Hartman v. Foster et al
Filing
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OPINION entered by Judge Sue E. Myerscough on 02/04/2013. SEE WRITTEN OPINION. Defendants' motions for summary judgment are denied (d/e's 44 , 45 ). The parties may file additional dispositive motions by March 15, 2013. The final pret rial conference is rescheduled to August 26, 2013 at 1:30 p.m. Plaintiff shall appear by video conference. Defense counsel shall appear in person. The date for the jury selection and the jury trial will bedetermined at the final pretrial conference. (DM, ilcd)
E-FILED
Monday, 04 February, 2013 04:42:47 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TRAVIS HARTMAN ,
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Plaintiff,
v.
CRAIG FOSTER and
KURT SIMON,
Defendant,
11-CV-3132
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, proceeding pro se, is currently detained in
Jacksonville Correctional Center. He asserts that, during his
detention in the Montgomery County Jail from January 30 to March
16, 2010, Defendants refused to provide him with anxiety medicine
which had been prescribed to Plaintiff before his arrest. In
particular, Plaintiff had been prescribed and was taking 10
milligrams of Lexapro daily and .5 milligrams of Ativan twice daily.
Defendants have moved for summary judgment, and the Court
has read the parties’ submissions. In the Court’s opinion,
Defendants’ motions must be denied because the record is silent on
material facts.
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Construing reasonable inferences in Plaintiff’s favor, as the
Court must on summary judgment, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986), Defendant Captain Foster confirmed
on February 17, 2013 that Plaintiff had been prescribed Lexapro
and Ativan before Plaintiff’s arrest. The record allows an inference
that Plaintiff several times informed Captain Foster and Dr.
Raymond, who is not a Defendant, of Plaintiff’s need for his
prescriptions to alleviate his anxiety, which included panic attacks.
Plaintiff offered to pay for the medications himself. On this record,
Plaintiff’s prescriptions and his own description of his symptoms
allow an inference that he had a serious medical need for treatment
of his anxiety during his stay at the Jail.
Defendant Kurt Simon was the Director of the Division of
Behavioral Health at the Montgomery County Health Department.
On February 26, 2010, Simon saw Plaintiff pursuant to a request
from Captain Foster. Simon asserts that the visit was primarily to
determine whether Plaintiff was a danger to himself or others.
However, construing inferences in Plaintiff’s favor, at least one of
the purposes of the visit was to evaluate Plaintiff’s need for Ativan
and Lexapro. Simon contends that Plaintiff did not mention his
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need for Ativan or Lexapro at the February 26th evaluation, but
Plaintiff testified otherwise in his deposition.
Defendant Simon is a mental health professional, but he is
not a psychiatrist and cannot prescribe psychotropic medicines.
However, after meeting with Plaintiff, Simon wrote a note which
concluded, “[t]his request will be denied.” Simon gave the note to
Captain Foster, and Plaintiff did not receive his medicine. (2/26/10
note by Kurt Simon, d/e 44-2, p. 24.) Simon’s note gives rise to an
inference that Simon had the power to recommend whether Plaintiff
needed the Ativan and Lexapro, even if Simon did not have the
power to write the prescriptions himself. In the absence of evidence
to the contrary, an inference also arises that Simon’s
recommendation was a necessary step for Plaintiff to obtain his
medications.
According to Plaintiff, Captain Foster told Plaintiff that some
medicines were banned at the Jail, but whether Ativan and Lexapro
were on the banned list is not in the record. Captain Foster does
not explain what procedure Plaintiff needed to follow to obtain
approval for the prescriptions. Foster also does not explain what
control he had over whether Plaintiff received his prescriptions.
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As discussed above, an inference arises that Plaintiff had a
serious need for treatment for his anxiety. However, not enough
facts are in the record to determine whether a rational juror could
find that Kurt Simon or Captain Foster were deliberately indifferent
to that need. Though Plaintiff did not receive Ativan or Lexapro at
the Jail, he was prescribed, at least for part of his stay, a different
medicine sometimes used to treat anxiety: Vistaril. Plaintiff admits
that the Vistaril helped to reduce his panic attacks, though he
continued to experience anxiety and shortness of breath. When
Plaintiff transferred to the IDOC in March of 2010 he was
prescribed Flexeril, a muscle relaxant, not Ativan or Lexapro,
further evidence that Ativan and Lexapro were not the only effective
methods for treating Plaintiff’s anxiety.
However, no evidence in the record explains how Vistaril
compares with Lexapro and Ativan for purposes of treating anxiety
like Plaintiff’s. Whether Kurt Simon has the education and training
to give that explanation is unclear, and, in any event, Simon did not
prescribe the Lexapro. No affidavit from any medical professional
who treated Plaintiff is in the record. Without this information the
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Court cannot tell if prescribing Vistaril instead of Ativan and
Lexapro was a medically acceptable approach in Plaintiff’s case.
Additionally, whether Simon or Captain Foster had any control
over the medicines given to Plaintiff is unclear. Dr. Raymond or the
nurses may have had the sole authority to determine whether
Plaintiff should be prescribed Ativan and Lexapro. If so, then Kurt
Simon and Captain Foster were likely entitled to rely on the
treatment decisions of the medical professionals. Greeno v. Daley,
414 F.3d 645, 656 (7th Cir. 2005)(“‘If a prisoner is under the care of
medical experts... a nonmedical prison official will generally be
justified in believing that the prisoner is in capable hands.’”)(quoted
cite omitted). Dr. Raymond is not a defendant, nor is his affidavit in
the record.
In short, the Court does not have enough information to
determine whether a trial is necessary. Summary judgment will be
denied, and the parties will be given another opportunity to file
dispositive motions.
On a separate matter, Defendants argue that Plaintiff did not
exhaust his administrative remedies. However, Plaintiff filed an
“inmate request and grievance form” on February 24, 2010, asking
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for his medication and recounting his attempts to obtain that
medication. (2/24/10 inmate grievance form, d/e 51, p. 8.)
Plaintiff filled out another “inmate request and grievance form” on
March 2, 2010 about the same issue. Defendants do not explain
what further steps were available to Plaintiff regarding his
administrative remedies.
Defendants also assert qualified immunity, but a more
developed record is necessary to make that determination.
IT IS THEREFORE ORDERED:
1.
Defendants’ motions for summary judgment are denied
(d/e’s 44, 45).
2.
The parties may file additional dispositive motions by March
15, 2013.
3.
The final pretrial conference is rescheduled to August 26,
2013 at 1:30 p.m.. Plaintiff shall appear by video
conference. Defense counsel shall appear in person. The
parties are directed to submit an agreed, proposed final
pretrial order at least seven days before the final pretrial
conference. Defendant bears the responsibility of preparing
the proposed final pretrial order and mailing the proposed
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order to Plaintiff to allow Plaintiff sufficient time to review
the order before the final pretrial conference. See CD-IL
Local Rule 16.3.
4.
The clerk is directed to issue a video writ to secure
Plaintiff's appearance at the final pretrial conference.
5.
The proposed final pretrial order must include the names of
all witnesses to be called at the trial and must indicate
whether the witness will appear in person or by video
conference. Nonparty witnesses who are incarcerated will
testify by video. Other nonparty witnesses may appear by
video at the Court's discretion. The proposed pretrial order
must also include the names and addresses of any
witnesses for whom trial subpoenas are sought. The parties
are responsible for timely obtaining and serving any
necessary subpoenas, as well as providing the necessary
witness and mileage fees. Fed. R. Civ. P. 45.
6.
The exhibit section of the proposed final pretrial order must
list by number all the exhibits a party may seek to
introduce at the trial and give a short description of the
exhibit. (For example, “Plaintiff’s Ex. 1: 11/10/12 health
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care request”). The parties must prepare their own exhibits
for introduction at the trial, marking the exhibits with the
same number that is on the list submitted to the Court.
Exhibits that are introduced at trial will be kept in the
Court record. Therefore, the party offering the exhibit is
responsible for making a copy of the exhibit to keep for the
party’s own records. Additionally, the parties are directed
to exchange copies of their marked exhibits at least ten
days before the final pretrial conference. If a party intends
to object to the introduction of a proposed exhibit, that
party must provide the Court a copy of the exhibit and an
explanation of the grounds for objection at least five
business days before the final pretrial conference.
Objections will be argued orally at the final pretrial
conference.
7.
The Court will circulate proposed jury instructions, a
statement of the case, and proposed voir dire questions
prior to the final pretrial conference, for discussion at the
final pretrial conference. Proposed additional/alternate
instructions and voir dire questions must be filed five
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business days before the final pretrial conference. The jury
instructions, statement of the case, and voir dire questions
will be finalized at the final pretrial conference, to the extent
possible.
8.
The parties must prepare their own exhibits for introduction
at the trial, marking the exhibits with the same number
that is on that party’s exhibit list in the final pretrial order.
Exhibits that are introduced at trial will be kept in the
Court record. The party offering the exhibit is responsible
for making a copy of the exhibit to keep for the party’s own
records. Additionally, the parties are directed to exchange
copies of their marked exhibits at least ten days before the
final pretrial conference. If a party intends to object to the
introduction of a proposed exhibit, that party must provide
the Court a copy of the exhibit and an explanation of the
grounds for objection at least five business days before the
final pretrial conference. Objections will be argued orally at
the final pretrial conference.
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9.
Motions in limine are to be filed at least five business days
before the final pretrial conference, to be argued orally at
the final pretrial conference.
10.
The date for the jury selection and the jury trial will be
determined at the final pretrial conference. In light of the
Court’s busy trial calendar, the parties are reminded that
they may consent to a trial before Magistrate Judge
Cudmore. 28 U.S.C. § 636(c)(1)(parties may consent to full
time Magistrate Judge conducting “any or all proceedings in
a jury or nonjury civil matter). Consent is completely
voluntary: the parties are “free to withhold consent without
adverse substantive consequences.” 28 U.S.C. § 636(c)(3).
11.
After the final pretrial order is entered and the trial date is
set, the Clerk is directed to issue the appropriate process to
secure the personal appearance of Plaintiff at the trial and
the video appearances of the video witnesses at the trial.
ENTER: February 4, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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