Bentz v. Fischer et al
Filing
196
OPINION: A final pretrial conference is scheduled for July 28, 2014 at 9:30 a.m. Plaintiff shall appear by video conference. Defense counsel shall appear in person. The trial date will be chosen at the final pretrial conference. The jury selection and trial are scheduled for August 26, 2014, at 9:00 a.m. The clerk is directed to terminate Defendants Fischer, Downs, Harmon, Frankel, Hathaway, Graham, Schrage, Doellman, Boden, Wietholder, Venvertloh, Coleman, Wardlow, Trautvetter, Bodiford, Yates, Curran, Dement, and Franklin. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 3/21/2014. (Attachments: # 1 Rule 11) (MJ, ilcd)
E-FILED
Friday, 21 March, 2014 03:14:21 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DAVID ROBERT BENTZ,
Plaintiff,
v.
BRENT FISCHER, et al.,
Defendants.
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11-CV-3403
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff, incarcerated in the Illinois Department of
Corrections, pursues claims for deliberate indifference to his
serious medical needs regarding a fracture to his right hand. He
sued more than 37 Defendants, nine of whom were dismissed for
failure to state a claim against them. Twenty-eight Defendants
remain, all of whom have moved for summary judgment. Plaintiff
also moves for summary judgment.
The Court concludes that Plaintiff has not presented enough
evidence for a reasonable jury to find for Plaintiff and against 19 of
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the 28 remaining Defendants. A trial will be set on the claims
against the remaining nine Defendants.
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
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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.
FACTS
The Court sets forth these facts for purposes of this order only.
Plaintiff did not file responses to Defendants’ motions for summary
judgment. However, Plaintiff did file his own motions for summary
judgment, which already set forth Plaintiff’s version of events.
Plaintiff was detained in the Adams County Jail beginning in
October 2008. On October 1, 2009, a jury found Plaintiff guilty on
of multiple counts of aggravated arson and murder. (10/1/09
Order, 184-2, p. 66.)
On October 31, 2009, while still incarcerated in the Adams
County Jail, Plaintiff injured his right hand. Plaintiff maintains
that Defendant Scott Smith, an officer at the jail, struck Plaintiff's
hand through the cell bars with some sort of wand or baton that is
routinely carried by the officers during their rounds. Plaintiff
testified in his deposition that he was sleeping at the time, his
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hands over his head and partly resting on the bars of the cell. (Pl.'s
Dep. pp. 11-15.) According to Plaintiff, Officer Smith reached
through the bars and struck Plaintiff’s right hand for no reason. Id.
However, Defendants have evidence that Plaintiff injured his
hand himself by striking a wall. (Medical request form, 184-2, p. 8;
10/31/09 occurrence report, d/e 184-2, p. 71.) Defendant Officer
Robbins occurrence report from October 31, 2009 states in part:
On the above date and time I was walking past Section 2
Cell 3 conducting a security check. Inmate Bentz asked,
"John can I talk with you" adding “I need my hand set, I
think I broke it." I stopped and Bentz stuck his right
hand through the bars. Bentz's hand was swollen from
the right side of the ring finger back to almost the top of
the wrist. I asked Bentz how this happened and he
replied, "I hit the wall." I asked Bentz why he hit the wall
and he replied, "Because I was mad when I got up this
morning." Bentz was given a bag of ice and a medical
request form.
Similarly, Defendant Nurse Loos' 11/3/09 response to
Plaintiff's request for medical care states:
Rt hand swollen-3rd and 4th fingers swollen noted some
discoloration. State[s] hit hand on metal in cell. . . .
Plaintiff denies telling Officer Robbins that Plaintiff injured his own
hand. (Pl.'s Dep. pp. 18-19.) An inference arises from the record
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that Plaintiff did not tell anyone that Officer Smith had struck
Plaintiff’s hand until after Plaintiff was transferred from the jail to
the Illinois Department of Corrections.
Plaintiff submitted a medical request form the day of the
injury and another on November 3, 2014. Plaintiff’s November 3rd
medical request stated:
This is the 2nd god damn mother fucking Request form I
have put in for my mother fucking Broken hand and
this is the 3rd day the [illegible] COUNTY JAIL has
Refused me medical attention!
(Medical request form, d/e 184-2, p. 8.) That day, November 3,
2009, Defendant Loos, a licensed practical nurse, saw Plaintiff and
noted that his third and fourth fingers were swollen, with the
fingers mobile except for adduction and abduction. She advised
Plaintiff to apply ice.
On November 6, 2009, when Plaintiff reported continued
swelling and only minimal improvement, Defendant Loos consulted
Defendant Nancy Ogle, a certified nurse practitioner. During the
relevant time period, Defendant Ogle was employed by Primary Care
Physicians. Her duties included coordinating medical care for the
Adams County Jail inmates. (Ogle Aff. para. 2.) Defendant Ogle,
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over the phone, ordered Tylenol and Ibuprofen for Plaintiff and
ordered x-rays of Plaintiff's right hand and wrist. Defendant Ogle
also directed Plaintiff to keep his hand elevated and to apply ice.
(11/6/09 physician's telephone order; nurse notes 11/3/0911/12/09, medication log, d/e 184-2, pp. 4-5, 7; Ogle Aff. para. 4).
On November 6, 2009, Plaintiff received an x-ray of his right
wrist which showed "a distracted, overlapped fracture of the fifth
metacarpal shaft.1 No fracture or dislocation is seen involving the
wrist. The bone mineralization is good. The joint spaces are well
maintained." The impression was a fifth metacarpal shaft fracture.
Pursuant to Nurse Practitioner Ogle’s authorization, on
November 16, 2009, Plaintiff was taken to see Steven Dement, a
physician’s assistant in the Orthopedics Department of the Quincy
Medical Group. Defendant Dement reviewed the x-rays, radiologist
report, and also performed a physical exam of Plaintiff’s hand.
Dement diagnosed Plaintiff with a right fifth metacarpal fracture
with acceptable alignment. According to Dement, the standard
treatment approach in cases like Plaintiff's is to immobilize the
According to Merriam-Webster’s online medical dictionary, “distraction” in the context of
factures means “excessive separation (as from improper traction) of fracture fragments.”
MedlinePlus Medical Dictionary, a service of the U.S. National Library of Medicine, National
Institutes of Health, www.nlm.nih.gov (last visited March 10, 2014).
1
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hand with a splint to prevent the fracture from becoming displaced.
Dement avers that further diagnostic tests were not indicated
unless symptoms persist for more than three months. Dement
prescribed Plaintiff a splint which Plaintiff was to wear all the time,
except for situations where there was no risk of bumping Plaintiff's
hand. In Dement’s opinion, Plaintiff’s fracture was in stable
condition and was expected to heal properly without further
intervention. Dement also prescribed over the counter pain
medicine as needed. (Dement Aff. paras. 16-22.) Plaintiff testified
that he tried to wear the splint as much as possible and does not
recall if he bumped his hand at any point after receiving the splint.
(Pl.’s Dep. p. 22.) Dement also scheduled a follow-up appointment
on November 30, 2009, which Plaintiff did not receive. Plaintiff filed
no additional medical requests for care at the jail after his
November 16th visit with Defendant Dement.
Plaintiff testified in his deposition that he received pain
medicine only two or three times at the Adams County Jail, despite
the pain prescriptions. (Pl.'s Dep. pp. 20-21.) He testified in his
deposition that he never refused any pain medicine offered to him
at the jail. (Pl.’s Dep. pp. 59-60.) However, Defendants offer
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affidavits that Plaintiff repeatedly refused pain medicine, attaching
the inmate refusal forms corroborating those refusals on November
7, 8, 9, 10, 12, 13, 2009. (Inmate Refusal Forms, d/e 184-2, p. 1623). One inmate refusal form dated 11-9-09 signed by Defendant
Officer Curran states "David Bentz refused his meds and told me
not to bother bringing him any more." Plaintiff stated in his
deposition that the inmate refusal forms were fabricated. (Pl.’s Dep.
pp. 60.)2
Plaintiff does not mention the inmate refusal forms in his
motions for summary judgment. Instead, Plaintiff asserts that his
requests for pain medicine were ignored because Defendants
insisted that he pay for the medicine. (Pl.’s Response p. 5, d/e
168)("Plaintiff's prescription and numerous request[s] for pain
treatment was ignored by the Defendants' stating to Plaintiff he had
to pay for it.") Requiring an inmate to pay for medical care or
treatment, if the inmate has funds available, is not
unconstitutional. See Poole v. Isaacs, 703 F.3d 1024, 1026 (7th Cir.
2 Q: So all of these officers, one, two, three, four, five, six, seven, just made this [the inmate
refusal form] up? A: Yep. (Pl.’s Dep. pp. 60-61.) Plaintiff is advised that monetary sanctions
may be imposed on him after the trial if the Court finds that Plaintiff's action was so lacking in
factual merit that Plaintiff brought this action for purposes of harassment, knowing that his
allegations lacked evidentiary support. Fed. Rule Civ. P. 11(b). If sanctions are imposed,
Plaintiff may be required to post bond before proceeding in future civil cases before this Court.
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2012)("the Eighth Amendment does not compel prison
administrators to provide cost-free medical services to inmates who
are able to contribute to the cost of their care.")
On December 3, 2009, Plaintiff was sentenced to life without
parole. (12/3/09 Adams County Judgment, 184-2.) On December
10, 2014, Plaintiff was transferred to Graham Correctional Center.
Plaintiff contends that his splint was confiscated by officers on
Plaintiff’s arrival at Graham Correctional Center. The intake notes
state that Plaintiff denied any pain, trauma, or injury and do not
mention the splint. (IDOC Recs. p. 3.) Plaintiff contends that he
saw Defendant Igor Podebryi, a physician’s assistant, on December
11, 2009 and told Defendant Podebryi about his hand fracture,
confiscated splint, and hand pain. (Pl.’s Mot. Sum. J., d/e 179, p.
8.) Defendant Podebryi does not recollect Plaintiff mentioning
anything about a hand fracture. Podebryi avers that he would have
noted the reported hand fracture in Plaintiff’s record if Plaintiff had
made that complaint. (Podebryi's Aff. ¶ 6.) Defendant Podebryi
avers that he conducted a physical examination of Plaintiff on
December 16, 2014, which was normal. (IDOC Recs. p. 4.) Plaintiff
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asserts that he submitted several medical request slips in December
about his hand and filed a grievance, to no avail.
On January 4, 2010, Defendant Dr. Kayira saw Plaintiff. Dr.
Kayira's notes reflect that Plaintiff could move his fingers well but
that he had a possible finger fracture. (1/4/10 progress note, d/e
179-2.) Plaintiff contends that Dr. Kayira told Plaintiff that he
needed to see a bone specialist; Dr. Kayira denies saying this. Dr.
Kayira ordered an x-ray. The x-ray report was received on January
12, 2010 and showed "a comminuted3 fracture at the proximal end
of the fifth metacarpal with overlap of the fracture fragments."
(1/12/10 x-ray report, d/e 184-11, p. 13.) The impression was a
"partially healed subacute fracture of the fifth metacarpal." (IDOC
recs p. 69.) Dr. Kayira avers, and Plaintiff does not dispute, that
Dr. Kayira had no opportunity to see or evaluate Plaintiff after
Plaintiff's x-ray. (Dr. Kayira's Aff. ¶ 13.) Plaintiff was transferred
from Graham Correctional Center to Stateville Correctional Center
on January 6, 2010, two days after Plaintiff’s exam by Dr. Kayira.
However, Plaintiff faults Dr. Kayira for not prescribing pain
The term comminuted describes “a fracture in which the bone is splintered or crushed into
numerous pieces.” MedlinePlus Medical Dictionary, a service of the U.S. National Library of
Medicine, National Institutes of Health, www.nlm.nih.gov (last visited March 10, 2014).
3
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medicine and not referring Plaintiff to a specialist. Dr. Kayira avers
that Plaintiff did not exhibit or express discomfort to the extent that
pain medicine was needed. (Id. para. 12.)
On January 6, 2010, Plaintiff was transferred from Graham
Correctional Center to Stateville Correctional Center. Plaintiff
contends that he repeatedly submitted medical requests and
grievances about his hand throughout his stay at Stateville, which
lasted about one and one-half years, until July 27, 2011.
Defendant Williams, a physician's assistant at Stateville
Correctional Center, was scheduled to see Plaintiff for his hand
complaints on February 25 or 26, 2010, but the appointment was
rescheduled to March 5, 2010, for lack of staff. (2/26/10 progress
notes, 179-2, p. 13.) Defendant Williams arranged to have the xrays from Graham Correctional Center faxed over and also ordered
additional x-rays.
Plaintiff saw Dr. Zhang Liping (not a Defendant) on March 5,
2010, but the x-rays had not yet been done. (3/5/10 progress note,
179-2, p. 13.) Dr. Zhang prescribed a fifteen day supply of
Ibuprofen.
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The x-rays ordered by Defendant Williams, like the other xrays, again showed a fracture of Plaintiff's fifth metacarpal—“a
displaced fracture in the shaft of his fifth metacarpal with apparent
early callus.”4 (Williams Aff. para. 6.) However, on May 14, 2010,
Defendant Williams wrote in the medical records that Plaintiff had a
well-healed fracture. (5/4/10 progress note, 179-2, p. 14.)
Defendant Williams prescribed ibuprofen and referred Plaintiff to
Defendant Ghosh, a prison doctor, for a second opinion. (5/14/10
progress note, 179-2, p. 14.) According to Plaintiff, Williams said
during this visit that Plaintiff’s fracture had healed incorrectly but
that surgery would not be performed because of Plaintiff’s life
sentence. (Pl.’s Dep. pp. 53-54.) Defendant Williams denies saying
this and denies making any treatment decisions based on Plaintiff’s
sentence. (Williams Aff. para. 8.)
Defendants have evidence that, following the May 14th visit
with Defendant Williams, Plaintiff did not show or refused to wait
for two scheduled appointments with Defendant Dr. Ghosh in June
2010. Plaintiff counters that officers refused to take him or that he
4According
to dictionary cited in footnote 1, callus in this context would be “a mass of exudate
and connective tissue that forms around a break in a bone and is converted into bone in the
healing of the break.” Exudate is “the material composed of serum, fibrin, and white blood
cells that escapes from blood vessels into a superficial lesion or area of inflammation.”
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could not wait the many hours required because of his painful
shackles. Plaintiff also contends that Dr. Ghosh refused to address
Plaintiff’s hand complaints when Plaintiff did see Dr. Ghosh on
September 3, 2010.
Dr. Ghosh saw Plaintiff on October 28, 2010 and observed
that Plaintiff could not oppose his right ring finger to his right
thumb. Dr. Ghosh ordered an MRI to determine whether a surgical
consult was necessary. (Ghosh Aff. para. 15.) The MRI, conducted
on December 30, 2010 found:
FINDINGS:
*
*
*
Mild deformity and trabecular thickening of the fifth
metacarpal shaft is seen, with mild bone marrow edema.
There is irregularity at the junction of the fourth and fifth
metacarpal bases, with prominent boney excrescence.
There is no significant soft tissue edema. The visualized
flexor and extensor tendons are intact. No significant
joint effusion is identified. There is no evidence of
dislocation.
IMPRESSION:
1. Irregularity with mild bone marrow edema of the fifth
metacarpal shaft suggests acute on chronic injury.
2. Irregularity at the junction of the fourth and fifth
metacarpal bases with boney excrescence may be related
to prior injury and pseudoarthrosis.
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3. Correlation with radiographs is advised.
(MRI report, d/e 184-11, p. 16.)
According to Dr. Ghosh, Plaintiff did not show for his
January 21, 2011 appointment to discuss the MRI. Plaintiff
did see Dr. Ghosh on February 24, 2011, during Plaintiff’s
visit at the Hepatitis Clinic. Dr. Ghosh noted Plaintiff’s
inability to make a fist. According to Plaintiff, Dr. Ghosh told
Plaintiff that his hand was not broken and that he needed to
see a physical therapist for strengthening exercises. (Pl.’s Mot.
Sum. J. d/e 179, p. 6, para. 39.)
On March 22, 2011, Dr. Ghosh prescribed a medical
permit for Plaintiff for front cuffing, medical restraints, and a
double mattress. According to Plaintiff, Dr. Ghosh reversed
course on May 3, 2011, and told Plaintiff he needed to see a
hand specialist, not a physical therapist. (Pl.’s Mot. Sum. J.,
d/e 179, p. 6, para. 41; 5/3/11 grievance, d/e 179, p. 24.)
Plaintiff was transferred from Stateville Correctional Center to
Pontiac Correctional Center on July 27, 2011, where Plaintiff’s
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special cuffing and bed permits were revoked as part of the
intake policy.
Defendant Dr. Tilden saw Plaintiff at Pontiac Correctional
Center on August 28, 2011. In Dr. Tilden’s opinion, Plaintiff’s
hand fracture was old and sufficiently healed, with sufficient
range of motion and no swelling. Dr. Tilden concluded that
special restraints of front cuffing permits were not necessary.
(Tilden Aff. paras. 5-6.) Plaintiff was transferred from Pontiac
Correctional Center to Menard Correctional Center on October
28, 2011. Plaintiff’s care at Menard is not a part of this
lawsuit.
ANALYSIS
Deliberate indifference to an inmate's or a pretrial detainee’s
objectively serious medical need violates the Constitution. Gomez v.
Randle, 680 F.3d 859, 865 (7th Cir. 2012). An objectively serious
injury or medical need is "'one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor's
attention.'" Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001).
A condition can be considered serious if, without treatment, the
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plaintiff suffered “‘further significant injury or unnecessary and
wanton infliction of pain.’” Arnett v. Webster, 658 F.3d 742, 751
(7th Cir.2011)(quoted cite omitted). Deliberate indifference is not
negligence or even gross negligence. Chapman, 241 F.3d at 845
(citation omitted). Deliberate indifference is the conscious
disregard, in an intentional or "'essentially . . . criminal[ly] reckless
manner,'" of a subjectively known risk of substantial harm. McGee
v. Adams, 721 F.3d 474, 480 (7th Cir. 2013); Arnett v. Webster, 658
F.3d 742, 751 (7th Cir. 2011); Hayes v. Snyder, 546 F.3d 516, 522
(7th Cir. 2008). Deliberate indifference to "prolonged, unnecessary
pain" also violates the Eighth Amendment. Smith v. Knox County
Jail, 666 F.3d 1037, 1040 (7th Cir. 2012)(internal and quoted cites
omitted).
I. Adams County Defendants: Summary judgment is denied as
to Defendants Smith, Robbins, Loos, and Ogle. Summary
judgment is granted to the other Adams County Defendants.
Eighteen of the Adams County Defendants provide evidence
that they were never aware of Plaintiff's injury or symptoms—
Defendants Fischer, Downs, Smith, Harmon, Frankel, Hathaway,
Graham, Schrage, Doellman, Boden, Wietholder, Venvertloh,
Coleman, Wardlow, Trautvetter, Bodiford, Yates and Curran.
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Plaintiff does not offer evidence to dispute these averments.
Plaintiff's vague conclusory assertion that all the Defendants denied
him medical care and pain medicine is not enough for a reasonable
jury to find that these 18 Defendants personally knew that Plaintiff
had a serious, unmet medical need for medical treatment or pain
medicine, much less that they were deliberately indifferent to those
needs. Plaintiff does not dispute that he filed no medical requests
or other grievances about his alleged lack of prescribed pain
medicine. Plaintiff argues in his brief that the jail Defendants
ignored his requests for pain medicine because they would not give
it to him unless he paid. As discussed above, requiring Plaintiff to
pay what he could for the medicine did not violate his
Constitutional rights.
Plaintiff’s claim against Defendant Officer Scott Smith for
excessive force, assault, and battery survives summary judgment.
The jury has to decide whom to believe on this claim, not the Court.
A claim for deliberate indifference to Plaintiff's serious medical
needs also arises against Defendant Smith. If Defendant Smith did
break Plaintiff's hand or finger, a reasonable jury could find that
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Defendant Smith would have known that Plaintiff needed to be
taken for immediate medical care.
Also surviving summary judgment is Plaintiff’s claim for denial
or delay of medical care against Defendant Officer Robbins, Nurse
Loos, and Nurse Practitioner Ogle. Officer Robbins arguably knew
Plaintiff had broken his hand because Officer Robbins saw
Plaintiff’s hand on the day of the injury and told Plaintiff to submit
a health care request. Plaintiff did submit a request that day but
did not see Nurse Loos until three days later. Officer Robbins may
not have had anything to do with this delay, but the reason for the
delay is not in the record. See, e.g., Grieveson v. Anderson, 538
F.3d 763, 779 (7th Cir.2008)(one and one-half day delay, broken
nose). Similarly, Defendant Loos does not explain the reason for
the delay in her seeing Plaintiff or for the delay in contacting
Defendant Ogle.
An inference of deliberate indifference cannot be ruled out
against Defendant Ogle. Defendant Ogle ordered pain relief and xrays the day she learned of the injury, but she did not personally
examine Plaintiff, even though she was in charge of coordinating
care at the jail. Further, the x-rays done on November 6 showed a
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fracture, but Plaintiff was not taken to the orthopedic physician’s
assistant until ten days later. That delay is also not explained.
And, no explanation was given regarding why Plaintiff was not
taken to his follow-up appointment even though the appointment
had been scheduled by Defendant Dement.
II. IDOC Defendants: Summary Judgment is denied to the
remaining IDOC Defendants—Igor Podebryi, Parthasarath
Ghosh, Latanya Williams, Francis Kayira, and Andrew Tilden.
The Court cannot rule out a reasonable inference of deliberate
indifference to a serious medical need against the Defendants who
treated Plaintiff at Graham, Stateville, and Pontiac Correctional
Centers. Looking at the case in the light most favorable to Plaintiff,
Plaintiff had a serious medical need for his splint, but his splint was
confiscated at Graham Correctional Center. Plaintiff avers that he
told Defendant Podebryi about his fracture, pain, and splint, and
that Defendant Podebryi disregarded the complaints, not even
recording the complaints in the medical records. Defendant
Podebryi denies this, but the denial only demonstrates a dispute for
the jury to decide.
Defendant Kayira's interaction with Plaintiff was very limited.
Plaintiff was transferred out of Graham Correctional Center just two
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days after Dr. Kayira saw Plaintiff and ordered x-rays. However, the
Court cannot rule out a reasonable inference the Dr. Kayira was
aware that Plaintiff's hand was not healing properly. Whether Dr.
Kayira would have had any authority to advise the treating
professionals at Stateville of Plaintiff's problem is not in the record.
Additionally, Plaintiff avers that Dr. Kayira refused to prescribe any
pain medicine.
The longest denial of treatment occurred while Plaintiff was in
the Stateville Correctional Center—about one and one-half years. A
reasonable inference arises that Plaintiff's hand was still fractured
and eventually healed incorrectly during that time period.
Defendants contend that Plaintiff voluntarily failed to appear for
scheduled appointments, but that is a disputed fact. A reasonable
inference arises that the Defendants at Stateville Correctional
Center failed to take any action though they knew Plaintiff's hand
was still fractured.
Lastly, Dr. Tilden at Pontiac Correctional Center also failed to
take any necessary action or prescribe pain medicine if Plaintiff's
version is believed. Dr. Tilden also revoked Plaintiff's special
permits. A reasonable jury concluding that Plaintiff's hand had
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healed improperly might also reasonably conclude that these
actions amounted to turning a blind eye to the problem.
In short, the Court's inquiry at the summary judgment stage is
limited. The case can be taken from the jury only if no reasonable
jury could find for Plaintiff. Accepting Plaintiff's version as true, his
pleas for adequate treatment for his broken hand were ignored.
Though diagnostic tests were performed, x-rays and an MRI, no
action was taken in response to the findings of those tests.
IT IS ORDERED:
1) The motion for summary judgment by the Adams County
Defendants is granted in part and denied in part (d/e 192). The
motion is granted as to Defendants Fischer, Downs, Smith,
Harmon, Frankel, Hathaway, Graham, Schrage, Doellman, Boden,
Wietholder, Venvertloh, Coleman, Wardlow, Trautvetter, Bodiford,
Yates and Curran. The motion is denied as to Defendants Smith,
Robbins, Loos, and Ogle.
2) The motion for summary judgment by Defendants Ghosh,
Kayira, Podebryi, Tilden, and Williams is denied (d/e 184).
3) The motion for summary judgment by Defendant Colleen
Franklin is granted (d/e 190). Plaintiff has not responded to
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Franklin's evidence which shows that her only involvement was
denying Plaintiff's grievances. Denial of grievances is not a
constitutional violation. See Antonelli v. Sheahan, 81 F.3d 1422,
1430 (7th Cir. 1996)(“a state’s inmate grievance procedures do not
give rise to a liberty interest protected by the Due Process Clause.”).
Further, Franklin was entitled to rely on the professional judgment
of the treating doctors. 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).
4) The motion for summary judgment by Defendant Dement is
granted (d/e 189). Plaintiff has filed no response, and Defendant
Dement's evidence shows no basis for liability against Dement
under 42 U.S.C. § 1983 because Dement is not a state actor.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 827 (7th
Cir. 2009). Defendant Dement is a physician's assistant privately
employed by Quincy Medical Group. Quincy Medical Group has no
contractual arrangement with the Adams County Jail. (Affidavit of
Tammy Anderson, 189-3.)
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5) Plaintiff's motions for summary judgment are denied (d/e's
168, 179).
6) Plaintiff's disciplinary history in the Adams County Jail and
life sentence weigh in favor of having Plaintiff appear for the final
pretrial conference and trial by video conference. (Adams County
Jail incident reports, Ex. B to IDOC Defs.’ Motion for Sum. J.).
7) A final pretrial conference is scheduled for July 28, 2014
at 9:30 a.m. Plaintiff shall appear by video conference. Defense
counsel shall appear in person. The trial date will be chosen at the
final pretrial conference.
8) An agreed, proposed final pretrial order is due July
14, 2014.
9) Motions in limine are due July 14, 2014, with
responses thereto due July 21, 2014.
10) The Court will send out proposed jury instructions
and voir dire for discussion at the final pretrial conference.
Additional or alternate instructions and additional voir dire
questions are due July 21, 2014.
11) Plaintiff and Defense counsel must bring their
exhibits, marked, to the final pretrial conference. Objections
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to exhibits are due July 21, 2014. Objections must attach the
exhibit at issue.
12) The jury selection and trial are scheduled for August
26, 2014, at 9:00 a.m.
13) The clerk is directed to send Plaintiff a copy of
Federal Rule of Civil Procedure 11.
14) The clerk is directed to terminate Defendants Fischer,
Downs, Harmon, Frankel, Hathaway, Graham, Schrage,
Doellman, Boden, Wietholder, Venvertloh, Coleman, Wardlow,
Trautvetter, Bodiford, Yates, Curran, Dement, and Franklin.
15) The clerk is directed to issue a video writ to
secure Plaintiff's presence at the final pretrial conference.
ENTER: March 21, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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