Mulder v. Lochard et al

Filing 62

SUMMARY JUDGMENT OPINION (See Written Opinion): Defendants' Motions for Summary Judgment are GRANTED 47 56 . The clerk of the court is directed to enter judgment in favor of the Defendants and against Plaintiff. All pending motions are denie d as moot, and this case is terminated, with the parties to bear their own costs. 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 motio n for leave to appeal in forma pauperis MUST identify the issues the Plaintiff will present on appeal to assist the court in determining whether the appeal is taken in good faith. See Fed. R. App. P. 24(a)(1)(c); see also Celske v Edwards, 164 F.3d 3 96, 398 (7th Cir. 1999)(an appellant should be given an opportunity to submit a statement of his grounds for appealing so that the district judge "can make a reasonable assessment of the issue of good faith."); Walker v O'Brien, 216 F.3d 626, 632 (7th Cir. 2000)(providing that a good faith appeal is an appeal that "a reasonable person could supposehas some merit" from a legal perspective). If Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee regardless of the outcome of the appeal. Entered by Judge Sue E. Myerscough on 8/05/2015. (VM, ilcd)

E-FILED

Wednesday, 05 August, 2015 09:24:22 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL G. MULDER,

)
)
Plaintiff,
)
)
v.
)
)
MATTHEW CLARK, et al.
)
)
Defendants. )

13-3324

SUMMARY JUDGMENT OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, proceeding pro se and civilly committed at Rushville
Treatment and Detention Facility, brought the present lawsuit
pursuant to 42 U.S.C. § 1983 alleging a Fourteenth Amendment
claim for deliberate indifference to a serious medical need. The
matter comes before the Court for ruling on the remaining
defendants’ respective motions for summary judgment (Docs. 47,
56). The motions are granted.
LEGAL STANDARD
Summary judgment should be granted “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.
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56(a). All facts must be construed in the light most favorable to the
non-moving party, and all reasonable inferences must be drawn in
his favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
The party moving for summary judgment must show the lack of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). In order to be a “genuine” issue, there must be
more than “some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). “Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry
of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
FACTS
On August 8, 2013, Plaintiff was struck in the face by a
basketball on two occasions. Several times over the next 3-4 days,
Defendant Lostutter, a nurse at the TDF, and other nurses,
provided Plaintiff with Motrin 800, a non-steroidal, antiinflammatory drug, to relieve the pain and swelling in the affected
area. According to Defendant Lostutter, she did not observe any
signs during those interactions that Plaintiff needed emergency
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care. Presumably, neither did the other nurses, as at no time was
Plaintiff treated on an emergency basis during that period. Plaintiff
later admitted in his deposition that his condition was not lifethreatening. Pl. Dep. 57:1-2. As treatment goes, Defendant
Lostutter provided the maximum dosage of pain medication to the
Plaintiff that she was authorized to dispense and submitted
Plaintiff’s written requests for medical care to the healthcare unit.
On August 12, 2013, Dr. Lochard, a physician at Rushville,
examined Plaintiff. Dr. Lochard prescribed Plaintiff a stronger pain
medication and told him to refrain from playing sports. (Doc. 43-11
at 22-23). The next morning, at approximately 5:30 a.m., Plaintiff
states that he awoke to excruciating pain in his face, dizziness, and
blurred vision. The parties dispute whether Plaintiff spoke to
Defendant Kotansky, a Security Therapy Aide I (“STA”), that
morning, but, nonetheless, neither party disputes that Plaintiff’s
roommate contacted Defendant Kotansky regarding Plaintiff’s
condition within a short time after the symptoms arose. Defendant
Kotansky relayed the description of Plaintiff’s symptoms to the
healthcare unit, and nurses told him that Plaintiff’s symptoms were

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not life-threatening. Therefore, the nurses said Plaintiff could wait
until 8:00 a.m. to see a nurse.
A short time later, Plaintiff spoke to Defendant Clark, an STA.
According to the Plaintiff, Defendant Clark observed the swelling in
Plaintiff’s face. When Plaintiff requested emergency medical
treatment, Plaintiff alleges that Defendant Clark failed to request
emergency treatment, instead, choosing to make a joke about the
swelling in Plaintiff’s face. Pl. Dep. 63:3-8. Afterwards, Plaintiff
states that he sat on the floor until the next shift of STAs reported.
Plaintiff was taken to the healthcare unit at approximately
7:00 a.m., after another, non-defendant STA observed Plaintiff to be
slumped on the floor of his room. After a period of observation,
Plaintiff was prescribed more pain medication and antibiotics to
treat an abscess that had developed in his mouth. Within the oneto-two weeks, Plaintiff’s tooth was extracted, and the abscess
drained by a dentist. Following this procedure, Plaintiff no longer
experienced pain in his face.
ANALYSIS
As a civil detainee, Plaintiff’s claims arise under the Due
Process Clause of the Fourteenth Amendment, rather than the
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Eighth Amendment prohibition against cruel and unusual
punishment. Mayoral v. Sheahan, 245 F.2d 934, 938 (7th Cir.
2001). Despite this distinction, there exists “little practical
difference between the two standards.” Id. (quoting Weiss v. Cooley,
230 F.3d 1027, 1032 (7th Cir. 2000)). To succeed on constitutional
claim for inadequate medical care, the Plaintiff must show that the
prison official acted with deliberate indifference to a serious medical
need. Estelle v. Gamble, 429 U.S. 97, 105 (1976). Deliberate
indifference is more than negligence, but does not require the
plaintiff to show that the defendants intended to cause harm.
Mayoral, 245 F.3d at 938. Liability attaches under the Eighth
Amendment when “the official knows of and disregards an excessive
risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Plaintiff suffered an injury that, while not life-threatening,
caused severe pain and required the ongoing administration of
medication to alleviate pain until the underlying condition could be
treated. When coupled with the resulting dental procedure Plaintiff
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required, this is enough to show that Plaintiff suffered from an
objectively serious medical need for purposes of the Eighth and
Fourteenth Amendments. E.g. King v. Kramer, 680 F.3d 1013,
1018 (7th Cir. 2012) (“An objectively serious 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.” (internal quotations omitted)).
Next, Plaintiff must show that the remaining defendants were
deliberately indifferent to this medical need. Plaintiff does not
argue he was wholly denied medical care, only that he should have
been provided with emergency, or at least more expedient, care.
While agreeing that Defendant Lostutter did everything she was
authorized to do in the time between when Plaintiff sustained the
injury and Dr. Lochard’s examination, Plaintiff argues that
Defendant Lostutter was deliberately indifferent because she failed
to declare Plaintiff’s condition an emergency or contact a physician
to get Plaintiff stronger pain medication.
As a nurse, Defendant Lostutter’s decision not to do as
Plaintiff asserts was necessary is a matter of professional discretion
with which the courts will not interfere unless the evidence
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suggests that “‘no minimally competent professional would have so
responded under those circumstances.’” Sain v. Wood, 512 F.3d
886, 894-95 (7th Cir. 2008) (quoting Collignon v. Milwaukee Cnty.,
163 F.3d 982, 988 (7th Cir. 1998)). In other words, a medical
professional is deliberately indifferent only 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.” Id. (quoting same). There is no evidence in the
record to suggest that Defendant Lostutter deviated from accepted
medical practice. Plaintiff had been hit in the face with a
basketball, an injury not usually associated with serious injury,
although some pain and swelling could be expected as a result.
Moreover, Plaintiff was able to see Dr. Lochard a couple of days
after he sustained the injury. Plaintiff may have disagreed with the
treatment that Defendant Lostutter provided, but a mere
disagreement with the course of treatment, standing alone, is not
sufficient to attach constitutional liability. Snipes v. DeTella, 95
F.3d 586, 592 (7th Cir. 1996). Therefore, the Court finds that no

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reasonable juror could conclude that Defendant Lostutter was
deliberately indifferent.
Defendant Kotansky and Clark are not medical professionals;
they are both Security Therapy Aides at the TDF. In general,
nonmedical jail personnel are entitled to defer to the medical
judgments of the jail medical staff so long as the inmates
complaints are not ignored. Berry v. Peterman, 604 F.3d 435, 440
(7th Cir. 2010). On August 13, 2013, Plaintiff was under the care of
medical professionals at the jail and had been for several days. On
that morning, Plaintiff complained of pain, swelling, dizziness, and
blurred vision. Upon speaking with Plaintiff’s roommate, Defendant
Kotansky called the healthcare unit to determine whether
emergency care was needed. When a nurse in the healthcare unit
informed Defendant Kotansky that Plaintiff’s condition was not an
emergency and that Plaintiff could wait a couple of hours for
treatment, Defendant Kotansky was entitled to rely upon that
determination.
Defendant Clark’s decision to joke about the matter is not
commendable; however, there is no evidence in the record that
Defendant Clark observed conditions that warranted emergency
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medical treatment at the time he spoke to Plaintiff. Plaintiff was
conscious and coherent, albeit in pain; and, by Plaintiff’s own
deposition testimony, he did not sit on the floor until after the
conversation. Pl. Dep. 63:9-20. While “delay in treating a condition
that is painful even if not life-threatening may well constitute
deliberate indifference,” Gonzalez v. Feinerman, 663 F.3d 311, 315
(7th Cir. 2011), at worst, Plaintiff would have had to wait
approximately two-and-one-half hours before seeing a medical
professional for his condition on that day. According to the medical
records, the time from injury to dental procedure appears to be 17
days. (Doc. 43-11 at 22-24). Under any circumstances, the Court
cannot say that this constituted a significant delay that would
implicate constitutional concerns. Therefore, the Court finds that
no reasonable juror could find that Defendants Kotansky and Clark
were deliberately indifferent.
IT IS THEREFORE ORDERED:
1) Defendants’ Motions for Summary Judgment are GRANTED
[47][56]. The clerk of the court is directed to enter judgment
in favor of the Defendants and against Plaintiff. All pending
motions are denied as moot, and this case is terminated,
with the parties to bear their own costs.

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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 MUST identify the issues
the Plaintiff will present on appeal to assist the court in
determining whether the appeal is taken in good faith. See
Fed. R. App. P. 24(a)(1)(c); see also Celske v Edwards, 164
F.3d 396, 398 (7th Cir. 1999)(an appellant should be given
an opportunity to submit a statement of his grounds for
appealing so that the district judge “can make a
reasonable assessment of the issue of good faith.”); Walker
v O’Brien, 216 F.3d 626, 632 (7th Cir. 2000)(providing that
a good faith appeal is an appeal that “a reasonable person
could suppose…has some merit” from a legal perspective).
If Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee regardless of the outcome of
the appeal.
ENTERED:

August 5, 2015

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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