
Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). A condition can
be considered serious if, without treatment, the plaintiff suffered
“‘further significant injury or unnecessary and wanton infliction of pain.’”
Id.
8
Plaintiff describes his care in prison as malpractice, but malpractice
does not amount to a constitutional violation. Norfleet v. Webster, 439
F.3d 392, 396 (7th Cir. 2006). “A negligent or inadvertent failure to
provide adequate medical care is insufficient to state a . . .
[constitutional] claim . . . . ‘Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner. . . .’”
Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002)(quoted cites
omitted). A malpractice action is a state law claim. For Plaintiff to
pursue a malpractice claim under state law he would have had to submit
a physician's report finding some merit to the claim, which he has not
done. 735 ILCS 5/2-622. Thus, only the Eighth Amendment claim is
before the Court.
Discerning a serious medical need during Plaintiff’s two short stints
in prison is difficult. Plaintiff’s own medical records from the podiatrist
do not show that surgery was recommended. Those records show only
that surgical options were discussed, and none of those records suggest
any pressing time line. Nor did Plaintiff appear to be in a hurry to get
9
the surgery when he was out of prison. His podiatrist records are from
2008, a full year before Plaintiff’s incarceration, and Plaintiff had been
living with the callus for two years before he went to the podiatrist.
Plaintiff was under the care of each Defendant for only about five
months, with a two month separation in between, during which time he
does not appear to have attempted to obtain medical care for his foot.
Plaintiff was in no danger of amputation, as he asserts, and there is no
evidence of infection during his incarcerations. His foot problem was not
caused by his diabetes, but by a deformation of the foot bones. The
infections that are reported in the medical records occurred months after
Plaintiff was released and after he had the surgery.
Even assuming Plaintiff’s own description of his foot pain
amounted to a serious medical need, Defendants were not deliberately
indifferent to that need. During these five month stints of incarceration,
each Defendant personally examined Plaintiff’s foot, determined that the
circulation in the foot was good, and prescribed treatment to help reduce
the calluses. Plaintiff has no evidence that this treatment approach was
10
outside the standard of care, much less that the approach was a
“substantial departure from accepted professional judgment.” Estate of
Cole v. Pardue, 94 F.3d 254, 261-62 (7th Cir. 1996); see also Collingnon
v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998)(deliberate
indifference may be established if “response so inadequate that it
demonstrated an absence of professional judgment, that is, that
nominally competent professional would not have so responded under
the circumstances.”). Plaintiff’s own disagreement with Defendants’
treatment decisions does not support an Eighth Amendment claim.
Steele v. Choi, 82 F.3d 175, 178-79 (7th Cir. 1996). The fact that
Plaintiff had surgery seven months after his last release does not support
an inference that Defendants were deliberately indifferent. As discussed
above, Plaintiff has no evidence that his surgery was anything other than
elective. Additionally, his medical records actually demonstrate the risks
of such surgery, such as the swelling and infection Plaintiff experienced.
IT IS THEREFORE ORDERED:
1) Defendants’ motion for summary judgment is granted (d/e 130).
11
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 terminated, 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 $455.00 appellate filing fee regardless of the outcome of the
appeal.
ENTERED:
August 22, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?